Carl W. Leach III died of injuries he received when the
motorcycle he drove crashed into a front-end loader belonging to
the City of Dayton (City), Ohio. Claiming the City was negligent
in not placing warning devices around the disabled equipment and
requesting summary judgment based on that negligence, the
executor of Leach's estate sued the City. The City maintained it
had immunity and moved for a directed verdict. Based on its
opinion that the City's decision not to place warning devices was
discretionary and subject to immunity, the Court of Common Pleas,
Montgomery County denied the plaintiff's motion for summary
judgment and granted the City's motion for directed verdict.
When the plaintiff took the case to the Court of Appeals,
that court reversed the lower court's decision and remanded. The
appellate court denied both the plaintiff's motion for summary
judgment and the defendant's motion for directed verdict. The
court concluded that a reasonable person might decide the City
failed in its duty to keep its streets open and free from
nuisance.
The Collision
On July 29, 1990, Fifth Street between Wayne Avenue and
Patterson Boulevard in Dayton, Ohio was blocked off for a beach
party. City crews trucked in piles of sand and spread the sand
on Fifth Street to create volleyball courts. At about 7:00 p.m.,
crews returned to clean up the sand. They found the beach party
still partially blocked the intersection of Wayne and Fifth.
Wayne Avenue is a four-lane street, with two lanes for northbound
traffic and two for southbound. South of the intersection of
Wayne and Fifth, the right-hand lane of southbound Wayne Avenue
traffic was blocked by dump trucks and other vehicles that would
be used to clean up after the celebration. A City front-end
loader was among the equipment parked there.
A City employee tried to start the loader at about 8:00 p.m.
When the loader would not start, he notified his supervisor, who
also tried to start the vehicle. When that attempt failed, the
two got another loader and a battery charger from the maintenance
yard. About 8:30 p.m. they returned to the intersection of Wayne
and Fifth, and the supervisor again tried to start the front-end
loader. The loader did not start; and at about 8:45 p.m., the
supervisor requested a tow truck to move the equipment away.
None of the loader's lights were on; city employees placed no
warning devices around the disabled loader. The crew did not
attempt to warn motorists of the loader's position in the travel
lane.
That same evening, just before 10:00 p.m., Carl W. Leach III
drove his motorcycle south on Wayne Avenue. He collided with
the City's front-end loader and later died of his injuries.
Trial Court Decision
The plaintiff moved for summary judgment on August 20, 1992.
This motion claimed the City was negligent per se and its actions
on July 29, 1990 constituted common-law negligence. The trial
court overruled the plaintiff's motion. They also overruled the
City's motion for a summary judgment based on Leach's alleged
failure to stop before hitting the front-end loader when the
motorcyclist had clear sight distance.
Just before jury selection, the trial court granted the
City's motion to prevent the plaintiff "from arguing or
suggesting to the jury that the City of Dayton possessed an
affirmative duty to place warning devices such as cones,
barricades or flashers around the disabled front-end loader." At
the close of plaintiff's evidence, the City moved for directed
verdict. The court granted the directed verdict, concluding the
City's liability extended only to its duty to keep its streets
"open, in repair, and free from nuisance" (R.C. 723.01 and R.C.
2744.02(B)(3)). Since the court found no nuisance here, they
allowed the City's request for directed verdict. The plaintiff's
case was dismissed.
Appellate Court Decision
On appeal, the plaintiff claimed five assignments of error.
The appellate court addressed each claim.
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First Assignment of Error: "The trial court erred in
overruling plaintiff's motion for summary judgment."
Because this collision happened after sunset, the
plaintiff's motion requested that the court declare the City's
failure to use the loader's lights or place other warning devices
on the stalled equipment was negligence per se and common-law
negligence.
The appeals court referred to Civ.R. 56(C) which states
that, under some circumstances, a summary judgment may be granted
"on the issue of liability alone although there is a genuine
issue as to the amount of damages." In this case, however, the
court felt liability was to be determined on questions of
negligence, contributory negligence, and proximate cause.
Therefore, the issue was not "liability alone" and the court felt
Civ.R. 56 did not provide for summary judgment as requested by
the plaintiff. The court overruled the first assignment of
error.
