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Emmerling v. Mahoning County Board of Commissioners

Court of Appeals of Ohio, Seventh District, Mahoning

December 12, 2017

MAUREEN A. EMMERLING, Individually and as Personal Representative of the Estate of Robert M. Emmerling PLAINTIFF-APPELLANT

         Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2014 CV 00738

          For Plaintiff-Appellant: Atty. Jack E. Peak Atty. Jack M. Strauch (admitted Pro Hac Vice) Strauch, Green & Mistretta, P.C.

          For Defendant-Appellee: Atty. Todd M. Raskin Atty. Frank H. Scialdone Atty. David M. Smith Mazanec, Raskin & Ryder Co., L.P.A.

          JUDGES: Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro


          WAITE, J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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?
A. No.
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?
A. No.

(Tareshawty Depo., pp. 46-47.)

         {¶5} 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?
A. Yes.
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* * *?
A. No.
* * *
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.)

         {¶6} 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.

         {¶7} 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 hospital.

         {¶8} 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?
A Yeah.
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; right?
A Oh, yeah.

(Donham Depo., p. 75.)

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.



         {¶13} 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).

         {¶14} "[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).

         {¶15} 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.

         {¶16} 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).

         {¶17} 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, ΒΆ 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 ...

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