Court of Appeals of Ohio, Seventh District, Mahoning
MAUREEN A. EMMERLING, Individually and as Personal Representative of the Estate of Robert M. Emmerling PLAINTIFF-APPELLANT
MAHONING COUNTY BOARD OF COMMISSIONERS, et al. DEFENDANTS-APPELLEES
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 2014 CV 00738
Plaintiff-Appellant: Atty. Jack E. Peak Atty. Jack M. Strauch
(admitted Pro Hac Vice) Strauch, Green & Mistretta, P.C.
Defendant-Appellee: Atty. Todd M. Raskin Atty. Frank H.
Scialdone Atty. David M. Smith Mazanec, Raskin & Ryder
JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary
Appellant Maureen A. Emmerling, individually and as the
personal representative of the Estate of Robert M. Emmerling
("Emmerling"), appeals the decision of the Mahoning
County Common Pleas Court granting summary judgment to
Appellee, Mahoning County Board of Commissioners. This matter
involves a wrongful death action based on road signs placed
under Appellee's authority. Because the signs in
questions are not mandatory pursuant to the Ohio Manual of
Uniform Traffic Control Devices ("OMUTCD"),
Appellant has not established that any exception to general
governmental immunity exists. Moreover, Appellant has failed
to establish any proximate causation between the actions of
Appellee and the incident in question. Therefore,
Appellant's assignment of error is without merit and the
judgment of the trial court is affirmed.
The following facts are derived from the record. On March 21,
2012, Appellant's spouse, Robert M. Emmerling, was
operating a motorcycle in the left-hand lane of southbound
South Avenue approaching McClurg Road in Boardman, Ohio. At
the same time, Alex Tareshawty ("Tareshawty"),
operating a minivan, was waiting to turn left onto northbound
South Avenue. Traffic on South Avenue did not have any
"stop" indicator at the McClurg Road intersection.
After stopping in the marked lane on McClurg Road preparatory
to making his left turn onto South Avenue, Tareshawty slowly
moved his vehicle forward in an effort to better see the
traffic on South Avenue. Tareshawty looked to the left and to
the right multiple times before proceeding to make his left
turn onto northbound South Avenue. When Tareshawty entered
South Avenue, Emmerling's motorcycle collided with the
side of Tareshawty's minivan. From the time he began his
left turn until the moment of collision, Tareshawty continued
to look only to his left, toward the direction Emmerling was
proceeding. When Tareshawty first saw the motorcycle, it was
too late to stop so he attempted to speed up.
Tareshawty testified that the motorcycle "seemed to
appear out of nowhere." (Tareshawty Depo., p. 80.)
Tareshawty specifically testified as follows:
Q. Was there anything that in your experience before the date
of the collision, that obstructed a driver's view to the
left, when preparing to make a turn from McClurg onto north
bound South Avenue?
Q. Did any of the signs or telephone poles in your estimation
obstruct a driver's view when turning from McClurg onto
north bound South Avenue?
(Tareshawty Depo., pp. 46-47.)
Tareshawty further testified:
Q. Is it correct then that from the time you decided to try
to pull out to make your turn until the time of impact, you
were looking left towards the direction where the motorcycle
was coming from?
Q. Do you have any idea why you didn't see the motorcycle
until the front end of your car was in that center turn lane*
* * *
Q. Do you know why you failed to see the motorcycle before it
was too late to avoid the collision?
MR. MEOLA: Objection. Asked and answered.
THE WITNESS: I don't know.
(Tareshawty Depo., pp. 87, 89.)
Emmerling passed away on April 19, 2012. Appellant filed a
complaint against Appellee on March 20, 2014, seeking, among
other things, damages for the wrongful death of her spouse.
Appellant contends that Tareshawty's view of oncoming
traffic was obstructed by signs erected by Appellee on the
west side of South Avenue that were put in place contrary to
the requirements of the OMUTCD, and that this obstruction was
a proximate cause of her husband's death.
The three signs in contention were mounted on the same two
posts. At the top was a two-way left turn sign. In the middle
was a hospital sign. Below the hospital sign was a
directional arrow sign indicating the direction of the
In 2010, before the accident in question, Appellee hired DLZ
Ohio, Inc., professional engineers, to study the
intersection. This site had been an area where other
accidents had occurred. The purpose of the study was to
identify problems, determine countermeasures, and set up
reasonable time periods to implement the proposed
countermeasures. In October 2010, Appellee received a report
from DLZ. A copy of the report was entered into evidence and
an engineer employed by Appellee testified at deposition as
to the report:
Q The safety study that the Mahoning County Engineer hired
DLZ to perform explained what the most frequent type of crash
was at that intersection; right?
Q What kind of crash was that?
A Left turn crashes.
Q The most -- strike that. The safety study the Mahoning
County engineer commissioned to have done told Mahoning
County well before Robert Emmerling's fatal crash that
the most common type of crash was the very type that he had;
A Oh, yeah.
(Donham Depo., p. 75.)
