in the supreme court of ohio [email protected] fax: 330-744-0334 counsel for defendant-appellant...
TRANSCRIPT
IN THE SUPREME COURT OF OHIO
Judith Pelletier,
Plaintiff-Appellee,
v.
City of Campbell et al.,
Defendants-Appellant.
Case No. 2017-0088 On Appeal from the Mahoning County Court of Appeals, Seventh Appellate District
BRIEF OF AMICUS CURIAE THE OHIO ASSOCIATION FOR JUSTICE
IN SUPPORT OF PLAINTIFF-APPELLEE JUDITH PELLETIER
COUNSEL FOR AMICUS CURIAE THE OHIO ASSOCIATION FOR JUSTICE:
Paul Giorgianni (0064806) (Counsel of Record) Giorgianni Law LLC 1538 Arlington Avenue Columbus, Ohio 43212-2710 Phone: 614-205-5550 E-mail: [email protected] Fax: 614-481-8242
Supreme Court of Ohio Clerk of Court - Filed December 07, 2017 - Case No. 2017-0088
ii
COUNSEL FOR PLAINTIFF-APPELLEE JUDITH PELLETIER:
Gregg A. Rossi (0051224) (Counsel of Record) Rossi & Rossi Huntington Bank Building 26 Market Street, 8th Floor P.O. Box 6045 Youngstown, Ohio 44501 Phone: 330-744-8695 E-mail: [email protected] Fax: 330-744-0334
COUNSEL FOR DEFENDANT-APPELLANT CITY OF CAMPBELL:
Gregory A. Beck (0018260) (Counsel of Record) James F. Mathews (0040206) Tonya J. Roger (0090436) Baker, Dublikar, Beck, Wiley & Mathews 400 South Main Street North Canton, Ohio 44720 Phone: 330-499-6000 E-mail: [email protected]
[email protected] [email protected]
Phone: 330-499-6423
COUNSEL FOR AMICUS CURIAE CITY OF CANTON:
Joseph Martuccio (0024145) Law Director, City of Canton Kevin R. L’Hommedieu (0066815) (Counsel of Record) Canton Law Department 218 Cleveland Avenue, S.W. Canton, Ohio 44701-4218 Phone: 330-489-3251 E-mail: Kevin.LHommedieu@ CantonOhio.gov Fax: 330-489-3374
COUNSEL FOR AMICI CURIAE OHIO TOWNSHIP ASSOCIATION AND COALITION OF LARGE OHIO URBAN TOWNSHIPS:
Peter N. Griggs (0073819) (Counsel of Record) Donald F. Brosius (0007925) Jennifer L. Huber (0090547) Brosius, Johnson & Griggs, LLC 1600 Dublin road, Suite 100 Columbus, Ohio 43215 Phone: 614-464-3563 E-mail: [email protected] Fax: 614-224-6221
COUNSEL FOR AMICUS CURIAE CITY OF ALLIANCE:
Jennifer L. Arnold (0070848) Law Director, City of Alliance (Counsel of Record) 470 East Market Street Alliance, Ohio 44601 Phone: 330-823-6610 E-mail: [email protected] Fax: 330-829-0622
COUNSEL FOR AMICUS CURIAE CITY OF MASSILLON:
Andrea Scassa (0079873) Law Director, City of Massillon (Counsel of Record) One James Duncan Plaza S.E. Massillon, Ohio 44646 Phone: 330-830-1718 E-mail: [email protected] Fax: 330-833-7144
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COUNSEL FOR AMICI CURIAE COUNTY COMMISSIONERS ASSOCIATION OF OHIO, OHIO MUNICIPAL LEAGUE, AND COUNTY ENGINEERS ASSOCIATION OF OHIO:
Mark Landes (0027227) (Counsel of Record) Andrew N. Yosowitz (0075306) Shawn K. Judge (0069493) Isaac, Wiles, Burkholder & Teetor, LLC 2 Miranova Place, Suite 700 Columbus, Ohio 43215 Phone: 614-221-2121 E-mail: [email protected] Fax: 614-365-9516 Garry E. Hunter (0005018) General Counsel Ohio Municipal League 175 S. 3rd Street, Suite 510 Columbus, Ohio 43215 Phone: 614-221-4349 E-mail: [email protected] Fax: 614-221-4390
COUNSEL FOR AMICUS CURIAE OHIO ASSOCIATION OF CIVIL TRIAL ATTORNEYS:
Kurt D. Anderson (0046786) (Counsel of Record) Collins, Roche, Utley & Garner 800 Westpoint Parkway, Suite 1100 Westlake, Ohio 44145 Phone: 216-916-7730 E-mail: [email protected] Fax: 216-916-7725
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TABLE OF CONTENTS
Table of Authorities .......................................................................................................... vi
Propositions of Law Accepted for Review ...................................................................... ix
Interest of Amicus Curiae the Ohio Association for Justice ............................................ ix
Statement of Facts ............................................................................................................. 1
Argument .......................................................................................................................... 7
I. Standards of review. ............................................................................................ 7
II. This case calls for interpretation of one or two terms in R.C. 2744.02(B)(3): “obstruction” and “in repair.” .................................................... 7
III. The term “obstruction” and Campbell’s first proposition of law. ....................... 8
A. Campbell’s first proposition of law resolves this appeal in favor of Ms. Pelletier. ................................................................................................. 8
B. Under R.C. 2744.02(B)(3), an object is an “obstruction” to a public- road stop sign if the object blocks the view of the stop sign until it is too late to stop the vehicle as the law requires, the view being from the vantage point of a driver who is required to obey it and who is traveling at the posted speed limit. ............................................................. 10
C. The “visual obstruction” cases upon which Campbell relies do not involve obstructions of a “public road.” ..................................................... 14
D. The Court of Appeals did not illicitly delegate to the prospective jury the task of interpreting R.C. 2744.02(B)(3). ....................................... 16
E. The controlling law is the Ohio Revised Code, not the Ohio Manual of Uniform Traffic Control Devices. .......................................................... 17
IV. The term “in repair” and Campbell’s second proposition of law. ..................... 17
A. Under R.C. 2744.02(B)(3), a public-road stop sign is not “in repair” if it is indiscernible until it is too late to stop the vehicle as the law requires, the view being from the vantage point of a driver who is required to obey it and who is traveling at the posted speed limit. ............ 17
v
B. Heckert’s “deteriorated or disassembled” definition of “in repair” should be a general rule, not an absolute rule. ........................................... 22
C. Campbell’s “sliding scale” specter is a canard. .......................................... 23
Conclusion ....................................................................................................................... 26
Proof of Service ............................................................................................................... 27
vi
TABLE OF AUTHORITIES
Cases
Bibler v. Stevenson, 150 Ohio St.3d 144, 2016-Ohio-8449 ........................................................................ 11
