Opinion

Limato v. Fairfield County, Unpublished Decision (12-2-2002)

Court
Ohio Court of Appeals
Filed
Dec 2, 2002
Status
Unpublished
On the bench
BOGGINS, J.
Cited by
0 cases
Authority
More cited than 43.1%

The opinion

¶ 28 I concur in the majority's analysis and disposition of appellants' assignments of error. However, absent from the majority's analysis is any discussion of appellants' claim appellees failed to maintain the culvert.

{¶ 29} While the Franks case holds appellants' claims involving negligent design and construction defects are insufficient to constitute a nuisance and therefore sovereign immunity applies, a number of courts have restricted Franks ' application to design and construction defects as distinguished from maintenance of roadways; e.g., Dickerhoof v. Canton

(1983), 6 Ohio St.3d 128 ; Adkins v. Ontario (1983), 8 Ohio St.3d 45 ; and Thompson v. Muskingum Cty. Bd. of Comm'rs. (Nov. 12, 1998), Muskingum App. No. CT98-0010, unreported.

{¶ 30} Appellants claim "Once the decision to construct the culvert was made, maintenance features such as concrete head walls with wing walls, a cement floor and concrete aprons would have prevented the erosion and scour that was certain to occur." Appellants' Brief at 8. While appellants characterize these features as maintenance, I find they essentially relate to design and construction defects. The Dickerhoof , Adkins, and Thompson cases are all significantly factually distinguishable and clearly involve maintenance issues. I do not find appellant's failure to maintain allegations fall outside the parameters established in Franks .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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