Williamson v. Pavlovich

• Decision Date: 30 August 1989
• Docket Number: No. 88-834,88-834
• Citation: 45 Ohio St.3d 179,543 N.E.2d 1242
• Parties: WILLIAMSON, a Minor, et al., Appellees, v. PAVLOVICH et al.; City of Cleveland, Appellant.
• Court: Ohio Supreme Court

Page 179

45 Ohio St.3d 179

543 N.E.2d 1242

WILLIAMSON, a Minor, et al., Appellees, v. PAVLOVICH et al.; City of Cleveland, Appellant.

No. 88-834.

Supreme Court of Ohio.

Submitted April 25, 1989.

Decided Aug. 30, 1989.

Syllabus by the Court

1. Pursuant to R.C. 723.01, illegally parked cars located on the side of a highway, which contribute generally to traffic congestion, do not constitute a nuisance giving rise to municipal liability.

2. The decision to install or forgo installation of traffic signs involves a high degree of official discretion. (Winwood v. Dayton [1988], 37 Ohio St.3d 282, 525 N.E.2d 808, followed.)

3. The decision to enforce certain traffic ordinances regarding the parking of automobiles does not create a special duty in and of itself, and a municipality shall generally not be held liable for failing to enforce such ordinances. (Sawicki v. Ottawa Hills [1988], 37 Ohio St.3d 222, 525 N.E.2d 468, followed.)

This case arises out of an accident in which ten-year-old Michael Williamson was struck by an automobile driven by John R. Pavlovich in front of Scranton Elementary School.

Scranton Elementary School is located on the south side of Barber Avenue at the intersection of Scranton Road in Cleveland, Ohio. Barber Avenue is a two-lane road running east and west. The school buses that transport children to Scranton Elementary School park along the street on the south side of Barber Avenue in the mornings and afternoons. Often parents, transporting their children, park opposite the buses on the north side of Barber Avenue creating traffic congestion as Barber Avenue becomes essentially one lane while both cars and buses are parked along the street.

In 1982, the assistant principal of Scranton Elementary School notified the manager of Field Services for the Cleveland School Board's Division of Safety and Security of a traffic congestion problem on Barber Avenue. He, in turn, notified the commissioner of Traffic Engineering and Parking for the city of Cleveland. A staff member conducted an investigation and determined that "No Parking" signs should be installed on the north side of Barber Avenue. Consequently, such signs were installed.

On May 8, 1984, at approximately 3:00 p.m., school buses were parked in front of Scranton Elementary School and cars were parked opposite the buses despite the "No Parking" signs. During this period traffic on Barber Avenue was congested and moving slowly. John Pavlovich was traveling westbound on Barber Avenue, while avoiding the parked cars by driving in the center of the street.

At the same time, Michael Williamson was running westbound along the sidewalk between the school and the parked buses. Michael, attempting to cross Barber Avenue, ¹ came from behind a bus and was struck by the front left fender of Pavlovich's car. Michael sustained injuries to his leg.

Appellees, Michael Williamson and his mother, Darlene Stepp, filed suit against Pavlovich, his employer, and the appellant, city of Cleveland. Appellees alleged that the illegally parked cars created a bottleneck of traffic which constituted a nuisance proximately causing the accident. At the close of appellees' case, the trial court granted the city's motion for directed verdict. At the close of all the evidence, the jury found in favor of Pavlovich and his employer.

Appellees appealed the directed verdict and the court of appeals reversed and remanded, holding that "[r]easonable minds could find that recurring traffic congestion from cars parked on both sides of the street in front of this school was a nuisance," and that "jurors could properly find that the city failed to exercise reasonable care to eliminate this recurring problem."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Mark D. McGraw, for appellees.

Marilyn G. Zack, Director of Law, Nick Tomino and Franzetta D. Turner, Cleveland, for appellant.

Calfee, Halter & Griswold, John E. Gotherman and Stanley J. Dobrowski, Cleveland, urging reversal for amicus curiae, Ohio Municipal League.

HOLMES, Justice.

The central issue presented in this case is whether illegally parked cars along a highway, which contribute generally to traffic congestion, create a nuisance for which a municipality may be held liable. Also at issue is whether a municipality may be found liable for failing to install certain traffic signs, or failing to enforce existing ones. The appellees asserted below that a question of fact was presented regarding whether there was an actionable nuisance by the presence of parked cars located on Barber Avenue on or about May 8, 1984, and therefore, a directed verdict was improperly granted by the trial court. For the reasons that follow we find that the trial court properly entered a directed verdict in favor of the city and thus we reverse the court of appeals.

