Howard v. Miami Township Fire Division (171 Ohio App. 3d 184, 2007)

Brogan, Judge.

{¶ 1} Donald Howard, as administrator of the estate of Christopher Howard, appeals from the judgment of the Montgomery County Common Pleas Court in favor of Miami Township.

{¶ 2} The facts underlying this appeal are set out in the trial court’s decision granting the township summary judgment in this matter. The facts are as follows:

{¶ 3} “On 24 January 2004, Defendant, Miami Township Fire Department (hereinafter ‘Township’) conducted a live fire training evolution at 5460 Bear Creek Road, Miamisburg, Ohio. As part of the planning for this live fire training, the Fire Department notified various environmental agencies and obtained the requisite documents and inspections. Additionally, several of the Lieutenants and Deputy Chief Queen created a training plan that included the type and location of the fire engines and other equipment to be used; the amount of water to have on hand at the burn; the location of the crews; and the manner in which the building would be burned.

{¶ 4} “The training evolution began at approximately 9:00 a.m. and continued until approximately 2:30 p.m. The training consisted of a series of several live fires and involved different crews from the Fire Department. At the conclusion of the training the remaining portion of the structure was systematically burned such that as the structure burned it fell into the basement. At approximately 4:30 p.m. the structure had dropped into the basement and the majority of it was consumed. The equipment was removed from the burn site and placed back into service. The Township dispatch center was notified that the training evolutions were complete. Deputy Chief Hoffman, the fire deputy chief on duty, requested that the police patrol the cite [sic] occasionally throughout the night. Additionally, a crew from Fire Department 49 was assigned to periodically visit the site to ensure that the fire was out and to apply road salt as needed.

{¶ 5} “At about 6:00 p.m. three members from Station 49 visited the burn site to check the embers from the fire and to spread salt on the road where water ran down from the burnsite and onto the road. Two of the firefighters each testified in his deposition that they spread a five gallon bucket of salt on the affected area of the roadway. They further stated that there was no ice on the roadway at that time. The firefighters returned to the site at about 7:30 p.m. and remained there for about one half hour, again checking the embers from the fire and checking the road for water and ice. Firefighter Pirk testified that had there been ice on the road at that time ‘we would have called for a salt truck and notified our shift commander.’ No salt was added to the road at that time.

{¶ 6} “In addition to the periodic visits to the burn site by the firefighters, Miami Township Police Officer Aronoff (‘Aronoff) was patrolling, among other roads, Bear Creek Road. He traveled on Bear Creek Road at approximately 5:00 p.m. and again at about 9:00 p.m. During the 9:00 p.m. pass on Bear Creek Road, Aronoff conducted a traffic stop within a few hundred feet of the burn site.

{¶ 7} “At approximately 9:50 p.m. Christopher Howard and a friend, Robin Butler (non-party; ‘Butler’), were traveling in Howard’s car, northbound on Bear Creek Road. Howard was the driver of the car. After entering the left hand curve just past the burn site, Howard lost control of the car, crashed into a tree and died as a result of the accident. Butler was able to free herself from the wreckage and was transported to the hospital.

{¶ 8} “It is important to understand the layout of the burn site and its physical relationship to Bear Creek Road. Bear Creek Road is characterized by the police report attached to several of the depositions as a ‘gently rolling rural road with several curves.’ The un-posted speed limit on a rural road is 55 mph; however, there are several yellow caution signs posted on Bear Creek Road, indicating the type of curve that lies ahead and the recommended speed at which the curve should be negotiated. One such sign is located just north of the burn site driveway and indicates a sharp curve ahead and recommends a speed of 30 mph. The burn site itself sits on a hill, accessed by a steep drive from Bear Creek Road. The driveway access to the burn site is just before Bear Creek Road [sic] curves to the left, if one is traveling north on Bear Creek Road.

{¶ 9} “Aronoff was dispatched to the accident and was the first police officer to arrive at the scene. He remembers that the road was wet; that water was pooling on the side of the road at the bottom of the burn site; and that he pointed the water out to another police officer, Sgt. Fitzgerald (‘Fitzgerald’) because he was concerned that the water could freeze.

{¶ 10} “Sergeant Scott C. Fitzgerald (‘Fitzgerald’) knew that the Fire Department was going to conduct a controlled burn on 24 January 2004. He was on duty that day, but did not visit the burn site until he was dispatched to the accident scene. Upon arriving at the scene Fitzgerald questioned Aronoff about the accident. Aronoff pointed out the water runoff from the burn site, down the driveway, onto the roadway. Fitzgerald testified that he observed, water, some ice, and some slush on the roadway, as well as fresh water flowing onto the roadway.

