[Cite as McNamara v. Marion Popcorn Festival, 2012-Ohio-5578.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             MARION COUNTY




MICHAEL MCNAMARA, ET AL.,

        PLAINTIFFS-APPELLANTS,                                   CASE NO. 9-12-34

        v.

MARION POPCORN FESTIVAL,
INC. ET AL.,                                                     OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Marion County Common Pleas Court
                          Trial Court No. 2010 CV 0688

                                    Judgment Affirmed

                         Date of Decision: December 3, 2012




APPEARANCES:

        J. Scott Bowman for Appellants

        W. Charles Curley and Mark D. Russell for Appellees
Case No. 9-12-34


SHAW, P.J.

        {¶1} Plaintiff-appellants Michael McNamara and Mary Jane McNamara

(herein where referred to collectively, “the McNamaras”) appeal the May 22,

2012, judgment of the Marion County Common Pleas Court granting summary

judgment in favor of the City of Marion (“Marion”) on the basis of immunity

pursuant to R.C. 2744.02. For the reasons that follow, we affirm the judgment of

the trial court.

        {¶2} On Sunday morning September 7, 2008, Michael McNamara

(“Michael”) was riding his bicycle to church in Marion.1 While riding west on E.

Church St., nearing the intersection of E. Church St. and S. Seffner Ave., Michael

struck an orange crossbeam that was lying on the right side of E. Church St. The

beam was approximately 7-8 feet long and 3-4 inches high. The beam had been

part of a traffic barricade used to control traffic for a parade during the Marion

Popcorn Festival.2 The beam’s legs, two sawhorses, were detached and lying

nearby on the curb so that just the crossbeam was in the road, covering

approximately one-third of the roadway.

        {¶3} According to Michael, he maneuvered his bicycle to the left of the

normal bicycle lane to pass two parked cars, then came back to the right side of
1
  Michael was an avid bicycle rider and often rode his bicycle as his primary method of transportation to
work and also rode regularly for leisure.
2
  The Marion Popcorn Festival is an annual event that takes place in September the Thursday following
Labor Day through the end of Saturday following Labor Day. One of the events that takes place during the
Popcorn Festival is a parade. The City of Marion does not organize or operate the parade, but it does
assume responsibility for traffic control along and near the parade route.

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Case No. 9-12-34


the roadway and struck the crossbeam. As a result of striking the beam, Michael

was “catapulted” off of his bicycle and Michael struck the pavement sustaining

injuries. Michael’s injuries included multiple broken bones and a head injury that

left his memory impaired.3

         {¶4} On August 13, 2010, Michael and his wife Mary Jane filed a lawsuit

against Marion Popcorn Festival, Inc., Marion, John Does 1-4, and John Doe

Corporations 1-4 seeking damages for personal injury and loss of consortium,

respectively. (Doc. 1).

         {¶5} On September 8, 2010, Marion filed its answer asserting, inter alia,

that Marion was immune pursuant to R.C. 2744.02, and that Michael’s negligence

contributed to the accident if Marion was not immune and in any way negligent.

(Doc. 7).

         {¶6} On April 25, 2011, the McNamaras filed a “First Amended

Complaint” adding the defendant Medical Mutual of Ohio. (Doc. 19).

         {¶7} On April 28, 2011, Marion filed its Answer to the Amended

Complaint, again asserting immunity and that Michael’s accident was caused by

his own contributory negligence. (Doc. 23).




3
  The Complaint alleged that McNamara sustained injuries “including, but not limited to: pelvic fractures,
hip fractures, clavicle fractures, acute intracranial hemorrhage (traumatic brain injury), left temporal bone
fractures, rib fractures, thoracic vertebrae fracture, hearing loss, and vision loss.” The Complaint alleged
that medical bills amounted to $237,109.73. (Doc. 1).

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Case No. 9-12-34


       {¶8} During discovery depositions were taken of Michael, Bill W. Collins,

the investigative commander of the Marion City Police, Mark E. Bash, the Marion

Street and Sanitation Supervisor at the time of this incident, Robert L. Moats, Jr,

the Streets and Sanitation Superintendent for Marion at the time of the incident,

and Thomas Robbins, the Marion Safety Director, (Docs. 35A, 41-44).

       {¶9} Subsequently all claims against all defendants were dismissed except

the claim against Marion. See (Docs. 30, 33, 38).

       {¶10} On December 1, 2011, Marion filed a motion for summary judgment

arguing, inter alia, that the beam in the road was not an “obstruction” and

therefore no exception applied to Marion’s immunity, and that if immunity did not

apply, the beam was open and obvious. (Doc. 37).

       {¶11} On December 28, 2011, the McNamaras filed a memorandum contra

to Marion’s motion for summary judgment. In the memorandum, the McNamaras

argued that the beam fit the definition for an obstruction and that there were

attendant circumstances which made the beam not open and obvious. (Doc. 40).

       {¶12} On January 3, 2012, the McNamaras filed a supplement to their

Memorandum Contra. (Doc. 45). The supplemental memorandum contained an

affidavit of Russell Fote, a Certified Safety Professional. (Id.)

