Pelletier v. Campbell (Slip Opinion)

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

Pelletier v. Campbell, Slip Opinion No. 2018-Ohio-2121.]

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. 2018-OHIO-2121

PELLETIER, APPELLEE, v. THE CITY OF CAMPBELL, APPELLANT, ET AL.

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

may be cited as Pelletier v. Campbell, Slip Opinion No. 2018-Ohio-2121.]

Torts—Political-subdivision immunity—R.C. 2744.02(B)(3)—Whether a stop sign

is “in repair” depends on its physical condition, not whether it no longer

serves its purpose due to an extraneous factor—The duty to “remove

obstructions from public roads” applies only to obstructions that originate

on the public road and does not apply to conditions that are only near or in

the vicinity of public roads.

(No. 2017-0088—Submitted February 14, 2018—Decided June 5, 2018.)

APPEAL from the Court of Appeals for Mahoning County,

No. 15 MA 0220, 2016-Ohio-8097.

_______________________

KENNEDY, J.

{¶ 1} This discretionary appeal from the Seventh District Court of Appeals

presents the question whether the Political Subdivision Tort Liability Act, R.C.

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Chapter 2744, grants immunity to appellant, the city of Campbell, in a personal-

injury action seeking recovery based on the city’s failure to remove foliage that was

growing 34 feet in front of a stop sign. The appellate court affirmed the trial court’s

denial of the city’s motion for summary judgment on the claims of appellee, Judith

Pelletier. It held that there are genuine issues of material fact regarding whether

R.C. 2744.02(B)(3), which provides that a political subdivision may be held liable

for the negligent failure to keep public roads in repair and the negligent failure to

remove obstructions from them, applies as an exception to the city’s immunity from

suit.

{¶ 2} Because the language of R.C. 2744.02(B)(3) is plain and

unambiguous, it must be applied, not interpreted. Sears v. Weimer, 143 Ohio St.

312, 55 N.E.2d 413 (1944), paragraph five of the syllabus. It is not disputed that

the stop sign was mandated and therefore part of the public road. However, the

stop sign was in repair, and because there was no foliage to remove from the stop

sign, the sign was not obstructed.

{¶ 3} Accordingly, the city is entitled to judgment as a matter of law, and

we reverse the judgment of the court of appeals and remand the matter to the trial

court to dismiss the claims against the city.

Facts and Procedural History

{¶ 4} On August 26, 2013, Pelletier was driving down Sanderson Avenue

in Campbell, Ohio, to attend an orientation related to her employment as a high-

school nurse, when she came to the intersection with 12th Street. Traffic on

Sanderson Avenue is controlled by a stop sign, while traffic on 12th Street has the

right-of-way and no stop sign. According to Pelletier, she did not see the stop sign

because trees or large bushes in the “devil strip”—what the parties call the grassy

area between Sanderson Avenue and the sidewalk—blocked it from her view.

Although she saw the intersection, she did not slow down, brake, or look for other

vehicles on 12th Street before proceeding through it. As a result of her failure to

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yield the right-of-way, she collided with another vehicle entering the intersection

on 12th Street.

{¶ 5} In March 2014, Pelletier brought this personal-injury action against

the city, Danny Saulsberry (the owner of the land on which the foliage grew), the

Bank of New York Mellon (which had initiated foreclosure proceedings on

Saulsberry’s property), and Safeguard Properties, L.L.C. (which had previously

contracted to maintain the property for the bank), alleging that their failure to

maintain the devil strip to ensure that the stop sign was visible to approaching traffic

caused her injuries. The bank and Safeguard filed cross-claims against the city,

seeking indemnification and contribution. Pelletier later settled her claims against

Safeguard.

