[This decision has been published in Ohio Official Reports at
95 Ohio St.3d 344.]
HAYNES ET AL., APPELLANTS, v. CITY OF FRANKLIN ET AL., APPELLEES.
[Cite as Haynes v. Franklin, 2002-Ohio-2334.]
Municipal corporations—Streets and highways—Nuisance—Political subdivision
tort liability—Edge drop at the berm of a road—Two-pronged test used to
determine whether a condition in the right-of-way of a road should be
deemed a nuisance for purposes of R.C. 2744.02(B)(3).
(Nos. 2000-2004 and 2000-2141—Submitted December 12, 2001—Decided May
29, 2002.)
APPEAL from and CERTIFIED by the Court of Appeals for Warren County, No.
CA2000-03-025.
__________________
MOYER, C.J.
{¶1} Appellant Herbert Haynes was injured when an eighteen-wheel dump
truck tractor-trailer rig he was driving left the road and collided with a tree. He and
his wife initiated this action by filing a complaint alleging that he had been injured
due to the negligence of the appellee city of Franklin. Haynes asserted that his injuries
were “a direct and proximate result of the City of Franklin’s violation of Revised Code
Section 2744.02” in that a roadway upon which he was traveling on November 3,
1994, was not free of nuisance.
{¶2} Haynes alleged that the city had contracted with a road paving contractor
to repair and resurface Trenton-Franklin Road in Franklin during the summer of 1994,
and that the addition of new paving materials resulted in edge drop-offs of up to seven
inches from the traversed surface to the adjacent berm. He asserted that he was driving
through the construction area when the right front tire of his rig went off the right edge
of the roadway. In attempting to steer to the left to return all wheels of the truck to
the paved surface, Haynes lost control of his vehicle, which then crossed the road and
struck a tree on the opposite side. Haynes further alleged that the city had failed to
SUPREME COURT OF OHIO
erect adequate signage and barricades through the repaved area. The city answered
and asserted the defense of political subdivision immunity pursuant to R.C. Chapter
2744.
{¶3} During discovery, the city represented that it had determined that the city
itself, rather than the contractor, would finish the construction project by constructing
berms adjacent to the repaved roadway. It further admitted that the berming phase of
the project had begun before the Haynes accident, although berming had not yet been
done in the area where Haynes’s accident occurred.
{¶4} The city moved for summary judgment in its favor, which the trial
court initially denied. However, the court reconsidered the city’s motion following
the decision of the Twelfth District Court of Appeals in Stevens v. Ackman (Dec.
20, 1999), Butler App. No. CA99-03-053, 1999 WL 1255806,1 and entered
judgment for the city based on a finding of immunity.
{¶5} The court of appeals, in a split decision, affirmed, concluding that an
“edge drop between the paved road and the berm does not amount to a nuisance as
that term has been defined by the Supreme Court of Ohio, and the city is immune
from liability for any injuries caused by alleged defects in the road created as a
result of the repaving.”
{¶6} The court thereafter certified a conflict to this court, finding that its
decision conflicted with that of the Fifth District in Thompson v. Muskingum Cty.
Bd. of Commrs. (Nov. 12, 1998), Muskingum App. No. CT98-0010, 1998 WL
817826, on the question “whether an edge drop on the berm of a county or city
road, in and of itself, constitutes a nuisance within the meaning of R.C.
2744.02(B)(3)?”
{¶7} The case is now before this court upon our determination that a conflict
exists (case No. 2000-2141) and upon the allowance of a discretionary appeal (case
1. The judgment in Stevens was reversed by this court in Stevens v. Ackman (2001), 91 Ohio St.3d
182,
743 N.E.2d 901, on unrelated grounds.
2
January Term, 2002
No. 2000-2004). 91 Ohio St.3d 1477,
744 N.E.2d 774, and
91 Ohio St.3d 1478,
744 N.E.2d 775.
{¶8} We concur in the judgment of the court of appeals that the trial court
properly granted summary judgment in favor of the city based on the political
subdivision immunity provided by R.C. Chapter 2744. We respond to the issue
certified to us by clarifying that an edge drop on the berm of a county or city road
does not, in and of itself, constitute a nuisance within the meaning of R.C.
