The opinion
French, J.,
concurring in part and dissenting in part.
{¶ 30} I respectfully concur in part and dissent in part.
{¶ 31} First, I dissent from the majority’s conclusion that there remains a genuine issue of material fact concerning the presence and effect of potholes, heavy brush on the side of the road, and a strip of mud and debris along the curb. R.C. 2744.02(B)(3), as amended by the General Assembly and as interpreted by the Supreme Court of Ohio in Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1 , 2008-Ohio-2792 , 891 N.E.2d 311 , provides for an exception for a political subdivision’s liability for “negligent failure to remove obstructions from public roads.” The term “obstruction” means “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. Here, as the trial court found, “[tjhere is no evidence that the potholes, mud and rocks to which plaintiff refers as the cause of his accident either blocked or clogged the road, even if they hindered or impeded his use of it.”
*555 {¶ 32} Appellants also contend, and the majority agrees, that brush along the berm may have obstructed Justin’s passage. As the trial court noted, however, R.C. 2744.01(H) expressly excludes berms and shoulders from the definition of “public roads.” Therefore, even if there had been brush along the berm, any negligent failure by the city to remove it would not defeat immunity.
{¶ 33} For both of these reasons, I dissent from that portion of the majority’s opinion concluding that a question of fact remains concerning an obstruction in the roadway. Nevertheless, I agree with the majority that we must remand this matter to the trial court because the city still could be held liable for any “negligent failure to keep public roads in repair” under the first prong of R.C. 2744.02(B)(3). That first prong, not addressed in Howard, 119 Ohio St.3d 1 , 2008-Ohio-2792 , 891 N.E.2d 311 , creates an independent basis for liability. See Bonace v. Springfield Twp., 179 Ohio App.3d 736 , 2008-Ohio-6364 , 903 N.E.2d 683 (considering, independently, a township’s liability for failure to repair a roadway and for failure to remove an obstruction from the roadway). Therefore, I concur in the majority’s conclusion in that respect and agree that we must remand this matter to the trial court.