Bonace v. Springfield Twp.,
179 Ohio App.3d 736, 2008-Ohio-6364 (7th Dist.) ............................................. 15, 18 Comer v. Risko,
106 Ohio St.3d 185, 2005-Ohio-4559 .......................................................................... 7 Deitz v. Harshbarger,
3rd Dist. No. 17-16-21, 2017-Ohio-2917 ....................................................... 11, 19-21 Green v. City of Columbus,
10th Dist. No. 15AP-602, 2016-Ohio-826 ............................................................ 15-16 Heckert v. Patrick,
15 Ohio St.3d 402 (1984) ................................................................................ 18, 21-23 Howard v. Miami Twp.,
119 Ohio St.3d 1, 2008-Ohio-2792 .......................................................... 10, 14, 15, 24 Lakota v. Ashtabula,
11th Dist. No. 2015-A-0010, 2015-Ohio-3413 .......................................................... 19 Lang v. Director, Ohio Job & Family Services,
134 Ohio St.3d 296, 2012-Ohio-5366 .......................................................................... 7 Laurie v. City of Cleveland,
8th Dist. No. 91665, 2009-Ohio-869 ......................................................................... 14 Leslie v. City of Cleveland,
8th Dist. No. 101771, 2015-Ohio-1833 ..................................................................... 19 McNamara v. Marion Popcorn Festival, Inc.,
3rd Dist. No. 9-12-34, 2012-Ohio-5578 .................................................................... 15 O’Toole v. Denihan,
118 Ohio St.3d 374, 2008-Ohio-2574 ........................................................................ 13
vii
Repasky v. Gross, 10th Dist. No. 12AP-752, 2013-Ohio-2516 ............................................................... 15
Sanderbeck v. County of Medina,
130 Ohio St.3d 175, 2011-Ohio-4676 ........................................................................ 18 State ex rel. Boggs v. Springfield Local School Dist. Bd. of Ed.,
93 Ohio St.3d 558, 562, 2001-Ohio-1607 .................................................................. 13 State ex rel. Perrea v. Cincinnati Public Schools,
123 Ohio St.3d 410, 2009-Ohio-4762 ........................................................................ 13 Todd v. City of Cleveland,
8th Dist. No. 98333, 2013-Ohio-101 ......................................................................... 19 Western Pa. Natl. Bank v. Ross,
345 F.2d 525 (6th Cir. 1965) ..................................................................................... 21 Wilson v. Lawrence,
150 Ohio St.3d 368, 2017-Ohio-1410 .......................................................................... 7
Statutes
R.C. 1.47 ......................................................................................................................... 13
R.C. 1.49 ......................................................................................................................... 14
R.C. 305.12 ..................................................................................................................... 18
R.C. 2744.01(C)(2)(e) ...................................................................................................... 7
R.C. 2744.01(H) ............................................................................................................... 6
R.C. 2744.02(A)(1) .......................................................................................................... 7
R.C. 2744.02(B)(3) .................................................................................................. passim
R.C. 2744.03(B)(3) ........................................................................................................... 6
R.C. 4511.43(A) ............................................................................................................... 6
viii
Other Authorities
Ohio Manual of Uniform Traffic Control Devices ........................................................ 17
Webster’s New World College Dictionary (4th ed. 2000) ............................................. 18
__________
ix
PROPOSITIONS OF LAW ACCEPTED FOR REVIEW
1. Because an “obstruction” for purposes of determining the immunity of a political subdivision in all claims which allege a negligent failure to main-tain 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.
2. “Failure to keep public roads in repair” pursuant to the immunity excep-
tion 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 con-struction, placement, or reconstruction.
__________
INTEREST OF AMICUS CURIAE THE OHIO ASSOCIATION FOR JUSTICE
The Ohio Association for Justice is Ohio’s largest victims-rights advocacy asso-
ciation. The OAJ is dedicated to promoting the public good through efforts to secure a
clean and safe environment, safe products, a safe workplace, and quality health care. The
OAJ is devoted to strengthening the civil justice system so that deserving individuals can
get justice and wrongdoers are held accountable.
STATEMENT OF FACTS
Plaintiff Judith Pelletier drove through a stop sign and in the intersection collided
with a vehicle coming from her left. Ms. Pelletier did not see the stop sign because her
view of the stop sign was blocked by three curbside trees or shrubs. (The record does not
reflect the species. The three trees/shrubs were cut down apparently within two hours af-
ter the accident. (Pelletier Depo. Tr. 35:3 – 36:9.)) Ms. Pelletier testified at her deposi-
tion: “I did not see the stop sign because there were branches obstructing it.” (Id. at
14:16-17. Accord id. at 14:21 – 15:7, 26:8-19, 27:8-10, 77:16-20.) Branches hung over
the curb and into the roadway, making it impossible to see the sign in time to stop. (Id. at
79:1-18.)
Ms. Pelletier, 71 years of age at the time of the accident, had never been through
that intersection before. (Id. at 16:18.) She was complying with the 25-m.p.h. speed lim-
it, was wearing a seat belt, and was not using a phone nor even the car radio. (Id. at 17:8-
12, 24:24 – 26:7.) The intersection lies in flat terrain, and there were no vehicles in front
of her. (Id. at 30:28 – 31:6.) Ms. Pelletier did not brake or sound her horn prior to im-
pact, but she turned her car to the left attempting to avoid collision. (Id. at 15:10-13,
16:1-4, 29:22 – 30:7.) The other car rolled over (id. at 17:3-5), and the other driver was
taken from the scene in an ambulance (id. 38:8-17). The police did not issue Ms. Pelle-
tier a citation. (Id. 18:9-10.)