{¶ 6} The city moved for summary judgment against Pelletier and the bank,

asserting that it is immune from liability pursuant to R.C. Chapter 2744, because

the city had no duty to maintain the stop sign, the stop sign was not obstructed, and

the city lacked notice of the overgrown foliage. The city supported its motion with

the affidavit of Gary Bednarik, the city’s park and street superintendent, who

averred that the stop sign was 34 feet, two inches from the foliage in the devil strip.

{¶ 7} The trial court denied the city’s motion for summary judgment, and

the court of appeals affirmed, holding that the city could be liable for negligently

failing to keep public roads in repair “[w]here, as here, a mandated traffic control

device (which is considered to be, by definition, a public road) no longer serves its

purpose because of some extraneous factor,” such as foliage blocking it. 2016-

Ohio-8097, 75 N.E.3d 779, ¶ 22 (7th Dist.). It also concluded that “[w]hether or

not the failure to remove the foliage here was an obstruction which [the city] was

obligated to remove presents a question of material fact for the trier of fact to

resolve.” Id. at ¶ 18.

{¶ 8} The city appealed to this court, presenting two propositions of law:

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Because an “obstruction” for purposes of determining the

immunity of a political subdivision in all claims which allege a

negligent failure to maintain a “public road” is confined to a

condition which blocks or clogs the roadway, roadside foliage which

does not block or clog travel or render a traffic control device

indiscernible does not qualify as an obstruction.

“Failure to keep public roads in repair” pursuant to the

immunity exception set forth in R.C. 2744.02(B)(3), requires that

the actual public road be in a deteriorated, damaged or disassembled

state from that existing at construction, placement, or

reconstruction.

Positions of the Parties

{¶ 9} On appeal to this court, the city maintains that the appellate court

erred in deciding that a political subdivision can be held liable for failing to keep a

stop sign “in repair” based on “extraneous circumstances entirely unrelated to the

actual condition” of the sign. It points to our decision in Heckert v. Patrick for the

proposition that a road is “in proper repair” when it is not deteriorated or

disassembled. See 15 Ohio St.3d 402, 406, 473 N.E.2d 1204 (1984). The city

contends that liability should not be imposed for the failure to trim or remove tree

limbs that do not affect the condition of the roadway itself—and here, it maintains,

there is no evidence that the stop sign was deteriorated, disassembled, or in any way

damaged. It further argues that the foliage was not an “obstruction” as defined by

this court in Howard v. Miami Twp. Fire Div., i.e., “an obstacle that blocks or clogs

the roadway and not merely a thing or condition that hinders or impedes the use of

the roadway or that may have the potential to do so,” 119 Ohio St.3d 1, 2008-Ohio-

2792, 891 N.E.2d 311, ¶ 30. Here, the foliage did not completely block the stop

sign or make it indiscernible. The city asserts that the General Assembly amended

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R.C. 2744.02(B)(3) in 2003 to clarify that political subdivisions are not liable for

conditions that merely hinder or impede the use of the public road, and it argues

that “[f]oliage or other extraneous conditions—not located on the traveled portion

of the roadway—that merely impose a potential visual hindrance, but do not

literally render the road sign entirely indiscernible, are not obstructions within the

meaning of the statute.”

{¶ 10} Pelletier responds that the duty to keep public roads in repair requires

a political subdivision “to maintain the proper operation and functioning” of traffic-

control signals that fall within the definition of “public road.” She maintains that

the stop sign on Sanderson Avenue was indiscernible and that therefore it was not

functioning as designed and cannot be considered “in repair.” For this reason, she

contends, the city had a statutory duty to trim or remove limbs that were causing

the stop sign to be “rendered wholly ineffective or even significantly ineffective.”

She argues that this court’s decision in Heckert is distinguishable, because that case

was decided prior to the enactment of R.C. 2744.02(B)(3) and did not concern a

mandated traffic-control device on a public road. Pelletier also asserts that when

foliage “constitutes an obstruction to visibility of the traffic control device,”

rendering it “ineffective or useless,” the city can be held liable based on the

exception to immunity for the negligent failure to remove obstructions from public

roads. She asserts that the foliage at issue here not only blocked part of Sanderson

Avenue but also completely blocked the stop sign and therefore satisfies the

definition of “obstruction” articulated in Howard.

