O'Brien v. Dept. of Transp.

[Cite as O'Brien v. Dept. of Transp., 2022-Ohio-1026.]

SEAN O'BRIEN Case No. 2015-00785JD

Plaintiff Judge Dale A. Crawford

Magistrate Holly True Shaver

v.

DECISION

DEPARTMENT OF TRANSPORTATION

Defendant

{¶1} Before the Court are Plaintiff’s February 5, 2021 objections to the magistrate’s

December 21, 2020 decision recommending judgment in favor of Defendant. For the

reasons stated below, the Court finds that the magistrate properly determined the facts

and appropriately applied the law.

Background

{¶2} Plaintiff, Sean O’Brien, brought an action for negligence arising from an

automobile collision that occurred on August 3, 2010 in Knox County, Ohio while he was

a backseat passenger in Joseph Alexander’s vehicle traveling southwest on State Route

(SR) 95, a two-lane rural highway. The accident occurred at an intersection where SR

95, Mishey Road, and Old Mansfield Road meet (the intersection).

{¶3} Mishey Road runs east-west and intersects SR 95 from the east while Old

Mansfield Road runs north-south and intersects Mishey Road from the south. Stop signs

control traffic from both roads entering onto SR 95 while SR 95 is a through highway with

a sharp curve. Southwest motorists, such as Alexander, must navigate a sharp curve to

the right to stay on SR 95. If southwest motorists go straight through the curve, instead

of following it, they will travel onto Old Mansfield Road. See Plaintiff’s exhibit 42;

Defendant’s exhibits D, F, G, H and N.

{¶4} The posted speed limit on SR 95 was 55 mph. When traveling southwest on

SR 95, motorists first encounter an intersection warning sign that shows Mishey Road

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intersecting from the left and perpendicular to SR 95. See Defendant’s exhibits C and N.

Thereafter, two yellow, diamond-shaped horizontal alignment signs on both sides of

SR 95 warned motorists of the impending curve; they depicted right-turn arrows below

which were advisory speed limit signs stating 20 mph. See Defendant’s exhibits D, E and

N. A directional sign next advised motorists that Knox Lake, boat ramps, and a marina

were straight ahead through the intersection on Old Mansfield Road. See Defendant’s

exhibits F, G, and N. Chevrons pointing to the right appeared ahead of the curve on the

left-hand side of the road and continued through the curve. Id. In addition, two large,

yellow arrow-boards faced motorists and pointed to the right. Id. A double-yellow line

separated SR 95’s two lanes and followed the curve to the right with a break at the

intersection. The solid white edge line on the right side of SR 95 followed the curve to

the right with no breaks.

{¶5} On the day of the accident, Alexander drove approximately 40 mph straight

through the intersection south onto Old Mansfield Road instead of following SR 95 as it

sharply curved to the right. His vehicle collided with another automobile, driven by

Pamela Riggleman, traveling northeast on SR 95 as she attempted to turn onto Mishey

Road. Plaintiff was ejected from the vehicle and sustained major injuries. Freddie

Okulich, a disinterested and unbiased bystander, testified that, following the collision,

Alexander was in hysterics and yelled “Look what I’ve done. I wasn’t paying attention.”

Additionally, Okulich testified that Alexander said he was going “too fast for the turn” and

that he “forgot about the turn.”

{¶6} Plaintiff claims that Defendant was negligent in its placement of traffic signage

in advance of the intersection, causing Alexander to misunderstand the nature of the

intersection. Plaintiff contends Alexander’s misunderstanding, induced by Defendant’s

negligence, ultimately led to the collision. On October 17, 2016, the case proceeded to

trial on the issue of liability before a magistrate of this Court. At trial, both Plaintiff’s traffic-

engineering expert, Kimberly Nystrom, and Defendant’s traffic-engineering expert, David

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Holstein, testified that the 20-mph advisory speed limit was appropriate for the nature of

the intersection. Additionally, the parties agreed that ODOT had no duty to redesign the

intersection. Thus, Plaintiff’s claims were solely based on ODOT’s alleged failure to

comply with the Ohio Manual of Uniform Traffic Control Devices (OMUTCD).

{¶7} Plaintiff presented multiple theories as to how Defendant’s negligence was

the proximate cause of his injuries. First, Plaintiff argues that Defendant’s negligent

placement of signs in advance of the intersection failed to properly warn Alexander that

SR 95 southbound curved to the right, as opposed to continuing south onto Old Mansfield

Road. Second, Plaintiff asserts that the topography of the road, including the hill that

obscured the intersection, the slope of the roadway and the fact that Old Mansfield Road

was visible in the distance, prevented Alexander from understanding that SR 95 curved

to the right.

{¶8} Alexander recounted: “I came over the hill, and in my mind the road went

straight, and I realized at some point that the road did curve and I knew I couldn’t make

the curve, so I went straight.” Additionally, Officer Matthew Whims, the Ohio State

Highway Patrolman that completed the traffic crash report for this collision, testified that

there was no indication at the scene that Alexander attempted to make the curve, and

stated that Alexander’s driving contributed to the accident. Furthermore, Henry Lipian,

Plaintiff’s accident reconstructionist, conceded that, if Alexander intended to follow the

curve, he was driving too fast to navigate that condition of roadway; however, he would

have been able to observe that the route he was traveling on curved to the right if he had

reduced his speed to the advisory speed.