(¶ 11} “Sergeant Rex A. Thompson (‘Thompson’), was called at home to report to the crash site. He arrived at 10:19 p.m. He was responsible for collecting evidence to reconstruct the accident. Included in the data he collected was information from the sensing diagnostic module, air bag sensor (‘SDM’). Thompson testified at his deposition that the information collected from SDM indicated that Howard’s vehicle was traveling at 60 mph five seconds prior to the crash. Thompson further testified, that, from viewing pictures taken of the roadway the night of the accident, the road was wet and possibly slushy, but he could not tell from the pictures whether the road was icy.

{¶ 12} “Howard’s Response contains an affidavit from his expert witness, accident reconstructions Fred Lickert (‘Lickert’). Lickert states that ‘[i]t was not merely the speed of the plaintiffs vehicle that made this condition unsafe. Although the speed at which Mr. Howard attempted to take this turn was careless, it did not change the fact that this roadway presented a hazardous condition to ordinary users of the roadway.’ Lickert further states that it is possible for a vehicle, under optimal conditions, to negotiate the curve at speeds up to 70.9 mph. Lickert states that [sic] is his ‘professional opinion, with a reasonable certainty, that the actions and inactions of the Miami Township Fire Department in failing to address the hazardous condition of the roadway were a proximate and contributing cause of this fatal accident.’ Lickert bases this opinion on his review of the depositions filed in this case and his personal observations of the scene of the accident on 29 January 2004; 10 February 2004 and 2 June 2004.

{¶ 13} “Howard’s parents filed the instant action against Miami Township Fire Division and Miami Township claiming that the Township, through the actions of its employees was negligent and, as such, is liable for Howard’s death. Township filed its Motion for Summary Judgment arguing that it is immune from liability pursuant to O.R.C. 2744, et seq.”

{¶ 14} The trial court granted summary judgment in favor of the township. According to the court, the water and ice on Bear Creek Road did not amount to an “obstruction” as contemplated by R.C. 2744.02(B)(3). This statute imposes liability upon political subdivisions “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 * * The court found that “obstruction” should be given its ordinary definition — something that “blocks or closes up by obstacle.” In reaching this conclusion, the court relied on the word’s application in cases decided under former R.C. 2744.02(B)(3), which held political subdivisions “liable for injury, death, or loss to person or property caused by their failure to keep public roads * * * free from nuisance * * (Emphasis added.) In those cases, “certain obstructions to a driver’s ability to see the road could constitute a nuisance.” Since passage through or the ability to see Bear Creek Road had not been blocked by any obstacle, the court determined that the water and ice on the road did not amount to an “obstruction” by definition or by application. Therefore, the trial court held that the township was not liable for Christopher Howard’s death.

{¶ 15} On appeal, Howard raises one assignment of error: the trial court erred in finding that the township was immune from suit as a matter of law pursuant to R.C. Chapter 2744. As an appellate court, our review of trial court decisions on summary judgment is de novo, which means that we apply the same standard as the trial court, viewing the facts in the case in a light most favorable to the nonmoving party and resolving any doubt in favor of the nonmoving party. Brown v. Dayton, Montgomery App. No. 21542, 2006-Ohio-6816, 2006 WL 3759579, at ¶ 5. Trial courts will appropriately grant summary judgment where they find “(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.” Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 375 N.E.2d 46.

{¶ 16} Upon review of the record, we find that the trial court erred in granting the township’s motion for summary judgment. Under R.C. 2744.02(B)(3), “obstruction” should be construed to include any object that has the potential of interfering with the safe passage of motorists on public roads. Therefore, pursuant to the statute, the township is not entitled to judgment as a matter of law where the ice and water mixture that formed on Bear Creek Road on the night of Christopher Howard’s accident constituted an obstruction. This obstruction was caused by water flowing from the site of the live-fire-training evolution conducted earlier that day by the township. Furthermore, we find that a genuine issue of material fact exists as to whether the township acted negligently in failing to remove the icy mixture from the road. Finally, the township will not have a defense to liability under R.C. 2744.03(A)(3) or (5). It is not an exercise of a political subdivision’s discretion to eliminate an obvious potential hazard from public roads. Accordingly, the judgment of the trial court will be reversed and the cause remanded for further proceedings.