Photographs taken after the accident show three curbside trees/shrubs, each about
ten feet high, with branches extending about two to three feet into the roadway—far
enough, it appears, that a vehicle traveling in the center of the lane might brush up against
2
the branches. Ms. Pelletier submitted the following two photographs with her July 24,
2015 memorandum opposing the City of Campbell’s motion for summary judgment.
Both photographs were taken on the day of the accident.
3
The following image depicts the intersection from the perspective of a driver trav-
eling the path Ms. Pelletier traveled. This image was captured from the website Goog-
leMaps.com on November 25, 2017; the legend in the lower-right corner says “July
2011,” which is two years before the accident. This image is not evidence in this case. It
is presented here merely as an exemplar of the general case in which an object blocks the
view of a stop sign.
4
None of the defendants presented accident-reconstruction evidence or other evi-
dence to substantiate the City of Campbell’s insinuation that a driver approaching this in-
tersection at the posted speed limit could have seen the stop sign in time to stop the vehi-
cle as the law requires. In any event, even a back-of-the envelope calculation suggests
the existence of a genuine issue of material fact on that question. Drivers in Ms. Pelle-
tier’s situation were subject to a speed limit of 25 miles per hour, which is equal to 36
5
feet per second. The last tree/shrub was only about 34 feet in front of the sign. So even a
driver who saw the sign at the very instant of passing the last tree/shrub would have had
less than one second to react to the visualization of the stop sign and then stop the vehi-
cle.
Campbell repeatedly cites the 34-foot measurement as if, as a matter of law, an
opaque object whose center is 34 feet from a stop sign can never be an “obstruction” to
the stop sign. But if an opaque object extends into drivers’ sightline to a stop sign, then
the stop sign is indiscernible to drivers no matter the distance between the stop sign and
the center of the object. And in this case, photographs indicate that the last tree/shrub
was about ten feet in diameter, stretching from about two or three feet into the sidewalk
on one side to about two or three feet into the roadway on the other side.1
Of course, these figures only begin the factual inquiry into how much time Ms.
Pelletier had to react once this stop sign came into view. In any given case, the height
and angle of the driver’s sightline will be relevant. Given the photographs, Ms. Pelle-
tier’s testimony, and the paucity of other evidence, there is a genuine issue of fact as to
1 The width of the sidewalk is not reflected in the record. But assuming that the sidewalk is the standard five feet in width, one can estimate distances by comparison to the side-walk’s width. The measurement of 34 feet comes from the affidavit of a Campbell employee, who
took the measurement two years after the accident, apparently long after the trees were removed. (Affidavit of Gary Bednarik [attached to Campbell’s April 30, 2015 motion for summary judgment].) The affidavit says that 34 feet, 2 inches is “the distance between the stop sign and the shrub.” Presumably this means between the stop sign and where the trunk of the ten-foot-wide tree/shrub had been.
6
whether Ms. Pelletier could have seen the stop sign in time to stop the vehicle as the law
required. (What the law required of Ms. Pelletier at this particular intersection was that
she stop “at the point nearest the intersecting roadway where the driver has a view of ap-
proaching traffic on the intersecting roadway.” R.C. 4511.43(A).2) Because the proce-
dural posture of this case is a motion for summary judgment, and given the evidence, we
must assume for purposes of this appeal that the trees/shrubs rendered the stop sign indis-
cernible to Ms. Pelletier until it was too late to stop her vehicle as the law requires—or at
least too late for her to avoid the collision.
For purposes of appeal (before both the Court of Appeals and the Supreme Court),
Campbell concedes that its stop sign falls within the statutory definition of “public road.”
(Campbell principal brief 14, ¶ 1 (“Here, on appeal, there is no dispute as to whether the
subject stop sign was mandatory and therefore part of the roadway.”); Ct. App. Op. ¶ 15
(“Appellant [Campbell] does not assert that the stop sign here is anything but a public
road as defined in R.C. 2744.03(B)(3) [sic; 2744.02(B)(3)] and R.C. 2744.01(H).”).)
2 R.C. 4511.43(A) provides:
Except when directed to proceed by a law enforcement officer, every driver of a vehicle or trackless trolley approaching a stop sign shall stop at a clear-ly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersect-ing roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on anoth-er roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of road-ways.
7
ARGUMENT
I. Standards of review.
This appeal concerns adjudication of a motion for summary judgment and con-
struction of a statute.
Appellate review of a summary judgment is de novo. Comer v. Risko, 106 Ohio
St.3d 185, 2005-Ohio-4559, ¶ 8. All facts, including reasonable inferences, must be
viewed in favor of the non-moving party. Wilson v. Lawrence, 150 Ohio St.3d 368,
2017-Ohio-1410, ¶ 33. Here, the non-moving party is the plaintiff Ms. Pelletier.
Statutory construction is a matter of law to which the de novo standard of review
applies. Lang v. Director, Ohio Job & Family Services, 134 Ohio St.3d 296, 2012-Ohio-
5366, ¶ 12.
II. This case calls for interpretation of one or two terms in R.C. 2744.02(B)(3): “obstruction” and “in repair.”
Maintaining public roads is a “governmental function” within the meaning of the
Political Subdivision Tort Liability Act, Ohio Revised Code Chapter 2744. R.C.
2744.01(C)(2)(e). Under the Act, the threshold rule is that political subdivisions are im-
mune from liability for acts and omissions in connection with governmental functions.
R.C. 2744.02(A)(1). But the Act says that political subdivisions can be liable for acts and
omissions in connection with “[1] negligent failure to keep public roads in repair and [2]
other negligent failure to remove obstructions from public roads.” R.C. 2744.02(B)(3)
(emphasis added). This case calls for interpretation of one or both of the terms “in re-
pair” and “obstructions” in that text. The Court can affirm the judgment of the Court of
8
Appeals by construing either one of those terms in a manner favorable to Ms. Pelletier.