{¶ 11} Accordingly, we are asked to decide whether the failure to remove

foliage growing in the devil strip 34 feet, two inches from a stop sign constitutes

either a failure to keep a public road in repair or a failure to remove an obstruction

from a public road.

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Law and Analysis

Standard of Review

{¶ 12} Whether a party is entitled to immunity is a question of law properly

determined by the court prior to trial pursuant to a motion for summary judgment.

Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992); see also Riscatti

v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998

N.E.2d 437, ¶ 17 (noting the importance of deciding a political subdivision’s

entitlement to immunity before trial).

{¶ 13} The review of a summary judgment denying political-subdivision

immunity is de novo and is governed by the summary-judgment standard set forth

in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d

712, ¶ 8. As we explained in M.H. v. Cuyahoga Falls,

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.”

(Brackets sic.) 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).

Statutory Construction

{¶ 14} This case presents a straightforward question of statutory

interpretation. Our duty in construing a statute is to determine and give effect to

the intent of the General Assembly as expressed in the language it enacted. Griffith

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v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196, ¶ 18;

Fisher v. Hasenjager, 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20.

R.C. 1.42 guides our analysis, providing that “[w]ords and phrases shall be read in

context and construed according to the rules of grammar and common usage.”

Further, as we explained in Symmes Twp. Bd. of Trustees v. Smyth, “[w]hen the

language of a statute is plain and unambiguous and conveys a clear and definite

meaning, there is no need for this court to apply the rules of statutory

interpretation.” 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). Rather, “[a]n

unambiguous statute is to be applied, not interpreted.” Sears, 143 Ohio St. 312, 55

N.E.2d 413, at paragraph five of the syllabus.

Political-Subdivision Immunity

{¶ 15} Determining whether a political subdivision is immune from tort

liability pursuant to R.C. Chapter 2744 involves a familiar, three-tiered analysis:

“The first tier is the general rule that a political subdivision is

immune from liability incurred in performing either a governmental

function or proprietary function. * * * However, that immunity is

not absolute. R.C. 2744.02(B); Cater v. Cleveland (1998), 83 Ohio

St.3d 24, 28, 697 N.E.2d 610.

“The second tier of the analysis requires a court to determine

whether any of the five exceptions to immunity listed in R.C.

2744.02(B) apply to expose the political subdivision to liability. Id.

at 28, 697 N.E.2d 610. At this tier, the court may also need to

determine whether specific defenses to liability for negligent

operation of a motor vehicle listed in R.C. 2744.02(B)(1)(a) through

(c) apply.

“If any of the exceptions to immunity in R.C. 2744.02(B) do

apply and no defense in that section protects the political subdivision

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from liability, 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.”

(Ellipsis sic.) Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio

St.3d 357, 2013-Ohio-989, 986 N.E.2d 983, ¶ 15, quoting Colbert v. Cleveland, 99

Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.

Regulation, Maintenance, and Repair of Public Roads

{¶ 16} Our focus is on the second tier of the analysis, because it is not

disputed that regulating, maintaining, and repairing Sanderson Avenue, including

its traffic signs, is a governmental function. See R.C. 2744.01(C)(2)(e) and (j).

{¶ 17} R.C. 2744.02(B)(3) establishes an exception to political-subdivision

immunity: “[P]olitical 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 * * *.” Relevant here,

R.C. 2744.01(H) defines “public roads” to mean “public roads, highways, streets,

avenues, alleys, and bridges within a political subdivision. ‘Public 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.”

{¶ 18} The parties do not dispute that the Ohio Manual of Uniform Traffic

Control Devices required a stop sign on Sanderson Avenue at 12th Street and that

the stop sign at issue here is therefore part of the public road.

