[Cite as Ervin v. Willison,
2014-Ohio-482.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBERT L. ERVIN, INDIVIDUALLY, : JUDGES:
AND AS EXECUTOR OF THE : Hon. W. Scott Gwin, P.J.
ESTATE OF SHAYLA ERVIN, : Hon. Sheila G. Farmer, J.
DECEASED : Hon. John W. Wise, J.
:
Plaintiff-Appellant :
:
-vs- : Case No. CT2013-0022
:
HAROLD WILLISON, ET AL. :
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CC-2011-0515
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 10, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
ROBERT P. DeSANTO MARK W. BASERMAN
432 Center Street 45 South Monroe Street
Ashland, OH 44805 Millersburg, OH 44654-1424
Muskingum County, Case No. CT2013-0022 2
Farmer, J.
{¶1} On January 31, 2008, eighteen year old Shayla Ervin died after being
struck by an automobile while she was crossing the street at a crosswalk on January
26, 2008. She was approximately twenty-five feet short of the curb when she was
struck by Harold Willison.
{¶2} The pedestrian crossing was examined and it was discovered that the
timing of the "WALK/DON'T WALK" pedestrian signal was not set at the recommended
seconds for a pedestrian to safely cross the street. A witness, Brenda Pritt, stated Ms.
Ervin entered the intersection while the "DON'T WALK" signal was flashing.
{¶3} On October 6, 2011, appellant, Robert Ervin, individually, and as executor
of the estate of Shayla Ervin, deceased, filed a complaint against Mr. Willison and
appellees, city of Zanesville and city of Zanesville traffic signal supervisor, Fred Buck,
for personal injury and wrongful death. Appellees filed a motion for judgment on the
pleadings and summary judgment on November 14, 2013. Prior to a ruling, appellant
settled with Mr. Willison. By decision filed March 5, 2013, the trial court granted
summary judgment to appellees. A judgment entry reflecting this decision was filed on
March 20, 2013.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR
SUMMARY JUDGMENT WHERE THERE WAS SUFFICIENT, CREDIBLE EVIDENCE
FROM WHICH A JUROR COULD REASONABLY FIND THAT, (1) IN THE PROCESS
Muskingum County, Case No. CT2013-0022 3
OF REPAIRING A PEDESTRIAN LIGHT CROSSING SIGNAL, APPELLEE
RECKLESSLY AND NEGLIGENTLY, PROGRAMMED INTO THE SIGNAL DEVICE, A
SHORTER CROSSING CLEARANCE TIME THAN ENGINEERING DESIGN CALLED
FOR, AND WHICH HAD EXISTED IN THE SIGNAL BEFORE THE REPAIR WAS
MADE NECESSARY, AND, (2) THE SHORTER CLEARANCE TIME CREATED
INSUFFICIENT TIME FOR PEDESTRIANS TO SAFELY CROSS THE
INTERSECTION, AND, (3) SAID INSUFFICIENT CLEARANCE TIME WAS
PROXIMATE CAUSE OF THE PLAINTIFF'S INJURY AND DEATH."
II
{¶6} "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR
SUMMARY JUDGMENT WHERE THERE WAS SUFFICIENT CREDIBLE EVIDENCE
FROM WHICH A JUROR COULD REASONABLY FIND THAT; (1) APPELLEE FRED
BUCK WAS EMPLOYED BY THE CITY TO REPAIR TRAFFIC SIGNALS; (2) FRED
BUCK HAD NO DISCRETION TO CHANGE OR DEVIATE FROM, THE DESIGNED
TIMING OF A PEDESTRIAN SIGNAL LIGHT; (3) FRED BUCK, IN THE COURSE OF
HIS EMPLOYMENT, REPAIRED A PEDESTRIAN TRAFFIC SIGNAL RECKLESSLY,
AND WITH INDIFFERENCE TO PUBLIC SAFETY; (4) BUCK'S KNOWLEDGE OF THE
UNSAFE CONDITION HE CREATED WAS IMPUTED KNOWLEDGE TO HIS
EMPLOYER; AND (5) THE DOCTRINE OF RESPONDENT SUPERIOR APPLIES."
