[Cite as Bartchak v. Columbia Twp., 2018-Ohio-2991.]


STATE OF OHIO                   )                           IN THE COURT OF APPEALS
                                )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                )

THERESE M. BARTCHAK, et al.                                 C.A. No.   17CA011096

        Appellees

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
COLUMBIA TOWNSHIP AND                                       COURT OF COMMON PLEAS
LIVERPOOL TOWNSHIP                                          COUNTY OF LORAIN, OHIO
                                                            CASE No.   14-CV-183647
        Appellants

                                DECISION AND JOURNAL ENTRY

Dated: July 30, 2018



        HENSAL, Presiding Judge.

        {¶1}    Columbia Township and Liverpool Township appeal a judgment entry of the

Lorain County Court of Common Pleas that denied their motions for summary judgment. For

the following reasons, this Court reverses.

                                                       I.

        {¶2}    Four teenagers died after using a railroad crossing to make their car go airborne,

veering off the road after landing, and colliding with a tree. The parents of three of the children

sued Columbia Township and Liverpool Township for wrongful death because the road the teens

were driving on bordered those townships. Following discovery, the Townships moved for

summary judgment, arguing that they are immune from liability under Revised Code Section

2744.02. The trial court granted their motions in part, but denied them as to the parents’ claims

that the Townships failed to remove obstructions from the road, failed to keep the road in repair,
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and failed to have mandatory road markings. The Townships have appealed, jointly assigning

two errors.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING
       THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER
       THE DESIGN OF THE BOSTON ROAD AT THE INTERSECTION OF THE
       RAILROAD TRACKS CONSTITUTED AN OBSTRUCTION.

       {¶3}    The Townships argue that the trial court should have granted them summary

judgment on all of the parents’ claims because they have political subdivision immunity. Under

Civil Rule 56(C), summary judgment is appropriate if:

       (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for

summary judgment, the movant bears the initial burden of demonstrating that there are no

genuine issues of material fact concerning an essential element of the opponent’s case. Dresher

v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party

“must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293, quoting

Civ.R. 56(E). This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996).

       {¶4}    “Determining whether a political subdivision is immune from liability under

[Chapter 2744] * * * involves a three-tiered analysis.” Lambert v. Clancy, 125 Ohio St.3d 231,

2010-Ohio-1483, ¶ 8. “The starting point is the general rule that political subdivisions are

immune from tort liability[.]” Shalkhauser v. Medina, 148 Ohio App.3d 41, 2002-Ohio-222, ¶
                                                 3


14 (9th Dist.). Under Section 2744.02(A)(1), “a political subdivision is not liable in damages in

a civil action for injury, death, or loss to person or property allegedly caused by any act or

omission of the political subdivision * * * in connection with a governmental or proprietary

function.” “At the second tier, this comprehensive immunity can be abrogated pursuant to any of

the five exceptions set forth at R.C. 2744.02(B).” Shalkhauser at ¶ 16. “Finally, immunity lost

to one of the R.C. 2744.02(B) exceptions may be reinstated if the political subdivision can

establish one of the statutory defenses to liability” contained in Section 2744.03(A). Id.

       {¶5}    The parties agree that the Townships are political subdivisions and that the

maintenance and repair of roads is a governmental function.           R.C. 2744.01(C)(2)(e); R.C.

2744.01(F).   The parents argue that the Townships’ immunity is abrogated under Section

2744.02(B)(3), which provides, in part, that “political subdivisions are liable for injury, death, or

loss to person or property caused by their negligent failure * * * to remove obstructions from

public roads[.]” According to the parents, the condition of the roadway at the railroad crossing

was an obstruction to motorists because it was impassable at the legal speed limit.

       {¶6}    The term “obstructions” is not defined in Chapter 2744. The Ohio Supreme

Court, however, interpreting Section 2744.02(B)(3), has held that “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 v. Miami Twp.

Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, ¶ 30. In reaching that conclusion, the Supreme

Court noted that Section 2744.02(B)(3) had previously required political subdivisions to keep

roads “free from nuisance[.]” (Emphasis omitted.) Id. at ¶ 24. It reasoned that, in changing the

requirement to “remove obstructions,” the legislature made “a deliberate effort to limit political

subdivisions’ liability for injuries and deaths on their roadways.” Id. at ¶ 26. It concluded that,
                                                  4


in light of the “more demanding” showing that is required under the amended language, ice that

formed on a roadway did not constitute an obstruction because it did not block or clog the road.

Id. at ¶ 29-30.

        {¶7}      It is not disputed that the road involved in this case was straight. Before the

railroad crossing, there was a 7.9% grade as it rose to the height of the tracks, followed by a

downward slope immediately after the crossing. According to the sole teen who survived the

collision, the group travelled on the road because it was their intent to use the changes in

elevation to make their car go airborne. Following their first “jump,” the driver repositioned the

car and went over the tracks again, this time losing control and going off the roadway 100 feet

after landing on the road. There is no evidence in the record that suggests that there was

anything blocking or clogging the road at the time the teens went over the tracks.

        {¶8}      The teens’ parents argue that the term “obstruction” should include any situation

in which a motorist cannot safely travel the road at the posted speed limit. They argue that those

circumstances exist in this case because the speed limit for the road was 55 miles per hour and

experts opined that any car travelling over the tracks at that speed, or at any speed greater than

40 miles per hour, would go airborne.

        {¶9}      This Court is bound to follow the decisions of the Ohio Supreme Court. State v.

Dickens, 9th Dist. Lorain No. 07CA009218, 2008-Ohio-4404, ¶ 25. In Howard, it specifically

defined “obstruction” as something that “blocks or clogs the roadway” and excluded “a thing or

condition that [merely] hinders or impedes the use of the roadway[.]” Howard, 119 Ohio St.3d

1, 2008-Ohio-2792, at ¶ 30; see also Pelletier v. City of Campbell, Slip Opinion No. 2018-Ohio-

2121, ¶ 25, 28 (adhering to Howard and concluding that city did not fail to remove an

obstruction from a stop sign because there was no foliage on the sign). To construe the elevation
                                                5


changes of the road at the railroad crossing as an obstruction merely because it was a hazard

would require this Court to ignore the direction of the Ohio Supreme Court and construe Section

2744.02(B)(3) as still containing the “nuisance” language that the legislature replaced. We have

no authority to do so. See id. at ¶ 20, 32. Upon review of the record, we conclude that the trial

court incorrectly determined that the “intersection of the tracks and roadway could constitute an

obstruction” and that it incorrectly denied the Townships’ motions for summary judgment on this

issue. The Townships’ first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING
       THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER
       BOSTON ROAD WAS IN REPAIR AT THE SUBJECT RAILROAD
       INTERSECTION WHEN NEITHER THE CONDITION OF THE ROAD NOR
       SIGNAGE CONTRIBUTED TO THE ACCIDENT.

       {¶10} The Townships also argue that they are entitled to immunity on the parents’ claim

that the road was not “in repair” under Section 2744.02(B)(3). That section provides, in part,

that “political subdivisions are liable for injury, death, or loss to person or property caused by

their negligent failure to keep public roads in repair[.]” The teens’ parents argued that the road

was not “in repair” because it could not be safely travelled at the posted speed limit and because

it was lacking mandatory traffic control devices.

       {¶11} The term “in repair” is not defined in Chapter 2744, but the Ohio Supreme Court

has recently defined it by its dictionary meaning, which is “the state of being in good or sound

condition.” Pelletier at ¶ 19, quoting Webster’s Third New International Dictionary 1923

(2002). The Townships argue that the phrase refers only to the surface condition of the roadway,

not its overall design. They also argue that any problems with the surface of the road were not

the reason the car left the roadway and collided with the tree. The parents, citing this Court’s
                                                   6


decision in Sanderbeck v. County of Medina, 9th Dist. Medina No. 09CA0051-M, 2010-Ohio-

3659, argue that a road is not in repair if it cannot be safely travelled at the legal speed limit.