Keeping Public Roads “in Repair”

{¶ 19} Pursuant to R.C. 2744.02(B)(3), the city may be held liable for

injuries caused by its negligent failure to keep public roads “in repair.” The statute

does not define the phrase “in repair,” and we construe it according to its common

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usage. R.C. 1.42. In this context, the word “repair” means “the state of being in

good or sound condition.” Webster’s Third New International Dictionary 1923

(2002). See also Sanderbeck v. Medina Cty., 130 Ohio St.3d 175, 2011-Ohio-4676,

956 N.E.2d 832, ¶ 14 (O’Donnell, J., dissenting) (“The plain meaning of the word

‘repair’ is ‘to put back in good condition after damage [or] decay.’ Webster’s New

World College Dictionary (4th Ed.2000) 1214”). And construing a statute

imposing a duty on county commissioners to keep roads and bridges “in proper

repair” in Heckert, we explained that this language created “a duty on the

commissioners only in matters concerning either the deterioration or disassembly

of county roads and bridges.” 15 Ohio St.3d at 406, 473 N.E.2d 1204. The court

noted that the duty to keep roads in repair did not extend to “matters unrelated to

actual roadway conditions,” such as tree limbs overhanging a county road. Id. at

407.

{¶ 20} Accordingly, whether a stop sign is in repair depends on its physical

condition, and nothing in R.C. 2744.02(B)(3) supports the appellate court’s holding

that a traffic-control device is not in repair when it “no longer serves its purpose”

due to “some extraneous factor.” 2016-Ohio-8097, 75 N.E.3d 779, at ¶ 22. An

extraneous factor is by definition something “outside or beyond” the public road.

Webster’s Third New International Dictionary 807 (2002) (defining “extraneous”).

Had the General Assembly intended to impose liability for something extraneous

to the public road (such as foliage along it), it could have done so expressly. It did

not, and a court may not rewrite the plain and unambiguous language of a statute

under the guise of statutory interpretation. Doe v. Marlington Local School Dist.

Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 29.

{¶ 21} Here, there is no showing that the stop sign was not in good or sound

condition or that it was otherwise deteriorated or disassembled. In fact, the only

conclusion that may be drawn from the evidence in the record, which includes

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photographs of the stop sign from different angles, is that the sign was in repair at

the time of the accident.

{¶ 22} Accordingly, the city was entitled to summary judgment on claims

that it negligently failed to keep the public road in repair.

Removing Obstructions from Public Roads

{¶ 23} The city may also be held liable for injury caused by the “negligent

failure to remove obstructions from public roads.” R.C. 2744.02(B)(3).

{¶ 24} The General Assembly enacted the current version of R.C.

2744.02(B)(3) to supersede decisions from this court construing the prior version

of the statute as providing an exception to immunity for conditions that were “not

actually on the roadway.” Howard, 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d

311, at ¶ 27-28. Those decisions, for instance, had interpreted earlier language

creating liability for a political subdivision’s failure to keep a roadway “free from

nuisance” to mean that there was a duty to remedy conditions such as a defective

tree limb threatening to fall on a roadway, Harp v. Cleveland Hts., 87 Ohio St.3d

506, 721 N.E.2d 1020 (2000), or crops growing alongside a road and obstructing

the view of approaching traffic, Manufacturer’s Natl. Bank of Detroit v. Erie Cty.

Road Comm., 63 Ohio St.3d 318, 587 N.E.2d 819 (1992). We recognized in

Howard that in revising the statute, the legislature had used language “that focused

solely on the roadway itself” and sought “to limit political-subdivision liability for

roadway injuries and deaths.” Howard at ¶ 29. We therefore concluded in Howard

that the duty “to remove obstructions from public roads” under R.C. 2744.02(B)(3)

extends only to “an obstacle that blocks or clogs the roadway and not merely a thing

or condition that hinders or impedes the use of the roadway or that may have the

potential to do so.” Id. at ¶ 30.