III
{¶7} "THE TRIAL COURT ERRED IN FINDING AS A BASIS FOR SUMMARY
JUDGMENT, THAT APPELLANT FAILED TO PROVE NEGLIGENT SUPERVISION
CLAIMS WHERE THERE WAS SUFFICIENT CREDIBLE EVIDENCE FROM WHICH A
Muskingum County, Case No. CT2013-0022 4
JUROR COULD REASONABLY FIND THAT; (1) THE CITY HAD A CLEAR DUTY TO
THE PUBLIC TO PROPERLY REPAIR AND MAINTAIN MANDATED PEDESTRIAN
TRAFFIC SIGNALS, (2) THE CITY OWED MEMBERS OF THE PUBLIC, AT A
MINIMUM, ORDINARY CARE IN SUPERVISING THE ACTIVITY OF MAINTAINING
AND REPAIRING SAID SIGNALS, AND (3) THE CITY'S LACK OF SUPERVISION
OVER FRED BUCK AND THE REPAIR AND MAINTENANCE ACTIVITY WAS A
CONTRIBUTING, OR SOLE PROXIMATE CAUSE OF APPELLANT DECEDENT'S
INJURY AND DEATH."
IV
{¶8} "THE COURT ERRED IN FINDING THE DEFENDANT, FRED BUCK
WAS NOT SERVED A COPY OF THE COMPLAINT AND THAT THE PRESENT
LAWSUIT WAS NOT COMMENCED AGAINST BUCK, WHEN THE DEFENDANT,
BUCK WAS TIMELY SERVED THE COMPLAINT."
IV
{¶9} We will address this assignment first as it resolves several issues
pertaining to appellee Buck.
{¶10} Appellant claims the trial court erred in finding a failure of service on Mr.
Buck, as he was a city employee and service at City Hall was sufficient. We disagree.
{¶11} Appellant's complaint lists Mr. Buck's address as "3910 Dorothy Drive,
Zanesville, Ohio, 43701" which is his private residence. Mr. Buck worked out of the
Traffic Signal Division office located at "203 Hamline Avenue in Zanesville" and did not
maintain an office at City Hall. See, Second Aff. of Fred Buck, attached to Appellees'
February 19, 2013 Reply Memorandum as Exhibit City SJ Ex. N. Service of process on
Muskingum County, Case No. CT2013-0022 5
Mr. Buck was made to the Dorothy Drive address and was returned unclaimed. See,
Unclaimed Envelope filed October 25, 2011.
{¶12} In his answer filed November 3, 2011, Mr. Buck specifically raised
insufficiency of process (Tenth and Eleventh Defenses). There is no indication in the
record of any specific service on Mr. Buck at the office on Hamline Avenue or City Hall.
Although the city of Zanesville was served at "Zanesville City of c/o Mayor Howard
Zwelling, City Hall 1st Fl Rm 105, Zanesville, OH, 43701," Mr. Buck was not specifically
served at the City Hall address.
{¶13} In Akron-Canton Regional Airport Authority v. Swinehart, 62 Ohio St.2d
403 (1980), the Supreme Court of Ohio found service of process may be made to an
individual's business address as long as service comports with the requirement of due
process. Due process requires notice be reasonably calculated, under all the
circumstances, to reach the interested parties. The Swinehart court at 406 noted
"certified mail service sent to a business address can comport with due process if the
circumstances are such that successful notification could reasonably be anticipated."
{¶14} In this case, service was not made in a manner "reasonably calculated" to
reach Mr. Buck. Service to his private residence was returned unclaimed. No further
attempts at service were made. Service was not sent to the Hamline Avenue address,
and although service was made to City Hall, it was addressed to the city of Zanesville
only; it did not include Mr. Buck.
{¶15} Upon review, we find the trial court did not err in dismissing Mr. Buck from
the lawsuit.
{¶16} Assignment of Error IV is denied.
Muskingum County, Case No. CT2013-0022 6
II, III
{¶17} Appellant claims the trial court erred in determining appellees' actions
were covered by immunity under R.C. Chapter 2744 and were not covered under the
exception of R.C. 2744.02(B)(3). We disagree.
{¶18} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448,
1996-Ohio-211:
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any
material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing such
evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is
made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,
628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977),
50
Ohio St.2d 317, 327, 4 O.O3d 466, 472,
364 N.E.2d 267, 274.
{¶19} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35 (1987).
