[Cite as Sanderbeck v. Medina Cty., 130 Ohio St.3d 175, 2011-Ohio-4676.]




     SANDERBECK, APPELLEE, v. COUNTY OF MEDINA ET AL., APPELLANTS.
  [Cite as Sanderbeck v. Medina Cty., 130 Ohio St.3d 175, 2011-Ohio-4676.]
Appeal dismissed as having been improvidently accepted.
    (No. 2010-1654—Submitted June 8, 2011—Decided September 20, 2011.)
    APPEAL from the Court of Appeals for Medina County, No. 09CA0051-M,
                                    2010-Ohio-3659.
                                 __________________
        {¶ 1} The cause is dismissed, sua sponte, as having been improvidently
accepted.
        O’CONNOR, C.J., and PFEIFER, CUPP, and MCGEE BROWN, JJ., concur.
        LUNDBERG STRATTON, O’DONNELL, and LANZINGER, JJ., dissent.
                                 __________________
        O’DONNELL, J., dissenting.
        {¶ 2} This case presents a question of great significance that affects
political subdivisions and their residents across this state: whether a political
subdivision may be deprived of its sovereign immunity and forced to defend
against an allegation that a roadway it maintains contributed to an accident based
only on the opinion of an expert that the roadway lacked adequate skid resistance.
        {¶ 3} The decision of the court of appeals in this case subjects political
subdivisions to potential liability for automobile accidents that occur within their
territorial limits, based on nothing more than an expert’s claim that the road is out
of repair because its coefficient of friction falls below an abstract threshold.
Because that decision expands the exception to political-subdivision immunity for
the negligent failure to maintain a roadway beyond that intended by the General
Assembly and potentially imposes on political subdivisions a duty to defend in
cases arising out of accidents where skid resistance becomes an issue, and
                             SUPREME COURT OF OHIO




because an issue of this importance deserves a decision on the merits to clarify the
law for Ohio appellate courts, I respectfully dissent from the majority’s decision
to dismiss this appeal as having been improvidently accepted.
       {¶ 4} On March 4, 2006, Michelle Sanderbeck rode in the back seat of a
vehicle driven at a high rate of speed by 16-year-old Steven W., as it approached
an S curve on East Smith Road in Medina County. The driver lost control of the
vehicle, crossed the eastbound lane of traffic, left the road, and drove into a
drainage ditch, flipping the vehicle onto its top and coming to rest on a stone
retaining wall. Michelle died in that crash.
       {¶ 5} Raymond Sanderbeck (individually and as administrator of
Michelle’s estate) filed a wrongful-death action against Medina County, asserting
that it had negligently, recklessly, and willfully and wantonly failed to keep East
Smith Road in repair, proximately causing his daughter’s death.
       {¶ 6} The county asserted its political-subdivision immunity, but
Sanderbeck contended that an exception to the county’s immunity applied
pursuant to R.C. 2744.02(B)(3), which provides 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.” In support of his position, Sanderbeck
relied on the expert opinion of Richard L. Stanford II, who opined that at the time
of the crash, “East Smith Road was in disrepair and a contributing factor in the
accident that claimed Michelle Sanderbeck’s life.”
       {¶ 7} Stanford explained that roadway curves have a characteristic known
as “critical speed,” which is “the speed at which the tires of a turning vehicle
attempting to negotiate the curve will begin to sideslip, often resulting in a loss of
control of the vehicle.” Stanford further testified that roads also have a “skid
number” based on their coefficient of friction that relates to their skid resistance,
and he asserted that a high-volume roadway like East Smith Road is considered
out of repair if it has a skid number of 38 or less. He therefore believed that the



