OPINIONS OF THE SUPREME COURT OF OHIO
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Franks, Admr., et al., Appellants and Cross-Appellees, v.
Lopez, f.k.a. Munguia, Appellant and Cross-Appellee; Sandusky
Township Board of Trustees et al., Appellees and Cross-Appellants.
[Cite as Franks v. Lopez (1994), Ohio St.3d .]
Streets and highways -- Interpreting R.C. 2744.02(B)(3) to
determine when a political subdivision may be liable for
failing to keep its roadways "free from nuisance" --
Definition of "nuisance" as found in R.C. 2744.02(B)(3)
does not embrace design and construction defects or
failure to erect signage or guardrails.
(No. 92-1030 -- Submitted February 2, 1994 -- Decided May
25, 1994.)
Appeal and Cross-Appeal from the Court of Appeals for
Sandusky County, No. S-91-18.
This case concerns a one-vehicle accident on September 5,
1987, in which the driver, Rhonda Lopez, was injured and two of
her passengers were killed. The accident occurred at the
intersection of two rural township roads, when Lopez's car
failed to negotiate the curve, left the road and plunged into
the Sandusky River.
Separate wrongful death actions were brought by appellants
and cross-appellees Lisa Franks, administrator of the estate of
Leslie Acosta, and M. Carol Bryant, administrator of the estate
of Donna Hackworth, against, inter alia, (1) appellees and
cross-appellants Board of Commissioners of Sandusky County and
the county engineer (collectively referred to as the "county"),
(2) appellee and cross-appellant Sandusky Township Board of
Trustees ("township"), (3) appellee and cross-appellant Rhonda
Lopez, and (4) Adrian Zavala (Leslie Acosta's boyfriend, who
allegedly was pursuing Lopez). Lopez filed cross-claims
against the county and township for indemnification and for her
own injuries resulting from the accident. These cases were
consolidated in the trial court.
The claims against the political subdivisions focused on
their alleged failure to keep the roads "free from nuisance" in
contravention of R.C. 2744.02(B)(3). In addition, appellants
asserted the county had a statutory duty to install a guardrail
at the intersection.
The county and township moved for summary judgment. The
trial court granted summary judgment for the township on the
basis of sovereign immunity pursuant to R.C. Chapter 2744. In
addition, the court granted summary judgment for the county,
ruling that as the county had transferred the roads in question
to the township in 1970 it owed no duty in 1987, nor did any
duty derive from its past control of the roads. The court also
determined that R.C. 5591.36 did not require the county to
place a guardrail at the intersection.
Upon appeal, the court of appeals affirmed that part of
the trial court's judgment which held that the county and
township were immune from suit for the alleged defective design
and construction and lack of signage. However, the court
reversed part of the trial court's judgment, and held that
questions of fact remain as to whether the county should have
installed a guardrail pursuant to R.C. 5591.36 and whether the
township breached its duty to keep the roads "free from
nuisance" by failing to comply with the Ohio Manual of Uniform
Traffic Control Devices for Streets and Highways.
The cause is now before this court pursuant to the
allowance of motions and cross-motions to certify the record.
Edward Van Gunten & Co., L.P.A., Edward A. Van Gunten and
Phillip Browarsky, for appellants and cross-appellees Lisa
Franks and M. Carol Bryant.
Cooper, Straub, Walinski & Cramer, Co., L.P.A., and Thomas
J. Tucker, for appellant and cross-appellee Rhonda L. Lopez.
Ritter, Robinson, McCready & James and William S.
McCready, for appellee and cross-appellant Sandusky Township
Board of Trustees.
Marshall & Melhorn, James H. Irmen and Jessica R. Christy,
for appellees and cross-appellants Sandusky County Board of
Commissioners and Sandusky County Engineer.
Amer Cunningham Brennan Co., L.P.A., Richard T. Cunningham
and Thomas M. Saxer, urging reversal in part for amicus curiae,
Ohio Academy of Trial Lawyers.
John E. Gotherman, urging affirmance in part for amicus
curiae, Ohio Municipal League.
Francis E. Sweeney, Sr., J. Today we are again asked to
interpret R.C. 2744.02(B)(3) to determine when a political
subdivision may be liable for failing to keep its roadways
"free from nuisance." We are also asked to decide whether the
county could be liable for its alleged failure to install a
guardrail pursuant to R.C. 5591.36. For the reasons which
follow, we decline to expand our definition of the term
"nuisance" as found in R.C. 2744.02(B)(3) to embrace design and
construction defects or the failure to erect signage or
guardrails. However, we hold that questions of fact remain as
to whether the county had a statutory duty to install a
guardrail at the intersection. Accordingly, we affirm the
judgment of the court of appeals.