{¶9} Following the trial, the magistrate recommended judgment in favor of

Defendant. Plaintiff timely filed objections to the magistrate’s September 1, 2017 decision

recommending judgment in favor of Defendant, which this Court overruled and entered

judgment in favor of Defendant. Thereafter, Plaintiff filed a timely appeal. The Tenth

District Court of Appeals reversed the judgment and remanded the case for further

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proceedings after finding that the magistrate had erred by limiting the testimony of

Plaintiff’s expert in human factors, William Vigilante, Ph.D.

{¶10} On October 22, 2019, the magistrate heard the complete testimony of

Dr. Vigilante. Vigilante opined that Alexander bore no responsibility for the accident

because the accident was caused by ODOT’s failure to provide adequate positive

guidance and remove misleading guidance. However, he also agreed that if Alexander

had slowed his speed to the posted advisory speed at the hillcrest, then he would have

been able to successfully navigate the intersection.

{¶11} Following the second trial, the magistrate recommended judgment in favor

of Defendant after finding that Defendant did not violate the OMUTCD. Additionally, the

magistrate found that the signage in place on the day of the accident adequately warned

Alexander of the curve in SR 95 and was not the proximate cause of the accident. Plaintiff

timely filed objections to the magistrate’s December 21, 2020 decision.

Scope of Remand

{¶12} As a preliminary matter, Defendant argues that Plaintiff is not entitled to a

new ruling on the objections previously raised and ruled on after the first trial because the

scope of the remand was limited to hearing Plaintiff’s human factors expert witness

“express his opinion as to whether or not the signs along the road where this accident

took place caused the driver to make a mistake * * *.” See Defendant’s March 12, 2021

Reply to Plaintiff’s Objections, p. 1. Additionally, Defendant asserts the Court of Appeals

set forth findings in its February 28, 2019 decision based on the evidence presented at

the first trial which should now be considered the “law of the case”. See id. at p. 6.

Specifically, Defendant contends that “Plaintiff’s own accident reconstructionist admitted

Plaintiff’s driver was negligent in going too fast for the curve – a finding of the Court of

Appeals which is now the law of the case.” Id. Upon review, the Court disagrees.

{¶13} The doctrine of “the law of the case” functions to compel trial courts to follow

the reviewing court’s decisions “on the legal questions involved for all subsequent

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proceedings in the case.” Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.3d 234 (1984).

Accordingly, “where at a rehearing following remand a trial court is confronted with

substantially the same facts and issues as were involved in the prior appeal, the court is

bound to adhere to the appellate court’s determination of the applicable law.” Id. Although

the rule is considered “necessary to ensure consistency of results in a case, to avoid

endless litigation by settling the issues, and to preserve the structure of superior and

inferior courts as designed by the Ohio Constitution”, “[t]he doctrine is considered to be a

rule of practice rather than a binding rule of substantive law and will not be applied so as

to achieve unjust results.” Id.

{¶14} When remanding the case for further proceedings, the Tenth District Court

of Appeals stated, in relevant part:

[W]e reverse and remand this matter to allow [Sean] O’Brien to present

expert human factors testimony as to causation; that is, whether the signage

ODOT installed for the intersection caused the driver of the vehicle in which

O’Brien was a passenger to make the mistake that resulted in the collision

and O’Brien’s ensuing injuries.

O’Brien v. ODOT, 10th Dist. Franklin No. 18AP-231, 2019-Ohio-724, ¶ 1. Specifically,

the Court of Appeals was “persuaded that Dr. Vigilante’s testimony about human factors,

including but not limited to working memory, long-term memory, positive guidance and

perception/reaction time, was relevant to the issue of causation in this matter.” Id. at ¶

65. Moreover, the Court of Appeals observed that:

[A]lthough the magistrate’s decision contains a summary of Dr. Vigilante’s

testimony, her earlier representation that she would give Dr. Vigilante’s

testimony the weight that, in her opinion, it deserved, was hampered by her

earlier decisions limiting the admissibility of much of his testimony. In short,

the evidence the magistrate needed to properly consider the application of

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the law to the evidence before her was inadequate for the claims of this

action.

Id. at ¶ 46.

{¶15} This Court has no intention of extending the scope of remand. See Nolan at

4 (“the trial court is without authority to extend or vary the mandate given” by the reviewing

court). However, the Court finds that the Court of Appeals neither limited Plaintiff’s right

to file objections nor set forth any findings by which this Court would be bound in ruling

on Plaintiff’s objections. Although the Court of Appeals remanded this case solely

because the magistrate erred when limiting Dr. Vigilante’s testimony, it is clear that the

intention behind hearing the additional testimony was to view it together with all of the

evidence presented in order to fully evaluate the issue of causation. Had this case been

originally tried before a jury, on remand the entire case would have been retried to a new

jury. Although this proceeding was a bench trial and the parties agreed it was only

necessary to hear one witness at the retrial,1 Defendant’s liability cannot be adequately

assessed without weighing the totality of the evidence presented at both trials.

{¶16} Because the magistrate’s September 1, 2017 decision determined the issue

of liability without the totality of the evidence, the Court’s March 6, 2018 decision ruling

on Plaintiff’s September 14, 2017 objections to said decision is moot. Accordingly, the

Court will conduct an independent review as to all the objected matters contained in

Plaintiff’s February 5, 2021 objections to the magistrate’s December 21, 2020 decision

and recommendation. See Civ.R. 53(D)(4)(d).

Discussion

{¶17} A magistrate’s decision “is not effective unless adopted by the court.”