During deposition, Robert Donham II, traffic engineer for the
Mahoning County Engineer's Office, stated that from 2005
to 2012, there were 62 crashes at the intersection. The DLZ
report recommended that the signs be moved as a short term
countermeasure. While Donham instructed that the hospital
sign and arrow sign should be moved, he also instructed that
no special trip needed to be made to the intersection to
carry out this instruction. The signs were not moved until
after the Emmerling accident.
Donham testified further that the bottom of the highest sign,
the two-way left turn sign, was supposed to be at least seven
feet from the ground. Any signs mounted below this sign could
only be set one foot lower than the minimum height, which in
this case meant set at six feet. Donham stated that on the
date of the accident, the bottom of the hospital sign was
five feet from the ground and the bottom of the directional
arrow for the hospital was four and one half feet from the
ground. Paul W. Dorothy, one of Appellee's expert
witnesses, testified at deposition that the bottom of the
directional arrow for the hospital was lower, approximately
four feet two and one-half inches from the ground.
Both parties presented the opinions of accident
reconstruction experts on the issue of whether or not these
signs played any role in the accident. Appellant's
expert, Michael Sutton, P.E., gave his opinion that the
location of the hospital and accompanying directional arrow
signs explain why Tareshawty stated that Emmerling appeared
to come out of nowhere. He opined that these signs blocked
Tareshawty's view, thus contributing to the accident.
Sean A. Doyle, P.E., Appellee's expert, on the other hand
opined that the existence and signage location played
absolutely no role in the accident.
On March 16, 2015, Appellee filed a motion for summary
judgment arguing that, as a political subdivision, it was
immune from tort liability, that there were no exceptions to
its immunity, and that Appellant had no evidence to establish
a proximate cause between any alleged negligence of Appellee
and the accident. Appellant filed a memorandum in opposition,
to which Appellee replied. On August 19, 2015, the trial
court granted Appellee's motion for summary judgment,
concluding that Appellee was immune from any tort liability
and Appellant could not establish that a proximate cause
existed between the location of the signs and the accident.
Appellant filed this timely appeal setting forth a single
assignment of error.
THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR
OF APPELLEE BASED UPON AN IMPROPER APPLICATION OF POLITICAL
SUBDIVISION IMMUNITY AND BASED UPON IMPROPERLY RESOLVING
QUESTIONS OF FACT IN APPELLEE'S FAVOR.
An appellate court conducts a de novo review of a
trial court's decision to grant summary judgment, using
the same standards as the trial court, set forth in Civ.R.
56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d
102, 105, 671 N.E.2d 241 (1996). Before summary judgment can
be granted, the trial court must determine that: (1) no
genuine issue as to any material fact remains to be
litigated, (2) the moving party is entitled to judgment as a
matter of law, (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing
the evidence most favorably in favor of the party against
whom the motion for summary judgment is made, the conclusion
is adverse to that party. Temple v. Wean United,
Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
Whether a fact is "material" depends on the
substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc, Inc., 104 Ohio App.3d 598, 603,
662 N.E.2d 1088 (8th Dist.1995).
"[T]he moving party bears the initial responsibility of
informing the trial court of the basis for the motion, and
identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element
of the nonmoving party's claim." (Emphasis deleted.)
Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d
264 (1996). If the moving party carries its burden, the
nonmoving party has a reciprocal burden to set forth specific
facts showing that there is a genuine issue for trial.
Id. at 293. In other words, when presented with a
properly supported motion for summary judgment, the nonmoving
party must produce some evidence to suggest that a reasonable
factfinder could rule in that party's favor. Brewer
v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701
N.E.2d 1023 (8th Dist.1997).
The evidentiary materials to support a motion for summary
judgment are listed in Civ.R. 56(C) and include the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact that have been filed in the case. In
resolving the motion, the court views the evidence in a light
most favorable to the nonmoving party. Temple, 50
Ohio St.2d at 327.
R.C. Chapter 2744, which is referred to as the sovereign
immunity statute, provides certain limitations on political
subdivisions' liability for injuries and deaths on public
grounds. Baker v. Wayne Cty., 2016-Ohio-1566 ¶
13, citing Howard v. Miami Twp. Fire Div., 119 Ohio
St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, ¶ 26. The
availability of immunity is a question of law properly
determined by the court prior to trial. Conley v.
Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992);
Hall v. Ft. Frye Local School Dist Bd. of Edn., 111
Ohio App.3d 690, 694, 676 N.E.2d 124 (4th Dist.1996).
The determination of whether or not a political subdivision
is immune from tort liability for injuries or death to a
person involves a three-tiered analysis. Rastaedt v.
Youngstown, 7th Dist. No. 12 MA 0082, 2013-Ohio-750, 10;
Colbert v. Cleveland,99 Ohio St.3d 215,
2003-Ohio-3319, 790 N.E.2d 781, ¶ 7. The first tier
requires a determination of whether the political subdivision
is immune from liability because the alleged negligent acts
occur in connection with a governmental or proprietary
function pursuant to R.C. 2744.02(A). If immunity is found to
exist after this first tier review, determination under the
second tier requires an examination of whether any of the
five exceptions to immunity listed in R.C. 2744.02(B) are