The Court can reverse the judgment of the Court of Appeals only by construing both
terms in a manner favorable to the City of Campbell.
III. The term “obstruction” and Campbell’s first proposition of law.
A. Campbell’s first proposition of law resolves this appeal in favor of Ms. Pelle-tier.
The City of Campbell’s first proposition of law concedes that roadside foliage that
renders a traffic control device indiscernible is an “obstruction” within the meaning of
R.C. 2744.02(B)(3). The first proposition of law reads:
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 quali-fy as an obstruction.
(Emphasis added.) Implied in that proposition of law is a concession that roadside foli-
age that does render a traffic control device indiscernible does qualify as an obstruction.
In this case, the evidence is that the stop sign was indiscernible until it was too late to
stop the vehicle as the law required. Indeed, if the court of common pleas or the court of
appeals believed that this stop sign had been so discernible, then the courts presumably
would have foregone the statutory construction and granted Campbell summary judgment
on that ground.
The Ohio Association for Justice disagrees with the dependent “because” clause of
Campbell’s first proposition of law. But the dependent clause accurately states Ohio law:
9
Roadside foliage that does not block or clog travel or render a traffic control device in-
discernible does not qualify as an obstruction. And because the evidence at this stage of
this action is that foliage did render the traffic control device indiscernible, the foliage is
an obstruction, and Campbell at this stage of the action is not entitled to immunity.3 On
this basis alone, this Court can affirm the judgment of the Court of Appeals. Doing so
would render moot Campbell’s second proposition of law.
If the Court chooses to render a holding construing the word “obstruction” in R.C.
2744.02(B)(3), then the Ohio Association for Justice recommends that the Court adopt
the following proposition of law:
Under R.C. 2744.02(B)(3), an object is an “obstruction” to a public-road stop sign if the object blocks the view of the stop sign until it is too late to stop the vehicle as the law requires, the view being from the vantage point of a driver who is required to obey it and who is traveling at the posted speed limit.
3 The joint amicus brief of the County Commissioners Association of Ohio, the Ohio Municipal League, and the County Engineers Association of Ohio mischaracterizes the Court of Appeals’ decision: “The holding below allows any plaintiff to bypass immunity if the plaintiff subjectively reports any obscuration to a mandatory traffic control device.” (Brief of County Commissioners Association of Ohio et al. 1, ¶ 1.) The reason Campbell is not entitled to immunity at this point in this action is that Ms. Pelletier presented evi-dence demonstrating a genuine issue of fact regarding whether trees/shrubs rendered a public-road stop sign indiscernible until it was too late for her to stop as the law required.
10
B. Under R.C. 2744.02(B)(3), an object is an “obstruction” to a public-road stop sign if the object blocks the view of the stop sign until it is too late to stop the vehicle as the law requires, the view being from the vantage point of a driver who is required to obey it and who is traveling at the posted speed limit.
In Howard v. Miami Twp., 119 Ohio St.3d 1, 2008-Ohio-2792, this Court held that
“for purposes of R.C. 2744.02(B)(3), 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.” Howard ¶ 30.
Campbell’s first proposition of law concedes that roadside foliage that renders a
public-road traffic control device indiscernible is an “obstruction” within the meaning of
R.C. 2744.02(B)(3). Campbell explains that concession as a natural extension of How-
ard:
[T]he Howard definition of obstruction should be logically extended to encompass claims involving mandatory traffic control devices such that any condition or thing that hinders or impedes view of the sign, but does not render it blocked and indiscernible, is not an obstruction within the meaning of the statute.
(Campbell brief 3 (emphasis added). See id. at 10, ¶ 2 (advocating “the rational extension
and application of Howard” to traffic control devices); id. at 10-11 (stating that “this case
requires the thoughtful and logical extension of Howard” to situations in which “some
object . . . blocks a roadside—meaning it renders the sign completely indiscernible”).)
The joint amicus brief of the County Commissioners Association of Ohio, the
Ohio Municipal League, and the County Engineers Association of Ohio rejects Camp-
bell’s concession. That brief argues that a public-road traffic control device can never be
obstructed—the explanation being that, according to Howard, only roadways can be ob-
11
structed. (Brief of County Commissioners Association of Ohio et al. 5-6.) The County
Commissioners’ brief effectively is asking for a judicial rewriting of R.C. 2744.02(B)(3)
so that the “obstruction” clause applies to only roadways, as opposed to “public roads”
generally (“public roads” being statutorily defined as including traffic control devices
mandated by the Ohio Manual of Uniform Traffic Control Devices, see Bibler v. Steven-
son, 150 Ohio St.3d 144, 2016-Ohio-8449, ¶¶ 5-11 (plurality opinion)). The County
Commissioners’ brief seeks a judicial rewriting of R.C. 2744.02(B)(3) as follows:
[P]olitical subdivisions are liable for injury, death, or loss to person or property caused by their [1] negligent failure to keep public roads in re-pair and [2] other negligent failure to remove obstructions from road-ways that are public roads[.]
The Court should join the City of Campbell and Ms. Pelletier in rejecting that con-
struction. The General Assembly defines “public roads” as including traffic control de-
vices mandated by the Ohio Manual of Uniform Traffic Control Devices. Bibler v. Ste-
venson, 150 Ohio St.3d 144, 2016-Ohio-8449, ¶¶ 5-11 (plurality opinion). Unless, as a
matter of grammar, it is irrational to speak of a traffic control device being obstructed,
courts must give effect to the statutory language. It makes perfect sense to speak of a
traffic control device being obstructed. A roadway is obstructed when drivers’ path of
travel is blocked; a stop sign is obstructed when drivers’ sightline to the stop sign is
blocked.