2744.02(B)(3). We recognize, however, that circumstances may exist in which a
defect in the berm arising after the design and completion of construction of a
roadway, including a defect creating an edge drop between the pavement and the
adjoining berm, would fall within the definition of “nuisance” as used in R.C.
2744.02(B)(3). In such a circumstance, the political subdivision could fit within
the exception to immunity provided by R.C. 2744.02(B)(3), assuming that the
political subdivision had actual or constructive notice of the existence of that
nuisance, and that it could not establish any of the defenses provided by R.C.
2744.03.2
{¶9} The Political Subdivision Tort Liability Act is codified in R.C.
Chapter 2744 and was enacted in response to the judicial abolishment of the
common-law doctrine of sovereign immunity for municipal corporations in
Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572,
442
N.E.2d 749, and Enghauser Mfg. Co. v. Eriksson Eng. Ltd. (1983),
6 Ohio St.3d
31, 6 OBR 53,
451 N.E.2d 228. See Franks v. Lopez (1994),
69 Ohio St.3d 345,
347,
632 N.E.2d 502. The Act established statutory tort immunity in some cases
2. R.C. 2744.03 also establishes additional defenses for political subdivisions, including so-called
“discretion defenses.” Franks v. Lopez (1994),
69 Ohio St.3d 345, 347,
632 N.E.2d 502. R.C.
2744.03(A)(5), for example, provides, “The political subdivision is immune from liability if the
injury, death, or loss to persons or property 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.”
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in which political subdivisions, including cities, may otherwise be sued in
negligence. See id.
{¶10} Within that statutory framework, R.C. 2744.02(A)(1) establishes a
general grant of sovereign immunity by providing that a political subdivision is
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. The term “governmental functions” specifically includes
“the maintenance and repair” of roads. R.C. 2744.01(C)(2)(e). However, R.C.
2744.02(B) lists several exceptions to the general grant of sovereign immunity. At
issue in this case, as in Franks, 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 ….”
{¶11} This court first interpreted R.C. 2744.03(B)(3) in Manufacturer’s
Natl. Bank of Detroit v. Erie Cty. Road Comm. (1992), 63 Ohio St.3d 318,
587
N.E.2d 819. In that case we determined that a township’s duty under R.C.
2744.02(B)(3) to keep the road free from nuisance included the responsibility of
ensuring that corn growing in the right-of-way of a township road did not obstruct
a driver’s view of cross-traffic at intersections. Because we had no precedent
interpreting the term “nuisance” as used in R.C. 2744.02(B)(3), we considered
prior case law interpreting an analogous statute, R.C. 723.01,3 which imposes an
affirmative duty upon municipalities to keep their roads free from nuisance.
3. {¶a} R.C. 723.01 provides:
{¶b} “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.”
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January Term, 2002
{¶12} After construing the case law interpreting R.C. 723.01, we held in
Manufacturer’s that a “permanent obstruction to visibility, within the highway
right-of-way, which renders the regularly travelled 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 under R.C. 2744.02(B)(3).” Id. at paragraph one of the
syllabus. In support of that proposition, we reasoned that a political subdivision’s
duty under R.C. 2744.02(B)(3) “extends to conditions in the right-of-way that
directly affect the highway’s safety for the regular and ordinary course of traffic.”
Id. at 321-322,
587 N.E.2d 819. We further observed that in determining a
political subdivision’s duty to keep a road free from nuisance, whether under R.C.
2744.02(B)(3) (all political subdivisions) or 723.01 (municipalities), the focus
should be on “whether a condition exists within the political subdivision’s control
that creates a danger for ordinary traffic on the regularly travelled portion of the
road.”
