[Cite as Ray v. Warren, 2019-Ohio-4654.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


 LAMANA RAY, ADMINISTRATOR OF THE :                         OPINION
 ESTATE OF DAYLAN RAY, DECEASED,
 et al.,                          :

                   Plaintiffs-Appellants,          :
                                                            CASE NO. 2019-T-0006
         - vs -                                    :

 CITY OF WARREN,                                   :

                   Defendant,                      :

 TRUMBULL   COUNTY                  BOARD    OF :
 COMMISSIONERS,
                                                   :
                   Defendant-Appellee.
                                                   :


 Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CV
 00661.

 Judgment: Affirmed.


 Willard E. Bartel, and James D. Falvey, Miller, Stillman & Bartel, 1320 Sumner Avenue,
 1st Floor, Cleveland, Ohio 44115 (For Plaintiffs-Appellants).

 John T. McLandrich and Frank H. Scialdone, Mazanec, Raskkin & Ryder Co., L.P.A, 100
 Franklin’s Row, 34305 Solon Road, Cleveland, Ohio 44139 (For Defendant-Appellee).



THOMAS R. WRIGHT, P.J.

        {¶1}      Appellants, the administrators of the Estates of Daylan Ray, Kirklan Behner,

Andrique Bennett, Ramone White, and Brandon Murray, appeal the trial court’s summary
judgment decision in favor of appellee, Trumbull County Board of Commissioners. We

affirm.

          {¶2}   This case arises from a one-vehicle traffic accident. Eight teenagers were

traveling 60 mph southbound in a 1998 Honda Passport on Niles-Warren River Road

when the driver lost control, veered left, crossed over the northbound lane, went onto the

east berm of the road, and hit the east guardrail causing the vehicle to catapult into the

air and land upside down in a nearby retention pond.

          {¶3}   Two of the eight teenagers escaped and survived.        The remaining six

drowned inside the vehicle.

          {¶4}   Niles-Warren River Road, also known as County Road 69, is a continuation

of Pine Street, a thoroughfare lying entirely in the City of Warren.

          {¶5}   Prior to 1974, all of Niles-Warren River Road was a county road. However,

that year, the City of Warren annexed 27.93 acres from Howland Township including the

northbound lane and the land to the east including the guardrail.

          {¶6}   Fourteen years later, Trumbull County and the city entered into a

maintenance agreement governing the annexed portion of Niles-Warren River Road

where the accident occurred. It states:

          {¶7}   “Agreement made and entered into at Warren, Ohio, between the Trumbull

County Engineer’s Office (hereinafter called the ‘county’), and the city of Warren

(hereinafter called the ‘city’).

          {¶8}   “In an effort to resolve maintenance items, such as resurfacing, pothole

patching, ice control, traffic signal maintenance, etc., involving roadways that are

continually in and out of the county and city jurisdictions, and in an effort to perform these




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items by both parties, in an efficient manner, the County and the City hereby agree to the

conditions and responsibilities on the following items and roadways:

       {¶9}   “* * *

       {¶10} “(a) County Responsibility – To sweep, paint stripe, pothole patch, ice and

snow control and generally maintain in total this roadway south of the city’s southern most

corporation limit.

       {¶11} “Except for the portion of guardrail within Trumbull County that is within the

1800 to 2000 block on the west side only.

       {¶12} “(b) City Responsibility – To sweep, paint stripe, pothole patch, ice and

snow control and generally maintain in total this roadway, north of the city’s southern most

corporation limit.”

       {¶13} While Trumbull County is responsible for maintaining the west guardrail, the

city is responsible for the remainder of the roadway including the east guardrail. This

agreement remained in effect when the accident occurred.

       {¶14} In the days following the accident, two Ohio State Highway Patrol troopers

investigated the accident. The Highway Patrol ultimately concluded that the vehicle was

traveling on Niles-Warren River Road, also known as County Road 69, when the accident

occurred and that “the first harmful event in the crash took place with the guardrail, which

is within the city limits of Warren.”

       {¶15} After dismissing their original case against Trumbull County and the City of

Warren, the estates of five of the six deceased victims filed the underlying wrongful death

case in April 2017.     Joining the estates as plaintiffs were members of the victims’

respective families.    In addition to wrongful death, the complaint sets forth claims




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sounding in survivorship and loss of consortium. The complaint alleges that Trumbull

County and the city acted negligently, recklessly, or wantonly in maintaining the guardrail

located on the east side of the roadway and that the victims would not have died if a

proper guardrail had been in place.