{¶ 25} We adhere to our holding in Howard explaining what an obstruction

is. But that definition, standing alone, does not resolve the question here: When

does a political subdivision have a duty to remove a potential obstruction from a

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mandatory traffic-control device that is part of the public road? Accordingly,

although the parties focus on the meaning of the term “obstructions” as we

construed it in Howard, that word must be read in the context of the whole provision

creating the duty to remove obstructions from public roads. See R.C. 1.42;

D.A.B.E., Inc. v. Toledo–Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-

4172, 773 N.E.2d 536, ¶ 19 (“all words [in a statute] should have effect and no part

should be disregarded”).

{¶ 26} Because the statute does not define the word “from,” we construe it

according to its common usage. R.C. 1.42. In this context, the word “from” is

“used as a function word to indicate the source or original or moving force of

something: as * * * (4) the place of origin, source, or derivation of a material or

immaterial thing * * * <took a dime [from] his pocket> * * *.” Webster’s Third

New International Dictionary 913 (3d Ed.2002). As the United States Court of

Appeals for the D.C. Circuit has noted, “one who states that a man ‘took a dime

[from] his pocket’ could only be understood to mean that the dime originated from

a specific location on a specific person.” Natl. Assn. of Clean Water Agencies v.

Environmental Protection Agency, 734 F.3d 1115, 1125 (D.C.Cir.2013).

{¶ 27} The duty to “remove obstructions from public roads” therefore

indicates that the obstruction must originate in a specific location: the public road.

And because the word “from” denotes a specific place, it cannot refer to conditions

that are only near or in the vicinity of public roads. See State v. Swidas, 133 Ohio

St.3d 460, 2012-Ohio-4638, 979 N.E.2d 254, ¶ 20. Rather, a political subdivision

has a duty to remove obstructions that are on public roads, and pursuant to the

statutory definition of “public roads,” that includes only obstructions that are on a

roadway, on a bridge, or on a mandated traffic-control device.

{¶ 28} For this reason, although a political subdivision is not immune from

liability for the negligent failure to remove an obstruction from a stop sign

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

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2744.02(B)(3) creates no duty to remove foliage from the devil strip when it is 34

feet, two inches in front of the stop sign and not on the sign itself. Because foliage

cannot be removed from a stop sign if it is not on the stop sign, the exception to

immunity provided by R.C. 2744.02(B)(3) does not apply.

{¶ 29} The General Assembly could have imposed a general duty on

political subdivisions to maintain the vegetation along public roads, yet it chose not

to do so, and it specifically excluded the devil strip from the definition of the term

“public road.” See R.C. 2744.01(H) (excluding berms, shoulders, and rights-of-

way from the definition of “public roads”); Baker v. Wayne Cty., 147 Ohio St.3d

51, 2016-Ohio-1566, 60 N.E.3d 1214, ¶ 23 (plurality opinion) (“when Baker’s tire

traveled off the edge of the pavement, it left the public road and dropped onto the

berm or shoulder”). As we recognized in Howard, the enactment of the current

version of R.C. 2744.02(B)(3) abrogated our holdings that political subdivisions

have a duty to maintain vegetation growing above or alongside a roadway that may

hinder the view of approaching traffic. Howard, 119 Ohio St.3d 1, 2008-Ohio-

2792, 891 N.E.2d 311, at ¶ 27-29, citing, e.g., Manufacturer’s Natl. Bank of Detroit,

63 Ohio St.3d at 322-323, 587 N.E.2d 819. We may not reinstate that duty by

judicial fiat. Accord Neal-Pettit v. Lahman, 125 Ohio St.3d 327, 2010-Ohio-1829,

928 N.E.2d 421, ¶ 22 (“The General Assembly chose not to mention attorney fees

when it drafted the statute, and we decline to add them”).

{¶ 30} The city was therefore entitled to summary judgment on claims

alleging that it negligently failed to remove an obstruction from a public road.