Id. at 322,
587 N.E.2d 819.
{¶13} Significantly for purposes of the case at bar, the court in
Manufacturer’s turned to R.C. 4511.01(UU)(2), which defines “right-of-way” as
including “the roadway, shoulders or berm, ditch, and slopes extending to the
right-of-way limits under the control of the state or local authority.” Id. at 322,
587 N.E.2d 819. We observed that “[t]he roadway, the space immediately above
the roadway, the shoulder, the berm, and the right-of-way are all under the control
of the political subdivision.” (Emphasis added.)
Id. We held that a political
subdivision has a “duty to keep the areas within its control free from nuisance, i.e.,
conditions that directly jeopardize the safety of traffic on the highway.”
Id.
{¶14} In subsequent cases the critical inquiry established in
Manufacturer’s has remained “whether a condition exists within the political
subdivision’s control that creates a danger for ordinary traffic on the regularly
travelled portion of the road.” 63 Ohio St.3d at 322,
587 N.E.2d 819. Most
recently, in Harp v. Cleveland Hts. (2000),
87 Ohio St.3d 506,
721 N.E.2d 1020,
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we reviewed the principles established in Manufacturer’s and Franks and
reaffirmed the Manufacturer’s rejection of the view that “liability under R.C.
723.01 or 2744.02(B)(3) is limited to physical conditions in the roadway itself and
does not extend to adjacent property.” Harp, 87 Ohio St.3d at 511, 721 N.E.2d
1020. See, also, id. at 515,
721 N.E.2d 1020 (Cook, J., dissenting).
{¶15} In Harp the court rejected the city’s argument that it was entitled to
immunity under R.C. Chapter 2744 based solely upon the fact that a tree limb that
fell upon a highway had not physically obstructed or impeded the flow or visibility
of traffic until it fell. That is, in Harp we held that a condition external to the
roadway could create a danger to the traveling public on the highway.
{¶16} In the same way, an edge drop or similar condition may indeed
constitute an actionable danger to persons operating their vehicles in a reasonable
manner on the highway. Accord Dickerhoof v. Canton (1983), 6 Ohio St.3d 128,
6 OBR 186,
451 N.E.2d 1193 (rider killed when motorcycle struck pothole in
road’s shoulder). Indeed, such a circumstance appears to have occurred in
Thompson v. Muskingum Cty. Bd. of Commrs. (Nov. 12, 1998), Muskingum App.
No. CT98-0010,
1998 WL 817826, which the certifying court of appeals herein
identified as being in conflict with its judgment in the case at bar. In Thompson, a
UPS driver was forced to maneuver his vehicle onto the berm in order to avoid a
collision when another motorist crossed the center yellow line. As in the case at
bar, the left tires of the delivery truck remained on the paved portion of the road
while the right tires moved on the berm. The berm dropped off six to eight inches
from the level of the road. The driver lost control of the van in attempting to
maneuver the vehicle back onto the road. In Thompson the court of appeals
determined that the drop-off may have constituted a nuisance, that the driver may
well have acted reasonably, and that the trial court erred in entering summary
judgment for the county.
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January Term, 2002
{¶17} A finding that a genuine issue of fact exists as to whether any
particular edge drop constitutes a “danger for ordinary traffic on the regularly
travelled portion of the road” under Manufacturer’s, 63 Ohio St.3d at 322,
587
N.E.2d 819, is not, by itself, determinative of whether that edge drop constitutes a
“nuisance” for purposes of R.C. 2744.02(B)(3). In Franks, we expressly declined
to expand the definition of that term to embrace design and construction defects,
which “simply do not constitute a nuisance” even if those defects result in a
dangerous condition.
Id.,69 Ohio St.3d at 349-350,
632 N.E.2d 502. Accordingly,
while a failure to maintain a traffic control device that is already in place, such as
allowing a reflectorized sign to lose its capacity to reflect, may constitute a breach
of duty to keep roads “free from nuisance,” the initial decision to post, or not to
post, a sign is discretionary and therefore protected by immunity under the Act.
