Court of Appeals of Ohio, First District, Hamilton
DANIEL P. BUCHENROTH, Plaintiff-Appellee,
CITY OF CINCINNATI, Defendant-Appellant.
Appeal From: Hamilton County Court of Common Pleas Trial No.
C. Yim, for Plaintiff-Appellee,
Boggs Muething, City Solicitor, and Marva K. Benjamin,
Assistant City Solicitor, for Defendant-Appellant.
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.
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.
Subdivision Tort Immunity
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.
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
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.
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 * * *."
"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.
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 ...