Conclusion

{¶ 31} The General Assembly, the arbiter of public policy in Ohio, has

acted “to limit political-subdivision liability for roadway injuries and deaths,”

Howard, 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, at ¶ 29, with a

purpose to preserve “ ‘the fiscal integrity of political subdivisions,’ ” Hubbell v.

Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 23, quoting Wilson

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v. Stark Cty. Dept. of Human Servs., 70 Ohio St.3d 450, 453, 639 N.E.2d 105

(1994). And it did so, in part, by limiting a political subdivision’s liability for

regulating, maintaining, and repairing public roads to the negligent failure to keep

them in repair and to remove obstructions from them.

{¶ 32} Rather than second-guess the policy decisions of the legislative

branch, “[o]ur role, in exercise of the judicial power granted to us by the

Constitution, is to interpret and apply the law enacted by the General Assembly.”

Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-

5685, 983 N.E.2d 1253, ¶ 29. And because R.C. 2744.02(B)(3) is unambiguous,

we must simply apply its plain meaning here.

{¶ 33} In this case, the stop sign was in repair, because it was in good or

sound condition and was not deteriorated or disassembled. And because the foliage

was not on the stop sign, the city had no obligation to remove it from the devil strip.

No genuine issues of material fact remain, the city is immune from liability, and

the trial and appellate courts erred in failing to render judgment in its favor.

{¶ 34} Accordingly, we reverse the judgment of the Seventh District Court

of Appeals and remand the matter to the trial court for it to dismiss the claims

against the city.

Judgment reversed

and cause remanded.

O’DONNELL, FRENCH, FISCHER, and DEWINE, JJ., concur.

O’CONNOR, C.J., concurs in part and dissents in part, with an opinion joined

by HARSHA, J.

WILLIAM H. HARSHA, J., of the Fourth District Court of Appeals, sitting for

DEGENARO, J.

_________________

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O’CONNOR, C.J., concurring in part and dissenting in part.

{¶ 35} I agree with the majority that appellee, Judith Pelletier, failed to

establish that the stop sign on Sanderson Avenue at 12th Street in Campbell was

not in good repair on August 26, 2013, and I concur that appellant, the city of

Campbell, was entitled to summary judgment on the claim that it negligently failed

to keep the public road in repair. However, I disagree with the majority’s

interpretation of the exception to immunity that applies when an injury is caused

by a political subdivision’s “negligent failure to remove obstructions from public

roads,” R.C. 2744.02(B)(3).

{¶ 36} The General Assembly amended R.C. 2744.02(B)(3) in 2002. Prior

to its amendment, the statute created an exception to immunity for political

subdivisions for injuries “caused by their failure to keep public roads * * * in repair,

and free from nuisance.” Am.Sub.S.B. No. 106, 149 Ohio Laws, Part II, 3500,

3508. After its amendment, the statute limits liability to injuries “caused by [a

political subdivision’s] negligent failure to keep public roads in repair and other

negligent failure to remove obstructions from public roads.” Id. The application

of this amended language to a case involving an allegedly obstructed stop sign is a

question of first impression for this court.

{¶ 37} In holding that the city is entitled to summary judgment on the

question of its liability for negligently failing to remove an obstruction from the

public road, the majority focuses almost exclusively on the meaning of the word

“from,” and barely considers the word “obstruction.” The definition of

“obstruction” is “something that obstructs or impedes” or “a condition of being

clogged or blocked.” Webster’s Third New International Dictionary 1559 (2002).

The definition of “obstruct” is “to be or come in the way of.” Id.

{¶ 38} The majority interprets the statute to require a plaintiff to establish

that an obstruction is “on” a traffic-control device in order to create a risk of

liability, but there is no question that an object can obstruct or block a traffic-control

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device without literally being on it. The majority effectively rewrites the statute by

interpreting the word “from” to mean “on” based on a single definition of the word

“from” that the majority selects out of multiple offerings in a dictionary.