Id.
at 348-349,
632 N.E.2d 502.
{¶18} Thus, read in harmony, Manufacturer’s and Franks establish a two-pronged test to determine whether a condition in the right-of-way of a road should
be deemed a nuisance for purposes of R.C. 2744.02(B)(3). To withstand a motion
for summary judgment, the plaintiff must satisfy the first prong of the test by
establishing that the condition alleged to constitute a nuisance creates a danger for
ordinary traffic on the regularly travelled portion of the road. To satisfy the second
prong of the test the plaintiff must establish that the cause of the condition was
other than a decision regarding design and construction. If the dangerous condition
is the result of negligent design or construction decisions, the condition does not
constitute a nuisance, and immunity attaches. Both prongs of this test require the
resolution of issues of fact.
{¶19} In short, no bright-line test can be stated as to whether an edge drop
on the berm of a county or city road constitutes a nuisance within the meaning of
R.C. 2744.02(B)(3). An edge drop may constitute a nuisance for purposes of that
statute where the drop resulted from a failure to maintain a preexisting shoulder or
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SUPREME COURT OF OHIO
berm; where the particular edge drop is found, in light of all the surrounding facts
and circumstances, to render the regularly travelled portions of the highway unsafe
for the usual and ordinary course of travel; and where the political subdivision has
failed to correct the defect upon being charged with actual or constructive notice
of its existence. If, however, a dangerous edge drop is the result of design or
construction, it is under our precedent and, by definition, not a nuisance within the
scope of R.C. 2744.02(B)(3).
{¶20} Haynes produced no evidence to raise any genuine issue of fact to
rebut the city’s contention that the edge drop here at issue was the result of the
implementation of a discretionary design plan. Thus, alleged negligence in that
plan is protected by the general grant of immunity provided by R.C. 2744.01(A)(1).
Specifically Haynes asserts, in effect, that the plan for constructing the berm
separately from the repaving contract was defective, and that the city was negligent
in determining the order in which it addressed the berming process. This is a
challenge to the design of the repaving project, which falls within the scope of
immunity provided by R.C. Chapter 2744.
{¶21} On the facts before it the trial court correctly granted summary
judgment to the city of Franklin because the facts demonstrated that the edge drop
complained of was incident to the design and construction of the road improvement
the city had determined, in its discretion, to implement. Summary judgment in
favor of the city was appropriate because the plaintiff did not establish any genuine
issue of fact otherwise.
Judgment affirmed.
RESNICK and F.E. SWEENEY, JJ., concur.
LUNDBERG STRATTON, J., concurs in part.
DOUGLAS, PFEIFER and COOK, JJ., dissent.
PFEIFER, J., dissents.
__________________
8
January Term, 2002
LUNDBERG STRATTON, J., concurring in part.
{¶22} I concur in the judgment reached by the majority, but I do so for
different reasons. I agree with the majority’s holding that an edge drop on the berm
of a county or city road does not, in and of itself, constitute a nuisance within the
meaning of R.C. 2744.02(B)(3). However, I respectfully disagree with the majority’s
conclusion that circumstances may exist in which a defect in the berm arising after the
design and completion of construction of a roadway, including a defect creating an
edge drop between the pavement and the adjoining berm, would fall within the
definition of “nuisance” as used in R.C. 2744.02(B)(3). Instead, I would hold that an
edge drop cannot, as a matter of law, constitute a nuisance because it is not on the
regularly travelled portion of the roadway.
{¶23} R.C. 2744.02(B)(3) 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.” R.C. 723.01
provides that municipal corporations shall keep roadways “open, in repair, and free
from nuisance.”
{¶24} In Manufacturer’s Natl. Bank of Detroit v. Erie Cty. Rd. Comm. (1992),
63 Ohio St.3d 318,
587 N.E.2d 819, this court held that in determining a political
subdivision’s duty to keep a road free from nuisance, whether under R.C.
2744.02(B)(3) or 723.01, the pertinent question is “whether a condition exists within
the political subdivision’s control that creates a danger for ordinary traffic on the
regularly travelled portion of the road.”