       {¶13} On January 10, 2012, Marion filed a reply memorandum in support

of its motion for summary judgment. (Doc. 46).


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       {¶14} On May 22, 2012, the court filed a “Decision and Entry on Motion

for Summary Judgment” granting Marion’s motion. (Doc. 47). In the Entry, the

court ultimately held that the beam did not constitute an “obstruction” and

therefore no exception to Marion’s immunity applied.       Having decided that

Marion was immune as a political subdivision, the court granted Marion’s motion,

never reaching the question of whether the beam was open and obvious.

       {¶15} It is from this judgment that the McNamaras appeal, asserting the

following assignment of error for our review.

                MCNAMARAS’ ASSIGNMENT OF ERROR
       THE TRIAL COURT ERRED IN GRANTING APPELLEE,
       CITY OF MARION’S, MOTION FOR SUMMARY
       JUDGMENT BECAUSE OHIO’S SUBDIVISION IMMUNITY
       STATUTE [R.C. 2744.02(A)(1)] DID NOT GRANT THE CITY
       OF MARION IMMUNITY FROM LIABILITY BECAUSE
       ONE OF THE STATUTORY EXCEPTIONS APPLIED, R.C.
       2744.02(B)(3).

       {¶16} Marion also filed an assignment of error pursuant to R.C. 2505.22 in

the event that we choose to reverse on the immunity issue raised by the

McNamras. Should that be the case, Marion asserts the following assignment of

error for our review.

               THE CITY’S ASSIGNMENT OF ERROR
       AN EIGHT FOOT ORANGE WOODEN BEAM LAYING
       ACROSS A GRAY ROADWAY IN BROAD DAYLIGHT IS,
       AS A MATTER OF LAW, AN OPEN AND OBVIOIUS
       HAZARD.



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       {¶17} Due to the nature of the disposition, both assignments of error will be

addressed together.

                      McNamaras’ Assignment of Error and the
                       City of Marion’s Assignment of Error

       {¶18} In the McNamaras’ assignment of error, the McNamaras argue that

the trial court erred in granting summary judgment in favor of Marion.

Specifically, the McNamaras argue that Marion was not entitled to immunity

pursuant to R.C. 2744.02(A)(1) because an exception to immunity applied under

R.C. 2744.02(B)(3). According to the McNamaras, an exception applies under the

immunity statute for Marion’s negligent failure to remove “obstructions” from a

city street.

       {¶19} Initially, we note that an appellate court reviews a grant of summary

judgment de novo, without any deference to the trial court. Conley–Slowinski v.

Superior Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (6th Dist.1998). A

grant of summary judgment will be affirmed only when the requirements of Civ.R.

56(C) are met. This requires the moving party to establish: (1) that there are no

genuine issues of material fact, (2) that the moving party is entitled to judgment as

a matter of law, and (3) that reasonable minds can come to but one conclusion and

that conclusion is adverse to the non-moving party, said party being entitled to

have the evidence construed most strongly in his favor. Civ.R. 56(C); see Horton



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Case No. 9-12-34


v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, paragraph three of

the syllabus.

       {¶20} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112,

syllabus (1988). The moving party also bears the burden of demonstrating the

absence of a genuine issue of material fact as to an essential element of the case.

Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107. Once the moving party

demonstrates that he is entitled to summary judgment, the burden shifts to the non-

moving party to produce evidence on any issue which that party bears the burden

of production at trial. See Civ.R. 56(E).

       {¶21} The Political Subdivision Tort Liability Act, codified in R.C. Chapter

2744, sets forth a three-tiered analysis for determining whether a political

subdivision is immune from liability for injury or loss to property.

       First, R.C. 2744.02(A) sets forth the general rule of immunity,
       that political subdivisions are not liable in damages for the [loss
       to person or property,] personal injuries or death of a person.
       R.C. 2744.02(A)(1) provides:

       “For purposes of this chapter, the functions of political
       subdivisions are hereby classified as governmental functions and
       proprietary functions. Except as provided in division (B) of this
       section, 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.” * * *

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Case No. 9-12-34



       The immunity afforded a political subdivision in R.C.
       2744.02(A)(1) is not absolute, but is, by its express terms, subject
       to the five exceptions to immunity listed in former R.C.
       2744.02(B). * * * Thus, once immunity is established under R.C.
       2744.02(A)(1), the second tier of analysis is whether any of the
       five exceptions to immunity in subsection (B) apply. * * *

       Finally, under the third tier of analysis, immunity can be
       reinstated if the political subdivision can successfully argue that
       any of the defenses contained in R.C. 2744.03 applies.”

Hortman v. City of Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, ¶¶ 10-12,

quoting Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998).