Appellants seek to impose liability upon the political
subdivisions for what they allege is a dangerous intersection.
Appellants believe that the intersection was defectively
designed, constructed, and maintained. The appellants assert
that the combination of the lack of a posted speed limit, lack
of lighting at night, lack of an adequate warning sign visible
at night, a sharp and sudden curve, uneven pavement, a
deficient cross slope, proximity to the river and the absence
of a guardrail made the curve deadly and created a nuisance.
The county and township respond that they are immune from
liability because of sovereign immunity. Specifically, they
argue they are immune under R.C. Chapter 2744 because their
actions and omissions with regard to these roads were
"governmental functions" as defined in R.C. 2744.01(C)(2)(e),
(j) and (l),1 and that the "discretion" defenses of R.C.
2744.03(A)(3) and R.C. 2744.03(A)(5) apply.
R.C. Chapter 2744, the Political Subdivision Tort
Liability Act, was enacted in response to the judicial
abolishment of the doctrine of sovereign immunity. R.C.
2744.02(A)(1) provides that a political subdivision is
generally not liable for damages for injury, death, or loss to
persons or property incurred in connection with the performance
of a governmental or proprietary function of the political
subdivision. R.C. 2744.02(B) lists several exceptions to the
general grant of sovereign immunity. The subsection relevant
here is R.C. 2744.02(B)(3), which provides that political
subdivisions are liable for injury caused "by their failure to
keep public roads, highways, [and] streets … within the
political subdivisions open, in repair, and free from nuisance
…."
However, the Act also enumerates defenses that can be
asserted to avoid liability. Pertinent to our discussion are
those defenses contained within R.C. 2744.03(A)(3) and (5).
R.C. 2744.03(A)(3) provides immunity to a political
subdivision where the act or failure to act by an employee was
within the discretion of the employee as to "policy-making,
planning, or enforcement powers by virtue of the duties and
responsibilities of the office or position of the employee."
R.C. 2744.03(A)(5) provides that a political subdivision is
"immune from liability if the injury [or] death … resulted
from the exercise of judgment or discretion in determining
whether to acquire, or how to use, equipment, supplies,
materials, personnel, facilities, and other resources, unless
the judgment or discretion was exercised with malicious
purpose, in bad faith, or in a wanton or reckless manner."
In Manufacturer's Natl. Bank of Detroit v. Erie Cty. Road
Comm. (1992), 63 Ohio St.3d 318,
587 N.E.2d 819, we considered
a political subdivision's duty to keep its roads free of
nuisance.
In Manufacturer's, we addressed whether a township's duty
under R.C. 2744.02(B)(3) to keep the road free from nuisance
included ensuring that corn growing in the road's right-of-way
did not obstruct a driver's visibility. Because of R.C.
Chapter 2744's recent enactment, Manufacturer's provided our
first opportunity to construe this law. In deciding the issue,
we considered prior case law interpreting R.C. 723.01,2 which
obligates municipalities to keep their roads free from nuisance.
Relevant to our discussion today, we cited Fankhauser v.
Mansfield (1969), 19 Ohio St.2d 102,
48 O.O.2d 103,
249 N.E.2d
789, where we held that a malfunctioning traffic signal can be
a nuisance to orderly urban street traffic, and Robert Neff &
Sons v. Lancaster (1970),
21 Ohio St.2d 31,
50 O.O.2d 80,
254
N.E.2d 693, where we determined that an overhanging tree limb
impeding ordinary traffic could be a nuisance within the
meaning of R.C. 723.01.
After construing prior case law, we decided that in
determining a township's duty, the proper focus should be on
whether a condition exists within the township's control that
creates a danger for ordinary traffic on the regularly traveled
portion of the road.
We held that a permanent obstruction to visibility in the
right-of-way which renders the regularly traveled portions of
the highway unsafe for the usual and ordinary course of travel
can be a nuisance for which a political subdivision may be
liable pursuant to R.C. 2744.02(B)(3). Id. at paragraph one of
the syllabus.