I

{¶ 17} Under his sole assignment of error, Howard contends that the trial court erred by finding the township immune from liability pursuant to R.C. 2744.02(B)(3). R.C. Chapter 2744, also known as the Political Subdivision Tort Liability Act, requires a three-tiered analysis to determine whether a political subdivision should be immune from liability. Sherwin Williams Co. v. Dayton Freight Lines, 161 Ohio App.3d 444, 2005-Ohio-2773, 830 N.E.2d 1208, at ¶ 9. First, under R.C. 2744.02(A)(1), political subdivisions are generally not liable in damages when performing a governmental or proprietary function. Id. After establishing immunity, the next tier of the analysis turns on whether one of the exceptions to immunity set forth in R.C. 2744.02(B)(1) through (5) applies. Id. Finally, political subdivisions may overcome the exceptions and have immunity reinstated if they demonstrate that one of the defenses contained in R.C. 2744.03 applies. Id.

{¶ 18} The first issue that we must address is whether one of the exceptions to immunity, specifically R.C. 2744.02(B)(3), imposes liability upon the township for Christopher Howard’s death. R.C. 2744.02(B)(3) states that “[e]xcept as otherwise provided in section 3746.24 of the Revised Code, 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 current version of subsection (B)(3) was part of Senate Bill 106, which became effective in April 2003. Prior to that date, R.C. 2744.02(B)(3) read, “Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance * * In amending the statute, the General Assembly limited the scope of political subdivisions’ responsibility to public roads only, which it defined as “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 * * *.” R.C. 2744.01(H).

{¶ 19} Furthermore, the General Assembly replaced “free from nuisance” with “other negligent failure to remove obstructions.” Under former R.C. 2744.02(B)(3), courts broadly interpreted “nuisance” to be “conditions that directly jeopardize the safety of traffic on the highway.” Manufacturer’s Natl. Bank of Detroit v. Erie Cty. Road Comm. (1992), 63 Ohio St.3d 318, 322, 587 N.E.2d 819. This included conditions outside of the paved surface of roadways, as well as conditions on roads themselves. For example, a nuisance could be a permanent obstruction to visibility not on a public road, such as growing crops, that made it unsafe for the usual and ordinary course of travel within a highway right-of-way. Id. at 323, 587 N.E.2d 819. See, also, Harp v. Cleveland Hts. (2000), 87 Ohio St.3d 506, 721 N.E.2d 1020 (holding that a defective tree limb threatening to fall on a public roadway, but not obstructing the roadway, constitutes a nuisance under R.C. 2744.02(B)(3)); Sherwin Williams Co. v. Dayton Freight Lines, 161 Ohio App.3d 444, 2005-Ohio-2773, 830 N.E.2d 1208 (finding that smoke emanating from a burn site and obstructing the vision of drivers on a nearby interstate constituted a nuisance pursuant to R.C. 2744.02(B)(3)); McQuaide v. Bd. of Commrs. of Hamilton Cty., Hamilton App. No. C-030033, 2003-Ohio-4420, 2003 WL 21991337, at ¶ 12-13 (finding that a four-degree incline in a right-of-way did not constitute a nuisance where prior accidents cited by the appellant occurring in the general area of the incline did not establish that the incline caused the accidents or that the incline could not be traversed safely in the course of ordinary travel). By amending R.C. 2744.02(B)(3), it is reasonable to conclude that the General Assembly was responding to these cases in which the duty of political subdivisions to care for their public roadways extended beyond the paved and traveled portion of the roadways themselves. While a nuisance may come from outside of the boundaries of the roadway, an “obstruction” implies an object located on the roadway, over which the political subdivision has direct control for taking action to correct. See Harp, 87 Ohio St.3d at 512, 721 N.E.2d 1020 (interpreting the language “free from nuisance” in former R.C. 2744.02(B)(3) to mean that a political subdivision has a greater duty of care beyond merely removing obstructions from public roads). However, neither R.C. Chapter 2744 nor case law dealing with this statute has defined the term “obstruction.”

{¶ 20} In the event that statutes fail to define the intended meanings of words therein, the words must be given their plain and ordinary meaning, unless legislative intent indicates otherwise. State ex rel. Montgomery Cty. Pub. Defender v. Rosencrans, Montgomery App. No. CA20416, 2005-Ohio-6681, 2005 WL 3454738, at ¶ 18. The plain and ordinary meaning of “obstruction” is “(1) One that obstructs: obstacle; (2) An act or instance of obstructing; (3) The act of impeding or an attempt to impede the conduct of esp. legislative business.” Webster’s II New College Dictionary (1995) 755. “Obstruct” is defined as “(1) To clog or block (a passage) with obstacles; (2) To impede, retard, or interfere with