        {¶12} In Sanderbeck, a car left a road while navigating an “S” curve. Id. at ¶ 1. Mr.

Sanderbeck’s expert opined that the road was in disrepair because the “critical speed” of the road

was at or below the legal speed limit. Id. at ¶ 5. The county argued that the “in repair” language

under Section 2744.02(B)(3) referred only to surface conditions such as ruts, potholes, or

crumbling pavement. Id. at ¶ 7. This Court, in affirming the trial court’s denial of summary

judgment to the county, did not resolve whether the expert’s “critical speed” analysis would

support a finding that a road was not “in repair” under Section 2744.02(B)(3), because it noted

that, even under the County’s more limited definition, the expert had testified that the road “was

‘deteriorated’ in the area where the [driver] lost control of his vehicle.” Id. at ¶ 8. Sanderbeck,

therefore, does not support the parents’ argument.

        {¶13} Before the amendments to Section 2744.02(B)(3), the Ohio Supreme Court noted

that its “nuisance” analysis “focused on whether the alleged nuisance rendered the roadway

unsafe for the usual and ordinary modes of travel.” Manufacturer’s Nat’l Bank v. Erie Cty. Rd.

Comm., 63 Ohio St.3d 318, 321 (1992). Now that the statute has been amended to replace “free

from nuisance” with “remove obstructions” and the Ohio Supreme Court has defined

“obstructions” narrowly, the parents’ argument attempts to preserve the old definition of

nuisance by transferring it to the “in repair” language that the legislature did not modify. In

Pelletier, however, the Ohio Supreme Court focused on whether the part of the public road at

issue, a stop sign, was in “good or sound condition” or whether it was “deteriorated or

disassembled.” Pelletier at ¶ 21.
                                                7


        {¶14} The teens’ parents have not identified any precedent in which a road was

considered out of repair simply because of its slope. In addition, it is not disputed that the

approach and retreat of the road from the railroad crossing were designed and constructed in that

fashion. The Ohio Supreme Court has recognized that political subdivisions are immune from

design and construction defects because they involve discretionary functions under Section

2744.03(A)(3) and (5). Franks v. Lopez, 69 Ohio St.3d 345, 349-350 (1994). Although one of

the parents’ experts testified that the crossing was not as level as possible and that an improper

slope “could be a design issue [or] it could be a maintenance issue[,]” he did not explain why the

allegedly improper slope of the road in this case should be considered a maintenance issue.

Furthermore, although he also testified that the tracks were not even with the road, causing the

crossing to be “rough,” he did not explain how the unevenness of the tracks contributed to the

teen driver’s loss of control. We, therefore, conclude that his testimony does not create a

genuine issue of material fact regarding whether the road was “in repair” on the night of the

collision.

        {¶15} The teens’ parents next argue that the road was not in repair because there was

surface damage to the road after the railroad crossing. It is not disputed that there were a number

of gouges in the road from other cars that had gone over the tracks and bottomed out on the far

side. The parents, however, did not submit any evidence that the teens’ car made contact with

any of those gouges. According to the accident reconstruction expert, the gouge that the teens’

car made in the road was 15 feet beyond any of the previous gouges. One of the parents’ experts

also opined that nothing about the surface condition of the road contributed to the collision.

Upon review, we conclude that the teens’ parents have not pointed to any evidence in the record
                                                  8


that creates a genuine issue of material fact regarding whether the surface of the road that the

teens’ car actually travelled on was in disrepair. R.C. 2744.02(B)(3).

       {¶16} Regarding the parents’ argument that the road was not in repair because it did not

have some mandatory traffic control devices, Section 2744.01(H) provides that a “[p]ublic road[

]” does not include “traffic control devices unless the traffic control devices are mandated by the

Ohio manual of uniform traffic control devices.” Traffic-control devices that are mandated by

statute are also included, even if they are not in the manual. Bibler v. Stevenson, 150 Ohio St.3d

144, 2016-Ohio-8449, ¶ 17. The Townships do not deny that the road was missing some

mandatory traffic control devices leading up to the railroad crossing, but they argue that the

missing devices did not cause the collision.