          {¶16} Appellants settled with the city and dismissed their claims against it.

          {¶17} Trumbull County moved for summary judgment on all claims asserting there

is no dispute the accident occurred on the northbound lane of Niles-Warren River Road

and land to the east of the roadway, owned by the City of Warren as a result of the

annexation.      Thus, the city was solely responsible for the maintenance of the east

guardrail.     Alternatively, Trumbull County argued that pursuant to the maintenance

agreement, the city agreed to maintain the entire roadway including the east guardrail.

          {¶18} In response, appellants rely on a statement by one of the troopers that the

accident took place on a section widely known as County Road 69 and argue there is a

factual dispute concerning whether Niles-Warren River Road is a county road or a city

street.

          {¶19} In granting summary judgment for Trumbull County, the trial court found no

dispute that the proximate cause of injury and death was the failure to properly maintain

the east guardrail and that the duty to maintain the guardrail lies solely with the city.

          {¶20} Appellant asserts four assignments of error:

          {¶21} “[1.] The trial court erred by failing to consider whether the road in question

was a boundary road under R.C. 5579.03, and if so, whether both lanes of the boundary

road are County Road 69, thereby triggering Trumbull County’s statutory responsibility to

maintain the guardrail in question.




                                                4
        {¶22} “[2.] The trial court erred by failing to consider whether the City of Warren’s

1974 annexation of land contained an admission by the Trumbull County Planning

Commission that Trumbull County would retain the responsibility to maintain the road in

question after the annexation.

        {¶23} “[3.] The trial court erred by ruling, contrary to binding Ohio Supreme Court

case law, that a county can relieve itself of a statutory responsibility by entering into a

maintenance agreement with another political subdivision.

        {¶24} “[4.] The trial court erred by ruling, contrary to binding Ohio Supreme Court

case law, that a county is not responsible for maintaining portions of a county road that

falls inside a city’s limit.”

        {¶25} “‘Summary judgment is a procedural device intended to terminate litigation

and to avoid trial when there is nothing to try.’ Frano v. Red Robin Internatl., Inc., 181

Ohio App.3d 13, 2009-Ohio-685, ¶ 12 (11th Dist.), citing Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358 (1992). Summary judgment is proper when (1) no genuine issue of

material fact remains to be litigated; (2) the moving party is entitled to judgment as a

matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party,

reasonable minds can come to only one conclusion, and that conclusion is adverse to the

nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing

Civ.R. 56(C).” Sabino v. Liberty Health Care Ctr., 11th Dist. Trumbull No. 2018-T-0059,

2019-Ohio-1302, ¶ 20.

        {¶26} We review a summary judgment decision de novo without deference to the

trial court’s decision. Byer v. Wright, 160 Ohio App.3d 472, 2005-Ohio-1797, 827 N.E.2d

835, ¶ 11.




                                              5
       {¶27} The foundation of the trial court’s analysis is its conclusion that there is no

factual dispute regarding the location of the east-side guardrail: i.e., as a consequence of

the 1974 annexation, that guardrail lies within the territorial limits of the City of Warren.

At the trial level, appellants did not challenge this specific point. Instead, they asserted

that notwithstanding the guardrail’s location, there is a factual issue as to whether Niles-

Warren River Road is a county road for maintenance purposes. Appellants concede that

that the determination of whether Niles-Warren River Road should be classified as a

“county” road does not involve the resolution of a factual dispute. Rather, they now assert

that as a matter of law the annexation of the land had no effect upon Trumbull County’s

continuing legal responsibility to maintain the roadway and the east-side guardrail.

       {¶28} Under their first assignment, appellants argue the trial court erred in not

considering whether Niles-Warren River Road is a “boundary” road under R.C. 5579.03.

They contend that since the roadway is the boundary between the city and Howland

Township, Trumbull County was obligated to follow the statutory procedure for

determining which political entity is responsible for maintaining the roadway. They further

contend that by entering into the 1988 maintenance agreement with the city, Trumbull

County did not comply with R.C. 5579,03 but expressly agreed to be responsible for

maintaining the relevant area of the road.

       {¶29} The Ohio Revised Code provides for classification and maintenance of

roads throughout the state. Public highways are classified into one of three categories:

state roads, county roads, and township roads. R.C. 5535.01. County roads include “all

roads which are or may be established as a part of the county system of roads as provided

in sections 5541.01 to 5541.03, inclusive, of the Revised Code, which shall be known as




                                             6
the county highway system. Such roads shall be maintained by the board of county

commissioners.” R.C. 5535.01(B).