Muskingum County, Case No. CT2013-0022 7
{¶20} In Greene County Agricultural Society v. Liming, 89 Ohio St.3d 551, 556-
557,
2000-Ohio-486, the Supreme Court of Ohio explained the three tier analysis
required for determining if sovereign immunity applies:
R.C. Chapter 2744 sets out the method of analysis, which can be
viewed as involving three tiers, for determining a political subdivision's
immunity from liability. First, R.C. 2744.02(A)(1) sets out a general rule
that political subdivisions are not liable in damages. In setting out this
rule, R.C. 2744.02(A)(1) classifies the functions of political subdivisions
into governmental and proprietary functions and states that the general
rule of immunity is not absolute, but is limited by the provisions of R.C.
2744.02(B), which details when a political subdivision is not immune.
Thus, the relevant point of analysis (the second tier) then becomes
whether any of the exceptions in R.C. 2744.02(B) apply. Furthermore, if
any of R.C. 2744.02(B)'s exceptions are found to apply, a consideration of
the application of R.C. 2744.03 becomes relevant, as the third tier of
analysis.
{¶21} R.C. 2744.02 governs immunity for political subdivisions. Subsection
(A)(1) states the following:
For the purposes of this chapter, the functions of political
subdivisions are hereby classified as governmental functions and
Muskingum County, Case No. CT2013-0022 8
proprietary functions. Except as provided in division (B) of this section, a
political subdivision is not liable in damages in a civil action for injury,
death, or loss to person or property allegedly caused by any act or
omission of the political subdivision or an employee of the political
subdivision in connection with a governmental or proprietary function.
{¶22} R.C. 2744.01(2)(C)(e) and (j) state a "governmental function" includes:
"[t]he regulation of the use of, and the maintenance and repair of, roads, highways,
streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds,"
and "[t]he regulation of traffic, and the erection or nonerection of traffic signs, signals, or
control devices."
{¶23} In its judgment entry filed March 20, 2013, the trial court found the
following on the issue of immunity:
(6) The City is immune from liability as to governmental functions
per Ohio Rev. Code § 2744.02(A)(1). The regulation of streets and the
provision of traffic and pedestrian signals are governmental functions per
Ohio Rev. Code § 2744.01(C)(2), (e) and (j); as are functions for the
common good of all citizens and that promote public safety per Ohio Rev.
Code § 2744.01(C)(1), (b) and (c).
(7) Buck is immune from liability as an employee of the City per
Ohio Rev. Code § 2744.02(A)(1) and 2744.03(A)(6).
Muskingum County, Case No. CT2013-0022 9
(8) No exception to the immunity per Ohio Rev. Code §
2744.02(A)(1) exists as to Buck under Ohio Rev. Code § 2744.02(B).
(10) The City is immune concerning claims related to traffic signal
timing, as the lights were operating as intended, a design issue for which
immunity applies, and not a repair.
{¶24} Appellant argues the exception under R.C. 2744.02(B)(3) applies sub
judice:
Except as otherwise provided in section 3746.24 of the Revised
Code, political subdivisions are liable for injury, death, or loss to person or
property caused by their negligent failure to keep public roads in repair
and other negligent failure to remove obstructions from public roads,
except that it is a full defense to that liability, when a bridge within a
municipal corporation is involved, that the municipal corporation does not
have the responsibility for maintaining or inspecting the bridge.
{¶25} The question is whether this exception applies. We find that it does not.
{¶26} When the subject intersection was widened in 2000, the clearance time for
the pedestrian signal was increased from nine seconds to thirteen seconds. After
repairs were made, the clearance time was returned to nine seconds as appellees
concede. Buck depo. at 32. Appellant argues R.C. 2744.02(B)(3) is applicable
because the thirteen seconds was a design/construction feature of the newly widened
Muskingum County, Case No. CT2013-0022 10
road and the nine seconds existing at the time of the accident was a repair failure.
Appellant argues Mr. Buck recklessly or negligently repaired the pedestrian signal and
deliberately changed the timing from thirteen seconds to nine seconds. Appellant
argues Mr. Buck was responsible for the insufficient timing and had knowledge of the
unsafe timing prior to the accident. Appellant concedes there is no direct evidence, but
argues inferences lead to these conclusions. See, Appellant's Brief at 18. Appellant
argues the city negligently and recklessly supervised Mr. Buck's work.
{¶27} For purposes of determining whether the exception applies, our inquiry is
whether maintenance of a pedestrian signal at an intersection qualifies as keeping
"public roads in repair."