Id. at 322,
587 N.E.2d 819.
{¶25} In Manufacturer’s, we concluded that a permanent obstruction to
visibility in a right of way, which renders the regularly travelled portion of the
highway unsafe for usual and ordinary course of travel, can be a nuisance for which a
political subdivision may be liable under R.C. 2744.02(B)(3). Id. at paragraph one of
the syllabus. The court noted that the relevant focus is on the effect of the obstruction
on highway safety, not the nature of the obstruction.
Id. at 323,
587 N.E.2d 819. I
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SUPREME COURT OF OHIO
would find that unlike the cornfield in Manufacturer’s that grew in the right-of-way
and blocked visibility for motorists who were traveling on a regularly travelled portion
of the highway, the edge drop in this case is not a part of the roadway.
{¶26} The majority cites language from Manufacturer’s, turning to R.C.
4511.01(UU)(2), which defines “right-of-way” as including “the roadway, shoulders
or berm, ditch, and slopes extending to the right-of-way limits under the control of the
state or local authority.” Id. at 322,
587 N.E.2d 819. The majority goes on to cite the
observation from Manufacturer’s that “[t]he roadway, the space immediately above
the roadway, the shoulder, the berm, and the right-of-way are all under the control of
the political subdivision,” which has a “duty to keep the areas within its control free
from nuisance, i.e., conditions that directly jeopardize the safety of traffic on the
highway.” (Emphasis added.)
Id.
{¶27} I, however, agree with the dissent in Manufacturer’s, which points out
that “[a]lthough not defined in R.C. Chapter 2744, the terms ‘highway’ and ‘street’ *
… are defined in R.C. 4511.01(BB) as ‘the entire width within the boundary lines of
every way open to the use of the public as a thoroughfare for purposes of vehicular
travel.’ ” Id. at 324,
587 N.E.2d 819 (Moyer, C.J., dissenting). The present case
involves an edge drop, not a right-of-way. An edge drop exists off the regularly
travelled portion of the roadway. It does not constitute a nuisance in the roadway.
Because an edge drop does not create a danger for ordinary traffic on the regularly
travelled portion of the road, the condition itself cannot constitute a nuisance as a
matter of law.
{¶28} Moreover, I would cite with approval Valescu v. Cleveland Metroparks
Sys. (1993), 90 Ohio App.3d 516,
630 N.E.2d 1. In Valescu, the Eighth District Court
of Appeals considered a similar situation where the level of the pavement was six
inches higher than the level of the shoulder of the road. Citing Manufacturer’s, the
Valescu court held that reasonable minds could come to but one conclusion upon the
evidence submitted: “The decision to leave the berm and the gravel at different levels
10
January Term, 2002
and the failure to replace the worn chip and seal layer on the berm were not nuisances
which rendered the regularly travelled portion of the road unsafe for the usual and
ordinary course of travel. Sovereign immunity exists to prevent liability from
attaching where the nuisance does not render the road unsafe for normal travel and the
judgment of the political subdivision as to the condition of the road cannot be
challenged as exercised with malicious purpose, in bad faith, or in a wanton or reckless
manner. Because the condition of the road did not render it unsafe for normal travel,
no evidence was presented to support the assertion that [the political subdivision]
exercised its judgment with malicious purpose, in bad faith, or in a wanton or reckless
manner.” Id.,90 Ohio App.3d at 521-522,
630 N.E.2d 1.
{¶29} Today, the majority places governments at all levels at risk for unknown
liability through an extension of the law that is best left to the General Assembly.
Accordingly, I concur in the judgment of the majority, but disagree with its analysis.
__________________
PFEIFER, J., dissenting.
{¶30} I dissent for several reasons. First, I dissent because R.C. Chapter
2744, to the extent that it grants immunity to political subdivisions, is
unconstitutional. Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141-144,
624
N.E.2d 704, 706-708 (Pfeifer, J., concurring).