       {¶30} Consistent with the prior sentence, R.C. 5535.08(A) provides: “The state,

county, and township shall each maintain its roads, as designated in section 5535.01 of

the Revised Code * * *.”       However, that statute also authorizes reassigning road

maintenance duties: “[A]ny political subdivision having authority to construct, reconstruct,

resurface, improve, repair, and maintain roads or streets may enter into an agreement,

under terms agreeable to all parties, with any other political subdivision having that

authority to obtain or provide road or street construction, reconstruction, resurfacing,

improvement, repair, or maintenance services.” R.C. 5535.08(C)(1).

       {¶31} A separate statutory scheme exists in regard to streets within a municipal

corporation. As to the maintenance of city streets, R.C. 723.01 states:

       {¶32} “Municipal corporations shall have special powers to regulate the use of the

streets. Except as provided in section 5501.49 of the Revised Code, the legislative

authority of a municipal corporation shall have the care, supervision, and control of the

public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts,

and viaducts within the municipal corporation. The liability or immunity from liability of a

municipal corporation for injury, death, or loss to person or property allegedly caused by

a failure to perform the responsibilities imposed by this section shall be determined

pursuant to divisions (A) and (B)(3) of section 2744.02 of the Revised Code.”

       {¶33} Taken as a whole, the foregoing readily establishes that a county or a city

has a legal duty to adequately maintain any street or highway that lies within its system

of roads. This general rule is consistent with Ohio case law relating to this issue. In




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Village of Peninsula v. Summit County, 27 Ohio App.3d 252, 500 N.E.2d 884 (9th

Dist.1985), the issue before the appellate court concerned the proper characterization of

a public highway which began its existence as a county road, but was later incorporated

into a municipality. Citing Steubenville v. King, 23 Ohio St. 610 (1873), paragraph two of

the syllabus, the appellate court concluded that the highway lost its “character” as a

county road when it became located within the municipality. Id. at 253-254. Because the

highway immediately became a municipal street, the municipality was responsible for its

repair and maintenance. Id. at 254.

      {¶34} A similar result was reached in Sanders v. Butler County Commissioners,

12th Dist. Butler No. CA2000-02-033, 2000 WL 1145469 (Aug. 14, 2000). In Sanders,

the issue was the proper application of R.C. 5591.36, which imposes a duty upon boards

of county commissioners to erect and maintain guardrails in all appropriate places

associated with all public highways, except state highways.         After construing R.C.

5591.36 in conjunction with R.C. 723.01, Sanders held that the commissioners’ duty to

erect and maintain guardrails does not extend to roads located within the geographic

boundaries of a municipality. Id. at * 3. Instead, under R.C. 723.01, that duty lies solely

with the municipality as part of its statutory duty to “care” for the roads within its

jurisdiction. Id. See, also, Rocco v. City of Fairview Park, 8th Dist. Cuyahoga No. 72263,

1998 WL 57085 (Feb. 12, 1998).

      {¶35} Through annexation, the east-side guardrail is within the city’s territorial

limits, and therefore Trumbull County was not responsible for the guardrail’s

maintenance. In opposition, appellants rely on R.C. 5579.03, which provides:

      {¶36} “If a road is established as a part of the line or boundary of a township or




                                            8
municipal corporation, the board of township trustees of such adjoining townships and

legislative authority of such municipal corporation, shall meet at a convenient place as

soon after the first Monday of March as convenient, and apportion such road between the

townships, or township and municipal corporation, as justice and equity require. The

boards of the respective townships and legislative authority of the municipal corporation

shall cause the road to be opened and improved accordingly, and shall thereafter cause

their respective portions to be worked and kept in proper repair.”

       {¶37} R.C. 5579.03 applies to roads with a boundary line between two townships

or townships and municipal corporations and does not govern county roads or boards of

commissioners. As a result, the statute does not apply. Moreover, even if R.C. 5579.03

did apply, appellants’ contention that the 1988 maintenance agreement requires Trumbull

County to maintain the entire roadway and the east-side guardrail is misplaced. The

maintenance agreement only places the burden of maintaining the west-side guardrail on

Trumbull County. The remainder of the burden falls on the City of Warren.

       {¶38} The City of Warren had the duty to maintain those parts of Niles-Warren

River Road located within its territorial limits including the east guardrail.         Thus,

appellants’ first assignment lacks merit.