In a similar vein, we find that the township's alleged
failure to maintain the signage already in place may constitute
an actionable nuisance claim. A sign which has lost its
capacity to reflect is as much an impediment to the safe flow
of traffic as a malfunctioning traffic light, overhanging
branches or foliage obstructing a driver's view. Due to the
proximity of the Sandusky River to the intersection of the two
township roads, notice of the curve was vital to the safety of
ordinary traffic.
This does not end the analysis however. In Vogel v. Wells
(1991), 57 Ohio St.3d 91, 97,
566 N.E.2d 154, 160, a nuisance
case decided in part under R.C. 723.01, we reiterated that the
political subdivision must have had "either actual or
constructive knowledge of the nuisance" before liability can be
imposed. There is constructive knowledge if "such nuisance
existed in such a manner that it could or should have been
discovered, that it existed for a sufficient length of time to
have been discovered, and that if it had been discovered it
would have created a reasonable apprehension of a potential
danger …." Beebe v. Toledo (1958),
168 Ohio St. 203, 207,
6 O.O.2d 1, 3,
151 N.E.2d 738, 741.
The appellate court correctly held that appellants'
evidence created a question of fact as to whether the township
had actual or constructive notice. Appellants presented (1) an
affidavit from an engineering expert describing the hazard,
accompanied by photographic exhibits demonstrating the
obviousness of the danger posed by the failure to maintain the
reflectorized sign; and (2) the deposition testimony of a
nearby resident that there had been at least three previous
accidents at this intersection and that the condition of the
small directional arrow sign had existed for a substantial
period of time. This is ample evidence to create a question of
fact concerning the existence of notice.
Overhanging branches and foliage which obscure traffic
signs, malfunctioning traffic signals, signs which have lost
their capacity to reflect, or even physical impediments such as
potholes, are easily discoverable, and the elimination of such
hazards involves no discretion, policy-making or engineering
judgment. The political subdivision has the responsibility to
abate them and it will not be immune from liability for its
failure to do so.
Moreover, it is undisputed that the directional arrow sign
did not comply with the Ohio Manual of Uniform Traffic Control
Devices for Streets and Highways as required by R.C.
4511.11(A). The evidence indicated that in addition to not
being reflectorized, the sign was smaller than the recommended
size and was not properly placed or checked as required by the
manual. While the installation of traffic control devices by a
political subdivision may be discretionary pursuant to the
manual, once the decision to install has been made, the
implementation of that decision is not immune from liability.
Winwood v. Dayton (1988), 37 Ohio St.3d 282,
525 N.E.2d 808.
Appellants, however, not content with this finding, have
asked us to expand our nuisance definition to include design
and construction defects and the failure to erect signage.
This we decline to do. This court has never held that
defective design or construction or lack of signage constitutes
a nuisance. These categories simply do not constitute a
nuisance as this term has been defined by this court.
Additionally, these allegations involve discretionary functions
as provided in R.C. 2744.03(A)(3) and (5). Thus, the defenses
found in R.C. 2744.03(A)(3) and (5) preclude the imposition of
liability on a political subdivision for any acts or omissions
related to these discretionary functions. Therefore,
appellants' claims pertaining to defective design and
construction and the failure to install signage must fail.
See, e.g., Williamson v. Pavlovich (1989), 45 Ohio St.3d 179,
543 N.E.2d 1242;
Winwood, supra;Fankhauser, supra. Summary
judgment was appropriate on these issues.
Appellants also sought to impose liability upon all the
political subdivision defendants based on the absence of a
guardrail. Appellants assert the county had a duty to install
a guardrail under R.C. 5591.36, and that since the county
designed and built both of the roads in question, it should
have installed a guardrail during construction. Further, they
argue that the township is liable because the lack of a
guardrail constituted a nuisance under R.C. 2744.02(B)(3).
However, political subdivisions have broad discretion in
determining whether to install signage. See Winwood, supra.
This is equally true regarding the discretionary decision as to
whether to erect a guardrail. Notwithstanding this broad grant
of discretion, however, R.C. 5591.36 provides:
"… The board [of county commissioners] shall …
protect, by suitable guardrails, all perpendicular wash banks
more than eight feet in height, where such banks have an
immediate connection with a public highway other than state
highways, or are adjacent thereto in an unprotected condition."
R.C. 5591.37 imposes liability upon the county for
accidents or damages resulting from its failure to comply with
R.C. 5591.36.
The court of appeals correctly noted that R.C.
