Bibler v. Stevenson (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Bibler v. Stevenson, Slip Opinion No. 2016-Ohio-8449.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2016-OHIO-8449

BIBLER ET AL., APPELLANTS, v. STEVENSON ET AL.; THE CITY OF FINDLAY,

APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Bibler v. Stevenson, Slip Opinion No. 2016-Ohio-8449.]

Sovereign immunity—R.C. 2744.02(B)(3)—Exception for negligent failure to keep

public roads in repair—Stop sign allegedly obscured by tree foliage—R.C.

2744.01(H)—Definition of “public roads” includes traffic-control devices

mandated by Ohio Manual of Uniform Traffic Control Devices—R.C.

4511.65—Mandatory erection of stop signs and other traffic-control

devices by local authorities at roads that intersect with through highways—

Municipality is not immune—Court of appeals’ judgment reversed and

cause remanded.

(No. 2015-1737—Submitted August 31, 2016—Decided December 29, 2016.)

APPEAL from the Court of Appeals for Hancock County,

No. 5-14-29, 2015-Ohio-3717.

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PFEIFER, J.

I. Background

{¶ 1} In May 2011, Jill Stevenson failed to stop at a stop sign at the

intersection of Wilson Street and East Sandusky Street in Findlay. She collided

with appellant Gary Bibler, who had the right-of-way while traveling on East

Sandusky Street, which is a state through highway. Stevenson claims that she did

not see the stop sign because it was blocked by tree foliage. An officer with the

Findlay Police Department investigated and determined that the sign was

significantly obstructed from a distance as a driver approached it.

{¶ 2} Bibler and his wife, Yvonne Bibler, filed a complaint alleging that

Stevenson was negligent for failing to stop and that appellee, the city of Findlay,

was negligent for failing to ensure that the stop sign was visible. In ruling on

Findlay’s motion for summary judgment, the trial court concluded that Findlay was

entitled to statutory political-subdivision immunity and that the Biblers had not

established that an exception to immunity applies. Accordingly, the court

dismissed Findlay from the case. Subsequently, the Biblers and Stevenson settled

the claims against her.

{¶ 3} The Biblers appealed the grant of summary judgment in favor of

Findlay, asserting that Findlay was not immune from liability. The court of appeals

disagreed in a split decision, stating the “narrow question” as “whether the stop sign

in this case is considered a ‘public road’ for the purposes of sovereign immunity”

and concluding that “the answer is no.” 2015-Ohio-3717, 38 N.E.3d 952, ¶ 30 (3d

Dist.).

{¶ 4} We accepted the Biblers’ discretionary appeal. 144 Ohio St.3d 1504,

2016-Ohio-652, 45 N.E.2d 1049.

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II. Analysis

A. R.C. Chapter 2744 and related definitions

{¶ 5} R.C. Chapter 2744 sets forth the circumstances under which political

subdivisions, acting through their employees, are susceptible to suit in tort.

{¶ 6} R.C. 2744.02(B)(3), as relevant to this case, states 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 * * *.” This is the only statute under which

the Biblers assert that Findlay is liable.

{¶ 7} R.C. 4511.01(QQ) defines “[t]raffic control device” as a “sign, signal,

marking, or other device used to regulate, warn, or guide traffic, placed on, over, or

adjacent to a street * * * by authority of a public agency or official having

jurisdiction * * *.” Under this provision, a stop sign is a traffic-control device.

{¶ 8} R.C. 2744.01(H) defines “[p]ublic roads” as “public roads, highways,

streets, avenues, alleys, and bridges within a political subdivision.” R.C.

2744.01(H) also states that “[p]ublic roads” do not include “berms, shoulders,

rights-of-way, or traffic control devices unless the traffic control devices are

mandated by the Ohio manual of uniform traffic control devices.” This provision

clearly demarcates the central issue: the stop sign falls outside the definition of a

public road unless it is “mandated by the Ohio manual of uniform traffic control

devices” (“OMUTCD”).

{¶ 9} R.C. 4511.65(A) states that “stop signs, yield signs, or traffic control

signals shall be erected at all intersections with * * * through highways * * * by

local authorities as to highways under their jurisdiction * * *.” This provision is

part of the Revised Code, it is not part of the OMUTCD.

B. When is a traffic-control device mandated?

{¶ 10} Based on the statutory scheme governing this case, Findlay is

immune from liability unless it negligently failed to keep a public road in repair.

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R.C. 2744.02(B)(3). No other basis for Findlay’s potential liability has been

proffered.

{¶ 11} We believe that the court of appeals properly focused on whether the

traffic-control device at issue, a stop sign, was mandated. The only aspect of the

public road that is in question is the stop sign. Pursuant to R.C. 2744.01(H), a stop

sign is excluded from the definition of a public road unless it is mandated by the

OMUTCD.

{¶ 12} The court of appeals correctly determined that a stop sign was

mandated at the intersection by R.C. 4511.65. East Sandusky Street in Findlay is

also State Route 586. Neither party disputes that East Sandusky Street is a state

through highway nor that Findlay is responsible for the traffic-control devices used

at the intersection of East Sandusky Street and Wilson Street. R.C. 4511.65(C)

states that local authorities need not erect a stop sign at a through-highway

intersection if the intersection is constructed “to permit traffic to safely enter a

through highway without coming to a stop.” The intersection in this case has a stop

sign on Wilson Street.

