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2007-0873. Howard v. Miami Twp. Fire Div., Slip Opinion No. 2008-Ohio-2792.
Montgomery App. No. 21478, 171 Ohio App.3d 184, 2007-Ohio-1508. Judgment of the court of appeals reversed and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., and Pfeifer, J., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-2792.pdf
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(June 18, 2008) The Supreme Court of Ohio held today that an accumulation of ice on a public roadway is not an “obstruction” within the meaning of the state law that provides an exception to Ohio laws granting immunity from civil lawsuits to political subdivisions for the acts of public employees in the course of their official duties.
The Court’s 5-2 decision, authored by Justice Maureen O’Connor, reversed a ruling by the 2nd District Court of Appeals and reinstated a trial court summary judgment holding that a Dayton-area township can not be sued for damages by the family of a teenager who was killed in a traffic accident in which frozen runoff from a firefighter training exercise may have been a factor.
In January 2004, the Miami Township Division of Fire conducted a controlled-burn training exercise on a property in Miamisburg. Some of the water deployed by firefighters during the exercise ran off from the burn site onto and across a nearby road. Because of freezing temperatures, salt was applied to wet spots in the roadway by the Division of Fire in the late afternoon, after completion of the exercise. Firefighters dispatched to double-check the burn site and roadway later that evening reported that they saw no ice or unsalted wet pavement, and therefore did not apply a second round of salt. Later that night, 16-year-old Christopher Howard lost control of his car while rounding a curve near the burn site at approximately twice the posted safe speed, crashed into a tree and was killed. Accident investigators determined that ice and slush had formed on the road from water that continued to flow from the burn site after the salt application, and may have been a factor in the crash.
The victim’s father, Donald Howard, filed a wrongful death and survivorship action against the township in Montgomery County Common Pleas Court. The township entered a motion for summary judgment dismissing Howard’s claims on the basis that, under the state’s sovereign immunity statute, R.C. Chapter 2477, political subdivisions are immune from civil liability for injuries arising from their performance of a governmental function. Howard opposed the motion, arguing that his son’s accident fell under a statutory exception to sovereign immunity that applies when a political subdivision has “negligently failed to remove obstructions from public roads.” The trial court granted summary judgment in favor of the township, ruling that the water and ice at issue in this case did not constitute an “obstruction” under the usual and ordinary meaning of that term.
Howard appealed. The 2nd District Court of Appeals reversed the trial court’s grant of summary judgment and remanded the case for further proceedings. The court of appeals ruled that the definition of an “obstruction” applied by the trial court was too narrow, and that a broader definition including “any object that has the potential of interfering with the safe passage of motorists” should have been applied. Under the latter definition, the 2nd District held, a trial court could find that the ice and water allegedly left on the road by the firefighters qualified as an “obstruction” sufficient to defeat the township’s assertion of sovereign immunity. The township sought and was granted Supreme Court review of the 2nd District’s ruling.
Writing for the Court in today’s majority opinion, Justice O’Connor agreed that the case hinged on the proper interpretation of R.C. 2744.02(B)(3), the current statutory provision allowing civil claims against a subdivision when it has “negligently failed to remove (an) obstruction” from a public roadway.
In reversing the holding of the court of appeals on that issue, Justice O’Connor wrote: “The court of appeals’ conclusion ignores what we believe is a critical aspect of the analysis – the statutory history of this subsection. The current version of R.C. 2744.02(B)(3) was amended in part by Senate Bill 106, effective April 2003. Prior to that date, R.C. 2744.02(B)(3) read, ‘[P]olitical 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 ...’ (Emphasis added.) ... (W)e believe that the General Assembly purposely replaced the phrase ‘free from nuisance’ with ‘other negligent failure to remove obstructions.’ To find otherwise is to conclude that the legislature’s action in amending the statute was a superfluous act. We are persuaded that the legislature’s action in amending R.C. 2744.02(B)(3) was not whimsy, but a deliberate effort to limit political subdivisions’ liability for injuries and deaths on their roadways.”
In support of that conclusion, Justice O’Connor pointed to several earlier decisions in which the Supreme Court had adopted an expansive definition of conditions that constitute a “nuisance,” and that therefore could expose a subdivision to liability under the prior wording of the immunity statute. She noted that in enacting Am.Sub. H.B. 350, a wide-ranging 1996 “tort reform” bill that was later ruled unconstitutional on other grounds, the legislature had specifically changed the wording of R.C. 2744.02(B)(3) to substitute “negligently fail to remove obstructions” for “keep free from nuisance.”
In light of the legislature’s readoption of exactly the same change in 2003 as part of S.B. 106, Justice O’Connor wrote: “(W)e discern a legislative intent to limit political-subdivision liability for roadway injuries and deaths. The General Assembly, in furtherance of its goal, used the word ‘obstructions’ in a deliberate effort to impose a condition more demanding than a showing of a ‘nuisance’ in order for a plaintiff to establish an exception to immunity. We conclude 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. Accordingly, we reverse the judgment of the court of appeals and reinstate the trial court’s order granting summary judgment in favor of appellants.”
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.
Chief Justice Thomas J. Moyer and Justice Paul E. Pfeifer dissented. In an opinion joined by Justice Pfeifer, the Chief Justice disagreed with the majority’s conclusion that the S.B. 106 change to the wording of R.C. 2744.02(B)(3) indicated legislative intent to impose liability only with regard to “obstructions” that actually block vehicle traffic, as opposed to those that impede safe travel.
He wrote: “The more reasonable interpretation of the new ‘obstruction’ language is that the language is an attempt by the General Assembly to limit political subdivision liability to conditions on the roadway itself that either block or impede safe travel. This interpretation recognizes the majority’s argument that the General Assembly purposely changed the language to limit political subdivision liability (by removing liability for conditions existing outside the roadway) and gives full effect to the definition of the terms ‘obstruction’ and ‘obstruct.’ Reading the statute in this manner also comports with common sense. Under the majority’s interpretation of the word ‘obstruction,’ Miami Township could be liable if it negligently leaves a large oil drum in one lane of a public road, but not if it negligently leaves a large quantity of oil on the road, because the former would block the road and the latter would not. However, the latter situation would be at least as dangerous as the former. It makes little sense to hold political subdivisions liable for negligence that makes travel impossible while excusing liability for negligence that merely makes travel treacherous.”Contacts
Robert J. Surdyk, 937.222.2333, for the Miami Township Division of Fire.
John A. Smalley, 937.223.8888, for Donald Howard.