         [Cite as Stykes v. Colerain Twp., 2019-Ohio-3937.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



DARYL STYKES,                                     :           APPEAL NO. C-180260
                                                               TRIAL NO. A-1705169
        Plaintiff-Appellant,                      :

  vs.                                             :            O P I N I O N.

COLERAIN TOWNSHIP,                                :

    Defendant-Appellee.                           :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 27, 2019


Becker & Cade, Dennis A. Becker and Justin S. Becker, for Plaintiff-Appellant,

Schroeder, Maundrell, Barbiere & Powers and John M. Milligan, for Defendant-
Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS



Z AYAS , Presiding Judge.

        {¶1}   This is an appeal from the dismissal of a case involving a stop sign that

was missing from an intersection in Colerain Township. As a result of the missing

sign, a motorcyclist collided with a vehicle and was seriously injured.             The

motorcyclist, in an attempt to recover damages for his injuries, sued the township

only to encounter another obstacle: sovereign immunity.            The Ohio General

Assembly has granted political subdivisions immunity from liability for injuries and

deaths on their roadways, subject to limited exceptions. Unfortunately, none of the

exceptions are applicable to this case. Therefore, we must affirm the judgment of the

trial court.

                            Facts and Procedural History

        {¶2}   In October 2014, plaintiff-appellant Daryl Stykes was driving his

motorcycle along Bevis Lane in Colerain Township when he struck a vehicle that

entered the roadway at the intersection of Hollis Drive. The intersection is a three-

way stop, but Stykes did not know to stop because the stop sign that was normally

present was missing. Stykes was ejected from his motorcycle and sustained serious

injuries to his head, ribs, back, and extremities.

        {¶3}   In October 2017, Stykes filed a lawsuit alleging that Colerain Township

was negligent in failing to maintain the stop sign. In November 2017, the township

moved to dismiss the suit for failure to state a claim upon which relief could be

granted, based upon statutorily granted immunity for political subdivisions. In April

2018, the trial court granted the township’s motion to dismiss Stykes’s complaint.

Stykes now appeals asserting one assignment of error for review.

                                    Legal Analysis

        {¶4}   Stykes argues that the trial court erred in dismissing his complaint

because the stop sign in question was part of the public roadway that the township is



                                            2
                     OHIO FIRST DISTRICT COURT OF APPEALS



required to keep in repair under R.C. 2744.02(B)(3), an exception to statutory

immunity.

       {¶5}   Our standard of review of the trial court’s judgment on the township’s

Civ.R. 12(B)(6) motion to dismiss is de novo. See Perrysburg Twp. v. Rossford, 103

Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. A Civ.R. 12(B)(6) motion to

dismiss for failure to state a claim is procedural and tests the sufficiency of the

complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545,

548, 605 N.E.2d 378 (1992).

       {¶6}   Deciding whether a political subdivision is entitled to immunity under

R.C. Chapter 2744 involves a three-tiered analysis. Buchenroth v. City of Cincinnati,

1st Dist. Hamilton No. C-180289, 2019-Ohio-2560, ¶ 3. First, a political subdivision

is generally immune from liability incurred in performing either a governmental or

proprietary function. R.C. 2744.02(A)(1); Howard v. Miami Twp. Fire Div., 119

Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, ¶ 18. Second, five exceptions to

immunity listed in R.C. 2744.02(B) apply to expose a political subdivision to tort

liability. Howard at ¶ 18. Third, if one of the exceptions does apply, the court must

determine whether the political subdivision can reestablish immunity by

demonstrating another statutory defense. R.C. 2744.03; Buchenroth at ¶ 3. The case

before us turns on the second tier: whether an exception to immunity applies.

       {¶7}   R.C. 2744.02(B)(3), as relevant to this case, states 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 and other negligent failure to remove

obstructions from public roads.” This is the only statutory exception under which

Stykes asserts that Colerain Township is liable.

       {¶8}   R.C. 2744.01(H) defines “public roads” as “public roads, highways,

streets, avenues, alleys, and bridges within a political subdivision.” R.C. 2744.01(H)

also states that “public roads” do not include “berms, shoulders, rights-of-way, or



                                           3
                      OHIO FIRST DISTRICT COURT OF APPEALS



traffic control devices unless the traffic control devices are mandated by the Ohio

manual of uniform traffic control devices.” Accordingly, a stop sign falls outside the

definition of a public road unless it is “mandated by the Ohio manual of uniform

traffic control devices” (“OMUTCD”). Bibler v. Stevenson, 150 Ohio St.3d 144, 2016-

Ohio-8449, 80 N.E.3d 424, ¶ 8.

       {¶9}    Stykes contends that R.C. 2744.01(H) is not the only source of

authority for determining whether a stop sign is mandatory. He argues that R.C.

4511.65(D) and a recent Ohio Supreme Court case interpreting R.C. 4511.65(A),

Bibler v. Stevenson, control the issue of whether the stop sign was mandatory and

thus whether the township was liable.

       {¶10} In a plurality decision,1 the Bibler court held that a public-road
exception applied to a stop sign at an intersection of two streets, one of which was a

state route. Bibler at ¶ 11. R.C. 4511.65(A) provides that “[a]ll state routes are hereby

designated as through highways * * *.” The court noted that, while the placement of

the stop sign at a through highway was discretionary by the OMUTCD and therefore

excluded from the definition of a public road under R.C. 2744.01(H), R.C. 4511.65(A)

mandated that “stop signs, yield signs, or traffic control signals shall be erected at all

intersections with through highways * * *.” Ultimately, the court determined that

the OMUTCD is subservient to the Revised Code and that when the OMUTCD and

the Revised Code contradict each other the Revised Code controls. Id. at ¶ 16-18.

