       [Cite as Darby v. Cincinnati, 2014-Ohio-2426.]


                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO



ANDREA DARBY,                                           :   APPEAL NO. C-130430
                                                            TRIAL NO. A-1300324
       Plaintiff-Appellee,                              :

       vs.                                              :
                                                               O P I N I O N.
CITY OF CINCINNATI,                                     :

       Defendant-Appellant.                             :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 6, 2014




The Keating Law Firm, Ltd., and Bradley D. Keating, for Plaintiff-Appellee,

Terrance Nestor, Interim City Solicitor, and Jessica L. Powell, Assistant City
Solicitor, for Defendant-Appellant.




Please note: we have removed this case from the accelerated calendar.
                  OHIO FIRST DISTRICT COURT OF APPEALS



DINKELACKER, Judge.

       {¶1}    Defendant-appellant the city of Cincinnati appeals the decision of the

Hamilton County Court of Common Pleas overruling its motion to dismiss on the

basis of sovereign immunity the complaint filed against it by plaintiff-appellee

Andrea Darby. We find merit in the city’s assignment of error, and we reverse the

trial court’s judgment.

       {¶2}    The record shows that Darby filed a complaint against the city in which

she alleged that on January 14, 2011, she was operating a motor vehicle on Laidlaw

Avenue in the city of Cincinnati. According to Darby, the city failed to properly

maintain a marked stop sign at the intersection of Laidlaw Avenue and Oakdale

Avenue, “whereupon it negligently and carelessly caused” her vehicle to collide with

the vehicle operated by a third party. She further alleged that the city had prior

notice of the improperly maintained stop sign, and that, as a direct and proximate

result of the city’s negligence, she incurred bodily injury.

       {¶3}    The city filed a motion to dismiss under Civ.R. 12(B)(6) in which it

argued that it was immune from liability under R.C. 2744.01 et seq. The trial court

overruled the city’s motion, and its judgment is a final, appealable order under R.C.

2744.02(C). See Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d

878, syllabus. The city has filed a timely appeal from that judgment.

       {¶4}    In its sole assignment of error, the city contends that the trial court

erred in denying its motion to dismiss the complaint. It argues that it is entitled to

immunity because it was engaging in a governmental function under R.C. 2977.01(C)

and that no exceptions to immunity apply. This assignment of error is well taken.

       {¶5}    A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of the

complaint. In ruling on such a motion, the trial court must take all of the allegations




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                  OHIO FIRST DISTRICT COURT OF APPEALS



in the complaint as true and draw all reasonable inferences in favor of the

nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d

753 (1988); Evans v. Thrasher, 1st Dist. Hamilton No. C-120783, 2013-Ohio-4776, ¶

13. It may dismiss a complaint on a Civ.R. 12(B)(6) motion only when the plaintiff

can prove no set of facts that would entitle the plaintiff to relief. O’Brien v. Univ.

Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975),

syllabus; Evans at ¶ 13.     The court should not rely on evidence outside of the

pleadings, but it may consider materials that are referred to or incorporated into the

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

545, 548, 605 N.E.2d 378 (1992); Evans at ¶ 13.

       {¶6}   The determination of whether a political subdivision is entitled to

immunity under R.C. Chapter 2744 involves a three-tiered analysis.            Colbert v.

Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7; Munday v.

Lincoln Hts., 1st Dist. Hamilton No. C-120431, 2013-Ohio-3095, ¶ 18. The first tier is

the general rule that a political subdivision is immune from liability incurred in

performing either a governmental or proprietary function.          R.C. 2744.02(A)(1);

Colbert at ¶ 7; Munday at ¶ 19. But that immunity is not absolute. The second tier

requires a court to determine whether any of the five exceptions to immunity listed

in R.C. 2744.02(B) apply to expose a political subdivision to liability. Colbert at ¶ 7-

8; Munday at ¶ 19. If any exception to immunity applies, then the third tier of the

analysis requires a court to determine if any of the statutory defenses against liability

apply. Colbert at ¶ 9; Munday at ¶ 19.

