       [Cite as Buchenroth v. Cincinnati, 2019-Ohio-2560.]




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




DANIEL P. BUCHENROTH,                           :            APPEAL NO. C-180289
                                                             TRIAL NO. A-1800082
         Plaintiff-Appellee,
                                                :               O P I N I O N.
       vs.
                                                :
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 26, 2019




Edward C. Yim, for Plaintiff-Appellee,

Paula Boggs Muething, City Solicitor, and Marva K. Benjamin, Assistant City
Solicitor, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




CROUSE, Judge.

       {¶1}     The city of Cincinnati (“city”) has appealed from the trial court’s order

denying its Civ.R. 12(C) motion for judgment on the pleadings. In one assignment of

error, the city argues that the trial court erred in denying the city’s motion for

judgment on the pleadings because the city has tort immunity for crosswalk signs

and road markings that it provided, which designated a midblock crosswalk for

pedestrian travel. Because we agree that the city is immune from suit, we reverse.

                                  Factual Background


       {¶2}     In January 2017, while walking in a marked midblock crosswalk

located near 249 Calhoun Street in Cincinnati, plaintiff-appellee Daniel Buchenroth

was hit by a car driven by Robert Weber. Buchenroth brought suit against Weber,

Blue Cross and Blue Shield, the city of Cincinnati, and the Cincinnati Division of

Traffic and Engineering. This case concerns only Buchenroth’s claims against the

city. Buchenroth’s complaint alleges that the city was negligent in its inspection,

maintenance, repair, design, construction, and erection of crosswalk markings and

warning signs that governed pedestrian and vehicular traffic at the crosswalk near

249 Calhoun Street.

                          Political Subdivision Tort Immunity


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

2744, employs a three-part analysis to determine the tort liability of political

subdivisions.    First, political subdivisions are generally granted immunity from

liability for injury or death in connection with their performance of a governmental




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or proprietary function. Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-

Ohio-2792, 891 N.E.2d 311, ¶ 18. Second, the court considers whether an R.C.

2744.02(B) exception to that general rule of immunity applies. Id. Third, if an

exception does apply, then the court must determine whether the city can reestablish

immunity by demonstrating another statutory defense. Id.

       {¶4}   It is undisputed that the city is a “political subdivision” as defined in

R.C. 2744.01(F), and that the maintenance of crosswalks and traffic-control devices

is a governmental function under R.C. 2744.01(C)(2)(e) and (j). This means the city

is generally immune from tort liability for the maintenance of crosswalks and traffic-

control devices.

       {¶5}   At issue is whether an R.C. 2744.02(B) exception applies to the general

rule of immunity. Buchenroth argues that the “public roads” exception of R.C.

2744.02(B)(3) applies to deprive the city of immunity.

       {¶6}   R.C. 2744.02(B)(3) provides, in relevant 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 and other negligent failure to remove

obstructions from public roads * * *.”

       {¶7}   “Public roads” does not include traffic-control devices unless the

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

Devices (“OMUTCD”). R.C. 2744.01(H). A “traffic control device” includes any sign,

signal, marking, or other device used to regulate, warn, or guide traffic, placed on,

over, or adjacent to a street or highway. R.C. 4511.01(QQ).

       {¶8}   It is undisputed that the crosswalk signs and lines in this case are

traffic-control devices. The question is whether the crosswalk signs and lines are




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                      OHIO FIRST DISTRICT COURT OF APPEALS



mandated by the revised code or the OMUTCD, thereby bringing them within the

public-roads exception of R.C. 2744.02(B)(3).

       {¶9}   When ruling on a motion for judgment on the pleadings, the court may

take judicial notice of appropriate matters without converting the motion to a motion

for summary judgment. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio

St. 3d 580, 581, 669 N.E.2d 835 (1996). This includes matters which are “capable of

accurate and ready determination by resort to sources whose accuracy cannot be

reasonably questioned,” and so are “not subject to reasonable dispute.” Evid.R.

201(B).

       {¶10} In its memorandum in support of its motion for judgment on the

pleadings, the city attached exhibits 2A and 2B, which are photographs of the road,

crosswalk, and crosswalk signs where the accident occurred. During the hearing,

Buchenroth stipulated that exhibits 2A and 2B accurately depicted the crosswalk

signs and road markings and that the court could take judicial notice of those

exhibits. It is also undisputed, and the exhibits show, that the crosswalk in question

is a midblock crosswalk.

                                      Crosswalk Signs

       {¶11} Buchenroth argues that Calhoun Street is a through highway with

intersections along it, and so the crosswalk signs are mandatory even if the crosswalk

is a midblock crosswalk.

       {¶12} R.C. 4511.65(A) provides:

       All state routes are hereby designated as through highways, provided

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

       all intersections with such through highways by the department of




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       transportation * * *. Where two or more state routes that are through

       highways intersect and no traffic control signal is in operation, stop

       signs or yield signs shall be erected at one or more entrances thereto *

       * *.

A plain reading of R.C. 4511.65(A) indicates that traffic-control signals are to be

erected at all intersections of through highways.

