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W. Justin Crabtree et al v. andre L. Cook et al

November 1, 2011


APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 06CVH-01-672

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

Cite as Crabtree v. Cook,



{¶1} Plaintiffs-appellants, W. Justin Crabtree and George W. Crabtree, appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, the city of Columbus.

{¶2} Justin suffered serious injuries and was rendered a quadriplegic when while bicycling, he was struck by a vehicle driven by defendant Andre L. Cook. The claims and cross-claims against Mr. Cook were resolved before this appeal and he is no longer a party to the action. The sole liability issue in this appeal is whether the city of Columbus is statutorily immune from any liability that would arise from road conditions at the site of the accident.

{¶3} The trial court granted summary judgment in favor of the city solely on the basis that the current language of R.C. 2744.02(B), addressing governmental liability for road conditions, does not render a political subdivision liable unless damages resulted from a "negligent failure to keep public roads in repair [or] other negligent failure to remove obstructions from public roads[.]" R.C. 2744.02(B)(3). The trial court found that the road conditions cited as the basis for plaintiffs' theory of liability on the part of the city did not meet the requirements for holding a political subdivision liable under the statute. Because the city's motion for summary judgment was based solely on these issues pertaining to statutory immunity, all further issues regarding the city's alleged negligence, such as those related to proximate causation, were not before the trial court and will not be addressed in this appeal. Likewise, we do not address issues of law or fact pertaining to the respective duties of bicyclists and motorists to share the road, particularly in relation to the position of a bicycle with respect to the center of a road lane of travel.

{¶4} Appellants bring the following assignment of error upon appeal:

The Trial Court erred in granting the Motion of DefendantAppellee City of Columbus for Summary Judgment on the ground of governmental immunity.

{¶5} We initially note this matter was decided in the trial court by summary judgment, which under Civ.R. 56(C) may be granted only when there remains no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory assertions that the nonmoving party has no evidence to prove its case. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Rather, the moving party must point to some evidence that affirmatively demonstrates that the nonmoving party has no evidence to support his or her claims. Id.

{¶6} An appellate court's review of summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588; Bard v. Soc. Natl. Bank, nka KeyBank (Sept. 10, 1998), 10th Dist. No. 97APE11-1497. Thus, we conduct an independent review of the record and stand in the shoes of the trial court. Jones v. Shelly Co. (1995), 106 Ohio App.3d 440, 445. As such, we have the authority to overrule a trial court's judgment if the record does not support any of the grounds raised by the movant, even if the trial court failed to consider those grounds. Bard.

{¶7} The trial court's decision in this case concludes that there remain no genuine issues of material fact because the presence of one or several potholes in the road and obstructions in the form of mud, rocks, and overgrown vegetation near the curb of the road did not constitute conditions for which the city could be liable under R.C. 723.01 (municipal authority for care and control of roadways) and R.C. 2744.02.

Appellants now argue that these code sections do make the city potentially liable and that they created a duty of care towards users of the public road, including Justin, and that there is evidence in the record that supports a genuine issue of material fact regarding that breach and its proximate causation of the injuries suffered by Justin. Despite Mr. Cook's uncontroverted role in the accident, appellants assert that the city can be held jointly liable as a concurrent tortfeasor pursuant to our decision in Harris v. Ohio Dept. of Transp. (1992), 83 Ohio App.3d 125, 132 (the negligence of a driver does not excuse the negligence of a third party in maintaining a nuisance adjacent to the roadway).

{¶8} By way of affidavit and deposition testimony, the trial court examined several accounts of road conditions and the circumstances surrounding the accident. The uncontroverted facts reflected in all accounts established that on January 4, 2006, Justin rode his bicycle eastbound on Williams Road near Groveport Road in Franklin County in company of a friend, Terry Blake ("Blake"). The two passed underneath a railroad underpass and were proceeding at moderate pace up the incline leading out from under the bridge when a vehicle driven by Mr. Cook approached, also eastbound, passed Blake, and struck Justin.

{ΒΆ9} Blake gave his account of the accident in two forms. First, at the scene, Blake was interviewed by Columbus police officer David Cornute, who summarized this account as part of the accident report. Officer Cornute's recitation of Blake's description of the accident states that Blake and Justin were riding on Williams Road eastbound on the right side of the roadway, with Justin ahead and somewhat to the left of Blake. They were both wearing headphones and listening to music. When Blake saw Mr. Cook's Cadillac pass at approximately 50-55 miles per hour, Blake called to Justin to warn him of the approaching vehicle, while himself riding closer to ...

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