2744.02(B)(5) provides an exception to immunity where
"liability is expressly imposed upon the political subdivision
by a section of the Revised Code, including … [section]
5591.37 …." Hence, R.C. Chapter 2744 explicitly includes
one of the statutes relied upon by appellants as an exception
to immunity.
The county contends the elements of R.C. 5591.36 were not
met and, therefore, liability cannot be imposed. Essentially
the county asserts that "perpendicular" means ninety degrees,
the bank in question was not a "wash bank," and even if it was
a "wash bank," it was not adjacent to the highway.
In finding that factual questions remain as to whether the
county complied with R.C. 5591.36, the appellate court cited
Jenkins v. Harrison Twp. Trustees (Oct. 4, 1982), Scioto App.
No. 1385, unreported, 1982 WL 3545, where that court held that
construing "perpendicular wash bank" to mean only a
ninety-degree wash bank renders R.C. 5591.36 "almost
meaningless."
In Jenkins, the court stated:
"… Washbanks, over time and in accordance with general
principles of rainwater, sediment, and gravity, gradually erode
and change their angles. Nature carries no protractor.
"Statutes must be interpreted in a manner rendering them
effective, just, reasonable, and capable of execution."
In Jenkins, the court found the common meaning of
"perpendicular" is "extremely steep" and held that a wash bank
which fell eighteen feet at an angle of sixty-five to seventy
degrees was perpendicular within the meaning of the statute.
The appellate court in the instant case agreed with the Jenkins
holding and concluded that "perpendicular" can include a slope
of seventy degrees, which appellants' evidence revealed the
slope in question to be, although the county and township
dispute this finding.
Accordingly, the appellate court ruled that questions of
fact exist as to whether the bank in question is a "wash bank,"
whether the wash bank is adjacent to a public highway, and
whether the slope is "perpendicular." We agree. The court of
appeals' decision on this issue is affirmed.
To summarize, we conclude questions of fact remain as to
(1) whether the township breached its duty to keep its roads
"free from nuisance" for its alleged failure to maintain the
reflectorized sign and its alleged failure to comply with the
manual, and (2) whether the county had a duty to install a
guardrail pursuant to R.C. 5591.36. We further find, as a
matter of law, that the alleged defective design and
construction and the failure to erect proper signage do not
constitute a nuisance within the meaning of R.C.
2744.02(B)(3). Therefore, the county and township are immune
from suit for these claims. Finally, we note the negligence
claims against Lopez and Zavala, as well as the statute of
limitations defense asserted against Lopez, are still intact
and remain to be resolved by the trial court.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Douglas and Mahoney, JJ.,
concur.
Wright, J., concurs in judgment only.
Pfeifer, J., concurs in part and dissents in part.
Joseph E. Mahoney, J., of the Eleventh Appellate District,
sitting for Resnick, J.
Footnotes:
1. R.C. 2744.01(C)(2)(e), (j) and (l) include the following
in the definition of "governmental" function:
"(e) The regulation of the use of, and the maintenance
and repair of, roads, highways, streets, avenues, alleys,
sidewalks, bridges, aqueducts, viaducts, and public grounds;
"…
"(j) The regulation of traffic, and the erection or
nonerection of traffic signs, signals, or control devices;
"…
"(l) The provision or nonprovision, planning or design,
construction, or reconstruction of a public improvement,
including, but not limited to, a sewer system[.]"
2. R.C. 723.01 provides:
"Municipal corporations shall have special power to
regulate the use of the streets. Except as provided in section
5501.49 of the Revised Code, the legislative authority of a
municipal corporation shall have the care, supervision, and
control of the public highways, streets, avenues, alleys,
sidewalks, public grounds, bridges, aqueducts, and viaducts
within the municipal corporation, and the municipal corporation
shall cause them to be kept open, in repair, and free from
nuisance."
Pfeifer, J., concurring in part and dissenting in part. I
concur in the majority's holding that questions of fact remain
regarding the township's alleged negligence in failing to
maintain the reflectorized sign, its failure to comply with the
manual, and the county's duty to install a guardrail.
I dissent from the holding that the township and county
are immune from claims for defective design and construction
and the failure to erect proper signage. For the reasons
stated in my concurrence in Garrett v. Sandusky (1993) 68 Ohio
St. 3d 139, 142,
624 N.E.2d 704, 707, it is contrary to the
Ohio Constitution to hold that a governmental entity is immune
from suit simply by virtue of its status as sovereign.