Appellees base their negligence action on the duty imposed upon municipal corporations pursuant to R.C. 723.01, ² which provides:

"Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance."

In order to adequately address the issues presented by R.C. 723.01, we will first discuss the municipality's responsibility to keep the highways "free from nuisance" and then its responsibility to "care [for], supervis[e], and control [the] public highways."

A nuisance has been generally recognized as something that is either obnoxious or offensive to others. See Cardington v. Fredericks (1889), 46 Ohio St. 442, 446, 21 N.E. 766, 767 (an obstruction to a highway caused by a state of disrepair is a nuisance). Originally, nuisances were only actionable for the interference with the use or enjoyment of a person's land and thus were labeled "private nuisances." Prosser & Keeton, Law of Torts (5 Ed.1984) 617, Section 86, citing Warren v. Webb (1808), 1 Taunt. 379, 127 Eng.Rep. 880. The earliest cases which were couched in terms of a public nuisance were encroachments upon the royal domain of the public highways. Apparently, there was a "superficial resemblance between the blocking of a private right-of-way and the blocking of a public highway to keep men contented with calling the latter a nuisance as well; and 'thus was born the public nuisance * * *.' " Prosser & Keeton, supra, at 617, citing Newark, The Boundaries of Nuisance (1949), 65 L.Q.Rev. 480, 482. As stated, the court of appeals held that illegally parked cars as presented in this case could legally be held to be a public nuisance of the type intended to be abated under R.C. 723.01. We must disagree.

This court held in Standard Fire Ins. Co. v. Fremont (1955), 164 Ohio St. 344, 58 O.O. 130, 131 N.E.2d 221, paragraph three of the syllabus:

"Section 3714, General Code (Section 723.01, Revised Code), providing that municipal corporations shall have special power to regulate the use of streets, and that the legislative authority of a municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the corporation, and shall cause them to be kept open, in repair, and free from nuisance, is in derogation of the common law and must be strictly construed; and the scope and application of such statutory provisions to streets or highways are limited to conditions affecting the actual physical structure of the streets or highways and to the physical obstructions or hindrances to travel thereon."

Similarly, in Gabris v. Blake (1967), 9 Ohio St.2d 71, 38 O.O.2d 199, 223 N.E.2d 597, paragraph three of the syllabus, this court decided:

"Section 723.01, Revised Code, requiring municipalities, inter alia, to keep their streets, highways and public grounds open, in repair and free from nuisance, embraces only those conditions affecting the actual physical conditions existing in or on highways, streets and public grounds themselves." See, also, Wooster v. Arbenz (1929), 116 Ohio St. 281, 156 N.E. 210.

The question which arises from Gabris, supra, and Standard Fire Ins. Co., supra, concerns what constitutes an "actual physical condition" affecting the highway streets and public grounds, which rises to the level of an actionable nuisance. The court has identified certain obstructions or impediments that are clearly nuisances under R.C. 723.01. Specifically, in Hunter v. Cleveland (1976), 46 Ohio St.2d 91, 75 O.O.2d 160, 346 N.E.2d 303, this court found that lanterns and barricades which were habitually removed, leaving excavations unguarded, caused a nuisance. See, also, Dickerhoof v. Canton (1983), 6 Ohio St.3d 128, 6 OBR 186, 451 N.E.2d 1193, paragraph two of the syllabus (pursuant to R.C. 723.01, a failure to keep the regularly traveled shoulder of a highway in repair was an actionable nuisance).

In other jurisdictions, items such as boulders, building materials, dirt piles or ridges, lumber piles, paving materials, pipes, rubbish, stepping blocks, and tree limbs projecting into the street at a low angle were all determined to be actionable obstructions for which a municipality would be liable. May v. Anaconda (1901), 26 Mont. 140, 66 P. 759 (boulders); Shafir v. Carroll (1925), 309 Mo. 458, 274 S.W. 755 (building materials placed on the street by a contractor); Streeter v. Marshalltown (1904), 123 Iowa 449, 99 N.W. 114 (dirt ridge sixteen inches high and four to five feet wide and placed in the center of a well-traveled highway); Ridge v. High Point (1918), 176 N.C. 421, 97 S.E. 369 (lumber pile in street in violation of ordinance); Louisville v. Tompkins (Ky.1909), 122 S.W. 174 (paving materials left on a street that were to...