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Livneh v. Village of Oak Harbor

United States District Court, N.D. Ohio, Western Division

August 17, 2017

STEVE LIVNEH, Plaintiff,
v.
VILLAGE OF OAK HARBOR, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          James R. Knepp, II United States Magistrate Judge.

         Introduction

         Pending before the Court are three separate motions for summary judgment, filed by Defendants Village of Oak Harbor (Docs. 43, 44), Ottawa County (Doc. 45), and Salem Township (Doc. 56). Plaintiff Steve Livneh (“Plaintiff”) filed opposition to each. (Docs. 46, 47, 58). Defendants filed replies. (Docs. 53, 54, 59). Jurisdiction is proper under 28 U.S.C. § 1332. The parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 11). For the reasons discussed below, the Court GRANTS the motions for summary judgment. (Docs. 43, 45, 56).

         Background

         Viewing the facts in the light most favorable to Plaintiff, the background of this case is as follows. Plaintiff sustained injuries from a single-vehicle accident occurring at approximately 4:00 p.m. on April 12, 2015, in the Village of Oak Harbor. (Doc. 10, at 2). Plaintiff was riding his motorcycle at approximately fifteen miles per hour and traveling northbound on North Benton Street approaching a set of railroad tracks which were raised up on a hill, impairing his ability to see on the other side of the tracks. Id. On the other side was a 90-degree left turn in which North Benton Street dead-ended into Christiansen Road. Id. at 3. Plaintiff saw a sign with an arrow pointing down on the other side of the tracks, which he presumed had to do with the railroad system. (Doc. 41, at 59 & Doc. 10, at 4). As he drove over the tracks, he was surprised by the sharp turn, lost control of his bike, and crashed. (Doc. 10, at 2). There was not a sign warning of the turn on North Benton Street, but there was the aforementioned sign at the intersection which ostensibly showed an arrow pointed down at the time of the accident. Id.[1]A passerby, David Keeton, traveling north on North Benton Street at approximately 4:30 p.m., came across Plaintiff, unconscious, “dragged the motorcycle off of Plaintiff”, “dragged Plaintiff to the side of the road”, and called emergency services. Id. at 4-5; see also Keeton deposition, Doc. 42, at 15-22. Mr. Keeton testified he noticed the arrow on the road sign pointed down, rather than to the left, due to a missing bolt. (Doc. 10, at 5); see also Keeton deposition, Doc. 42, at 24-25. Plaintiff was taken to the hospital for treatment, and subsequently transferred to another hospital. (Doc. 10, at 3-4).

         Plaintiff, a Canadian citizen, brings negligence claims against Defendants for failure to maintain the left turn arrow sign and failure to install additional warning signs leading up to the turn. (Doc. 10).[2]

         Standard of Review

         Pursuant to Federal Civil Rule 56(c), summary judgment is appropriate where there is “no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” When considering a motion for summary judgment, the Court must draw all inferences from the record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or determine the truth of any matter in dispute; rather, the Court determines only whether the case contains sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The moving party bears the burden of persuasion. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden “may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Id.

         Discussion

         The three Defendants, in separate motions for summary judgment, make similar arguments. Defendant Village of Oak Harbor (“the Village”) alleges: (1) it had no duty to maintain the sign in question; and (2) it is immune from liability regarding the placement additional warning signs leading up to the curve. Defendant Ottawa County (“the County”) argues that: (1) contrary to Plaintiff's assertion in the Complaint, Ohio Revised Code (“O.R.C.”) § 5543.01(A)(1) imposes no duty to install, maintain, or repair the signs at issue; (2) regardless of which political subdivision is responsible, immunity applies; (3) the Scott v. Harris rule negates Plaintiff's claim of negligence; and (4) the County is not sui juris and, therefore, cannot be sued. (Doc. 45). Finally, Defendant Salem Township (“the Township”) argues: (1) the Scott v. Harris rule negates Plaintiff's negligence claim; (2) it is entitled to immunity; and (3) it did not breach a duty owed to Plaintiff. (Doc. 56-1). For the reasons set forth below, the Court finds the County is entitled to summary judgment as Plaintiff has not shown it had a duty; and the Village and Township are entitled to summary judgment because they have shown they have immunity.