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“worn out” condition of East Smith Road contributed to the accident because, at
the time of the crash, the critical speed of the curve was 45 m.p.h. or less and the
road had a skid number of only 25.
       {¶ 8} The trial court denied the county’s motion for summary judgment,
and the Ninth District upheld that decision, holding that the testimony of
Sanderbeck’s expert established a genuine issue of material fact regarding the
claim that the county had failed to keep the road in repair.
       {¶ 9} On appeal, the county maintains that Sanderbeck presented no
evidence that it had failed to keep the road in repair, because his expert had no
knowledge of the skid resistance of the road at the time of its design or
construction. Sanderbeck responds that Stanford’s testimony regarding the
insufficient skid resistance of the road at the time of the accident demonstrates
that the county failed to maintain it in a safe condition.
       {¶ 10} This case concerns an issue of public and great general interest:
whether a political subdivision may be deprived of a benefit of its sovereign
immunity based only on the opinion of an expert that the skid resistance of the
road fell below a certain theoretical threshold level at the time of an accident,
without knowing the skid resistance of the road at the time of its construction.
       {¶ 11} R.C. 2744.02(A)(1) generally affords political subdivisions
immunity from tort actions, providing that “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 or an employee of the
political subdivision in connection with a governmental or proprietary function.”
R.C. 2744.01(C)(2)(e) specifically defines the maintenance and repair of roads to
be a governmental function.
       {¶ 12} Nonetheless, R.C. 2744.02(B)(3) establishes an exception to this
immunity: “[P]olitical 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



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negligent failure to remove obstructions from public roads * * *.” (Emphasis
added.)
          {¶ 13} In my view, the testimony of an expert regarding the adequacy of a
roadway’s skid resistance at the time of an accident does not without more
establish that the road is out of repair for purposes of R.C. 2744.02(B)(3). Our
duty in construing statutes is to determine and give effect to the intent of the
General Assembly in enacting them. Fisher v. Hasenjager, 116 Ohio St.3d 53,
2007-Ohio-5589, 876 N.E.2d 546, ¶ 20. And as we explained in Symmes Twp.
Bd. of Trustees v. Smyth (2000), 87 Ohio St.3d 549, 553, 721 N.E.2d 1057,
“[w]hen the language of a statute is plain and unambiguous and conveys a clear
and definite meaning, there is no need for this court to apply the rules of statutory
interpretation.”
          {¶ 14} R.C. 2744.02(B)(3) is unambiguous, and we need only apply it
here. The plain meaning of the word “repair” is “to put back in good condition
after damage [or] decay.”        Webster’s New World College Dictionary (4th
Ed.2000) 1214.       Thus, in order for a claimant to establish that a political
subdivision has failed to keep a public road in repair, there must be evidence
presented regarding the condition of the roadway prior to its alleged damage or
deterioration in order to show that the duty to maintain a public road has been
violated.
          {¶ 15} It is recognized that a political subdivision is immune from suit for
the design and construction of a roadway, see Haynes v. Franklin, 95 Ohio St.3d
344, 2002-Ohio-2334, 767 N.E.2d 1146, ¶18 (construing analogous predecessor
statute), but not for failure to maintain a roadway in good repair.              R.C.
2744.02(B)(3).
          {¶ 16} Here, Sanderbeck presented expert testimony regarding the skid
resistance of the road at the time of the accident, but he presented no evidence
establishing its skid resistance at the time of design and construction. In my view,



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testing regarding the skid resistance of the road at the time of the accident fails to
establish a genuine issue of material fact regarding his claim that Medina County
is liable for negligent failure to keep public roads in repair.
        {¶ 17} The General Assembly, as the final arbiter of public policy in Ohio,
has intended “to limit political-subdivision liability for roadway injuries and
deaths,” Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792,
891 N.E.2d 311, ¶ 29, with a purpose to preserve “ ‘the fiscal integrity of political
subdivisions.’ ” Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873
N.E.2d 878, ¶ 23, quoting Wilson v. Stark Cty. Dept. of Human Servs. (1994), 70
Ohio St.3d 450, 453, 639 N.E.2d 105; see also Rankin v. Cuyahoga Cty. Dept. of
Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521,
¶ 34. The court of appeals’ decision in this case frustrates that policy and imposes
on political subdivisions the duty to defend in numerous cases raising claims
similar to those presented here, exposing them to potential liability for all
accidents occurring on roads within their territorial limits. I would prefer to
decide the issues here, review the evidence to determine whether the county
breached its duty to keep the roadway in repair, and further consider the immunity
granted to political subdivisions and the application of R.C. Chapter 2744 to the
facts of this case, given the other attendant factors that could have contributed to
this accident.
        {¶ 18} Because the majority dismisses this appeal as having been
improvidently accepted without reaching its merits, I respectfully dissent.
        LUNDBERG STRATTON, J., concurs in the foregoing opinion.
                                __________________
        LANZINGER, J., dissenting.
        {¶ 19} I respectfully dissent from the majority’s decision to dismiss this
appeal as having been improvidently accepted.             We have been given the
opportunity to set forth parameters with respect to the sufficiency of evidence