Judge Willamowski made this point in his partial dissent in Deitz v. Harshbarger,
3rd Dist. No. 17-16-21, 2017-Ohio-2917. The majority in Deitz ruled that the defendant
political subdivisions were immune from liability because the stop sign was non-
12
mandatory and therefore not within the statutory definition of “public road.” The majori-
ty did not reach the question of whether foliage blocking the driver’s sightline to a traffic
control device could be an “obstruction.” The majority stated: “Because the stop sign at
issue in this case is not included with the definition of a public road under the statute, we
need not address whether the foliage was an obstruction[.]” Id. at ¶ 34. But Judge
Willamowksi did reach that question, because he concluded that the stop sign was man-
datory (at least as the case was presently postured). He then concluded that the defend-
ants were not entitled to immunity, because the plain meaning of “obstruction” is that fo-
liage blocking the sightline to a public-road stop sign is an “obstruction”:
The same definition for obstruction cannot be logically applied to both the roadway and mandatory traffic control devices. When a roadway is blocked, the danger is that a motorist cannot drive past the obstruction and an accident will occur. When a traffic control device—here a stop sign—is blocked, the danger is that the motorist will drive past the ob-struction, unaware of the traffic control device, and an accident will oc-cur.
Id. at ¶ 57 (Willamowski, J., concurring in part and dissenting in part).
Indeed, the life-or-death importance of drivers’ sightlines to stop signs and red
lights being unobstructed presumably is the reason the General Assembly chose to place
mandatory traffic control devices within the definition of “public roads”—negligent
maintenance of which can result in political-subdivision liability. Moreover, there is
nothing in the statutes to suggest that the “obstruction” clause (or the “in repair” clause)
of R.C. 2744.02(B)(3) discriminates among components of a “public road.”
As applied to a driver’s sightline to a public-road stop sign, the natural meaning of
“obstruction” is an object that blocks the view of the stop sign until it is too late to stop
13
the vehicle as the law requires, the view being from the vantage point of a driver who is
required to obey it and who is traveling at the posted speed limit. The Court should so
hold. Opposing Campbell’s motion for summary judgment, Ms. Pelletier presented evi-
dence creating a genuine issue of material fact as to whether the three trees/shrubs
blocked her view of the stop sign until it was too late to stop her vehicle as the law re-
quired.
Campbell seems to argue that even if this stop sign was not discernible until it was
too late for Ms. Pelletier to stop her car as the law required, Campbell should be entitled
to immunity because the stop sign was not categorically indiscernible—or, as Campbell
puts it, “completely indiscernible” or “entirely indiscernible” (id. at 11, ¶ 1). Campbell
points out that the last of the three trees/shrubs was 34 feet from the stop sign. Apparent-
ly Campbell’s argument is that because an alert driver travelling at, say, three miles per
hour would have discerned the sign in time, the sign was not “completely . . . or entirely
indiscernible.”
The judiciary “‘construe[s] statutes to avoid unreasonable or absurd results.’”
State ex rel. Perrea v. Cincinnati Public Schools, 123 Ohio St.3d 410, 2009-Ohio-4762, ¶
32. Accord O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, ¶ 56; State ex rel.
Boggs v. Springfield Local School Dist. Bd. of Ed., 93 Ohio St.3d 558, 562, 2001-Ohio-
1607 (per curiam). The statutory rules of statutory construction include the following:
• “In enacting a statute, it is presumed that . . . a just and reasonable result is intended[.]” R.C. 1.47(C).
• “If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters: (A) The object
14
sought to be attained; . . . (E) The consequences of a particular con-struction[.]” R.C. 1.49.
These rules would be violated by interpreting “obstruction” in R.C. 2744.02(B)(3) as
meaning something that renders a stop sign indiscernible and thus ineffectual at the post-
ed speed limit. The object sought to be obtained by statutes mandating stop signs and red
lights is safety—specifically, drivers stopping at stop signs and red lights before proceed-
ing into an intersection. The law would be absurd if it were interpreted to mean that a
stop sign was not obstructed even though an object rendered the sign or light indiscerni-
ble to most law-abiding drivers required to obey it—namely, drivers traveling at the post-
ed speed limit. Moreover, Campbell fails to explain what it means by “completely [and]
entirely indiscernible.” Does that mean that a stop sign is “discernible” unless it is cov-
ered in opaque sheathing? Does it mean that a stop sign is “discernible” if a driver could
pull up to the curb to observe it? Whatever Campbell’s unarticulated interpretation, if
Campbell believes that it is entitled to immunity based upon the current record in this
case, then such interpretation cannot possibly bear a rational relationship to any traffic
law or public policy consideration.
C. The “visual obstruction” cases upon which Campbell relies do not involve obstructions of a “public road.”
Campbell cites five cases as examples of courts correctly adhering to Howard’s
narrow construction of “obstruction.” (Campbell brief 9.) Four of the five cases did not
involve a traffic control device:
• In Laurie v. City of Cleveland, 8th Dist. No. 91665, 2009-Ohio-869, the plaintiff, riding a motorcycle, collided with a vehicle that was
15
backing out of a driveway. The plaintiff contended that the city was in part liable because “city trees lining the street visually blocked [both drivers’] view.” Id. at ¶ 2. The court of common pleas ruled that the city was not immune. The court of appeals reversed, citing Howard. Id. at ¶¶ 38-58.
• In Repasky v. Gross, 10th Dist. No. 12AP-752, 2013-Ohio-2516, the alleged obstruction was a section of road under construction that was below the road grade and covered with gravel. Id. at ¶ 15. The court of common pleas ruled that the city was immune, and the court of appeals affirmed, citing Howard. Id. at ¶¶ 16-17.
• In McNamara v. Marion Popcorn Festival, Inc., 3rd Dist. No. 9-12-34, 2012-Ohio-5578, the alleged obstruction was an orange, eight-foot-long crossbeam from a sawhorse-style road barricade. The crossbeam covered one-third of the roadway. The plaintiff struck the crossbeam while riding a bicycle. Id. at ¶¶ 2, 25. The court of common pleas ruled that the city was immune, and the court of ap-peals affirmed, citing Howard. Id. at ¶¶ 22-28.
• In Bonace v. Springfield Twp., 179 Ohio App.3d 736, 2008-Ohio-6364 (7th Dist.), the alleged obstruction was excessive slope in the road from center to berm and excessive grade differential between the road surface and the berm. Id. at ¶¶ 2, 4, 7-8, 12. The court of common pleas ruled that the city was not immune. The court of ap-peals reversed, citing Howard. Id. at ¶¶ 30, 32.
These cases are unhelpful here because they did not involve a traffic control device.