       {¶39} Appellants’ fourth assignment asserts that Village of Peninsula and Sanders

conflicts with Lewis v. Laylin, 46 Ohio St. 663, 23 N.E. 288 (1889).

       {¶40} Lewis involves whether the board of county commissioners has the

authority to collect a turnpike tax for improving a highway that goes through a municipality.

As part of its analysis, Lewis considered whether the county commissioners have the

underlying authority to make improvements to a state or county road that is within a




                                             9
municipality:

         {¶41} “That a state or county road is not extinguished by becoming a street of a

municipal corporation is clear. It retains its character of a state or county road even as to

such portions of it as may chance to fall within the limits of a municipal corporation that

may be subsequently organized; nor is this character changed because the municipal

authorities call it a street, and give it a name as such, and are invested by the law with its

general control.” Id. at 671-672.

         {¶42} In reaching its conclusion that a highway loses its “character” as a county

road when a municipality is created around it, the Ninth District in Village of Peninsula did

not cite Lewis. Instead, it relied on the Supreme Court’s earlier decision in City of

Steubenville v. King, 23 Ohio St. 610 (1873). Although King appears to conflict with

Lewis, the King holding that a highway loses its character as a county road and becomes

a municipal street when annexed by the city has not been overruled by the Supreme

Court.    Moreover, like the facts here, King involves city annexation of a roadway.

Therefore, both King and our case are readily distinguishable from Lewis, involving the

collection of a turnpike tax for the improvement of the road.

         {¶43} More importantly, even if the Ninth District’s reliance upon King is misplaced

in light of Lewis, the Twelfth District’s decision in Sanders does not rely upon King, but

instead is based entirely upon its application of two statutes, R.C. 5591.36 and R.C.

723.01, enacted well after Lewis.       Since those statutes govern when Sanders was

decided, Lewis is not binding. See Hood v. Rose, 153 Ohio App.3d 199, 2003-Ohio-3268,

792 N.E.2d 736, ¶ 20. Accordingly, Sanders is persuasive. The statutory duty of county

commissioners to erect and maintain guardrails does not extend to municipal streets.




                                              10
Appellants’ fourth assignment is not well taken.

       {¶44} Under their second assignment, appellants note that as part of the

annexation process in 1974, the director of the Trumbull County Planning Commission

sent a letter to the Board of County Commissioners stating that maintenance of the

subject road would remain the responsibility of either Trumbull County or Howland

Township. Appellants assert that the director’s statement constitutes an admission by

Trumbull County of its continuing duty to maintain Niles-Warren River Road and that the

trial court should have considered it in making its final determination.

       {¶45} However, appellants do not explain how a statement by a planning

commission director is binding for purposes of determining a question of law. The

determination of which political entity is responsible for maintaining the road and

guardrails after annexation is a function of the governing statutory provisions and case

law, as previously discussed. The director’s statement is therefore irrelevant.

       {¶46} Appellants also argue that there is no documentation from annexation

stating that the city was accepting responsibility for maintaining the road. Citing R.C.

709.033(A)(6), they emphasize that before a board of county commissioners can approve

a petition for annexation, it must determine whether the division of a road between a

township and a municipality will create a road maintenance problem and, if so, whether

the municipality has agreed, as a condition of the annexation, to assume responsibility

for the condition of the road.

       {¶47} R.C. 709.033(A)(6) shows that the statute imposes duties upon a board of

county commissioners regarding its consideration of a petition for annexation. However,

none of the duties listed in that statute pertain to a county’s duty to maintain roads. That




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duty is governed by R.C. 5535.01, 5535.08, and the cited case law. Since appellants

have failed to establish that the county was responsible for maintaining the area of the

road where the accident occurred, their second assignment is without merit.

       {¶48} Under their third assignment, appellants contend that the trial court erred in

relying on the maintenance agreement in concluding that the county has no liability.

       {¶49} R.C. 5535.08(C)(1) governs and expressly authorizes political subdivisions,

including cities and counties to agree as to duties to maintain roadways.

       {¶50} Per its agreement, the city had the duty to maintain the guardrail and

necessarily, the liability for failure to do so. The cited cases holding to the contrary do not

apply the foregoing statutes and are, therefore, not controlling or persuasive. Appellants’

third assignment lacks merit.

       {¶51} The judgment of the Trumbull County Court of Common Pleas is affirmed.


MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.




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