1 Upon remand, Magistrate Shaver held a status conference with the parties. See April 22, 2019

Order of the Magistrate. Plaintiff never requested an alternative magistrate be assigned to the case and

the parties agreed that Dr. William Vigilante would be the only witness at trial. See September 27, 2019

Order of the Magistrate; see also May 17, 2019 Order of the Magistrate.

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Civ.R. 53(D)(4)(a). Civ.R. 53(D)(4)(b) provides that, “[w]hether or not objections are

timely filed, a court may adopt or reject a magistrate’s decision in whole or in part, with or

without modification.” However, when a party files objections to a magistrate’s decision,

the court “shall undertake an independent review as to the objected matters to ascertain

that the magistrate has properly determined the factual issues, and appropriately applied

the law.” Civ.R. 53(D)(4)(d). In reviewing the objections, the court does not act as an

appellate court but rather conducts “a de novo review of the facts and conclusions in the

magistrate’s decision.” Ramsey v. Ramsey, 10th Dist. Franklin No. 13AP-840, 2014-

Ohio-1921, ¶ 17 (internal citations omitted).

{¶18} In total, Plaintiff makes over fifty objections to the magistrate’s decision,

which are summated into nine arguments. Plaintiff contends that the magistrate erred

when she: (1) made her findings of fact; (2) did not conduct a site visit; (3) did not allow

evidence that the intersection has a reputation of being unsafe; (4) did not allow evidence

regarding Defendant’s post-accident installation of Advanced Route Turn Assemblies and

how the use of these signs reduced the number of crashes at the intersection; (5) ignored

evidence regarding the science of human factors; (6) held that Defendant was not

negligent per se for its failure to place signs in the manner mandated by the OMUTCD;

(7) held that Defendant was not negligent for the manner in which it signed and striped

the intersection; and (8) made her conclusions of law. Lastly, Plaintiff attacks the

magistrate’s decision as a whole, claiming it is against the manifest weight of the

evidence.

Objections to Evidentiary Issues

{¶19} Plaintiff’s first five objections take issue with the magistrate’s handling of the

evidence in this case. The Court will first address Plaintiff’s general assertion that “the

magistrate erred in her findings of fact, omitting many salient facts, and stating others

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inaccurately”. As an initial matter, the magistrate neither made nor was required to make

separate “findings of fact” in her decision. See Civ.R. 52. Rather, the magistrate offered

a summary of the facts presented at both trials and referenced evidence she found

credible and persuasive in her analysis of the legal issues. Although Plaintiff has a right

to have the magistrate “state her findings of fact found separate from the conclusions of

law”, he failed to make the required written request for her to do so. See id.

{¶20} Furthermore, objections “shall be specific and state with particularity all

grounds for objection.” Civ.R. 53(D)(3)(b)(ii). Although Plaintiff’s objection includes

fourteen subparts identifying individual issues with the magistrate’s summation of the

facts, these subparts are largely one sentence statements—or, in some cases, sentence

fragments—for which plaintiff offers little argument or explanation. In the Court’s view,

the requirements of specificity and particularity call for more than unadorned

disagreements and Plaintiff’s burden requires some explanation regarding the relevancy

and materiality of the matters to which he objects.

{¶21} Additionally, the scant nature of these subpart objections makes their basis

unclear. In some instances, Plaintiff merely contends error with the magistrate’s

subjective description of certain facts and her use of punctuation without any reference

to the transcript or any other specific basis. In other instances, Plaintiff takes issue with

the magistrate’s failure to include specific facts in her decision. However, the magistrate,

as the trier of fact in a bench trial, is free to rely on the facts she deems most relevant and

material to the issues at hand and free to disregard some evidence and rely on other

evidence, in part, in whole, or any deviation in between. See Siegel v. State, 28 N.E.3d

612, 2015-Ohio-441, ¶ 12 (10th Dist.) (Any “suggestion that a magistrate * * * is incapable

of deciding the facts and weighing the credibility of witnesses, lacks merit.”). Additionally,

the magistrate is not required to state in her decision every single fact on which her

findings are based. See Civ.R. 52 (“When questions of fact are tried by the court without

a jury, judgment may be general * * *.”); see also In re J.C.F, 11th Dist. Trumball No.

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2020-T-0084, 2021-Ohio-1057, ¶ 25 (“the magistrate was not required to list every finding

on which his decision was based.”). For these reasons, Plaintiff’s objection, and its

fourteen subparts, fails.

{¶22} Next, Plaintiff asserts that the magistrate erred when she did not conduct a

site visit. Although the Court, in its discretion, may allow a site visit where proper, Plaintiff

is not entitled to such a request. See R.C. 2315.02, 2315.08. While Plaintiff contends

that the intersection is unusually dangerous, the Court finds that photographs and video

of the roadway made a site visit unnecessary. Moreover, Plaintiff offers no argument

whatsoever in support of this objection and, therefore, it fails for lack of specificity. See

Civ.R. 53(D)(3)(b)(ii). In the little context Plaintiff does provide, he states that the

magistrate’s denial of his motion to conduct a site visit was an error. However, Plaintiff

needed to seek to set aside the magistrate’s ruling on said motion within ten days of its

filing. See Civ.R. 52(D)(2)(b). Consequently, the Court finds no error in the magistrate’s

decision.