The one case Campbell cites that involved a traffic control device is Green v. City
of Columbus, 10th Dist. No. 15AP-602, 2016-Ohio-826. In Green, the plaintiff was a
passenger in a vehicle that ran a red light and collided with another vehicle in the inter-
section. Id. at ¶ 2. The plaintiff alleged that tree branches constituted an “obstruction”
with respect to the traffic light that controlled the intersection. The court of common
pleas ruled that the city was immune, and the court of appeals affirmed. Green provides
no guidance for deciding this case for two reasons. First: In Green, the traffic light did
16
not fall within the statutory definition of “public road,” because the light (unlike the stop
sign in Ms. Pelletier’s case) was not “mandatory.” Thus, there could be no “obstruction
of a public road,” because there was no “public road.” Second: In Green, tree branches
only partly obscured a traffic light, and even so, only from some vantage points. The
speed limit was 25 m.p.h., and the traffic light was clearly discernible from at least 250
feet away. Id. at ¶ 5.
D. The Court of Appeals did not illicitly delegate to the prospective jury the task of interpreting R.C. 2744.02(B)(3).
Campbell characterizes the Court of Appeals’ decision as illicitly delegating to the
prospective jury the task of interpreting R.C. 2744.02(B)(3). Campbell’s brief states:
“The Seventh District Court of Appeals determined that because there was no case law
addressing what constitutes an obstruction of a traffic control device, the issue should be
deferred as a question for the jury.” (Campbell brief 10, ¶ 2 (citing Ct. App. Op. p. 6).)
What the Court of Appeals said at page 6 of its opinion is this:
We are reminded that we must be careful to resolve doubts and con-strue the evidence in favor of Appellee. Whether or not the failure to remove the foliage here was an obstruction which Appellant was obli-gated to remove presents a question of material fact for the trier of fact to resolve. We cannot conclude that, as a matter of law, Appel-lant is entitled to judgment.
(Ct. App. Op. ¶ 18.) The Court of Appeals’ holding is that foliage rendering a public-
road traffic control device indiscernible can be an “obstruction” within the meaning of
the R.C. 2744.02(B)(3). The Court of Appeals’ ruling (applying that holding) is that the
17
evidence, construed in Ms. Pelletier’s favor, creates a jury question as to whether the fo-
liage rendered the stop sign indiscernible.
E. The controlling law is the Ohio Revised Code, not the Ohio Manual of Uni-form Traffic Control Devices.
The amicus brief of the Ohio Association of Civil Trial Attorneys points out that
the Ohio Manual of Uniform Traffic Control Devices does not mandate that traffic con-
trol devices be visible, and argues that “this Court should not impose a standard more
stringent than the Manual.” (Brief of Ohio Association of Civil Trial Attorneys 10.) The
argument is misguided, because it is the Ohio General Assembly, in R.C. 2744.02(B)(3),
that has imposed a standard more stringent than the Manual with respect to mandatory
traffic control devices such as the stop sign in this case. R.C. 2744.02(B)(3) imposes lia-
bility for “negligent failure to remove obstructions from public roads,” including from the
stop sign in this case.
IV. The term “in repair” and Campbell’s second proposition of law.
A. Under R.C. 2744.02(B)(3), a public-road stop sign is not “in repair” if it is indiscernible until it is too late to stop the vehicle as the law requires, the view being from the vantage point of a driver who is required to obey it and who is traveling at the posted speed limit.
R.C. 2744.02(B)(3) imposes liability for the “failure to keep public roads in re-
pair.” The phrase “in repair” is an adjectival phrase modifying “public road.” In this
case, the “public road” is the stop sign. So the question is whether a stop sign is “in re-
pair” if it is indiscernible until it is too late to stop the vehicle as the law requires, the
18
view being from the vantage point of a driver who is required to obey it and who is trav-
eling at the posted speed limit.
The plain meaning of the word “repair” is “to put back in good condition after
damage [or] decay.” Webster’s New World College Dictionary 1214 (4th ed. 2000).
In Heckert v. Patrick, 15 Ohio St.3d 402, 406 (1984), this Court construed the
phrase “in proper repair” in R.C. 305.12—a statute imposing liability upon counties for
“‘negligence or carelessness in not keeping any such [county] road * * * in proper re-
pair.’” The alleged defect in Heckert was a decaying tree limb overhanging the roadway.
The plaintiffs had been “injured when a limb of a tree growing upon . . . property adjoin-
ing a public highway fell into the immediate path of [plaintiffs], who were riding a mo-
torcycle.” Id. at 402. The trial court ruled that the county was immune, and the Court of
Appeals and this Court affirmed. This Court stated:
A review of case law decided under R.C. 305.12 and its predecessor, G.C. 2408, reveals two recognized principles. First, the intent of the General Assembly was to place a duty on the commissioners only in matters concerning either the deterioration or disassembly of county roads and bridges. Second, liability will not be imposed under the purview of the statute when the obstructions or interferences are unre-lated to the conditions of the roadway.
Id. at 406 (citations omitted).4 Campbell asks this Court to extend this rationale to stop
signs that fall within the definition of “public road,” so that a stop sign shall be deemed
4 Campbell cites other cases that involve roadway surfaces rather than traffic control de-vices: Sanderbeck v. County of Medina, 130 Ohio St.3d 175, 2011-Ohio-4676 (concern-ing roadway surface’s coefficient of friction); Bonace v. Springfield, 7th Dist. No. 07-
(footnote continues on next page)
19
“in repair” unless the stop sign itself is “deteriorated, disassembled, or . . . damaged.”
(Campbell brief 19, ¶ 1.)
This argument ignores the material difference between roadway surfaces and
mandatory stop signs—both of which, awkwardly, the General Assembly has defined as
“public roads.” The two are different things with different functions. The purpose of a
roadway surface is to physically support vehicles. The purpose of stop signs is to com-
municate information visually to approaching drivers. A massive see-through net
stretched across a roadway would obstruct the roadway but not a stop sign. A hole in a
roadway surface might be a deathtrap, but a hole in a stop sign might be immaterial. A
roadway surface generally functions regardless of what surrounds it. Not so with a visu-
al-communication device such as a stop sign. A mint-condition stop sign does not func-
tion if it is indiscernible to drivers who must obey it.