         Duty Owed to Plaintiff

         Plaintiff brings a single claim of negligence against three Defendants: the Village, the County, and the Township. (Doc. 10, at 6-8). He alleges each breached a duty of care and is, therefore, negligent per se. Id. To establish a negligence claim in Ohio, “the plaintiff must show

         (1) the existence of a duty, (2) a breach of duty, and (3) an injury proximately resulting therefrom.” Armstrong v. Best Buy Co., 99 Ohio St.3d 79 (Ohio 2003). “Where a legislative enactment imposes a specific duty for the safety of others, failure to perform that duty is negligence per se” Chambers v. St. Mary's School, 697 N.E.2d 198, 201 (Ohio 1998). In effect, “the application of negligence per se effectively reduces the elements that a plaintiff must prove in a negligence action.” Id. In Ohio,

In order to defeat a motion for summary judgment brought in a negligence action, it is incumbent upon the plaintiff to identify a duty owed to plaintiff by the defendant; further, there must be sufficient evidence, ‘considered most favorably to the plaintiff, to allow reasonable minds to infer that the duty was breached, that the breach of that duty was the proximate cause of the plaintiffs injury and that the plaintiff was injured.'

Mullens v. Binsky, 719 N.E.2d 599, 602-03 (10th Dist. Ohio 1998) (quoting Nagy v. Wallis (Apr. 27, 1995), Cuyahoga App. No. 66989, unreported, 1995 WL 248524).

         The relevant statutory provisions at issue regarding Plaintiffs negligence per se claim are O.R.C. § 5543.01(A)(1) and O.R.C. § 4511.11(A).[3]

         Ohio Revised Code § 5543.01, entitled “General powers and duties of county engineer; hiring of independent professional engineer by township”, provides:

         (A) Except as provided in division (B) of this section, the county engineer shall have general charge of the following:

(1) Construction, reconstruction, improvement, maintenance, and repair of all bridges and highways within the engineer's county, under the jurisdiction of the board of county commissioners, except for those county roads the board places on nonmaintained status pursuant to section 5541.05 of the Revised Code;
(2) Construction, reconstruction, resurfacing, or improvement of roads by boards of township trustees under sections 5571.01, 5571.06, 5571.07, 5571.15, 5573.01 to 5573.15, and 5575.02 to 5575.09 of the Revised Code;
(3) Construction, reconstruction, resurfacing, or improvement of the roads of a road district under section 5573.21 of the Revised Code.

         (B) For any particular project, after notifying the county engineer, the board of township trustees of a township that has adopted a limited home rule government under Chapter 504 of the Revised Code may hire an independent professional engineer to be in charge of those activities listed in division (A)(2) of this section. The county engineer shall review all of the independent professional engineer's plans for improvements and provide the board of township trustees with comments on those plans within ten working days after receiving them. The county engineer shall monitor all plans for improvements in order to maintain compliance with existing construction standards and thoroughfare plans, and coordinate construction timelines within the county.

         (C) The county engineer may not perform any duties in connection with the repair, maintenance, or dragging of roads by boards of township trustees, except that, upon the request of any board of township trustees, the county engineer shall inspect any road designated by it and advise as to the best methods of repairing, maintaining, or dragging that road.

         Ohio Revised Code § 4511.11, entitled “Local authorities' traffic control device placement and maintenance”, provides:

(A) Local authorities in their respective jurisdictions shall place and maintain traffic control devices in accordance with the department of transportation manual for a uniform system of traffic control devices, adopted under section 4511.09 of the Revised Code, upon highways under their jurisdiction as are necessary to indicate and to carry out sections 4511.01 to 4511.76 and 4511.99 of the Revised Code, local traffic ordinances, or to regulate, warn, or guide traffic.

         For the reasons discussed below, the undersigned finds Plaintiff has established the Village and the Township owed him a duty. However, the undersigned also concludes Plaintiff has failed to show the County owed him a duty.

         Defendant Village of Oak Harbor

         First, the Village alleges it owed Plaintiff no duty with regard to the sign in question, and is therefore entitled to summary judgment on Plaintiff's negligence claim. (Doc. 44, at 6-8). The Village argues the sign was the responsibility of the Township alone and, as such, the Village owed no duty to Plaintiff for the installation or maintenance of the sign. Id. at 7-8. Plaintiff responds that the Village had a duty to place and maintain signs pursuant to O.R.C. § 4511.11(A). (Doc. 46, at 13). For the reasons discussed below, the undersigned agrees with Plaintiff.