       {¶17} The teens’ parents argue that before the railroad crossing the road was required to

have an X, the letters RR, no-passing zone markings, and certain transverse lines. Because the

crossing was equipped with active control devices, the road was also required to have a stop line

that indicated the point at which vehicles were required to stay behind while a train was passing

through. They further argue that the retro-reflectivity of the signage that was present was not in

compliance with the manual’s requirements.

       {¶18} The signs and markings required by the manual appear to be intended to alert

drivers to the fact that there is a railroad crossing approaching. The teens, however, were fully

aware of the crossing and, according to the one who survived the collision, took the road for the

specific purpose of going over the tracks. She also indicated that the driver of the car did not

lose control until his second crossing of the tracks.

       {¶19} Upon review of the record, there is nothing in it that suggests the collision would

have been avoided if the mandatory traffic control devices existed. One expert testified that the
                                                 9


teens might have been deterred from jumping the tracks if there was a stop sign immediately

before the crossing, but such a stop sign was not required by the manual of uniform traffic

control devices. Accordingly, the fact that there was no stop sign present did not make the road

out of repair. We conclude that the teens’ parents did not demonstrate that there is a genuine

issue of material fact as to whether the absence of mandatory traffic control devices contributed

to the teen driver’s loss of control. The trial court, therefore, incorrectly denied summary

judgment to the Townships on the parents “in repair” claim. The Townships’ second assignment

of error is sustained.

                                                III.

        {¶20} The Townships established as a matter of law that the exception to political

subdivision immunity under Section 2744.02(B)(3) does not apply in this case. The trial court,

therefore, incorrectly denied parts of their motions for summary judgment. The Townships’

assignments of error are sustained, and the judgment of the Lorain County Court of Common

Pleas is reversed.

                                                                              Judgment reversed,
                                                                             and cause remanded.




        There were reasonable grounds for this appeal.

        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

        Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                10


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, J.
CONCURS.

CARR, J.
DISSENTS.

       {¶21} I respectfully dissent. This case involves a heart breaking situation where four

teenagers tragically lost their lives when their vehicle went airborne after crossing railroad

tracks. The parents of three teenagers sued the Townships. The Townships filed a motion for

summary judgment arguing that it was entitled to sovereign immunity. The trial court ultimately

denied the motion on the basis that there was a question of material fact. The sole issue in this

interlocutory appeal is whether the Townships are immune from liability under R.C. 2744 et seq.

       {¶22} It is well-established that an appeal pursuant to R.C. 2744.02(C) is limited to the

issue of governmental immunity. Calet v. East Ohio Gas Co., 9th Dist. Summit No. 28036,

2017-Ohio-348, ¶ 13; Davis v. Akron, 9th Dist. Summit No. 27014, 2014-Ohio-2511, ¶ 12;

Sheperd v. Akron, 9th Dist. Summit No. 26266, 2012-Ohio-4695, ¶ 12; McGuire v. Lorain, 9th

Dist. Lorain No. 10CA009893, 2011-Ohio-3887, ¶ 3; Devaux v. Albrecht Trucking Co., 9th Dist.

Medina No. 09CA0069-M, 2010-Ohio-1249, ¶ 7. Thus, for example, in Riffle v. Physicians &
                                                 11


Surgs. Ambulance, 9th Dist. Summit No. 27449, 2016-Ohio-94, this Court refused to address the

appellants’ alternative arguments that their actions were not the proximate cause of the injury at

issue. Id. at ¶ 10. This approach is warranted by the plain language of R.C. 2744.02(C), and it is

consistent with the fundamental distinction between immunity from suit and non-liability.