Campbell also cites Deitz v. Harshbarger, 3rd Dist. No. 17-16-21, 2017-Ohio-
2917, ¶¶ 37-38, for the proposition that a stop sign is “in repair” unless it is deteriorated
or disassembled. (Campbell brief 17, ¶ 3.) But the court in Deitz expressly refused to
address the question of whether a public-road stop sign is “in repair” even if it is indis-
cernible. Deitz involved two signs: a stop sign and a “stop ahead” warning sign. Regard-
MA-0226, 2008-Ohio-6364, ¶¶ 29-30 (holding that anomalous lateral slope of roadway surface did not render road not “in repair”); Todd v. City of Cleveland, 8th Dist. No. 98333, 2013-Ohio-101, ¶¶ 14-16 (holding that hole in roadway surface may render road not “in repair”); Leslie v. City of Cleveland, 8th Dist. No. 101771, 2015-Ohio-1833, ¶¶ 14-27 (same); Lakota v. Ashtabula, 11th Dist. No. 2015-A-0010, 2015-Ohio-3413, ¶¶ 20-33 (holding that municipality is not entitled to immunity merely because repair of road-way surface was is progress).
20
ing the stop sign, the court ruled that the township was immune because the stop sign did
not fall within the definition of “public road.” Id. at ¶¶ 22-34. The court expressly de-
clined to address either of the questions raised by Campbell’s propositions of law in this
case. The court stated:
Because the stop sign at issue in this case is not included with the def-inition of a public road under the statute, we need not address whether the foliage was an obstruction . . . or whether the Board of Trustees negligently failed to keep the stop sign in repair.
Id. at ¶ 34. (Judge Willamowski dissented with respect to the stop sign and opined that a
genuine issue of material fact existed regarding “the question of whether any overhanging
foliage in this case was an obstruction.” (Id. at ¶ 60 (Willamowski, J., concurring in part
and dissenting in part).) See Part III-B above.)
Regarding the “stop ahead” warning sign, the issue was not discernibility of the
sign but rather the location of the sign: “[P]laintiffs argue that the stop-ahead sign should
have been located 325 feet in advance of the stop sign, not 730 feet.” Id. at ¶ 35. The
court applied the “deteriorated or disassembled” interpretation of “in repair” for which
Campbell advocates here, and concluded that “the placement of the stop-ahead sign in
this case does not fall within the meaning of ‘in repair.’” Id. at ¶ 38. But even that con-
clusion was dicta, because the court ruled that the township was immune under the R.C.
2744.03(A) “discretion defenses”:
[E]ven if the placement of a stop-ahead sign is included within the phrase “in repair” allowing the statutory exception to political-subdivision immunity, the Board of Trustees’ immunity is restored by the discretion defenses under R.C. 2744.03(A). See R.C. 2744.03(A)(3), (5).
21
. . . .
Based on the application of the discretion defenses under R.C. 2744.03(A)(3) and 2744.03(A)(5), we hold that the location of the placement of the stop-ahead sign is akin to a defective design or con-struction or the failure to install signage—not an easily discoverable malfunctioning traffic signal or sign that has lost its capacity to re-flect—for which the Board of Trustees is immune from liability.
Id. at ¶¶ 39, 43. Thus, it is only the dissent in Deitz that meaningfully speaks to issues in
this action.
The amicus brief of the Ohio Association of Civil Trial Attorneys mischaracterizes
Heckert as having “held that the duty to keep roads and bridges ‘in proper repair’ did not
apply to . . . ‘tree limbs obscuring the view of a stop sign.’” (Brief of Ohio Association
of Civil Trial Attorneys 11 (brackets and emphasis omitted) (quoting Heckert, 15 Ohio
St.3d at 407).) What the brief is quoting there is Heckert’s parenthetical description of
Western Pa. Natl. Bank v. Ross, 345 F.2d 525 (6th Cir. 1965), in which the court ruled
that a county was immune from liability for a stop sign “obscured by the limbs of a tree,”
id. at 525. The controlling law in Heckert and Western Pa. Natl. Bank was different from
the law controlling Ms. Pelletier’s case. First: Both cases were decided before 1985,
when R.C. Chapter 2744, the Political Subdivision Tort Liability Act, became effective.
Second: The controlling law in Western Pa. Natl. Bank was common-law sovereign im-
munity under which counties had the same immunity as the state. Third: In both Heckert
and Western Pa. Natl. Bank, the only “public road” was the roadway, not any traffic con-
trol device.
22
The Court should hold that under R.C. 2744.02(B)(3), a public-road stop sign is
not “in repair” if it is indiscernible until it is too late to stop the vehicle as the law re-
quires, the view being from the vantage point of a driver who is required to obey it and
who is traveling at the posted speed limit.
B. Heckert’s “deteriorated or disassembled” definition of “in repair” should be a general rule, not an absolute rule.
As a general rule, the “deteriorated or disassembled” definition of “in repair” is
suitable. But appellate courts, like legislators, cannot anticipate every eventuality. Like
most rules, Heckert’s “deteriorated or disassembled” standard should be infused with
enough humility to not purport to control every possibility the universe offers. Indeed,
Heckert’s “deteriorated or disassembled” standard probably is not a comprehensive defi-
nition of “in repair” even within the limited realm of roadway-surface conditions. An ex-
ample: Most drivers have had the uncomfortable experience of making a left turn or right
turn in bumper-to-bumper traffic through an intersection with adjacent lanes requiring the
same turn. (One instance near the Thomas J. Moyer Ohio Judicial Center: southbound
Neil Avenue has three adjacent left-turn-only lanes at West Long Street.) Such intersec-
tions often have painted, curved lines delimiting the lanes to keep vehicles within their
respective lanes through the turn. Imagine if such lane markings were negligently paint-
ed such that two lanes converged through the turn, virtually assuring collisions by drivers
negotiating the turn by reference to the painted lane lines. Even if the roadway surface
were pristine, the roadway would not be “in repair.”