         In support of its claim that it owed Plaintiff no duty, the Village points to several undisputed facts: (1) the Township's admission it was exclusively responsible for the sign (James Karr deposition, Doc. 38, at 16; Paul Lacumsky deposition, Doc. 40, at 46; Village Administrator R. Genzman deposition, Doc. 39, at 8); (2) at the time of the accident, the sign had “Salem Township” written on its back, which was typical of township owned signs (Lacumsky deposition, Doc. 40, at 18-19, 38); (3) the Township installed the sign in question sometime between 2008 and 2010. (Doc. 34-1, at 43; Lacumsky deposition, Doc. 40, at 18, 21); (4) Lacumsky, a Township maintenance worker made the decision as to sign placement and decided not to place it before the railroad tracks because of potential motorist confusion due to the presence of small side road next to the tracks (Lacumsky deposition, Doc. 40, at 19, 22, 36-37); and (5) representatives from both the Township and the Village testified the Township has been responsible for the maintenance and repair of the sign for some time, including at the time of this incident (Genzman deposition, Doc. 39, at 8, 16-17; Lacumsky deposition, Doc. 40, at 45-46; Karr deposition, Doc. 38, at 20).

         However, the Village also admits that the sign was physically located on Village property, and, because Plaintiff was traveling northbound on the east side of the road, he was traveling on Village property. (Doc. 44, at 7-8) (citing Genzman deposition, Doc. 39, at 7; County Engineer R. Lajti, Jr., deposition, Doc. 37, at 25, Lacumsky deposition, Doc. 40, at 19). Even so, the Village contends it owed no duty to Plaintiff because “although [the sign] is physically on Village property, it is a Salem Township sign.” (Doc. 44, at 8) (citing Lacumsky deposition, Doc. 40, at 19).

         Ohio Revised Code § 4511.11(A) provides: “Local authorities in their respective jurisdictions shall place and maintain traffic control devices . . . .” Even though the Township both placed and maintained the sign in question, because it was physically located on Village property, the Village had a duty to maintain it pursuant to O.R.C. § 4511.11(A). Just because the Village did not actually maintain the sign, does not mean it did not have a responsibility to do so pursuant to the statute. In fact, Randy Genzman, Village Administrator testified: “We repair, replace, and I guess add or subtract signs where needed by ordinance inside the Village of Oak Harbor . . .” (Genzman deposition, Doc. 39, at 9).

         The Village's arguments to the contrary are unpersuasive. The Village relies on Dietz v. Ohio Dept. of Transp., Ohio Ct. of Cl. No. 2010-07563, 2010-Ohio-6651, but that case is distinguishable. In Dietz, a driver brought suit against the Ohio Department of Transportation (“ODOT”) for alleged damage to his vehicle caused by a rock thrown from a lawn mower on the berm of the interstate. Id. at ¶ 1. The court, in finding plaintiff failed to prove ODOT had a duty, noted ODOT hired an independent contractor to perform mowing operations on that stretch of roadway. Id. at ¶ ¶ 2-3. Here, the Village does not assert that sign installation was formally delegated to the Township, but rather simply that the Township had installed and maintained the signs. See Genzman deposition, Doc. 39, at 16 (Q: “Do you know if there is an agreement between Oak Harbor and Salem Township about sign maintenance?”; A: “I'm not aware of any agreement.” Q: “It's just the way it's done?”; A: “That's correct.”). The other cases the Village points to for support of its lack-of-duty claim are similarly distinguishable from the instant case. See Hoffman v. Waste Mgmt., Inc., 1988 WL 56514 (10th Dist. Ohio Ct. App.) (the land adjacent to the accident site was owned by the county and leased to another entity, but plaintiff failed to show the entity had an affirmative duty to maintain the portion of road at issue); Lewis v. Ohio Dept. of Transp., Ohio Ct. of Cl. No. 2015-00094-AD, 2015-Ohio-4894, ¶¶6-7 (finding defendant could not be held liable because it “had no responsibility to maintain [the] road”); Bird v. Ohio Dept. of Transp., Ohio Ct. of Cl. No. 2010-09078-AD, 2010-Ohio-6678, ¶11 (dismissing the case because “[t]he site of the damage-causing incident was not the maintenance jurisdiction of defendant.”). Here, the sign was indisputably on Village property.

