Ruckman v. Smith

190 N.E.3d 707

James L. RUCKMAN, et al., Plaintiffs-Appellees,

v.Randy L. SMITH, et al., Defendants-Appellants.

NO. 2021-T-0036

Court of Appeals of Ohio, Eleventh District, Trumbull County.

Decided: May 31, 2022

Michael D. Harlan, Gervelis & Harlan, LLC, 3790 Boardman Canfield Road, Canfield, OH 44406 (For Plaintiffs-Appellees).

John T. Mclandrich and Frank H. Scialdone, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin's Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendant-Appellants).

OPINION

JOHN J. EKLUND, J.

{¶1} Appellants are the three Trumbull County Commissioners, Frank Fuda, Daniel Polivka, and Mauro Cantalamessa in their capacity as the Trumbull County Board of Commissioners, Randy Smith in his capacity the Trumbull County Engineer, and individual defendants Gregg Alberini (former highway superintendent) and Tom Klejka (former assistant highway superintendent). Appellants appeal following the Trumbull County Court of Common Pleas’ denial of summary judgment with respect to a complaint filed by James and Jennifer Ruckman.

{¶2} Appellants raise one assignment of error arguing that the trial court erred by denying summary judgment when they are entitled to the benefit of political-subdivision immunity pursuant to R.C. Chapter 2744.

{¶3} After review of the record and applicable caselaw, we find appellants’ assignment of error to have merit. The trial court erred in denying appellants’ cross-motion for summary judgment and finding that appellants were not entitled to political subdivision liability immunity. The court erred in finding that the roadway was not in repair at the time of the accident and erred in finding that the placement of an incorrect discretionary warning sign stripped appellants’ immunity. The judgment of the Trumbull County Court of Common Pleas is reversed, and the matter is remanded for further proceedings consistent with this opinion.

Substantive and Procedural History

{¶4} Both parties agree that the basic facts of this matter are undisputed. On October 10, 2015, James Ruckman was involved in a single-vehicle motorcycle accident. The prior day, the Trumbull County Engineers were using a milling machine on East Market Street in Howland Township. The use of this machine left a strip of uneven pavement between 1.5 inches and 0.5 inches deep, 160 feet long, and two feet, three inches wide between the westbound lanes of travel. The worksite was left in this condition at the end of the workday and throughout the weekend. Appellants placed a sign to warn of uneven lanes, however, the sign placed was actually a sign intended to be used for significant shoulder drop-offs.

{¶5} While Ruckman traveled on the road, he attempted to change lanes, his tire entered the milled portion of the street, and he was ejected from his motorcycle causing severe injury. Appellees filed a lawsuit claiming that the sign used to warn of the danger was the incorrect sign, which was an incorrect color, placed at an incorrect height, and in an incorrect location 1096 feet before the road hazard began. However, all parties agree that that Ohio Manual of Uniform Traffic Control Devices (OMUTCD) provides that the placement of a sign in this situation is permissive and not mandatory. Appellees argued that once Trumbull County placed a sign, the implementation of that decision is not immune from liability and must conform to the mandates of the OMUTCD.

{¶6} Appellees claim that the presence of the milling in the road created a dangerous condition, and that the road was not in a state of repair. They rely on James Valenta, P.E., who testified as a highway safety expert on behalf of appellees at deposition and who provided an affidavit in support of appellees’ motion for partial summary judgment. In his affidavit he stated that Trumbull County allowed a hazardous and unsafe roadway to exist. Valenta testified in his deposition that the 1.5 inch differential in the pavement was an unreasonably dangerous condition for a motorcycle but not for an automobile or a truck. However, he said that with the proper road signs, the road would have been reasonably safe, notwithstanding the presence of the trench, "[b]ecause Ruckman would have been warned about the presence of the trench by the use of the appropriate signs."

Assignment of Error and Analysis

{¶7} Appellant's raise one assignment of error which states:

{¶8} "THE LOWER COURT DENIED DEFENDANTS/APPELLLANTS THE BENEFIT OF IMMUNITY UNDER OHIO REVISED CODE CHAPTER 2744."