       {¶22} The parties do not dispute that Marion is a political subdivision

within the meaning of the statute.       However the McNamaras argue that the

exception set forth in R.C. 2744.02(B)(3) precludes Marion from raising immunity

as a defense in this case. Specifically, this exception provides that

       (B) Subject to sections 2744.03 and 2744.05 of the Revised Code,
       a political subdivision is liable in damages in a civil action for
       injury, death, or loss to person or property allegedly caused by
       an act or omission of the political subdivision or of any of its
       employees in connection with a governmental or proprietary
       function, as follows:

       ***

       (3) Except as otherwise provided in section 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, except that it is a full defense to
       liability, when a bridge within a municipal corporation is


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Case No. 9-12-34


       involved, that the municipal corporation does not have the
       responsibility for maintaining or inspecting the bridge.

R.C. 2744.02(B)(3).     The McNamaras contend that Marion was negligent in

failing to remove an “obstruction” pursuant to the statutory exception, and

therefore Marion should not have been granted immunity.

       {¶23} In Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-

2792, the Ohio Supreme Court analyzed the statutory exception to immunity at

issue in this case, R.C. 2744.02(B)(3). In Howard, the Court first analyzed the

legislative history of R.C. 2744.02(B)(3), and ultimately found that the legislature

changed the language of the statute to language that further restricted the liability

of political subdivisions. The Court’s opinion in Howard stated the following:

       The current version of R.C. 2744.02(B)(3) was amended in part
       by Senate Bill 106 (“S.B. 106”), effective April 2003. Prior to
       that date, R.C. 2744.02(B)(3) read, “[P]olitical subdivisions are
       liable for injury, death, or loss to person or property caused by
       their failure to keep public roads, highways, streets, avenues,
       alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds
       within the political subdivisions open, in repair, and free from
       nuisance * * *.” (Emphasis added.) See 149 Ohio Laws, Part II,
       3500, 3508.
       ***

       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.




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Howard, ¶¶ 24, 26. The newer version of the statute removed the “free from

nuisance” language cited in Howard and replaced it with the language “negligent

failure to remove obstructions from public roads.” R.C. 2744.02(B)(3).

      {¶24} After the Court in Howard determined that the Ohio Legislature

intended to further limit political subdivision liability for roadways, the Court

analyzed what the Ohio Legislature meant by the word “obstruction” in the new

statute. The Court noted that “obstruction” was not defined in the Revised Code,

so the Court defined “obstruction.” In Howard, the Court “conclude[d] that for

the purposes of R.C. 2744.02(B)(3), 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.

      {¶25} The principle issue before us is whether the beam struck by Michael

was an “obstruction” within the meaning of R.C. 2744.02(B)(3). The record

before this court establishes that the beam was three to four inches high and

roughly eight feet in length. (Greg DuBois Aff. Doc. 40). The beam is a crossbar

for one of Marion’s traffic-control barricades. The barricade that the beam was

part of was disassembled with the two A-shaped sawhorse legs lying nearby in the

grass. Only the beam itself was in the road. The pictures provided in the record

illustrate that the beam was present across approximately one-third of the roadway


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Case No. 9-12-34


in question, a fact that the McNamaras concede in their brief to this court.4 See

also (Joshua Harris Aff. Doc. 40) for photographs illustrating the available

roadway.

        {¶26} As the photographs in the record illustrate, the beam in question did

not “block” or “clog” the roadway as traffic could easily navigate around the beam

and traffic had ample space to maneuver. While the beam may hinder or impede a

traveler’s ability to use the entire roadway, it does not block or clog the roadway

in such a manner as to fall under the definition of obstruction provided in Howard.

Based upon the definition of “obstruction” in Howard we find that this beam may

“hinder” or “impede” but it does not “block” or “clog” the roadway. Furthermore,

as the Ohio Supreme Court suggests in Howard that the legislature intended to

limit political subdivisions’ liability for injuries on the roadway, we find that

summary judgment was properly awarded to Marion.

        {¶27} We note that the McNamaras cited multiple cases from other District

Courts interpreting the Howard decision’s definition of obstruction. See Crabtree

v. Cook, 10th Dist. No. 10AP-343, 2011-Ohio-5612; Widen v. County of Pike, 4th

Dist. No. 09CA794, 2010-Ohio-2169; Ohio Edison Co. v. Wilkes, 7th Dist. No.

10MA174, 2012-Ohio-2718. The trial court found the Crabtree decision readily

distinguishable, and we do as well.               The Crabtree case dealt with multiple


4
 While the McNamaras concede that the beam only took up one-third of the roadway, they argue that the
beam covered the entire lane of travel for bicycles. See Appt. Br. at 6.

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Case No. 9-12-34


potential obstructions (potholes, caked mud, overhanging vegetation) in the only

lane of travel. Crabtree at ¶¶ 10-12. Clearly that is not the case here. We find the

other cases cited by the McNamaras are even more readily distinguishable than

Crabtree or are unpersuasive to our holding.       Accordingly, the McNamaras’

assignment of error is overruled.

       {¶28} As we have not reversed the case based on the McNamaras’

assignment of error, Marion’s assignment of error is rendered moot and is

therefore overruled.

       {¶29} For the foregoing reasons the judgment of the Marion County

Common Pleas Court is affirmed.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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