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Bonace v. Springfield Township

December 4, 2008

MARY BONACE, ET AL., PLAINTIFFS-APPELLEES,
v.
SPRINGFIELD TOWNSHIP, DEFENDANT-APPELLANT.



CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Case No. 05CV4756.

The opinion of the court was delivered by: Vukovich, J.

OPINION

JUDGMENT: Reversed.

JUDGES: Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite.

¶{1} Defendant-appellant Springfield Township appeals the decision of the Mahoning County Common Pleas Court which denied the Township's motion for summary judgment regarding the negligent road repair complaint filed by plaintiffs-appellees Mary Bonace and her husband. The issue on appeal is whether the Township is entitled to immunity. For the following reasons, the Township has immunity from Ms. Bonace's claims, and the judgment of the trial court is reversed.

STATEMENT OF THE CASE

¶{2} On a clear morning in August 2005, Mary Bonace was involved in a single car accident on Rapp Road in Springfield Township. She was driving a four door pick-up truck on a neighborhood road. When she encountered a portion of the road that tips to the right, her right front tire "fell off" the road and into an immediately adjacent ditch. Upon losing steering capacity and hitting a driveway apron, the truck exited the ditch, and rolled multiple times across the road and into a cornfield.

¶{3} On December 29, 2005, Ms. Bonace filed a complaint against Springfield Township.*fn1 She alleged that the Township failed to provide adequate pitch, grade, berm and width, negligently maintained the road regarding these aspects and failed to warn of these problems. The complaint also stated that the Township failed to keep the road open, in repair and free from nuisance, which directly and proximately caused an unsafe condition within the road and which caused Ms. Bonace to lose control.

¶{4} According to Ms. Bonace's deposition testimony, the road "tipped" to the right at the place she "fell" into the ditch and that this slope pulled or "sucked" her over to the edge line. (Depo. 24-26). She stated that she drove this route often and that the tipping sensation seemed worse after the recent road repaving. (Depo. 27). Her husband measured the slope as dropping eleven inches from the crown in the center to the edge of the road. (Ms. Bonace Depo. 25; Affidavit of Mr. Bonace).

¶{5} Ms. Bonace also testified that asphalt was missing from the white edge line which appeared "chewed up" when she viewed it after the accident. (Depo. 34, 66). Additionally, she complained that the ditch was immediately adjacent to the edge of the road and that the ditch was over twenty-eight inches deep at its center. (Affidavit of Mr. Bonace). Her husband, an automotive mechanic, determined that the steering linkage snapped while the vehicle was traveling in the ditch. (Affidavit of Mr. Bonace).

¶{6} Ms. Bonace produced an affidavit of a Rapp Road resident who stated that his daughter was involved in a single car accident at this same spot in August 2004 and that his sister was involved in an accident fifteen years ago in the vicinity. This resident stated that he complained to the Township about the road and noted that the Springfield Township Fire Chief was at the scene of his daughter's accident. (Affidavit of David Mangie). His daughter submitted an affidavit confirming that her right front tire suddenly and unexpectedly dropped into a ditch causing her to lose steering ability and to hit the driveway apron. She further disclosed that the police investigated the accident. (Affidavit of Jordan James).

¶{7} In addition, Ms. Bonace submitted the report of an expert on accident investigations. He reviewed another accident report from August 2004, which indicated a possible road defect. The expert stated that at the site where Ms. Bonace left the road, the asphalt is deteriorated at the outside edge of the white edge line. He measured an edge drop of twelve inches from the pavement to the land. He concluded that a drop over three and one-half inches is a hazard. He opined that, although it is not always attainable, there should be two feet of berm on rural roadways.

¶{8} This expert also stated that the side slope was nearly five percent, which is in excess of the normal two percent slope for level straight roadways under national and state standards. He opined that the excessive side slope contributed to the hazard of the drop-off. He also noted that the lane was ten feet wide, which is sufficient but less than desirable considering the other defects. He concluded that the condition of the road should have been known to the Township due to accident reports and from the Road Superintendent driving along the road.

¶{9} The Township's long-time Road Superintendent was deposed. He did not agree that there was road deterioration at the edge line, claiming that any broken asphalt dropped off during the repaving project. (Kennedy Depo. 19, 41, 43). He denied that the natural berm had changed during the repaving projects in 1997 or 2004, stated that there had never been a constructed berm and noted that the decision to build a berm was left to his judgment. (Kennedy Depo. 25, 33, 35-36).

¶{10} The Road Superintendent denied that he had ever received complaints about the condition of the road. (Kennedy Depo. 29). As for prior accidents, he acknowledged hearing of only one that occurred further south after Ms. Bonace's accident. (Kennedy Depo. 46, 50). He noted that the Fire Chief and his long-time assistant road crew member lived within a quarter mile of the accident scene. (Kennedy Depo. 60). He also conceded that the crown was greater at the disputed site than elsewhere on the road, but he did not think it was too severe. (Kennedy Depo. 61, 65). He disclosed that if a crown is too high, they can gradually lessen it in repaving projects but that the road could be torn up to more quickly fix the issue. (Kennedy Depo. 64).

ΒΆ{11} The Mahoning County Chief Deputy Engineer testified that the county evaluates the condition of a road's edge line on a case by case basis and considers a deteriorated condition more important if there exists a large edge drop-off. (Kenner Depo. 31, 34). She also stated that the slope of a road should drop one quarter to three-eighths of an inch per foot from the center crown. She explained that the crown can get higher due to years of resurfacing. (Kenner Depo. 52). She agreed that if two similar accidents occurred ...


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