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Buchenroth v. City of Cincinnati

Court of Appeals of Ohio, First District, Hamilton

June 26, 2019

DANIEL P. BUCHENROTH, Plaintiff-Appellee,
v.
CITY OF CINCINNATI, Defendant-Appellant.

          Civil Appeal From: Hamilton County Court of Common Pleas Trial No. A-1800082

          Edward C. Yim, for Plaintiff-Appellee,

          Paula Boggs Muething, City Solicitor, and Marva K. Benjamin, Assistant City Solicitor, for Defendant-Appellant.

          OPINION

          Crouse, Judge.

         {¶1} The city of Cincinnati ("city") has appealed from the trial court's order denying its Civ.R. 12(C) motion for judgment on the pleadings. In one assignment of error, the city argues that the trial court erred in denying the city's motion for judgment on the pleadings because the city has tort immunity for crosswalk signs and road markings that it provided, which designated a midblock crosswalk for pedestrian travel. Because we agree that the city is immune from suit, we reverse.

         Factual Background

         {¶2} In January 2017, while walking in a marked midblock crosswalk located near 249 Calhoun Street in Cincinnati, plaintiff-appellee Daniel Buchenroth was hit by a car driven by Robert Weber. Buchenroth brought suit against Weber, Blue Cross and Blue Shield, the city of Cincinnati, and the Cincinnati Division of Traffic and Engineering. This case concerns only Buchenroth's claims against the city. Buchenroth's complaint alleges that the city was negligent in its inspection, maintenance, repair, design, construction, and erection of crosswalk markings and warning signs that governed pedestrian and vehicular traffic at the crosswalk near 249 Calhoun Street.

         Political Subdivision Tort Immunity

         {¶3} The Political Subdivision Tort Liability Act, codified in R.C. Chapter 2744, employs a three-part analysis to determine the tort liability of political subdivisions. First, political subdivisions are generally granted immunity from liability for injury or death in connection with their performance of a governmental or proprietary function. Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, ¶ 18. Second, the court considers whether an R.C. 2744.02(B) exception to that general rule of immunity applies. Id. Third, if an exception does apply, then the court must determine whether the city can reestablish immunity by demonstrating another statutory defense. Id.

         {¶4} It is undisputed that the city is a "political subdivision" as defined in R.C. 2744.01(F), and that the maintenance of crosswalks and traffic-control devices is a governmental function under R.C. 2744.01(C)(2)(e) and (j). This means the city is generally immune from tort liability for the maintenance of crosswalks and traffic-control devices.

         {¶5} At issue is whether an R.C. 2744.02(B) exception applies to the general rule of immunity. Buchenroth argues that the "public roads" exception of R.C. 2744.02(B)(3) applies to deprive the city of immunity.

         {¶6} R.C. 2744.02(B)(3) provides, in relevant part, that "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 * * *."

         {¶7} "Public roads" does not include traffic-control devices unless the traffic-control devices are mandated by the Ohio Manual of Uniform Traffic Control Devices ("OMUTCD"). R.C. 2744.01(H). A "traffic control device" includes any sign, signal, marking, or other device used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street or highway. R.C. 4511.01(QQ).

         {¶8} It is undisputed that the crosswalk signs and lines in this case are traffic-control devices. The question is whether the crosswalk signs and lines are mandated by the revised code or the OMUTCD, thereby ...


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