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Deitz v. Harshbarger

Court of Appeals of Ohio, Third District, Shelby

May 22, 2017

PAUL DEITZ, ET AL., PLAINTIFFS-APPELLANTS,
v.
HENRY L. HARSHBARGER, ET AL., DEFENDANTS-APPELLEES.

         Appeal from Shelby County Common Pleas Court Trial Court No. 14CV000145

          Thomas W. Kerrigan, II and Royce A. Link for Appellants.

          Bryan J. Mahoney for Appellees.

          OPINION

          PRESTON, P.J.

         {¶1} Plaintiffs-appellants, Paul Deitz ("Paul"), in his individual capacity and as the personal representative of the estate of Christina Deitz ("Christina"), and Alexis Deitz ("Alexis") (collectively "plaintiffs"), appeal the July 24, 2015 decision of the Shelby County Court of Common Pleas granting summary judgment in favor of defendant-appellant, the Franklin Township Board of Board of Trustees of Shelby County, Ohio (the "Board of Trustees"). For the reasons that follow, we affirm.

         {¶2} This case stems from a negligence and wrongful death complaint filed by plaintiffs on June 26, 2014 alleging that defendants-appellees, the Board of Trustees, Henry Harshbarger and Elizabeth Harshbarger (the "Harshbargers"), the Shelby County Board of Commissioners (the "Commissioners"), and Paradise Acres, LTD ("Paradise"), negligently caused the death of Christina and severe injury to Alexis. (Doc. No. 1). Plaintiffs' complaint also names as a party to the case Nationwide Insurance Co. ("Nationwide") since it "may claim an interest in the * * * matter by virtue of making payment of medical or funeral expenses on behalf of" Christina or Alexis. (Id.). On June 29, 2012, Christina and her daughter, Alexis, were traveling northbound on Scott Road, a roadway situated in Franklin Township, of Shelby County, Ohio, and were involved in a two-vehicle accident at the intersection of Scott Road and Sharp Road.[1] (Id.); (Doc. No. 206). Christina, who was operating the motor vehicle, failed to stop at a stop sign at the intersection and collided with another vehicle. (Doc. No. 1). Christina allegedly did not see the stop sign because the stop sign controlling northbound traffic on Scott Road was allegedly obscured by tree foliage. (Id.); (Doc. No. 206). The property on which the trees were growing is owned by the Harshbargers. (Doc. No. 206). It was further alleged that the intersection was obstructed by a corn field located on the southwest quadrant of the intersection. (Id.). The property on which the corn was growing is owned by Paradise. (Id.).

         {¶3} On July 23, 2014, the Commissioners and Paradise filed its answers. (Doc. Nos. 12, 15). The Board of Trustees filed its answer on July 25, 2014. (Doc. No. 18). On July 30, 2014, the Harshbargers filed their answers. (Doc. Nos. 23, 24). That same day, the Harshbargers filed a motion, which was granted by the trial court, requesting that the trial court transfer discovery from Case Number 13CV000233, which raised the same issues and was voluntarily dismissed without prejudice by plaintiffs. (Doc. Nos. 20, 25). Also on July 30, 2014, Nationwide filed its answer and cross-claim against the Harshbargers, the Board of Trustees, the Commissioners, and Paradise. (Doc. No. 22).

         {¶4} The Board of Trustees filed its answer to Nationwide's cross-claim on August 5, 2014. (Doc. No. 31). On August 14, 2014, Paradise filed its answer to Nationwide's cross-claim. (Doc. No. 44). On August 28, 2014, the Harshbargers filed their answer to Nationwide's cross-claim. (Doc. No. 62).

         {¶5} On August 20 and 25 2014, the Commissioners filed motions to dismiss under Civ.R. 12(B)(6) Nationwide's cross-claim, which the trial court granted on October 20, 2014. (Doc. Nos. 46, 57, 85).

         {¶6} On October 17, 2014, plaintiffs filed a motion to dismiss under Civ.R. 41(A)(1) Nationwide as a defendant to the case. (Doc. No. 84).

         {¶7} On November 10, 2014, Nationwide filed a motion to dismiss without prejudice its cross-claims against the Harshbargers, the Board of Trustees, the Commissioners, and Paradise. (Doc. No. 98).

         {¶8} On April 8, 2014, the Commissioners filed a motion for summary judgment asserting that there is no genuine issue of material fact that it is immune from liability. (Doc. No. 166). On April 23, 2015, the Harshbargers filed a motion for summary judgment asserting that there is no genuine issue of material fact that they did not contribute to plaintiffs' injuries and did not breach any duty they owed to plaintiffs. (Doc. No. 173). On May 21, 2015, the Board of Trustees filed a motion for summary judgment asserting that there is no genuine issue of material fact that the Board of Trustees did not breach any duty owed to plaintiffs; no act or omission caused the accident; and the Board of Trustees are immune from liability under R.C. 2744.01. (Doc. No. 210). Paradise filed a motion for summary judgment on May 27, 2015. (Doc. No. 214).