{¶23} Plaintiff also contends that the magistrate erred when she did not allow

evidence that the intersection has a reputation of being unsafe. The Court disagrees. At

the first trial, the magistrate sustained Defendant’s objection to questions posed to two

witnesses, Ruth Auker and Allison Lowry, regarding the road’s reputation. Testimony of

the road’s reputation would be the opinions of lay witnesses. The Court may only allow

opinion testimony from a lay witness when it is “rationally based on the perception of the

witness” and “helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue”. Evid.R. 701. There is nothing in the record suggesting

the proposed testimony met either of these requirements. Indeed, testimony of both

witnesses would, in large degree, rely on inadmissible hearsay, i.e. what others have said

about the road. See Evid.R. 801(C), 802, and 803. Additionally, the Court finds the

relevancy of such testimony questionable. See Evid.R. 401 and 403(A). The road’s

reputation has no bearing on whether Defendant complied with its legal duties regarding

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the proper placement of signs at the intersection. As such, any probative value of the

evidence is substantially outweighed by the danger or unfair prejudice and confusion of

the issues. Consequently, the Court finds no error in the magistrate’s decision.

{¶24} Next, Plaintiff argues that the magistrate erred when she did not allow

evidence regarding Defendant’s post-accident installation of Advanced Route Turn

Assemblies (ARTAs). The magistrate sustained Defendant’s objection to two questions

posed to two witnesses, Ruth Auker and Jim Singrey, regarding the presence of ARTAs

at the intersection following the accident. Such evidence of a subsequent remedial

measure is inadmissible to prove negligence or culpable conduct. See Evid.R. 407.

{¶25} However, Plaintiff asserts that, although a subsequent remedial measure,

this evidence should be admissible to establish causation. Although Evid.R. 407 permits

evidence of a subsequent remedial measure for such limited purposes, the Court

disagrees with Plaintiff’s assertion that Singrey’s testimony regarding the decreased

number of incidents at the intersection with the ARTAs present is “obvious evidence of

causation.” Upon a de novo review, Singrey’s testimony that the ARTA being installed at

the intersection “seemed to really take care of a lot of the issues that happened there” is

tenuous at best. Furthermore, such testimony is the opinion of a lay person. Although

Singrey’s testimony appears to be rationally based on his own perceptions, the tenuous

nature of such post-accident perceptions is not helpful to the determination of causation

because the installation of an ARTA was not mandatory at the time of the accident.

Consequently, the Court finds no error with the magistrate’s initial exclusion of such

evidence.

{¶26} Additionally, Plaintiff contends that this evidence should have been allowed

to impeach Holstein’s testimony that the use of an ARTA at the intersection would be

“inappropriate” at the intersection. Having reviewed Holstein’s testimony, the Court finds

that evidence of post-accident installation of an ARTA does not impeach Holstein’s

testimony. Holstein very clearly testified that the OMUTCD did not require the installation

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of an ARTA at the accident location at the time of the accident. As the magistrate correctly

stated on the record, “[b]ut the fact that it’s up now does not necessarily mean that it was

a mandatory sign at [the time of the accident].” Thus, the Court agrees with the

magistrate’s exclusion of evidence of subsequent remedial measures.

{¶27} Lastly, Plaintiff argues that the magistrate erred when she ignored evidence

regarding the science of human factors. Within the objection, plaintiff asserts five more

specific objections relative to evidence plaintiff presented or proffered about human

factors. In the first two subpart objections, Plaintiff argues the magistrate ignored

evidence regarding the concept of perception reaction time and working memory. As

previously discussed, the magistrate is not required to state in her decision every single

fact on which her findings are based. Furthermore, the magistrate did not omit a

discussion of either of these concepts in her decision. The fact that Plaintiff disagrees

with the magistrate’s assessment of their credibility or persuasiveness does not mean

she ignored evidence. From the Court’s review, the magistrate listened to all the relevant

evidence and did not misapprehend any of the facts when she set them forth in her

decision.

{¶28} In the third, fourth, and fifth subpart objections, Plaintiff contends the

magistrate erred in excluding evidence of positive guidance, telephone poles, and Dr.

Vigilante’s opinion that Defendant failed to provide appropriate guidance. Upon

independent review, the magistrate neither excluded nor limited Dr. Vigilante’s testimony

regarding these concepts during the second trial. Consequently, Plaintiff’s objection, and

its five subparts, fails.

{¶29} For the reasons stated above, Plaintiff’s first five objections, including their

subparts, are OVERRULED.

Objections to Substantive Issues

{¶30} Plaintiff’s last four objections take issue with the magistrate’s negligence

analysis. It is well settled that the Ohio Department of Transportation (ODOT) is liable for

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accidents that are proximately caused by its failure to conform to the requirements of the

OMUTCD. Pierce v. Ohio Dept. of Transp., 23 Ohio App.3d 124, 491 N.E.2d 729 (10th

Dist.1985); see also Lumbermens Mut. Cas. Co. v. Ohio Dept. of Transp., 49 Ohio App.3d

129 (10th Dist.1988). The scope of ODOT’s liability is determined by whether the

OMUTCD prescribes a mandatory duty or a discretionary act. Gregory v. Ohio Dept. of

Transp., 107 Ohio App.3d 30, 33-34, 667 N.E.2d 1009 (10th Dist.1995). ODOT may be

rendered negligent per se when it deviates from the mandatory provisions of the

OMUTCD. Leskovac v. Ohio Dept. of Transp., 71 Ohio App.3d 22, 27-28, 593 N.E.2d 9

