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Road Management & Engineering Journal
Copyright © 1997 by TranSafety, Inc.
May 12, 1997
TranSafety, Inc.
(360) 683-6276
Fax: (360) 335-6402

Ohio City May Be Liable When Motorcyclist Not Warned of Stalled Front-End Loader on Roadway
Public Agencies Found Liable for Trap-Like Hazard at End of Dead-End Road and Misleading Route Sign on Highway
Deer-Vehicle Collisions are Numerous and Costly. Do Countermeasures Work?
Roadside Wildlife Reflectors--Do They Work?

Ohio City May Be Liable When Motorcyclist Not Warned of Stalled Front-End Loader on Roadway

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.

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.

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:

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.

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.

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]

Copyright © 1997 by TranSafety, Inc.

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