         {¶9} On May 18, 2015, plaintiffs filed memorandums in opposition to the Commissioners' and the Harshbargers' motions for summary judgment. (Doc. Nos. 206, 207). Plaintiffs filed memorandums in opposition to the Board of Trustees' and Paradise's motions for summary judgment on June 10, 2015. (Doc. Nos. 226, 228).

         {¶10} On May 26, 2015, the Commissioners filed its response to plaintiffs' memorandum in opposition to the Commissioners' motion for summary judgment. (Doc. No. 212). The Harshbargers filed their response to plaintiffs' memorandum in opposition to the Harshbargers' motion for summary judgment on May 28, 2015. (Doc. No. 216). On June 17, 2015, the Board of Trustees filed its response to plaintiffs' memorandum in opposition to the Board of Trustees' motion for summary judgment. (Doc. No. 237). On June 22, 2015, Paradise filed its response to plaintiffs' memorandum in opposition to Paradise's motion for summary judgment. (Doc. No. 242). After having been granted leave by the trial court on July 13, 2015, the Commissioners filed a "supplemental reply brief on June 18, 2015. (Doc. Nos. 239, 253). On June 25, 2015, the Harshbargers filed an amended response to plaintiffs' memorandum in opposition to the Harshbargers' motion for summary judgment. (Doc. No. 245).

         {¶11} On July 24, 2015, the trial court granted summary judgment in favor of Paradise, the Board of Trustees, and the Commissioners. (Doc. Nos. 261, 262, 263). That same day, the trial court denied the Harshbargers' motion for summary judgment. (Doc. No. 264).

         {¶12} Plaintiffs filed notices of appeal on August 17, 2015 of the trial court's decisions granting summary judgment in favor of Paradise, the Board of Trustees, and the Commissioners. (Doc. Nos. 271, 273, 275). On September 18, 2015, this court dismissed plaintiffs' appeals because we lacked jurisdiction to consider them.

         {¶13} On September 24, 2015, the trial court dismissed Paradise, the Board of Trustees, and the Commissioners as parties to the case. (Doc. No. 291).

         {¶14} After the Harshbargers reached a settlement with Alexis, the trial court dismissed with prejudice Alexis's claims against the Harshbargers on July 18, 2016. (Doc. No. 341). On August 24, 2016, the trial court dismissed with prejudice Paul's claims in his individual capacity and in his capacity as the personal representative of Christina's estate against the Harshbargers after the parties reached a settlement. (Doc. No. 346).

         {¶15} Plaintiffs filed their notice of appeal on September 15, 2016 from the July 24, 2015 entry granting summary judgment in favor of the Board of Trustees. (Doc. No. 351). They raise one assignment of error for our review.

         Assignment of Error

         The Trial Court Erred in Granting Summary Judgment to the Defendant/Appellee, the Frankling [sic] Township Board of Trustees, of Shelby County, Ohio, on its Claim of Government Immunity

         {¶16} In their assignment of error, plaintiffs argue that the trial court erred by granting summary judgment in favor of the Board of Trustees because an exception applies to the general rule that political subdivisions enjoy immunity while engaging in either governmental or proprietary functions. In particular, plaintiffs argue that the trial court erred by concluding that the Board of Trustees is "immune from liability for failing to remove the obstruction blocking the view of the stop sign controlling Scott Road, " and erred by concluding that the Board of Trustees is "immune [from liability] for failing to properly maintain the stop ahead sign on Scott Road." (Appellant's Brief at 3).

         {¶17} We review a decision to grant summary judgment de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and the conclusion is adverse to the non- moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

         {¶18} "The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact." Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). "In doing so, the moving party is not required to produce any affirmative evidence, but must identify those portions of the record which affirmatively support his argument." Id., citing Dresher at 292. "The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; he may not rest on the mere allegations or denials of his pleadings." Id., citing Dresher at 292 and Civ.R. 56(E).

         {¶19} "R.C. Chapter 2744 governs political subdivision tort liability and immunity." Brady v. Bucyrus Police Dept., 194 Ohio App.3d 574, 2011-Ohio-2460, ¶ 44 (3d Dist.). To determine whether a political subdivision is entitled to immunity under R.C. Chapter 2744, a court must apply a three-tiered analysis. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, ¶ 13. Under the first tier, a court must determine whether the entity claiming immunity is a political subdivision and whether the alleged harm occurred in connection with either a governmental or a proprietary function. R.C. 2744.02(A)(1); Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, ¶ 14. Although political subdivisions are generally immune from liability incurred in performing a governmental or proprietary function, that immunity is not absolute. R.C. 2744.02(B); Cramer at ¶ 14. "'The second tier of the analysis requires the court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability.'" Cramer at ¶ 15, quoting Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998). "'If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability.'" Id. at ¶ 16, quoting Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, ¶ 7-9.