(10th Dist.1990), citing Perkins v. Ohio Dept. of Transp., 65 Ohio App.3d 487, 584 N.E.2d

794 (10th Dist.1989). Alternatively, “ODOT is immune from liability for damages resulting

from not performing a discretionary act.” Gregory at 33-34, citing Winwood v. Dayton, 37

Ohio St.3d 282, 525 N.E.2d 808 (1988). To differentiate, the OMUTCD will: use the term

“shall” to prescribe a mandatory duty; use the term “should” to indicate a “recommended,

but not mandatory, practice in typical situations, with deviations allowed if engineering

judgment or engineering study indicates the deviation to be appropriate”; or use the term

“may” to indicate a permissive, optional condition that “carries no requirement or

recommendation.” Ohio Manual of Uniform Traffic Control Devices, Introduction 2 (2005

Ed.Rev.1).

{¶31} First, Plaintiff asserts that the magistrate erred when she held that Defendant

was not negligent per se for its failure to place signs in the manner mandated by the

OMUTCD. Within this objection, Plaintiff makes several specific assertions. Plaintiff

argues that Defendant failed to comply with mandatory requirements regarding the

placement of the optional one-direction large arrow signs (W1-6) and the chevron

alignment signs (W1-8). Plaintiff then argues that Defendant failed to comply with

mandatory requirements when it did not place a route sign assembly, a junction assembly,

an advance route turn assembly (ARTA), and a directional assembly.

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{¶32} As to the W1-6 signs, Section 2C.09 of the OMUTCD provides that, “[i]f used,

the One-Direction Large Arrow sign shall be installed on the outside of a turn or curve in

line with and at approximately a right angle to approaching traffic.” Plaintiff relies on the

testimony of his traffic-engineer expert, Nystrom, who testified that the left-most sign is

not posted on the outside of the turn and is not at a right angle to approaching traffic.

Plaintiff’s only criticism of the right-most sign is that it is not in “alignment with approaching

traffic.” Upon review, the Court disagrees with Nystrom’s assessment.

{¶33} Motorists traveling southwest on SR 95 must navigate the curve to the right.

See Defendant’s exhibits A, D, G, H and N; Plaintiff’s exhibit 42. The Court finds that

both large arrow signs appear on the outside of this curve, i.e. outside the shoulder of the

oncoming lane on the long side of the curve. See Defendant’s exhibits D and N; Plaintiff’s

exhibit 42. In contrast, the inside of the curve and outside the shoulder of the lane

traveling southwest on the curve’s short side, contains no signs. Id. Indeed, the

OMUTCD does not require that the W1-6 signs be placed at the apex of the outside curve,

only that they be placed “outside of a turn or curve.” The Court also finds both large arrow

boards face traffic traveling southwest on SR 95 are clearly visible and are placed, as

required, at “approximately” a right angle to oncoming traffic. Therefore, the Court finds

no error with the magistrate’s conclusion that the W1-6 signs’ placement complied with

the OMUTCD.

{¶34} As to the W1-8 signs, Section 2C.10 of the OMUTCD provides that, “[i]f used,

Chevron Alignment signs shall be installed on the outside of a turn or curve, in line with

and at approximately a right angle to approaching traffic.” Plaintiff, again relying on

Nystrom’s testimony, contends that the chevrons are not in line with and at a right angle

to approaching traffic. However, the exhibits show the chevrons clearly visible facing

traffic, in line with and at an approximate right angle to oncoming traffic. See Defendant’s

exhibits D, G, H, and N; Plaintiff’s exhibit 42. Consequently, the Court agrees with the

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magistrate’s conclusion that the W1-8 signs’ placement complied with the mandatory

provisions of the OMUTCD.

{¶35} As to the route sign assembly and junction assembly signs, Sections 2D.27

and 2D.28 of the OMUTCD state these assemblies “shall” be used only when “numbered

routes” intersect. The term “numbered route” is not defined in the OMUTCD. As such,

both parties presented testimony of their traffic-engineering experts as to what constitutes

a numbered route. Nystrom testified that numbered routes include “county routes” but

she includes no explanation for this conclusion. However, Holstein testified that

numbered routes include only interstates, U.S. routes, and state routes. Holstein further

testified that county roads would be considered numbered routes “only in very odd

situations, if they’re a very major road.”

{¶36} When specifically asked whether a county road is considered a numbered

route under the OMUTCD, Holstein testified:

No. If you look at the examples, every one of the signs in here, and I’m referring

to figure 2D-6, all three pages, every sign on there is a U.S. or state route. Mishey

Road may have a local number, apparently County Road 55, but it’s a very minor

road. So the purpose of this type of signing, we would only consider if a county

road was a very major road.

The magistrate found Holstein’s testimony credible and persuasive, a finding with which

the Court agrees.

{¶37} Although the trial court must “independently assess the evidence and reach

its own conclusions”, it may “appropriately give weight to the magistrate’s assessment of

witness credibility in view of the magistrate’s firsthand exposure to the evidence”. Siegel

v. State, 28 N.E.3d 612, 2015-Ohio-441, ¶ 12 (10th Dist.) (internal citations omitted).

Holstein provides an explanation for his opinion whereas Nystrom’s opinion is conclusory.