         Therefore, the undersigned finds the Village owed Plaintiff a duty to maintain the sign in question under § 4511.11(A) (“Local authorities in their respective jurisdictions shall place and maintain traffic control devices . . . .”) (emphasis added).[4] The Village's motion for summary judgment on these grounds is denied.

         Defendant Ottawa County

         The County similarly argues it is entitled to summary judgment because it, too, owed no duty to Plaintiff pursuant to the sole negligence claim. The County argues, contrary to Plaintiff's assertion in the Amended Complaint (Doc. 10, at 6-7), O.R.C. § 5543.01(A)(1) imposes no duty on it to install, maintain, or repair the signs at issue (Doc. 45, at 5-10). Plaintiff responds that, pursuant to O.R.C. § 4511.11, the County had a statutory duty to place and maintain the sign in question. (Doc. 47, at 5). For the reasons discussed below, the undersigned agrees with the County.

         Ohio Revised Code § 5543.01

         The County explains that § 5543.01, cited by Plaintiff, speaks to “construction, reconstruction, improvement, repair, and maintenance of roads and highways”, rather than “placement or maintenance of signs.” (Doc. 45, at 7). The County also argues the statute should be interpreted to mean it is responsible only for county roads “not state or townships roads that happen to be located within the County[]”, adding “[t]hat interpretation is not just obvious but also essential, if the statute is to be harmonized with Ohio R.C. §§ 5571.02[, ] 5535.01(C)[, ] and 5535.08(A), all of which make it clear that the township, state[, ] and county each are responsible for maintaining only their own roads.” (Doc. 54, at 3). Plaintiff only briefly addresses the statute (under which he brought his theory of negligence) by noting: “Ottawa County has [a] general charge of maintenance and repair of all highways within the engineer's county.” (Doc. 47, at 3). The County does not dispute the roads are within the county limits, but states the roads are not county roads, but rather a Township road (Christiansen Road) and a shared Village/Township road (North Benton Street). (Doc. 45, at 7). Plaintiff concedes both roads are Township roads. See Doc. 47, at 1.

         First, the undersigned agrees with the County that § 5543.01 is not directly on point in this case and does not impose a duty on the County to place or maintain road signs. The statute speaks to “[c]onstruction, reconstruction, improvement, maintenance, and repair of all bridges and highways within the engineer's county, under the jurisdiction of the board of county commissioners, except for those county roads the board places on nonmaintained status . . .” O.R.C. § 5543.01(A)(1). It does not speak to the placement and maintenance of road signs and Plaintiff has pointed to nothing to show the statute has been interpreted to include this type of claim.

         Second, even if the statute could be interpreted to include maintenance and placement of road signs, it imposes no such duty on the County. See Isreal v. Jefferson Twp. Bd. of Trustees, 1990 WL 205115, at *3 (2nd Dist. Ohio Ct. App.). In Isreal, the plaintiff was injured when she “failed to negotiate a curve in the roadway and her automobile ‘left the roadway' and collided with a utility pole.” Id., at *1. On appeal, the court found that while O.R.C. § 5571.05 imposed a general duty on the county engineer to “supervise and direct township trustees with regard to the maintenance and repair of townships roadways”, O.R.C. § 5543.01 imposed no duty on the county engineer to “perform the maintenance and repair himself.” Id., at *3 (emphasis in original). The court concluded plaintiff failed to establish a negligence claim because, “[i]n fact, [the county engineer] may not perform any duties connected with the maintenance and repair of township roadways unless specifically requested by the board of township trustees.” Id. Indeed, township trustees are responsible for maintenance of township roads and there is no evidence the Township trustees in this case made such a request. See O.R.C. §§ 5571.02, 5535.01. Thus, the Court agrees with the County that O.R.C. § 5543.01 imposes no duty on it with regard to the sign at issue in this case. See also Franks v. Sandusky Twp. Bd. of Trustees, 1992 WL 66561, at *6 (6th Dist. Ohio Ct. App.) (“[T]he county engineer may not perform any duties in connection with repair or maintenance unless such is requested by the township trustees.” (citing O.R.C. § 5543.01)).

         Ohio Revised Code § 4511.11

         The County also argues Plaintiff has not established the County owed him a duty under O.R.C. § 4511.11. As ...


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