         {¶20} "Under the Political Subdivision Tort Liability Act, immunity is an affirmative defense." Green v. Columbus, 10th Dist. Franklin No. 15AP-602, 2016-Ohio-826, ¶ 18, citing Slane v. Hilliard, 10th Dist. Franklin No. 15AP-493, 2016-Ohio-306, ¶ 30, citing Jones v. Lucas Metro. Hous. Auth, 6th Dist. Lucas No. L-96-212, 1997 WL 543049, *1 (Aug. 29, 1997) and Haynes v. Franklin, 135 Ohio App.3d 82 (12th Dist.1999). "Accordingly, the burden of proof is on the political subdivision to establish general immunity." Id., citing Slane at ¶ 30, and citing Browning v. Fostoria, 3d Dist. Seneca No. 13-09-28, 2010-Ohio-2163, ¶ 18 and Horen v. Bd. of Edn. of Toledo Pub. Schools, 6th Dist. Lucas No. L-09-1143, 2010- Ohio-3631, ¶ 33. The parties do not dispute that the Board of Trustees are entitled to general immunity under R.C. 2744.02(A)-that is, the parties agree that Franklin Township is a political subdivision under R.C. 2744.01(F)(1) and that Christina's death occurred in connection with a governmental function as defined by R.C. 2744.01(C)(2)(e). See Yonkings v. Pinwinski, 10th Dist. Franklin Nos. 11AP-07 and 11AP-09, 2011-Ohio-6232, ¶ 19.

         {¶21} "When a political subdivision establishes general immunity, the burden then shifts to the plaintiff to demonstrate that one of the exceptions to immunity applies." Green at ¶ 19, citing Slane at ¶ 30, and citing Maggio v. Warren, 11th Dist. Trumbull No. 2006-T-0028, 2006-Ohio-6880, ¶ 38 and Brady, 194 Ohio App.3d 574, 2011-Ohio-2460, at ¶ 24. R.C. 2744.02(B) provides the following exceptions to the general immunity rule, in relevant part:

Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
* * *
(3) 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.

(Emphasis added). Plaintiffs advance two theories that they argue strip the Board of Trustees from immunity under R.C. 2744.02(B)(3)-that the stop sign and stop-ahead sign at issue in this case fall under the definition of "public roads, " and that the Board of Trustees negligently failed to remove foliage that was obstructing the stop sign or that the Board of Trustees negligently failed to keep the public road in repair by placing the stop-ahead sign at the distance from the stop sign recommended by the Ohio Manual of Traffic Control Devices ("OMUTCD"). We will first address plaintiffs' arguments relative to the stop sign, followed by plaintiffs' arguments relative to the stop-ahead sign.

         {¶22} "Public Roads" are defined as "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." R.C. 2744.01(H).[2] Accordingly, our first inquiry is whether the stop sign at issue in this case was mandated by the OMUTCD.

         {¶23} Based on the time of the accident, the relevant edition of the OMUTCD is the 2012 edition. "The 2012 version of the OMUTCD, like the prior versions, contains headings to classify the nature of the text that follows." Pelletier v. Campbell, 7th Dist. Mahoning No. 15 MA 0220, 2016-Ohio-8097, ¶ 13. "OMUTCD Section 1A.13 provides the definitions for headings, words, and phrases used in the manual. There are four headings-Standard, Guidance, Option, and Support." Id. "Text classified as Standard includes a 'required, mandatory, or specifically prohibited practice regarding a traffic control device.'" Id., quoting OMUTCD, Section 1A.13(A) (2012 Ed.). "The definition notes that the verb 'shall' is typically used and that the text appears in bold type." Id., citing OMUTCD, Section 1A.13(A) (2012 Ed.). Text classified as Guidance includes "a statement of recommended, but not mandatory, practice in typical situations." OMUTCD, Section 1A.13(B) (2012 Ed.). The definition of Guidance notes that the verb "should" is typically used and that the verbs "shall" and "may" are not used in Guidance statements. Id

         {¶24} Section 2B.04 of the OMUTCD, titled Right-of-Way at Intersections, provides, in relevant part,

ORC Section 4511.41 * * * establishes the right-of-way rule at intersections having no regulatory traffic control signs such that the driver of a vehicle approaching an intersection must yield the right-of-way to any vehicle or pedestrian already in the intersection. * * * The right-of-way can be modified at through streets or highways by placing YIELD * * * signs * * * or STOP * * * signs (see Sections 2B.05 through 2B.07) on one or more approaches. * * *
Guidance
* * ...

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