Further, the Court finds Holstein more credible than Nystrom based on the differences in

their background and experience. This is the first case in which Nystrom has testified in

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Ohio and the first case in which she has interpreted the OMUTCD. Though she worked

for Caltrans, the California equivalent of ODOT, she testified that California did not finalize

its version of the MUTCD until after she left Caltran’s employ. In contrast, Holstein has

been responsible for administering the OMUTCD for almost two decades and has been

responsible for hundreds of sign projects in Ohio. Therefore, the Court agrees with the

magistrate’s determination that “Mishey Road and Old Mansfield Road were not ‘other

numbered routes’ as contemplated in the manual” and, therefore, that Sections 2D.27

and 2D.28 did not apply to the intersection.

{¶38} As to the ARTA, Section 2D.29 of the OMUTCD provides that “it shall be

installed in advance of an intersection where a turn must be made to remain on the

indicated route.” The Court agrees with the magistrate’s determination that “the

photographs and video of the roadway clearly show that to remain on SR 95 southbound,

a motorist would follow the curve in the roadway to the right. Although it is a sharp curve

* * * no ‘turn’ must be made to remain on the indicated route as stated in Section 2D.29

of the OMUTCD.” This conclusion is buttressed by Holstein who testified that an ARTA

is only required where a motorist must turn onto a different road or change roads to stay

on the same route.

{¶39} Despite photographs and video visibly showing SR 95 curving to the right,

Plaintiff contends that the magistrate erred because the OMUTCD considers this

intersection a “turn” as opposed to a “curve” since the advisory speed limit is 20 mph.

The Court finds this assertion lacks merit. Although Table 2C-5 in Section 2C.06 of the

OMUTCD suggests that a W1-1 turn sign should be used when there is one horizontal

alignment change and the advisory speed limit is less than 30 mph, there is also a note

attached to this example which explains that “[e]ngineering judgment should be used to

determine whether the Turn or Curve sign should be used.” Ohio Manual of Uniform

Traffic Control Devices, 2C-7 (2005 Ed.Rev.1). If, based upon the use of engineering

judgment, either a turn sign or curve sign could be deemed appropriate for intersections

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with one horizontal alignment change and an advisory speed limit below 30 mph, then the

20-mph advisory speed limit employed at the intersection on SR 95 is not dispositive as

to whether one must make a turn to remain on the same route for purposes of installing

an ARTA. Here, SR 95 clearly curves to the right and a motorist does not have to change

roads to stay on SR 95. Consequently, the Court finds no error with the magistrate’s

determination.

{¶40} As to the directional assembly, Plaintiff does not highlight any language

requiring Defendant to install these signs at the intersection. Section 2D.30 of the

OMUTCD provides that a directional assembly “shall” be used under specific

circumstances when numbered routes begin, end, turn, or are intersected, all of which

are indicated in advance by an ARTA or a junction assembly. See Ohio Manual of

Uniform Traffic Control Devices, 2D-13 (2005 Ed.Rev.1). Upon review, the Court finds

no language which imposes a mandatory duty on Defendant with respect to the

intersection.

{¶41} Consequently, the Court finds the magistrate did not err when she concluded

that Plaintiff failed to prove by a preponderance of the evidence that Defendant breached

any mandatory duty as set forth in the OMUTCD because Defendant neither failed to

comply with mandatory requirements when it placed the W1-6 and W1-8 signs nor

violated any mandatory requirements when it omitted from the intersection placement of

a route sign assembly, junction assembly, ARTA, and directional assembly.

{¶42} Second, Plaintiff asserts that the magistrate erred when she held that

Defendant was not negligent for the manner in which it signed and striped the intersection.

Within this objection, Plaintiff makes several specific assertions. Plaintiff argues that

Defendant was negligent when it installed the separate W2-2 intersection warning and

W1-1 turn signs instead of a W1-10 combination horizontal alignment/intersection sign,

and when it incorrectly spaced the W1-1 turn and W1-8 chevron alignment signs. Plaintiff

Case No. 2015-00785JD -17- DECISION

also argues that Defendant was negligent when it failed to use “barrier striping” on the

road at the intersection.

{¶43} As to the W1-10 sign, Plaintiff acknowledges that Defendant was not

required to place this sign. Plaintiff also acknowledges that the W1-1 and W2-2 signs

Defendant did place at the intersection were optional. Nevertheless, Plaintiff argues

Defendant is liable for its “negligent implementation of a decision” when Defendant chose

to place the optional W1-1 and W2-2 signs instead of placing a W1-10. See Rhodus v.

Ohio Dept. of Transp., 67 Ohio App.3d 723, 739, 588 N.E.2d 864 (10th Dist.1990).

Although the mandatory terms of the OMUTCD are not the sole basis of ODOT’s

negligence, ODOT cannot be held liable for exercising discretion in its executive planning

function. See id. at 731 (The Court found that, after exercising discretion in developing a

traffic control plan which required a barricade be placed on the side of the road due to the

danger of placing it in the middle of the road, ODOT was not immune for its decision to

place a barricade in the middle of the road); see also Burns v. Ohio Dept. of Transp., 39

Ohio App.3d 126, 529 N.E.2d 1283 (The Court found that the decision to expand a state

route into a four-lane highway was a discretionary decision, but the design and

construction of said highway was a ministerial function for which the state was not

immune). Moreover, where the state “exercises its planning discretion to select one

available reasonable option over another, the doctrine of immunity bars plaintiff’s claims.”