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Second Assignment of Error: "The trial court erred in
granting defendant's motion in limine, and precluding
plaintiff from offering evidence at trial regarding the lack
of cones, flares, barricades and other warning devices
around defendant's loader at the time of the accident."
According to the transcript of the case, the trial court
granted this motion based on the City's immunity for
discretionary acts. Codifying the court's decision on municipal
immunity from Enghauser Mfg. Co. v. Eriksson Eng. Ltd. ((1983) 6 Ohio
St.3d 31,6 OBR 53, 451 N.E.2d.228), R.C. 2744.03(A)(3) states:
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The political subdivision is immune from liability if the
action or failure to act by the employee involved that gave
rise to the claim of liability was within the discretion of
the employee with respect to policy-making, planning, or
enforcement powers by virtue of the duties and
responsibilities of the office or position of the employee.
The City contended the present case was similar to Winwood v.
Dayton ((1988) 37 Ohio St.3d 282, 525 N.E.2d 808), where the court
found the City immune from liability for the death of a
pedestrian killed at an intersection with no traffic control
device. The City's decision not to place a traffic control
device at the intersection was considered a planning function
open to a high degree of discretion and, therefore, subject to
immunity. In the present case, however, the appellate court did
not accept that the City's decision not to place warning devices
around the disabled front-end loader involved a similar high
degree of official judgment or discretion. Finding that
reasonable minds could conclude such a decision was not subject
to immunity, the court sustained the plaintiff's second
assignment of error.
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Third Assignment of Error: "Calling this the "critical
assignment of error," the appellate court now addressed the
plaintiff's claim that the trial court should not have
granted the City's motion for directed verdict."
Reviewing the material facts of the case, the appellate
court pointed out that these facts were not in dispute. The
trial court had cited Williamson v. Pavlovich ((1989) 45 Ohio St.3d
179, 543 N.E.2d 1242) to support its conclusion that the facts in
Leach did not lead them to believe there was a "nuisance in the
street." In Williamson, a ten-year-old suffered injury when a
vehicle hit him as he crossed a street by his school where buses
and cars were parked in front of "No Parking" signs. The
plaintiffs sued the city, claiming that "reasonable minds could
find that recurring traffic congestion from the cars parked on
both sides of the street in front of the school was a nuisance."
The trial court disagreed and found in favor of the city; the
appellate court reversed, finding that "jurors could properly
find that the city failed to exercise reasonable care to
eliminate this recurring problem." Finally, the Supreme Court of
Ohio reversed the court of appeals and granted the city immunity.
The Supreme Court said the parked cars were not a nuisance "since
they were only parked temporarily along the side of the roadway,
and did not significantly obstruct or impede the flow of
traffic."
The appellate court found "significant differences" between
Williamson and the present case. In the former, the parked cars
belonged to the public and were not blocking a lane of traffic.
In the former, it was daylight and the driver required no special
warning devices to see the parked vehicles; he could see them
clearly. In the latter, the parked vehicle belonged to a public
entity, it was blocking a traffic lane, and it was nighttime.
Moreover, since the crew left the front-end loader because it
would not start, reasonable minds might consider the vehicle
abandoned at the time of the collision. According to Walder v.
Dayton ((June 10, 1991) Montgomery App. No. 12274, unreported,
1991 WL 108734), "A vehicle blocking a road or sidewalk may also
constitute a nuisance if it has been abandoned and left on a
public highway."
The appellate court, therefore, concluded that a reasonable
person might find the City had failed in its duty to keep the
right-hand southbound lane of Wayne Avenue free of nuisance on
the night of the collision. The court sustained the plaintiff's
third assignment of error.
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Fourth Assignment of Error: "The trial court erred in
determining that opinion testimony by plaintiff's accident
reconstruction expert regarding the speed of Carl Leach's
motorcycle was inadmissible."
Fifth Assignment of Error: "The trial court erred in not
permitting plaintiff's expert witness regarding nighttime
visibility to offer any opinions in this case."
The appellate court concluded that its decision on the third
assignment of error rendered these two assignments of error moot
and, therefore, overruled both.
Reversing the trial court's decision and remanding the case
for further proceedings, the appellate court found in favor of
the plaintiff/appellee.
[For further reference, see Leach v. Dayton (Ohio App.2 Dist. 1994) from West Publishing Vol.
648 North Eastern Reporter, 2d Series, 895]