       {¶23} As the majority recognizes, R.C. 2744.02(A)(1) confers “comprehensive

immunity” upon political subdivisions in connection with the performance of governmental and

proprietary functions. See Shalkhauser v. Medina, 148 Ohio App.3d 41, 2002-Ohio-222, ¶ 19

(9th Dist.).   “Immunity” denotes an exemption from duty or liability.             See Black’s Law

Dictionary 765 (8th Ed.2004). Thus, in Agrabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374,

the Ohio Supreme Court articulated the distinction between immunity and non-liability. “When

a plaintiff files a civil action against an employee of a political subdivision, the employee’s

entitlement to statutory immunity is a separate question from the plaintiff’s ability to establish

the elements of his or her claim.” Id. at ¶ 10. More specifically, the Supreme Court noted that

failure to establish the requirements of immunity under R.C. Chapter 2744 would deprive a

defendant of statutory immunity, but whether the element of proximate cause had been

established would function to determine liability. Id. In other words, a defendant could fail to

establish immunity under R.C. Chapter 2744, but could ultimately be found not to be liable if a

plaintiff failed to establish the elements of the relevant claims, including causation. Id.

       {¶24} This distinction – and the nature of immunity as an exemption from liability –

means that a political subdivision’s immunity does not depend on whether plaintiffs can establish

the elements of their tort claims. Immunity exempts a political subdivision from liability before

the elements of the claims are considered. This is why the denial of immunity is a matter of such

magnitude, and it is why orders that deny immunity can be immediately appealed and should,
                                                12


therefore, occur early in the litigation, “prior to investing the time, effort, and expense of the

courts, attorneys, parties, and witnesses[.]” Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-

4839, ¶ 26. Unfortunately, the nature of the Townships’ arguments on appeal has resulted in a

blurring of the distinction between proximate cause and immunity in this case.

          {¶25} In construing the evidence in the light most favorable to the teenagers’ parents,

the nonmoving party, the trial court here ruled “that the intersection of the tracks and roadway

could constitute an obstruction since there is evidence tending to show it could not be traversed

safely at the stated speed limit and as a result posed a significant and dangerous hazard to person

and property.” I agree. While the Supreme Court has said that an obstruction must block or clog

the roadway, the high court has not said that the obstruction must be an actual physical object in

the road. See Pelletier v. City of Campbell, Slip Opinion No. 2018-Ohio-2121.

          {¶26} Moreover, a conventional causation analysis should not enter into the discussion

at the summary judgment stage. Even assuming we could entertain the Townships’ proximate

cause position, there is, at a minimum, a question of fact regarding the proximate cause of the

accident in this case. It is well settled that there may be more than one proximate cause of an

injury.    Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 587-588 (1991).            Here, the

Townships do not dispute that the road was missing mandatory traffic control devices leading up

to the railroad tracks. The lack of mandatory traffic control devices is significantly probative

given that there was expert testimony indicating that a vehicle would go airborne if it was

traveling at a speed of 40 miles per hour, and the speed limit on the road in question was 55

miles per hour. In other words, there was expert testimony that the railroad tracks could not be

safely crossed at the posted speed limit.      Furthermore, there was additional evidence that

neighbors complained about the railroad tracks and there was at least one prior serious accident
                                                13


at that location. This evidence coupled with the physical grooves in the road where cars had

landed after going airborne supports the conclusion that the road was either in disrepair or

obstructed. Yet, despite the evidence which tended to show that the Townships’ trustees knew

about the problem with the railroad tracks, the Townships declined to take the necessary steps to

resolve the issue.      Under these circumstances, the trial court correctly declined to award

summary judgment to the Townships as questions of fact remain as to whether the railroad tracks

constituted an obstruction and whether the road was in a state of disrepair. For these reasons, I

respectfully dissent.


APPEARANCES:

GREGORY A. BECK and MEL L. LUTE, JR., Attorneys at Law, for Appellants.

ABRAHAM CANTOR, Attorney at Law, for Appellants.

KENNETH P. ABBARNO, and MICHAEL A. SALTZER, Attorneys at Law, for Appellees.