Rhodus at 732, citing Pottenger v. Ohio Dept. of Transp., 10th Dist. Franklin No. 88AP-

832, 1989 WL 147998, *7 (Dec. 7, 1989). While the Court may agree that the W1-10 sign

better depicted the conditions of the intersection, that is not the law applicable to this

case. Indeed, Defendant’s decision to install the optional W1-1 and W2-2 signs rather

than the optional W1-10 sign was a discretionary act for which the state is immune.

{¶44} As to Plaintiff’s criticism of the W1-1 and W1-8 signs’ spacing, Section 2C.05

and 2C.10, including Table 2C-4, of the OMUTCD merely provide guidance as to spacing

of these signs. While the sole fact that OMUTCD gives ODOT a choice regarding sign

Case No. 2015-00785JD -18- DECISION

spacing is not dispositive of the state’s immunity, Plaintiff has not provided sufficient

evidence that Defendant did not properly execute its plan after using its discretion to

determine spacing of these signs. See Rhodus at 732 (the facts demonstrated that ODOT

failed to comply with its own plan as to the installation of a barricade); see also

Defendant’s exhibit K. Additionally, there is insufficient evidence to conclude that any

employee or agent of ODOT was negligent when placing the W1-1 and W1-8 signs. See

Burns at 128 (Plaintiff provided sufficient evidence that, despite knowledge of an issue

with rockslides causing accidents in the area and access to technology and devices to

prevent the problem, ODOT had a highway constructed without any preventive

measures). Moreover, the Court finds that the photograph and video evidence establish

that the signs were placed such that Alexander had adequate time to react to the change

in alignment. See Defendant’s exhibits A, C, D, E, F, G, H, I and N; Plaintiff’s exhibits 42,

5. Therefore, the Court finds no issue with the magistrate’s conclusion.

{¶45} As to the striping of SR 95, Plaintiff does not highlight any language that

imposed a duty on Defendant with which it did not comply. Upon review, the Court can

find no OMUTCD provision, optional or otherwise, in regards to pavement markings with

which Defendant has failed to comply. Furthermore, the Court finds that photograph

evidence demonstrates that the pavement markings on the road at the time of the

accident convey to a reasonable, southbound driver that SR 95 curves to the right. See

Defendant’s exhibits A, C, D, E, F, G, H, I and N; Plaintiff’s exhibits 42, 5. Furthermore,

the breaks in the pavement markings at the intersection provide adequate guidance to a

reasonable, southbound driver that he may travel onto either Mishey Road or Old

Mansfield Road if that is his intended route of travel. Id.

{¶46} Even if the magistrate had erred in concluding either that Defendant neither

owed Plaintiff a duty nor breached any duty owed to Plaintiff for the manner in which

Defendant signed and striped SR 95, there was no prejudice to Plaintiff because

Defendant’s actions or omissions did not proximately cause Plaintiff’s injuries. Indeed,

Case No. 2015-00785JD -19- DECISION

when ODOT fails to comply with the OMUTCD, it is only “liable in damages if proximate

causation is established.” Leskovac, 71 Ohio App.3d at 27-28, 593 N.E.2d 9. In order to

establish proximate cause, Plaintiff had the burden to present evidence upon which the

Court could reasonably determine that it was more likely than not that Defendant’s failure

to appropriately sign and stripe SR 95 at the intersection, in a natural and continuous

sequence, produced Alexander’s inability to safely navigate SR 95 and that would not

have taken place had Defendant placed the proper signs and pavement markings. See

Whiting v. Dept. of Mental Health, 141 Ohio App.3d 198, 202-203, 740 N.E.2d 644 (10th

Dist.2001).

{¶47} Upon a de novo review, the Court agrees with the magistrate’s finding that

“Plaintiff failed to prove that ODOT’s signage was the proximate cause of the accident.”

Additionally, the Court agrees with the magistrate’s finding that the optional “signage in

place at the intersection, as well as the 20-mph advisory signs and curved white edge line

provided adequate positive guidance which would alert any reasonable driver of the need

to slow down, proceed with caution, and expect to proceed right while slowing down.”

Although Plaintiff’s objections do not specifically challenge the magistrate’s finding that

“plaintiff has failed to prove that any breach by ODOT was the proximate cause of his

injuries”, he expatiates that the magistrate failed to acknowledge the role human factors

psychology played in preventing Alexander from understanding that SR 95 curved to the

right at the intersection. The Court disagrees. As already explained, Plaintiff’s assertion

that the magistrate ignored evidence lacks merit. Specifically regarding the issue of

causation, Plaintiff’s argument requires the Court to find that Alexander was exercising

reasonable care while driving, which is not supported by the evidence.

{¶48} Alexander did not testify that he was confused by or misunderstood any

signs. Additionally, Alexander testified he was traveling “40-45 miles an hour” at the time

of the accident, a speed which is double the advisory speed limit. Plaintiff attempts to

attenuate this fact by framing Alexander as a well-seasoned, defensive driver with

Case No. 2015-00785JD -20- DECISION

experience at navigating rural roads. While this may typically be the case, Alexander

admitted that, at the time of this accident, he was not paying attention and he was going

too fast for the turn.