       {¶7}   Governmental functions include “[t]he regulation of the use of, and the

maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks,

bridges, aqueducts, viaducts, and public grounds.” R.C. 2944.01(C)(2)(e). They also




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                 OHIO FIRST DISTRICT COURT OF APPEALS



include “[t]he regulation of traffic, and the erection or nonerection of traffic signs,

signals or control devices.” R.C. 2944.01(C)(2)(j). The regulation of traffic is a

governmental function, and the city is entitled to blanket immunity under the first

tier of the analysis unless an exception to immunity applies. See Parker v. Upper

Arlington, 10th Dist. Franklin No. 05AP-695, 2006-Ohio-1649, ¶ 12-13.

       {¶8}    Darby contends the city’s conduct fell within the exception to

immunity set forth in R.C. 2744.02(B)(3). It provides that “[e]xcept as otherwise

provided in R.C. 3746.24 of the Revised Code, 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[.]” R.C. 2744.01(H) defines “public roads” as “public roads, highways, streets,

avenues, alleys, and bridges within a political subdivision. ‘Public roads’ does not

include berms, shoulders, rights-of-way, or traffic control devices unless the traffic

control devices are mandated by” the Ohio Manual of Uniform Traffic Control

Devices (“OMUTCD”).

       {¶9}   OMUTCD has been adopted as the state’s official specifications for

highway signs and markings under the mandate of R.C. 4511.09. White v. Ohio Dept.

of Transp., 56 Ohio St.3d 39, 41, 564 N.E.2d 462 (1990). Local authorities must

place and maintain traffic control devices according to the manual under R.C.

4511.11. Winwood v. Dayton, 37 Ohio St.3d 282, 284, 525 N.E.2d 808 (1988);

Maple Hts. v. Smith, 131 Ohio App.3d 406, 408, 722 N.E.2d 607 (8th Dist.1999).

Compliance with the OMUTCD is an issue of law that this court can determine.

Hopkins v. Porter, 3d Dist. Mercer No. 10-13-17, 2014-Ohio-757, ¶ 61.

       {¶10} The OMUTCD is organized to differentiate between standards, which

are mandatory, and guidelines, which are discretionary.




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          [The OMUTCD] contains mandatory, advisory, and permissive

          conditions, differentiated by the use of the terms “shall,” “should,” and

          “may.” Standards using the word “shall” are considered mandatory.

          Standards using the word “should” are considered to be advising, but

          not mandating, the particular signage or other device. Standards using

          the word “may” carry no requirement or recommendation.

Shope v. Portsmouth, 4th Dist. Scioto No. 11CA3459, 2012-Ohio-1605, ¶ 23, citing

Webb v. Edwards, 165 Ohio App.3d 158, 2005-Ohio-6379, 845 N.E.3d 530, ¶ 23 (4th

Dist.).

          {¶11} Section 2B.05 of the OMUTCD, entitled “STOP Sign Application,”

provides:

          STOP signs should be used if engineering judgment indicates that one

          or more of the following conditions exist:

          A.   Intersection of a less important road with a main road where

          application of the normal right-of-way rule would not be expected to

          provide reasonable compliance with the law:

          B. Street entering a through highway or street (O.R.C. Section 4511.65

          provides information on through highways (see Appendix B2));

          C. Unsignalized intersections in a signalized area;

          D. High speeds, restricted view, or crash records indicate a need for

          control by the STOP sign.

          {¶12} The OMUTCD states that stop signs “should” be used if engineering

judgment indicates that one or more of the listed conditions exists. It is devoid of

any language indicating that stop sign placement at an intersection is ever mandated.

See Yonkings v. Piwinski, 10th Dist. Franklin No. 11AP-07, 2011-Ohio-6232, ¶ 24.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} The General Assembly explicitly excluded traffic control devices from

the definition of a “public road” unless the device was mandated by the OMUTCD.

“By its clear language, it is evident that the General Assembly did not intend all

erected traffic control devices to be considered part of a public road.” Walters v.

Columbus, 10th Dist. Franklin No. 07AP-917, 2008-Ohio-4258, ¶ 20. Thus, the

placement of the stop signs is discretionary, not mandatory. See id. at ¶ 20-22.