{¶ 13} R.C. 4511.11(A) provides:

Local authorities in their respective jurisdictions shall place

and maintain traffic control devices in accordance with the

department of transportation manual of uniform system of traffic

control devices, adopted under section 4511.09 of the Revised Code,

upon highways under their jurisdiction as are necessary to indicate

and to carry out section 4511.01 to 4511.76 and 4511.99 of the

Revised Code, local traffic ordinances, or to regulate, warn, or guide

traffic.

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January Term, 2016

{¶ 14} However essential stop signs are to safety and efficiency, we do not

disagree with the statement made by the court of appeals in that case that nothing

in the version of the OMUTCD that was in place when the accident occurred

specifically and affirmatively indicated that the erection of any stop sign is ever

mandatory. See, e.g., OMUTCD Section 2B.05 (2005 Ed., Revision 2) (stating that

stop signs “should” be used in certain situations). To be blunt, we would consider

this omission indefensible but for R.C. 4511.65(A) and 4511.11(A), which clearly

contemplate the mandatory nature of stop signs or other traffic-control devices at

intersections involving through highways. (“Through highways” are not defined in

the OMUTCD; they are defined in R.C. 4511.65(A).)

{¶ 15} The OMUTCD does not exist in a vacuum. It is a creature of the

Revised Code, it is subservient to the Revised Code, and it necessarily incorporates

the Revised Code. Its drafters were, of course, aware of the mandatory language

of R.C. 4511.65(A) and knew that it relates to the application and placement of stop

signs. In fact, Section 2B.05 of the version of the OMUTCD at issue in this case,

titled “STOP Sign Applications” (capitalization sic), specifically refers to R.C.

4511.65 and also refers to an appendix to the OMUTCD that contains the full text

of that statute. That the relevant version of the OMUTCD did not explicitly state

that the placement of stop signs at intersections involving through highways is

mandated does not cause R.C. 4511.65 to disappear or somehow become other than

mandatory. (Although we focus on “stop signs” because a stop sign is the key

factor in this case, R.C. 4511.65(A) refers to “stop signs, yield signs, [and] traffic

control signals.”)

{¶ 16} The OMUTCD cannot override the clear mandates of a provision of

the Revised Code. Instead, its drafters are authorized and obligated to carry out the

requirements of “section 4511.01 to 4511.76 and 4511.99 of the Revised Code.”

R.C. 4511.11(A). One of the requirements of R.C. 4511.01 through 4511.76 is the

requirement in R.C. 4511.65(A) for the mandatory erection of stop signs (or some

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other traffic-control device) at intersections involving through highways, subject to

certain limited exceptions that are not applicable here.

{¶ 17} That the version of the OMUTCD at issue in this case mistakenly,

inadvertently, or intentionally did not precisely align with the language of R.C.

4511.65 when discussing the application and placement of stop signs does not mean

that the stop sign in question was not mandated. Clearly it was. R.C. 4511.65(A).

Because the stop sign was mandated, it is not excluded from the definition of a

public road with respect to R.C. 2744.02(B)(3).

{¶ 18} The OMUTCD is simply the format by which authorities in political

subdivisions are made aware of how to comply with statutes, it does not undermine

the underlying empowering statutes. How could it? Its drafters have only the

authority that was delegated to them, which is to carry out the requirements of R.C.

4511.65 along with many other statutory provisions.

C. Summary judgment

{¶ 19} This case was decided on a motion for summary judgment.

Summary judgment may be granted when “(1) [n]o genuine

issue as to any material fact remains to be litigated; (2) the moving

party is entitled to judgment as a matter of law; and (3) it appears

from the evidence that reasonable minds can come to but one

conclusion, and viewing such evidence most strongly in favor of the

party against whom the motion for summary judgment is made, that

conclusion is adverse to that party.”

M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261,

¶ 12, quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267

(1977), citing Civ.R. 56(C).

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{¶ 20} Viewing the evidence most strongly in favor of the Biblers in light

of the legal principles applicable to this case, it is apparent that Findlay has not

established that it is entitled to judgment as a matter of law regarding its immunity

and that reasonable minds could not come to the singular conclusion that Findlay

is not liable. The stop sign in this case falls within the definition of a public road,

and the accident allegedly occurred because the stop sign was not in repair and was

obstructed. Accordingly, we conclude that Findlay is not immune pursuant to R.C.

2744.02(B)(3) and is potentially amenable to liability.

III. Conclusion

{¶ 21} We conclude that Findlay is not immune. We express no opinion

about whether Findlay is liable.

{¶ 22} We reverse the judgment of the court of appeals and remand the

cause to the trial court for further proceedings consistent with this opinion.

Judgment reversed

and cause remanded.

O’CONNOR, C.J., and O’NEILL, JJ., concur.

O’DONNELL, J., concurs in judgment only.

LANZINGER, J., dissents, with an opinion joined by KENNEDY and FRENCH,

JJ.