       {¶13} The use of non-vehicular traffic-control signals, such as crosswalk

signs, is further governed by OMUTCD 2C.50. The language of section 2C.50 is clear

that the placement of crosswalk signs is discretionary, not mandatory.            “Non-

vehicular warning signs may be used to alert road users * * *.” (Emphasis added).

OMUTCD 2C.50, ¶ 1. Case law supports these interpretations.

       {¶14} In Bibler v. Stevenson, 150 Ohio St.3d 144, 2016-Ohio-8449, 80

N.E.3d 424, ¶ 20, the Ohio Supreme Court held that the public-road exception

applied, and so the city was not immune for failing to properly maintain a stop sign

at an intersection of two roads. “Pursuant to R.C. 2744.01(H), a stop sign is excluded

from the definition of a public road unless it is mandated by the OMUTCD.” Bibler

at ¶ 11. OMUTCD section 2B.05 indicated that the placement of stop signs was

discretionary (“stop signs should be used in certain circumstances”). (Emphasis

added). Id. at ¶ 14.

       {¶15} Nevertheless, R.C. 4511.65(A) mandated that “stop signs, yield signs,

or traffic control signals shall be erected at all intersections with through highways *

* *.” (Emphasis added). The court found the OMUTCD to be subservient to the

Revised Code, and determined that when the two contradicted each other, the

Revised Code controlled.     Id. at ¶ 16.   Since the stop sign was located at the




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                     OHIO FIRST DISTRICT COURT OF APPEALS



intersection of two through highways, the sign was mandatory under R.C. 4511.65.

Id.   Since the sign was mandatory, it fell within the public-roads exception to

immunity. Id. at ¶ 17.

       {¶16} There is no contradiction between the OMUTCD and the Revised Code

in the present case.     Therefore, the discretionary language in OMUTCD 2C.50

controls and crosswalk signs are not mandatory.

       {¶17} The court reached a similar result in Deitz v. Harshbarger, 2017-Ohio-

2917, 89 N.E.3d 1271, ¶ 25 (3d Dist.), appeal not allowed, 151 Ohio St.3d 1507, 2018-

Ohio-365, 90 N.E.3d 948, where it found the stop sign in question to be

discretionary, and not mandatory. “Based on the plurality's analysis [in Bibler],

traffic-control devices are mandated only at intersections involving through

highways.” Deitz at 31. Although the sign was at an intersection, the roads in

question were not through highways, and so the court determined that the sign was

discretionary under R.C. 4511.65. Id. at ¶ 32.

       {¶18} In Walters v. Columbus, 10th Dist. Franklin No. 07AP-917, 2008-

Ohio-4258, ¶ 23, the Tenth District held that the stop sign in question was

discretionary, and so did not fall under the public-roads exception to political

subdivision immunity.

       [W]e note that the General Assembly explicitly excluded traffic control

       devices from the definition of a ‘public road’ unless the traffic control

       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.

Id. at ¶ 20.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19} It is clear from Walters, the plain language of the statute, and the

OMUTCD that the legislature did not intend for every traffic-control device to be

considered mandatory and part of a public road. Likewise, the plain language of R.C.

4511.65(A) and Bibler and Deitz demonstrate that traffic-control devices at midblock

crosswalks are not mandatory and are not part of a public road.

                                  Crosswalk Lines

       {¶20} With regard to the crosswalk lines specifically, Buchenroth argues that

the use of the word “shall” in section 3B.18 of the OMUTCD mandates crosswalk

lines. Section 3B.18 ¶ 3-4 provides:

       [a]t non-intersection locations, crosswalk markings legally establish

       the crosswalk. When crosswalk lines are used, they shall consist of

       solid white lines that mark the crosswalk. They shall be not less than 6

       inches or greater than 24 inches in width.

Section 3B.18 provides that crosswalk markings legally establish the crosswalk, and

provides that certain requirements must be met when crosswalk lines are used, but it

does not mandate usage of crosswalk lines at non-intersection locations.

       {¶21} Furthermore, section 3B.18 ¶ 8 warns that “crosswalk lines should not

be used indiscriminately.    An engineering study should be performed before a

marked crosswalk is installed at a location away from a traffic control signal.”

Section 3B.18 ¶ 11 says that warning signs “should” be installed at non-intersection

crosswalks. There is nothing in the OMUTCD which indicates that crosswalk lines

are to be treated as mandatory traffic-control devices. The public-roads exception to

immunity does not apply, and therefore, whether the crosswalk in question complied

with the exact requirements of section 3B.18 is irrelevant.




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                      OHIO FIRST DISTRICT COURT OF APPEALS


                                       Conclusion


       {¶22} Because the crosswalk signs and lines are not mandatory traffic-

control devices, they do not fall within the public-roads exception to political

subdivision immunity. There is no set of facts which Buchenroth could prove which

would permit him to recover.         Discovery will not change the location of the

crosswalk, which is the defining issue in this case.

       {¶23} The trial court erred in denying the city’s motion for judgment on the

pleadings. The sole assignment of error is sustained. The judgment is reversed and

the cause is remanded to the trial court with instructions to enter an order granting

the city’s motion for judgment on the pleadings.

                                               Judgment reversed and cause remanded.



MYERS, P.J., and WINKLER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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