Thus, where a stop sign was mandated at an intersection with a through highway,

repair of the sign fell within the public-roads exception to immunity under R.C.

2744.02(B)(3). Id. at ¶ 17.

       {¶11} Stykes argues that R.C. 4511.65(D) carves out a similar public-roads
exception to immunity. R.C. 4511.65(D) states that



1A plurality opinion of the Ohio Supreme Court is not binding on this court, it is merely
persuasive. State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254 (8th Dist.).


                                              4
                     OHIO FIRST DISTRICT COURT OF APPEALS



       Local authorities with reference to highways under their jurisdiction

       may designate additional through highways and shall erect stop signs,

       yield signs, or traffic control signals at all streets and highways

       intersecting such through highways, or may designate any

       intersection as a stop or yield intersection and shall erect

       like signs at one or more entrances to such intersection.

(Emphasis added.)

       {¶12} Stykes argues that the latter portion of this subsection means that once
a political subdivision designates an intersection a “stop intersection,” the placement

and maintenance of a stop sign at the designated intersection is mandatory—at

which point the failure to maintain the stop sign would open a political subdivision

to tort liability like in Bibler. We disagree. A plain reading of this portion reveals

that it is only applicable to “through highways,” and it is undisputed that this case

does not involve a through highway. Rather, the case involves two township streets

that meet at a T-intersection. Bibler is distinguishable because it involved a stop sign

at the intersection of a through highway that is explicitly mandated by the Revised

Code. See Deitz v. Harshbarger, 2017-Ohio-2917, 89 N.E.3d 1271 (3d Dist.), appeal

not allowed, 151 Ohio St.3d 1507, 2018-Ohio-365, 90 N.E.3d 948, ¶ 33 (also

distinguishing Bibler because the roads at issue were not through highways).

       {¶13} Our previous decision in Darby v. Cincinnati, 1st Dist. Hamilton No.
C-130430, 2014-Ohio-2426, continues to control this issue. In Darby, a motorist

sued the city of Cincinnati, alleging that the city failed to property maintain a marked

stop sign, causing her to collide with another vehicle. Id. at ¶ 2. We held that

because under the OMUTCD the placement of the stop sign was discretionary, the

stop sign was not a traffic control device mandated by the OMUTCD and was

therefore not included in the definition of a “public road” as that term is used in R.C.




                                           5
                     OHIO FIRST DISTRICT COURT OF APPEALS



2744.01(H). Id. at ¶ 22. Accordingly, the immunity exception contained in R.C.

2744.03(B)(3) did not apply. Id.

       {¶14} While in Darby we looked to an earlier edition of the OMUTCD as
relevant to that case, the discretionary provision on stop signs in the current edition

remains virtually the same. Based on the date of the accident, the relevant edition of

the OMUTCD is the 2012 edition. The 2012 edition, like the prior versions, defines

four text headings: Standard, Guidance, Option, and Support. OMUTCD, Section

1A.13 (2012 Ed.).     Guidance means “a statement of recommended, but not

mandatory, practice in typical situations * * *.” Id. The definition of Guidance notes

that the verb “should” is typically used, while the verbs “shall” and “may” are not

used in Guidance statements. Id. The provision on stop signs is preceded by this

Guidance heading.

       {¶15} Section 2B.06 of the 2012 edition of the OMUTCD, entitled “STOP
Sign Application,” is consistent with this discretionary heading. It provides:

                                         ***

       02 The use of STOP signs on the minor-street approaches

       should be considered if engineering judgment indicates that

       a stop is always required because of one or more of the following

       conditions:

       A. The vehicular traffic volumes on the through street or highway

       exceed 6,000 vehicles per day;

       B. A restricted view exists that requires road users to stop in order to

       adequately observe conflicting traffic on the through street or highway;

       and/or

       C. Crash records indicate that three or more crashes that are

       susceptible to correction by the installation of a STOP sign have been

       reported within a 12-month period, or that five or more such crashes



                                           6
                      OHIO FIRST DISTRICT COURT OF APPEALS



       have been reported within a 2-year period. Such crashes include right-

       angle collisions involving road users on the minor-street approach

       failing to yield the right-of-way to traffic on the through street or

       highway.

(Emphasis added.)

       {¶16} As in Darby, the OMUTCD states that stop signs “should” be used if
engineering judgment indicates that one or more of the listed conditions exists. The

manual “is devoid of any language indicating that stop sign placement at an

intersection is ever mandated.” Darby, 1st Dist. Hamilton No. C-130430, 2014-

Ohio-2426, at ¶ 12.

       {¶17} Therefore, because the placement of the stop sign at the intersection of
Bevis Lane and Hollis Drive was not mandatory under the OMUTCD, the stop sign

was not a traffic-control device mandated by the OMUTCD and was therefore not

included in the statutory definition of a “public road.” Consequently, the immunity

exception contained in R.C. 2744.03(B)(3) does not apply. Because there is no

exception to the general rule of immunity, we need not address the third tier of the

immunity analysis. See Darby at ¶ 20.

                                      Conclusion

       {¶18} Taking all of the allegations of Stykes’s complaint as true, we find that
he can prove no set of facts that would entitle him to relief. Therefore, the trial court

did not err in granting the township’s Civ.R. 12(B)(6) motion to dismiss.

Accordingly, Stykes’s sole assignment of error is overruled and the trial court’s

judgment is affirmed.

                                                                     Judgment affirmed.

MYERS and BERGERON, JJ., concur.
Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                            7