{¶49} Despite Alexander conceding to his own carelessness, Plaintiff insists

Alexander was exercising reasonable care because he was driving well within the posted

speed limit of 55 mph. Although the posted speed limit may have been 55 mph, the legal

speed limit is whatever speed is reasonable under the circumstances. R.C. 4511.21(A)

(“No person shall operate a motor vehicle * * * at a speed greater than is reasonable or

proper, * * * and no person shall drive any motor vehicle * * * at a greater speed than will

permit the person to bring it to a stop with an assured clear distance ahead.”); Stonerock

v. Miller Bros. Paving, 72 Ohio App.3d 123, 136, 594 N.E.2d 94 (10th Dist.1998) (“[T]he

operation of a motor vehicle, even if being driven below the posted speed limit, may be

unreasonable given the circumstances.”); State v. Wall, 115 Ohio App. 323, 185 N.E.2d

115 (10th Dist.1962) (The Court found that a posted speed limit merely constitutes “prima

facie evidence to be considered along with the other evidence in the case in determining

the ultimate question whether the speed is reasonable and proper.”); see also State v.

Neff, 41 Ohio St.2d 17, 322 N.E.2d 274 (1975). Upon review, the Court finds, and both

traffic-engineering experts in this case agree, that the reasonable speed at which to

operate a vehicle under the circumstances present at the intersection is 20 mph.

{¶50} Additionally, the Court is not persuaded by Plaintiff’s assertion that the issue

of proximate cause turns on the science of perception and memory, and not the speed at

which Alexander was operating his vehicle. Experts in this case, including Plaintiff’s,

agreed that if Alexander heeded the advisory speed sign at the hillcrest and slowed his

speed, then he would have been able to successfully navigate the curve. While the Court

may have been persuaded that alternative signage should have been used to better

illustrate the curve, Alexander failed to heed properly placed warning signs advising

Case No. 2015-00785JD -21- DECISION

motorists to observe a 20-mph speed for upcoming adverse conditions in the road—

whether those adverse conditions required a turn or a continuous curve is immaterial.

{¶51} Simply put, Plaintiff did not present sufficient credible evidence to convince

the Court that this accident would not have happened had Defendant placed the

alternatively suggested signs and pavement markings. Therefore, the Court finds that

Alexander’s negligence in failing to operate his vehicle in a reasonable manner and

navigate SR 95 was the sole proximate cause of the accident and Plaintiff’s injuries. The

signage in place on the day of the accident, which clearly indicated to drivers traveling

southwest on SR 95 that the road curved sharply to the right, was not.

{¶52} Plaintiff also makes a general assertion that “the magistrate erred in her

conclusions of law.” Within this objection, Plaintiff makes twenty-one individual subpart

objections. As already discussed, the magistrate was neither requested to nor did she

make separate conclusions of law. See Civ.R. 52. Many of the subpart objections lack

any specificity, without any reference to the transcript or any other specific basis, and are

not material to the magistrate’s decision. Additionally, these challenges merely rehash

issues that the Court has already considered and rejected. For these reasons, Plaintiff’s

objection, and its subparts, fails.

{¶53} Lastly, Plaintiff claims that the magistrate’s decision is against the manifest

weight of the evidence. This objection simply summarizes arguments that Plaintiff has

set forth more specifically in his other objections. Further, Plaintiff does not argue the

appropriate standard of review for this juncture. While the manifest weight standard is

applicable in civil cases, it is normally applied to appellate review of verdicts. However,

the Court does not act as an appellate court when reviewing a magistrate’s decision.

Rather, as indicated above, the Court’s duty is to conduct an independent, de novo review

of the facts and conclusions in the magistrate’s decision and determine whether the

magistrate properly determined the facts and appropriately applied the law. After

reviewing the entire record, the Court finds the magistrate did just that.

Case No. 2015-00785JD -22- DECISION

{¶54} Moreover, applying a manifest-weight standard does not change the result.

Manifest weight challenges require the challenging party “to demonstrate that the

evidence could lead to only one conclusion and that conclusion is contrary to judgment.”

Galay v. ODOT, 10th Dist. Franklin No. 05AP-383, 2006-Ohio-4113, ¶ 14. Where a

judgment is supported by some competent, credible evidence, it is not against the

manifest weight of the evidence. Id. Plaintiff fails to demonstrate that the evidence in

the case could lead to only one conclusion. For the reasons recited throughout the

present decision, the Court finds there is ample competent and credible evidence to

support the magistrate’s decision.

{¶55} For the reasons stated above, the Court finds that the magistrate

appropriately applied the law, and OVERRULES Plaintiff’s sixth, seventh, eighth, and

ninth objections, including all subpart objections.

Conclusion

{¶56} Upon a de novo review, the Court finds that the magistrate properly

determined the facts and appropriately applied the law. For the reasons stated above,

the Court OVERRULES Plaintiff’s February 5, 2021 objections and adopts the

magistrate’s December 21, 2020 decision as its own with modification to reflect the

additional analysis stated herein.

DALE A. CRAWFORD

Judge

[Cite as O'Brien v. Dept. of Transp., 2022-Ohio-1026.]

SEAN O'BRIEN Case No. 2015-00785JD

Plaintiff Judge Dale A. Crawford

Magistrate Holly True Shaver

v.

JUDGMENT ENTRY

DEPARTMENT OF TRANSPORTATION

Defendant

{¶57} Upon a de novo review, the Court finds that the magistrate properly

determined the facts and appropriately applied the law. For the reasons stated, the Court

OVERRULES Plaintiff’s February 5, 2021 objections and adopts the magistrate’s

December 21, 2020 decision as its own with modification to reflect the additional analysis

provided in this decision. Judgment is rendered in favor of defendant. Court costs are

assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment

and its date of entry upon the journal.

DALE A. CRAWFORD

Judge

Filed February 16, 2022

Sent to S.C. Reporter 3/29/22