{¶ 39} Importantly, if the General Assembly had intended the immunity

exception to exist only when an obstruction was “on” a public road, it could have

used the word “on” instead of “from.” It did not.

{¶ 40} The majority analogizes the removing of an obstruction “from” a

stop sign to the act of taking a dime “from” a pocket, but deciding the case based

on this definition simply does not make sense. Interpreting the statute to require

that the obstacle literally touch the traffic-control device nearly eliminates blocked

traffic-control devices from the liability exception because of the low likelihood

that a traffic-control device will have an obstruction physically on it. But in

“enacting a statute, it is presumed that * * * [t]he entire statute is intended to be

effective.” R.C. 1.47(B). Consequently, we should not adopt a strained reading

that unduly limits the statute’s effectiveness.

{¶ 41} A simple example highlights the shortcomings of the majority’s

analysis. Every driver in Ohio is concerned with the practical question whether a

stop sign can be seen clearly from the road. From the perspective of a driver, it

does not matter whether foliage touching a stop sign renders it unviewable or

whether a tree growing two feet in front of it, but not touching it, does. Either way,

the sign is impossible to see—thereby creating a dangerous situation. The majority,

however, is not concerned with this practical reality faced by drivers across Ohio.

It believes there is a difference between obstructing a stop sign with foliage from a

tree planted two feet away and not touching it and foliage from a tree planted two

feet away and actually touching it—even if under both scenarios, the stop sign is

equally obstructed.

{¶ 42} We previously concluded that the General Assembly “used the word

‘obstructions’ in a deliberate effort to impose a condition more demanding than a

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showing of ‘nuisance’ in order for a plaintiff to establish an exception to

immunity.” Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792,

891 N.E.2d 311, ¶ 29. In Howard, we considered whether ice on a roadway was

an obstruction. Id. at ¶ 15-17. We concluded that “an ‘obstruction’ must be an

obstacle that blocks or clogs the roadway and not merely a thing or condition that

hinders or impedes the use of the roadway or that may have the potential to do so.”

Id. at ¶ 30. Because “public roads” includes the traffic-control device at issue in

this case, it is appropriate to replace “roadway” as used in Howard with “stop

sign.”1 The result is that an “obstruction” must be an obstacle that blocks the stop

sign and not merely a thing or condition that hinders or impedes the use of the stop

sign or that may have the potential to do so.

{¶ 43} The majority’s narrow interpretation of “from” is also incompatible

with the testimony legislators heard prior to voting on the 2002 amendments that

added the words “negligent failure to remove obstructions from public roads” to

R.C. 2744.02(B)(3). Representative Jay Hottinger assured legislators at the bill’s

first hearing in the House that “if there is negligence involved, there are

consequences and liability and the political subdivision may be sued.”

Representative Jay Hottinger, Sponsor Testimony, House Local Government and

Townships Committee, Meeting Report, Hannah Capitol Connection (Jan. 23,

2002). According to Representative Hottinger, under the pre-amendment statute,

political subdivisions were liable for “any” failure to remove obstructions from the

roadway, and the intent of the amendment was to limit the liability of political

subdivisions to “negligent” failures to remove roadway obstructions. Id. And Mark

1

In Howard, we mistakenly stated that Am.Sub.S.B. No. 106, 149 Ohio Laws, Part II, 3500, “also

limited the definition of ‘public roads’ from a more expansive reading that included ‘berms,

shoulders, rights-of-way, or traffic control devices’ to one that focused solely on the roadway itself,”

119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, at ¶ 29. In fact, although that legislation limited

the definition of “public roads,” that definition still includes “traffic control devices” that “are

mandated by the Ohio manual of uniform traffic control devices.” R.C. 2744.01(H).