{¶9} Generally, the denial of summary judgment is not a final, appealable order. Hubbell v. Xenia , 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9. However, the Supreme Court of Ohio has held that "[w]hen a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and is therefore a final, appealable order pursuant to R.C. 2744.02(C)." Id. at syllabus. Appellate review under R.C. 2744.02(C) is limited to the review of alleged errors that involve the denial of the benefit of an alleged immunity from liability. Doe 1 v. Licate , 11th Dist. Ashtabula Nos. 2018-A-0019 and 2018-A-0020, 2019-Ohio-412, 2019 WL 495507, ¶ 28.

{¶10} The review of a summary judgment denying political-subdivision immunity is de novo and is governed by Civ.R. 56. Pelletier v. Campbell , 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13. "We review the trial court's decision independently and without deference, pursuant to the standards in Civ.R. 56(C)." Allen v. 5125 Peno, LLC , 11th Dist., 2017-Ohio-8941, 101 N.E.3d 484, ¶ 6, citing Brown v. Scioto Cty. Bd. of Commrs. , 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

{¶11} Summary judgment is appropriate when (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion and it is adverse to the nonmoving party. Holliman v. Allstate Ins. Co. , 86 Ohio St.3d 414, 415, 715 N.E.2d 532 (1999). "The initial burden is on the moving party to set forth specific facts demonstrating that no issue of material fact exists and the moving party is entitled to judgment as a matter of law." Dresher v. Burt , 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996). If the movant meets this burden, the burden shifts to the nonmoving party to establish that a genuine issue of material fact exists for trial. Id.

Political Subdivision Immunity:

{¶12} The Political Subdivision Tort Liability Act is codified at R.C. Chapter 2744. R.C. Chapter 2744 establishes a three-tier analysis to determine whether a political subdivision is immune from liability. Greene Cty. Agricultural Soc. v. Liming , 89 Ohio St.3d 551, 556, 733 N.E.2d 1141 (2000).

{¶13} The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or a proprietary function. Pelletier, supra, at ¶ 15. However, that immunity is not absolute. Id. The second tier of the analysis requires a court to determine whether any of the exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability. Id. If any of the exceptions to immunity in R.C. 2744.02(B) apply, then the third tier of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability. Id.

{¶14} In this case, the parties do not dispute that the county is a political subdivision and that it was engaged in a governmental function. Thus, our focus is on the second and third tiers of the analysis.

"In Repair" Exception:

{¶15} Our first inquiry is whether an exception to immunity applies. This case implicates R.C. 2744.02(B)(3), which 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 * * *." The trial court found that there was a question of fact as to whether the "state of the road constitutes ‘in repair’ as defined in the statute." However, we find that appellees have not created a question of fact that overcomes appellants’ presumption of immunity under R.C. Chapter 2744. Appellees failed to meet this burden to show an exception to immunity applies because appellees failed to establish that the road was not "in repair."

{¶16} The statute does not define the phrase "in repair." The Supreme Court of Ohio has construed the word "repair" in this context to mean " ‘the state of being in good or sound condition.’ " Pelletier at ¶ 19, quoting Webster's Third New International Dictionary 1923 (2002). In construing a statute imposing a duty on county commissioners to keep roads and bridges " ‘in proper repair,’ " the court explained that "this language created ‘a duty on the commissioners only in matters concerning either the deterioration or disassembly of county roads and bridges.’ " Id. , quoting Heckert v. Patrick , 15 Ohio St.3d 402, 406, 473 N.E.2d 1204 (1984). In the context of roadway conditions, courts have consistently construed "in repair" to include maintaining a road's condition, such as fixing holes. See Cerri v. Clemson Excavating , Inc ., 11th Dist. Geauga No. 2018-G-0162, 2019-Ohio-1161, 2019 WL 1424518, ¶ 20 (collecting cases).

{¶17} The threshold question before us is not whether the road was "safe" or "unsafe." Instead, it is a question of whether the road was "in repair" – that is to say, in good or sound condition. See Pelletier, supra, at ¶ 19. A road can be unsafe and may or may not be in "in repair." Conversely, a safe road may or may not be "in repair." While appellees have focused their arguments on whether the road was unreasonably unsafe, we focus our...