Deitz v. Harshbarger

89 N.E.3d 1271

2017 Ohio 2917

Paul DEITZ, et al., Plaintiffs–Appellants,

v.Henry L. HARSHBARGER, et al., Defendants–Appellees.

NO. 17–16–21

Court of Appeals of Ohio, Third District, Shelby County.

May 22, 2017

Thomas W. Kerrigan, II and Royce A. Link for Appellants

Bryan J. Mahoney, Dayton, for Appellees

PRESTON, P.J.

{¶ 1} Plaintiffs-appellants, Paul Deitz ("Paul"), in his individual capacity and as the personal representative of the estate of Christina Deitz ("Christina"), and Alexis Deitz ("Alexis") (collectively "plaintiffs"), appeal the July 24, 2015 decision of the Shelby County Court of Common Pleas granting summary judgment in favor of defendant-appellant, the Franklin Township Board of Board of Trustees of Shelby County, Ohio (the "Board of Trustees"). For the reasons that follow, we affirm.

{¶ 2} This case stems from a negligence and wrongful death complaint filed by plaintiffs on June 26, 2014 alleging that defendants-appellees, the Board of Trustees, Henry Harshbarger and Elizabeth Harshbarger (the "Harshbargers"), the Shelby County Board of Commissioners (the "Commissioners"), and Paradise Acres, LTD ("Paradise"), negligently caused the death of Christina and severe injury to Alexis. (Doc. No. 1). Plaintiffs' complaint also names as a party to the case Nationwide Insurance Co. ("Nationwide") since it "may claim an interest in the * * * matter by virtue of making payment of medical or funeral expenses on behalf of" Christina or Alexis. (Id. ). On June 29, 2012, Christina and her daughter, Alexis, were traveling northbound on Scott Road, a roadway situated in Franklin Township, of Shelby County, Ohio, and were involved in a two-vehicle accident at the intersection of Scott Road and Sharp Road.¹ (Id. ); (Doc. No. 206). Christina, who was operating the motor vehicle, failed to stop at a stop sign at the intersection and collided with another vehicle. (Doc. No. 1). Christina allegedly did not see the stop sign because the stop sign controlling northbound traffic on Scott Road was allegedly obscured by tree foliage. (Id. ); (Doc. No. 206). The property on which the trees were growing is owned by the Harshbargers. (Doc. No. 206). It was further alleged that the intersection was obstructed by a corn field located on the southwest quadrant of the intersection. (Id. ). The property on which the corn was growing is owned by Paradise. (Id. ).

{¶ 3} On July 23, 2014, the Commissioners and Paradise filed its answers. (Doc. Nos. 12, 15). The Board of Trustees filed its answer on July 25, 2014. (Doc. No. 18). On July 30, 2014, the Harshbargers filed their answers. (Doc. Nos. 23, 24). That same day, the Harshbargers filed a motion, which was granted by the trial court, requesting that the trial court transfer discovery from Case Number 13CV000233, which raised the same issues and was voluntarily dismissed without prejudice by plaintiffs. (Doc. Nos. 20, 25). Also on July 30, 2014, Nationwide filed its answer and cross-claim against the Harshbargers, the Board of Trustees, the Commissioners, and Paradise. (Doc. No. 22).

{¶ 4} The Board of Trustees filed its answer to Nationwide's cross-claim on August 5, 2014. (Doc. No. 31). On August 14, 2014, Paradise filed its answer to Nationwide's cross-claim. (Doc. No. 44). On August 28, 2014, the Harshbargers filed their answer to Nationwide's cross-claim. (Doc. No. 62).

{¶ 5} On August 20 and 25 2014, the Commissioners filed motions to dismiss under Civ.R. 12(B)(6) Nationwide's cross-claim, which the trial court granted on October 20, 2014. (Doc. Nos. 46, 57, 85).

{¶ 6} On October 17, 2014, plaintiffs filed a motion to dismiss under Civ.R. 41(A)(1) Nationwide as a defendant to the case. (Doc. No. 84).

{¶ 7} On November 10, 2014, Nationwide filed a motion to dismiss without prejudice its cross-claims against the Harshbargers, the Board of Trustees, the Commissioners, and Paradise. (Doc. No. 98).

{¶ 8} On April 8, 2014, the Commissioners filed a motion for summary judgment asserting that there is no genuine issue of material fact that it is immune from liability. (Doc. No. 166). On April 23, 2015, the Harshbargers filed a motion for summary judgment asserting that there is no genuine issue of material fact that they did not contribute to plaintiffs' injuries and did not breach any duty they owed to plaintiffs. (Doc. No. 173). On May 21, 2015, the Board of Trustees filed a motion for summary judgment asserting that there is no genuine issue of material fact that the Board of Trustees did not breach any duty owed to plaintiffs; no act or omission caused the accident; and the Board of Trustees are immune from liability under R.C. 2744.01. (Doc. No. 210). Paradise filed a motion for summary judgment on May 27, 2015. (Doc. No. 214).

