United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
R. Knepp, II United States Magistrate Judge.
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).
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.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).
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).
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.”
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.
Owed to 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
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).
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).
Revised Code § 5543.01, entitled “General powers
and duties of county engineer; hiring of independent
professional engineer by township”, provides:
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
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.
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.
Revised Code § 4511.11, entitled “Local
authorities' traffic control device placement and
(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.
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.
Village of Oak Harbor
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.
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).
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).
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).
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.
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). The Village's motion for summary
judgment on these grounds is denied.
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
Revised Code § 5543.01
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.
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.
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.
Revised Code § 4511.11
County also argues Plaintiff has not established the County
owed him a duty under O.R.C. § 4511.11. As ...