       {¶14} Because the placement of the stop sign in this case is discretionary, it

is not a traffic control device mandated by the OMUTCD, and it is not included in the

definition of a “public road” as that term is used in R.C. 2744.01(H). Therefore, the

immunity exception contained in R.C. 2744.03(B)(3) does not apply. See id. at ¶ 23.

       {¶15} Darby argues that while placement of the stop sign is discretionary, the

OMUTCD provides that maintenance of the stop sign is mandatory. She relies upon

Franks v. Lopez, 69 Ohio St.3d 345, 632 N.E.2d 502 (1994), in which the Ohio

Supreme Court stated, “While the installation of traffic control devices by a political

subdivision may be discretionary pursuant to the manual, once the decision to install

has been made, the implementation of that decision is not immune from liability.”

Id. at 349.

       {¶16} But R.C. 2744.02(B)(3) was amended effective in 2003, after the

decision in Franks. Prior to the amendment, the statute provided that political

subdivisions were liable for injury, death or loss cause by their failure to keep public

roads “free from nuisance.”      In the amendment, the legislature removed the

“nuisance” language and replaced it with language stating that political subdivisions

are liable for their “failure to remove obstructions from public roads.” See Rastaedt

v. Youngstown, 7th Dist. Mahoning No. 12 MA 82, 2013-Ohio-750, ¶ 22; Shope, 4th

Dist. Scioto No. 11CA3459, 2012-Ohio-1605, at ¶ 29.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17} The Ohio Supreme Court found the legislature’s amendment to be

significant. In rejecting the argument that the amended statute imposed the same

duty of care as the pre-amendment statute, it stated:

                [W]e believe that the General Assembly purposely replaced the

       phrase “free from nuisance” with “other negligent failure to remove

       obstructions.” To find otherwise is to conclude that the legislature’s

       action in amending the statute was a superfluous act.

                We are persuaded that the legislature’s action in amending R.C.

       2744.02(B)(3) was not whimsy but a deliberate effort to limit political

       subdivisions’ liability for injuries and deaths on their roadways.

Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d

311, ¶ 25-26.

       {¶18} In contending that Franks still applies, Darby relies on a case from the

Sixth Appellate District, Butler v. City Comm., 6th Dist. Erie No. E-10-026, 2011-

Ohio-1143. It applied Franks in affirming a trial court’s decision denying the city’s

motion for summary judgment on the basis of immunity, but it did not mention the

2003 statutory amendment.

       {¶19} Other courts have disagreed and have held that reliance on Franks was

misplaced given the 2003 amendment. See Rastaedt, 7th Dist. Mahoning No. 12 MA

82, 2013-Ohio-750, at ¶ 24-25; Shope, 4th Dist. Scioto No. 11CA3459, 2012-Ohio-

1605, at ¶ 29; Hale v. CSX Transp., 2d Dist. Montgomery Nos. 22546, 22547 and

22592, 2008-Ohio-5644, ¶ 48-49; Walters, 10th Dist. Franklin No. 07AP-917, 2008-

Ohio-4258, at ¶ 16-18. We agree with the reasoning of those courts.

       {¶20} Because the placement of the stop sign is discretionary under the

OMUTCD, it is not included in the definition of a “public road” as defined in R.C.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



2744.02(B)(3). Therefore, the exception to immunity set forth in R.C. 2744.02(B)(3)

does not apply. Because no exception to the general rule of immunity applies, we

need not reach the third tier of the immunity analysis. See Colbert, 99 Ohio St.3d

215, 2003-Ohio-3319, 790 N.E.2d 781, at ¶ 15; Munday, 1st Dist. Hamilton No. C-

120431, 2013-Ohio-3095, at ¶ 19.

       {¶21} Taking all of the allegations of Darby’s complaint as true, we find that

she can prove no set of facts that would entitle her to relief. Therefore, the trial court

erred in denying the city’s Civ.R. 12(B)(6) motion to dismiss. We sustain the city’s

sole assignment of error. We reverse the trial court’s judgment and remand the

cause to the trial court for further proceedings.

                                              Judgment reversed and cause remanded.



HENDON, P.J., and FISCHER, J., concur.




Please note:

       The court has recorded its entry on the date of the release of this opinion.




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