{¶ 9} On May 18, 2015, plaintiffs filed memorandums in opposition to the Commissioners' and the Harshbargers' motions for summary judgment. (Doc. Nos. 206, 207). Plaintiffs filed memorandums in opposition to the Board of Trustees' and Paradise's motions for summary judgment on June 10, 2015. (Doc. Nos. 226, 228).

{¶ 10} On May 26, 2015, the Commissioners filed its response to plaintiffs' memorandum in opposition to the Commissioners' motion for summary judgment. (Doc. No. 212). The Harshbargers filed their response to plaintiffs' memorandum in opposition to the Harshbargers' motion for summary judgment on May 28, 2015. (Doc. No. 216). On June 17, 2015, the Board of Trustees filed its response to plaintiffs' memorandum in opposition to the Board of Trustees' motion for summary judgment. (Doc. No. 237). On June 22, 2015, Paradise filed its response to plaintiffs' memorandum in opposition to Paradise's motion for summary judgment. (Doc. No. 242). After having been granted leave by the trial court on July 13, 2015, the Commissioners filed a "supplemental reply brief" on June 18, 2015. (Doc. Nos. 239, 253). On June 25, 2015, the Harshbargers filed an amended response to plaintiffs' memorandum in opposition to the Harshbargers' motion for summary judgment. (Doc. No. 245).

{¶ 11} On July 24, 2015, the trial court granted summary judgment in favor of Paradise, the Board of Trustees, and the Commissioners. (Doc. Nos. 261, 262, 263). That same day, the trial court denied the Harshbargers' motion for summary judgment. (Doc. No. 264).

{¶ 12} Plaintiffs filed notices of appeal on August 17, 2015 of the trial court's decisions granting summary judgment in favor of Paradise, the Board of Trustees, and the Commissioners. (Doc. Nos. 271, 273, 275). On September 18, 2015, this court dismissed plaintiffs' appeals because we lacked jurisdiction to consider them.

{¶ 13} On September 24, 2015, the trial court dismissed Paradise, the Board of Trustees, and the Commissioners as parties to the case. (Doc. No. 291).

{¶ 14} After the Harshbargers reached a settlement with Alexis, the trial court dismissed with prejudice Alexis's claims against the Harshbargers on July 18, 2016. (Doc. No. 341). On August 24, 2016, the trial court dismissed with prejudice Paul's claims in his individual capacity and in his capacity as the personal representative of Christina's estate against the Harshbargers after the parties reached a settlement. (Doc. No. 346).

{¶ 15} Plaintiffs filed their notice of appeal on September 15, 2016 from the July 24, 2015 entry granting summary judgment in favor of the Board of Trustees. (Doc. No. 351). They raise one assignment of error for our review.

Assignment of Error

The Trial Court Erred in Granting Summary Judgment to the Defendant/Appellee, the Frankling [sic] Township Board of Trustees, of Shelby County, Ohio, on its Claim of Government Immunity

{¶ 16} In their assignment of error, plaintiffs argue that the trial court erred by granting summary judgment in favor of the Board of Trustees because an exception applies to the general rule that political subdivisions enjoy immunity while engaging in either governmental or proprietary functions. In particular, plaintiffs argue that the trial court erred by concluding that the Board of Trustees is "immune from liability for failing to remove the obstruction blocking the view of the stop sign controlling Scott Road," and erred by concluding that the Board of Trustees is "immune [from liability] for failing to properly maintain the stop ahead sign on Scott Road." (Appellant's Brief at 3).

{¶ 17} We review a decision to grant summary judgment de novo. Doe v. Shaffer , 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000). Summary judgment is proper where there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and the conclusion is adverse to the non-moving party. Civ.R. 56(C) ; State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. , 69 Ohio St.3d 217, 219, 631 N.E.2d 150 (1994).

{¶ 18} "The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact." Carnes v. Siferd , 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, 2011 WL 3890520, ¶ 13, citing Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). "In doing so, the moving party is not required to produce any affirmative evidence, but must identify those portions of the record which affirmatively support his argument." Id. , citing Dresher at 292, 662 N.E.2d 264. "The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; he may not rest on the mere allegations or denials of his pleadings." Id. , citing Dresher at 292, 662 N.E.2d 264 and Civ.R. 56(E).

{¶ 19} "R.C. Chapter 2744 governs political subdivision tort liability and immunity." Brady v. Bucyrus Police Dept. , 194 Ohio App.3d 574, 2011-Ohio-2460, 957 N.E.2d 339, ¶ 44 (3d Dist.). To determine whether a political subdivision is entitled to immunity under R.C. Chapter 2744, a court must apply a three-tiered analysis. Smith v. McBride , ...