{¶31} Second, this case illustrates the absurdity of the legal fictions
propping up sovereign immunity. The General Assembly has allowed political
subdivisions to be held liable for injuries caused “by their failure to keep public
roads, highways, [and] streets … within the political subdivisions open, in repair,
and free from nuisance.” R.C. 2744.02(B)(3). All well and good, until the political
subdivision asserts the defense offered by children everywhere when they take an
embarrassing tumble: “I meant to do that.” The majority asserts that as long as the
political subdivision planned a dangerous edge drop, then the drop is not a nuisance.
If the same drop occurs by negligence of installation, then the drop is a nuisance.
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SUPREME COURT OF OHIO
The political subdivision is protected when it plans a potential harm, but not
protected when the harm occurs accidentally. The archaic monarchical notion upon
which sovereign immunity is based—“The King can do no wrong”—has been
absurdly revised to “The King can do no wrong as long as he has planned to do
wrong.”
{¶32} Finally, I join the dissent of Justice Cook. At the very least, there is
a question of fact as to whether the city’s implementation of its plan created a
nuisance for which it could be liable under any reading of the sovereign immunity
statute.
__________________
COOK, J., dissenting.
{¶33} When analyzing whether a roadway condition is a “nuisance” within
the meaning of R.C. 2744.02(B)(3), the touchstone of our analysis is whether the
condition “creates a danger for ordinary traffic on the regularly travelled portion of
the road.” Manufacturer’s Natl. Bank of Detroit v. Erie Cty. Rd. Comm. (1992), 63
Ohio St.3d 318, 322,
587 N.E.2d 819. At this stage of the proceedings, there
remains a genuine issue of fact as to whether the edge drop in this case fits this
definition, thereby constituting a nuisance for which the city of Franklin could be
liable. Cf. Dickerhoof v. Canton (1983),
6 Ohio St.3d 128, 130, 6 OBR 186,
451
N.E.2d 1193 (“It is for the trier of fact to determine whether swerving to avoid a
collision with an object in the highway and driving on the shoulder is a foreseeable
and reasonable use of the shoulder. If so, a municipal corporation could be liable
under R.C. 723.01 for failure to keep the shoulder in repair and free from nuisance,
including a chuckhole, rendering the highway unsafe for travel.”).
{¶34} Despite the existence of a genuine fact issue concerning the
dangerous nature of the edge drop in this case, the majority affirms summary
judgment in the city’s favor because, in its view, the edge drop resulted from the
city’s design of the road repaving project. See Franks v. Lopez (1994), 69 Ohio
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January Term, 2002
St.3d 345, 349, 632 N.E.2d 502 (declining to “expand” definition of nuisance to
include “design and construction defects or the failure to erect signage”). In other
words, the majority interprets Franks as immunizing a city from liability for
designing a roadway to include a dangerous condition that the city could be liable
for maintaining under R.C. 2744.02(B)(3). Even assuming that this is a proper
reading of Franks, summary judgment remains unwarranted in this case. The
majority itself rests the propriety of summary judgment on the notion that the edge
drop resulted from “the implementation of a discretionary design plan.” (Emphasis
added.) But if the city’s fault (if any) lies in the implementation of the design plan,
the immunity defense is not available. As Franks counsels, once a political
subdivision has made a discretionary decision, “the implementation of that decision
is not immune from liability.”
Id. See, also, Winwood v. Dayton (1988),
37 Ohio
St.3d 282, 285,
525 N.E.2d 808. The city was not at liberty to implement its design
plan in a manner that resulted in a nuisance.
{¶35} I respectfully dissent.
DOUGLAS and PFEIFER, JJ., concur in the foregoing dissenting opinion.
__________________
Casper & Casper and Patrick W. Allen, for appellants.
James W. Gustin, for appellee.
Isaac, Brant, Ledman & Teetor, L.L.P, Mark Landes, Paul A. MacKenzie
and John S. Higgins, urging affirmance for amicus curiae County Commissioners’
Association of Ohio.
Barry M. Byron, Stephen L. Byron and John E. Gotherman, urging
affirmance for amicus curiae Ohio Municipal League.
__________________
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