23
Heckert’s “deteriorated or disassembled” definition of “in repair” works as a gen-
eral rule but should not be an absolute rule. In the context of public-road stop signs, a
sign is not “in repair” if it is indiscernible until it is too late to stop the vehicle as the law
requires, the view being from the vantage point of a driver who is required to obey it and
who is traveling at the posted speed limit.
C. Campbell’s “sliding scale” specter is a canard.
Campbell predicts chaos if the Court interprets “in repair” in R.C. 2744.02(B)(3)
as meaning that stop signs must be discernible to drivers required to obey them. Camp-
bell predicts (1) “a sliding scale as interpreted by the various jurisdictions,” (2) govern-
mental liability for “extraneous circumstances entirely unrelated to the actual condition of
the public road,” and (3) the term “‘in repair’ becoming an extension of ‘nuisance’ under
the old version of the statute.” (Campbell brief 18, ¶ 2.)
None of these fears is grounded in reality.
First: Campbell’s predictions ignore the fact that the discernibility of stop signs
and red lights is sui generis. Stop signs and red lights require vehicles to stop due to in-
tersecting traffic—sometimes pedestrian traffic. The danger presented by intersecting
traffic is unique because collisions are substantially certain to occur when a stop sign or
red light is ineffectual.
Second: The “in repair” standard the Ohio Association for Justice proposes will be
violated with respect to stop signs and red lights only when a public-road stop sign or red
light is indiscernible until it is too late to stop the vehicle as the law requires. Such cases
24
will be few. Common experience driving in Ohio reveals that political subdivisions are
already doing a good job of (1) installing stop signs and red lights so that little or no
maintenance is required to keep them discernible, and (2) cutting back foliage and other-
wise maintaining them when necessary. This case presents a rare case of negligence so
great that alert drivers traveling only 25 m.p.h. could not see a stop sign until it was too
late.
Third: There is no reason to think that identifying tortious stop signs and red lights
is any more of a challenge for political subdivisions than is identifying tortious road-
surface conditions. Signs and lights incur very little wear and tear compared to roadway
surfaces. Signs and lights usually become obstructed, if at all, at a glacial pace. Road-
way surfaces, in contrast, suffer potholes and falling objects on more of a monthly, week-
ly, or daily basis. In any event, Campbell did not present to the trial court any evidence
to the contrary.
Fourth: There is no reason to think that judicial line-drawing required between
immunized and non-immunized stop signs and red lights is any more of a challenge for
courts than is the judicial line-drawing required between immunized and non-immunized
roadway-surface conditions. One need look no further than the case on which Campbell
relies more than any other, Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-
Ohio-2792. In Howard the Court held that an accumulation of ice on a roadway is not an
“obstruction.” Id. at ¶ 1. But by the end of the opinion the holding was that ice on a
roadway is not an obstruction unless it blocks or clogs the roadway. Id. at ¶ 30. The
Court in the end recognized that at some point, an accumulation of ice could be suffi-
25
ciently high and/or wide to constitute an “obstruction.” There are innumerable objects, of
innumerable sizes and shapes, that might fall upon a roadway surface, and there are many
types of defects that might occur in a roadway surface. How wide or deep a hole in a
roadway surface must be before the roadway is no longer “in repair” remains an open
question to be answered in each case based upon the totality of circumstances related to
the road. Compared to the judicial line-drawing required with respect to the condition of
roadway surfaces, the judicial line-drawing with respect to visibility of stop signs and red
lights is objective and easy.
The joint amicus brief of the Ohio Township Association and the Coalition of
Large Ohio Urban Townships contains this oddity: “For this Court to send a clear,
statewide message regarding liability under R.C. Chapter 2744 would allow Ohio town-
ships to know what is expected, work together, and share best practices regarding their
tort liability.” (Brief of Ohio Township Association et al. 4, ¶ 3.) It is unclear what the
authors might mean other than that a favorable ruling from this Court would free political
subdivisions collectively to avoid remediating indiscernible stop signs and red lights at
intersections—a situation that creates substantial certainty of serious injury and death.
The state prospered in the era of political-subdivision liability for mere nuisances
with respect to public roads. It faces less risk in the era of liability limited to “obstruc-
tions” and “repair.” The Court should give little credence to the allegations of potential
financial doom articulated by Campbell and its friends. They provide negligible financial
data.
26
Campbell and its friends rely upon the fact that the primary purpose of the Politi-
cal Subdivision Tort Immunity Act is preserving governmental fisc. Indeed, there is no
other rationale for immunity from what would otherwise be tort liability. But Campbell
and its friends express that reliance as if public safety is irrelevant. They dubiously claim
to know that the General Assembly could not possibly have intended political subdivi-
sions to be liable for injuries proximately caused by indiscernible stop signs that create a
substantial certainty of injurious collisions. Political subdivisions are exposed to tort lia-
bility (as opposed to having immunity) because the General Assembly chose such expo-
sure to deter tortious conduct on the part of political subdivisions and to provide justice to
tort victims.
CONCLUSION
The Court should reject the City of Campbell’s propositions of law and affirm the
judgment of the court of appeals.
Respectfully submitted,
/s/ Paul Giorgianni (0064806) (Counsel of Record) Giorgianni Law LLC 1538 Arlington Avenue Columbus, Ohio 43212-2710 Phone: 614-205-5550 E: [email protected] Fax: 614-481-8242 Counsel for Amicus Curiae The Ohio Association for Justice
27
PROOF OF SERVICE
Pursuant to Rule 3.11(C)(1) of the Supreme Court of Ohio Rules of Practice, a
PDF electronic copy of this PDF electronic document was sent by e-mail on December 7,
2017 to:
Gregg A. Rossi at [email protected],
Gregory A. Beck at [email protected],
James F. Mathews at [email protected],
Tonya J. Roger at [email protected],
Mark Landes at [email protected],
Garry E. Hunter at [email protected],
Peter N. Griggs at [email protected],
Kurt D. Anderson at [email protected],
Kevin R. L’Hommedieu at [email protected],
Andrea Scassa at [email protected], and
Jennifer L. Arnold at [email protected].
/s/ Paul Giorgianni (0064806)