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LANZINGER, J., dissenting.

{¶ 23} This case presents a concrete example of how statutory immunity

functions in Ohio. Appellants, Gary and Yvonne Bibler, ask us to read R.C.

Chapter 4511, which establishes traffic laws related to the operation of motor

vehicles, and R.C. Chapter 2744, which sets forth the tort liability of political

subdivisions, as an interrelated body of law. The lead opinion adopts this position.

But the scope of a political subdivision’s statutory duties is separate from and

independent of its tort liability.

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{¶ 24} The default position in R.C. Chapter 2744 is that political

subdivisions are immune from liability and that they are liable only when the

circumstances fall under one of the exceptions enumerated in that chapter of the

Revised Code. In previously considering R.C. 2744.02(B)(3), we have recognized

that the General Assembly’s intent in amending the statute “was not whimsy but a

deliberate effort to limit political subdivisions’ liability for injuries and deaths on

their roadways.” Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-

2792, 891 N.E.2d 311, ¶ 26. We must accordingly apply the exceptions to statutory

immunity that the General Assembly has specified in R.C. 2744.02(B) strictly as

written.

{¶ 25} R.C. 2744.02(B)(3), subject to a limited exception that is

inapplicable here, provides 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.”

R.C. 2744.01(H) specifies that “ ‘[p]ublic roads’ does not include berms, shoulders,

rights-of-way, or traffic control devices unless the traffic control devices are

mandated by the Ohio manual of uniform traffic control devices.” (Emphasis

added.) Thus, mandatory traffic-control devices that are negligently maintained

may remove a political subdivision’s immunity and cause it to be subject to liability

only when the terms of R.C. 2744.01(H) are met.

{¶ 26} In the version of the Ohio Manual of Uniform Traffic Control

Devices (“the Manual”) effective at the time of the accident in this case, Section

2B.05 provided:

STOP signs should be used if engineering judgment indicates

that one or more of the following conditions exist:

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January Term, 2016

A. Intersection of a less important road with a main road

where application of the normal right-of-way rule would not be

expected to provide reasonable compliance with the law;

B. Street entering a through highway or street (O.R.C.

Section 4511.65 provides information on through highways (see

Appendix B2));

C. Unsignalized intersection in a signalized area; and/or

D. High speeds, restricted view, or crash records indicate a

need for control by the STOP sign.

(Capitalization sic; emphasis added.) This is not mandatory language. Unlike other

portions of the Manual that use the word “shall,” this section uses the permissive,

nonmandatory “should” for the instruction on the installation of stop signs as

presented by this case’s factual scenario. The Manual does not mandate the use of

a stop sign in this situation. Thus, as an unmandated traffic-control device, a stop

sign is not within R.C. 2744.01(H)’s definition of a public road. There accordingly

is no exception to immunity under R.C. 2744.02(B)(3), and the city of Findlay is

not liable.

{¶ 27} The lead opinion concludes that traffic-control devices required by

R.C. 4511.65(A) are not excluded from the definition of a public road under R.C.

2744.01(H). Lead opinion at ¶ 11. But R.C. 2744.01(H) incorporates only the

Manual into its definition of public roads. It does not incorporate R.C. 4511.65.1

Therefore, regardless of whether the lead opinion is correct that R.C. 4511.65(A)

1

While the duties of appellee, the city of Findlay, under R.C. 4511.65 should not be relevant to the

immunity analysis, the city argues that “R.C. 4511.65 does not mandate the installation or

maintenance of traffic control devices” but instead “provides the manner in which a state route

becomes designated as a through highway.” The city also notes that R.C. 4511.65(A) allows the

director of the Ohio Department of Transportation to omit stop signs on roadways intersecting with

through highways under the director’s jurisdiction when “circumstances warrant” and argues that

this provision means that under R.C. 4511.65, a stop sign can never be considered to be “mandated.”

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mandated that the city erect a stop sign at the intersection at issue here, the existence

of that statutory duty cannot trigger tort liability. Indeed, R.C. 2744.02(B)(5)

specifies that “[c]ivil liability shall not be construed to exist under another section

of the Revised Code merely because that section imposes a responsibility or

mandatory duty upon a political subdivision * * *.” For liability to exist, the

exception to immunity must be enunciated in R.C. Chapter 2744. The General

Assembly has not done so in this regard.

{¶ 28} While some may argue that it is counterintuitive for one section of

the Revised Code to impose a mandatory duty upon a political subdivision while

another section appears to allow the political subdivision to fail in that duty with

impunity, this is the choice the General Assembly has made. Because the stop sign

here is excluded from R.C. 2744.01(H)’s definition of public roads, R.C.

2744.02(B)(3) does not apply.

{¶ 29} I respectfully dissent from the court’s decision and would affirm the

judgment of the Third District Court of Appeals.

KENNEDY and FRENCH, JJ., concur in the foregoing opinion.

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Drake, Phillips, Kuenzli & Clark, William E. Clark, and Zachary J. Barger,

for appellants.

Donald Rasmussen, Findlay Law Director; and Allain Legal, Ltd., Eric M.

Allain, and William F. Schmitz, for appellee.

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