{¶28} Appellant argues in the definition of "public roads" under R.C. 2744.01(H),
traffic control devices are included: " 'Public roads' means public roads, highways,
streets, avenues, alleys, and bridges within a political subdivision. 'Public roads' does
not include berms, shoulders, rights-of-way, or traffic control devices unless the traffic
control devices are mandated by the Ohio manual of uniform traffic control devices."
Appellant argues a pedestrian signal is a "traffic control device" as mandated by the
Ohio Manual of Uniform Traffic Control Devices (hereinafter "OMUTCD"). Appellant
substantiates his claim with the affidavit of Michael W. Schweickart, a registered
professional engineer. Said affidavit is attached to appellant's memorandum in
opposition as Plaintiff's Exhibit SJ 1. Mr. Schweickart stated: "Based upon my study,
the pedestrian signals existing on the south crosswalk of Maple and Brandywine were
mandated by the existing OMUTCD."
Muskingum County, Case No. CT2013-0022 11
{¶29} In Lang v. Cesnik, 8th Dist. Cuyahoga No. 60882, 1992 WL 189552, *2
(August 6, 1992), our brethren from the Eighth District found "the timing of traffic signals
does not involve the remedying, restoration, or renovation of roads, and is not an actual
impediment. Therefore, we find that it is not encompassed within the meaning of the
term 'repair' or 'nuisance' as used in R.C. 27744.02 (sic)."1
{¶30} We agree with the Lang reasoning under the specific facts of this case.
Appellant has not demonstrated that the faulty timing was anything other than a
mistake, and the city did not know of the error until the accident. The exception under
R.C. 2744.02(B)(3) does not apply sub judice.
{¶31} Assuming arguendo that the timing of the pedestrian signal falls within the
exception under R.C. 2744.02(B)(3), we find immunity exists under R.C. 2744.03(A)(3)
and (5) which state the following:
(A) In a civil action brought against a political subdivision or an
employee of a political subdivision to recover damages for injury, death, or
loss to person or property allegedly caused by any act or omission in
connection with a governmental or proprietary function, the following
defenses or immunities may be asserted to establish nonliability:
(3) The political subdivision is immune from liability if the action or
failure to act by the employee involved that gave rise to the claim of
liability was within the discretion of the employee with respect to policy-
1
"Nuisance" language was removed from the statute in 2007, prior to the accident sub
judice.
Muskingum County, Case No. CT2013-0022 12
making, planning, or enforcement powers by virtue of the duties and
responsibilities of the office or position of the employee.
(5) The political subdivision is immune from liability if the injury,
death, or loss to person 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.
{¶32} We note the timing of pedestrian signals is included in Section 4E.10 of
the OMUTCD. See, Exhibit City SJ Ex. M, attached to Appellees' November 14, 2012
Motion for Summary Judgment. The OMUTCD lists guidelines and options regarding
the length of the walk interval. The section uses the word "should" and not "shall."
There are no specific mandates as to the timing of the pedestrian signals. Said section
states "the walk interval should be at least 7 seconds in length" with the option that
"walk intervals as short as 4 seconds may be used." In the case sub judice, the walk
interval was nine seconds.
{¶33} Absent a specific requirement in the OMUTCD manual, the decision in this
case to set the walk interval at nine seconds was a discretionary decision which makes
appellees' immune, unless the judgment was exercised with malicious purpose, in bad
faith or in a wanton or reckless manner. There is nothing to suggest that appellees'
judgment or discretion was exercised with malicious purpose or in bad faith or in a
wanton or reckless manner.
Muskingum County, Case No. CT2013-0022 13
{¶34} Appellant alludes to some devious action that caused the timing device to
be set at only nine seconds. However, there is no genuine issue of material fact raised
by such an unsubstantiated inference. The conclusions argued are reached only by
building one inference upon another, and therefore fall short of valid circumstantial
evidence.
{¶35} Upon review, we find the trial court did not err in granting summary
judgment to appellees.
{¶36} Assignments of Error II and III are denied.
I
{¶37} Appellant claims the trial court erred in granting summary judgment to
appellees on the issue of proximate cause and the "DON'T WALK/WALK" signal. Given
our decisions above, we find this assignment to be moot.
Muskingum County, Case No. CT2013-0022 14
{¶38} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Farmer, J.
Gwin, P.J. and
Wise, J. concur.
SGF/sg 1/8