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January Term, 2018

Landes, an attorney testifying on behalf of the County Commissioner’s

Association, stated at a Senate committee hearing that the section of the bill

pertaining to roadway liability would not change the law substantially but would

make it much clearer with the addition of the term “negligence.” Mark Landes,

Testimony on Behalf of the County Commissioner’s Association, Senate State and

Local Government and Veterans Affairs Committee, Meeting Report, Hannah

Capitol Connection (June 6, 2001).

{¶ 44} It is evident, based on this testimony and our own precedent, that the

General Assembly’s two key motivations in amending the law were to avoid

liability for lawsuits brought against political subdivisions for nuisances rather than

true obstructions and to provide immunity to political subdivisions that had not

been at least negligent in failing to remove obstructions. As evidenced by the

General Assembly’s decision to continue including certain traffic-control devices

in the definition of “public roads,” the 2002 amendments did not eliminate liability

for a city’s negligent failure to remove obstacles obstructing mandatory stop signs,

and there is no evidence that legislators intended to add a requirement that the

obstacle be touching the public road.

{¶ 45} As we did in Howard, this court should focus its inquiry on whether

the public road (in this case, the stop sign) is blocked in a way that renders the stop

sign wholly unserviceable, not merely more difficult to see. Accordingly, to the

extent that an obstacle is actually blocking a traffic-control device from the view of

a driver at all distances in which it would be effective, I would hold that a political

subdivision may be liable for negligently failing to remove the obstruction,

pursuant to R.C. 2744.02(B)(3).

{¶ 46} This court did not accept a proposition of law asserting that the city

of Campbell was entitled to immunity under this clarified standard. But contrary

to the decisions of the trial and appellate courts below, I would conclude that the

trial court, not the jury, is responsible for resolving the immunity question. See

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SUPREME COURT OF OHIO

Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992), quoting Roe v.

Hamilton Cty. Dept. of Human Servs., 53 Ohio App.3d 120, 126, 560 N.E.2d 238

(1st Dist.1988) (“ ‘Whether immunity may be invoked is a purely legal issue,

properly determined by the court prior to trial’ ”). That it is necessary to consider

the facts in order to determine whether the city negligently failed to remove an

obstruction does not transform the immunity question into one that cannot be

answered by the court. See O’Day v. Webb, 29 Ohio St.2d 215, 219, 280 N.E.2d

896 (1972) (“the fact that a question of law involves a consideration of the facts or

the evidence does not turn it into a question of fact”). Accordingly, I would remand

the case to the trial court for further proceedings. I dissent in part.

HARSHA, J., concurs in the foregoing opinion.

_________________

Rossi & Rossi and Gregg A. Rossi, for appellee.

Baker, Dublikar, Beck, Wiley & Mathews, Gregory A. Beck, James F.

Mathews, and Tonya J. Rogers, for appellant.

Giorgianni Law, L.L.C., and Paul Giorgianni, urging affirmance for amicus

curiae Ohio Association for Justice.

Brosius, Johnson & Griggs, L.L.C., Peter N. Griggs, Donald F. Brosius, and

Jennifer L. Huber, urging reversal for amici curiae Ohio Township Association and

Coalition of Large Ohio Urban Townships.

Collins, Roche, Utley & Garner, L.L.C., and Kurt D. Anderson, urging

reversal for amicus curiae Ohio Association of Civil Trial Attorneys.

Isaac, Wiles, Burkholder & Teetor, L.L.C., Mark Landes, Andrew N.

Yosowitz, and Shawn K. Judge, urging reversal for amici curiae County

Commissioners Association of Ohio, Ohio Municipal League, and County

Engineers Association of Ohio.

Joseph Martuccio, Canton Law Director, and Kevin R. L’Hommedieu,

Chief Counsel, urging reversal for amicus curiae city of Canton.

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January Term, 2018

Andrea Scassa, Massillon Law Director, urging reversal for amicus curiae

city of Massillon.

Jennifer L. Arnold, Alliance Law Director, urging reversal for amicus

curiae city of Alliance.

_________________

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