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needed to create a material issue of fact on whether a road is kept “in repair,” thus
subjecting a political subdivision to the possibility of liability under R.C.
2744.02(B)(3).    This is an important question for all political subdivisions
throughout the state and should be answered.
       {¶ 20} Because I believe that the evidence offered by appellee, Raymond
J. Sanderbeck, in opposition to the motion for summary judgment filed by Medina
County and the Medina County Board of Commissioners (“the county
appellants”) is insufficient to raise an issue over the assertion that the county
appellants negligently failed to keep the road in question in repair, appellee is
unable to establish an exception to R.C. 2744.02(A)(1)’s general grant of
sovereign immunity. I would hold that the county appellants are entitled to
summary judgment on the grounds of immunity and accordingly would reverse
the decision of the court of appeals.
                               I. Case Background
       {¶ 21} This case arises from a tragic, single-car collision that occurred on
March 4, 2006, in Medina County, resulting in the death of Michelle L.
Sanderbeck. The driver, who was exceeding the posted advisory speed limit of 25
miles per hour on East Smith Road, had failed to negotiate an S curve and
overturned the car into an embankment.
       {¶ 22} Sanderbeck filed this wrongful-death action individually and as
administrator of his daughter’s estate against the county appellants, asserting that
they had negligently, recklessly, and willfully and wantonly failed to perform the
necessary care, supervision, and control in the maintenance and repair of East
Smith Road, proximately causing his daughter’s death.
       {¶ 23} The county appellants filed a motion for summary judgment,
arguing that they were entitled to statutory immunity under R.C. 2744.02(A)(1).
The trial court denied summary judgment after finding that questions of fact




                                         6
                                 January Term, 2011




remained on whether the road had been in repair and whether the county
appellants had been required to install a guardrail at the site of the accident.
       {¶ 24} The Ninth District Court of Appeals affirmed the judgment in part
and reversed it in part. The court of appeals held first that Sanderbeck’s expert’s
affidavit and deposition testimony that East Smith Road was in disrepair at the
time of the accident constituted evidence sufficient to prevent summary judgment
in the county appellants’ favor. 2010-Ohio-3659, at ¶ 12. The appellate court
also held, however, that Sanderbeck failed to show a duty on the part of the
county and board to erect a guardrail, because the drainage ditch running parallel
to East Smith Road and under a driveway was not a “culvert” within the meaning
of R.C. 5591.36. Id. at ¶ 17. Thus, the trial court’s order denying summary
judgment was affirmed on the repair issue but was reversed on the guardrail issue.
       {¶ 25} We accepted the first proposition of law presented by the county
appellants on their discretionary appeal: “Under R.C. 2744.02(B)(3), the skid
resistance of a road does not raise a repair issue when no evidence exists
regarding the skid resistance of the road at the time of design or construction.
(R.C. 2744.02(B)(3) interpreted and applied.)” 127 Ohio St.3d 1502, 2011-Ohio-
19, 939 N.E.2d 1266. We are asked to interpret the meaning of the statute that
sets forth the duty of the county appellants to repair roads and the evidence
needed to create a material issue of fact on the liability of political subdivisions
under R.C. 2744.02(B)(3). As part of this analysis, we must determine whether a
political subdivision may be deprived of the benefit of its sovereign immunity
based only on the opinion of an expert who, without knowing the skid resistance
at the time of the road’s construction, asserted that the skid resistance of the road
was below a certain theoretical threshold level at the time of an accident.




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                                   II. Analysis
       A. Political-Subdivision Tort Immunity under R.C. Chapter 2744
       {¶ 26} The Political-Subdivision Tort Liability Act, R.C. Chapter 2744,
was enacted in response to the judicial abolishment of common-law sovereign
immunity for political subdivisions in Haverlack v. Portage Homes, Inc. (1982), 2
Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749. The statutory scheme requires a
three-tiered analysis. R.C. 2744.02(A)(1) provides that a political subdivision is
generally not liable for damages for injury, death, or loss to persons or property
incurred in connection with the performance of a governmental or proprietary
function of the political subdivision. R.C. 2744.02(B) lists several exceptions to
the general grant of sovereign immunity. Even if an exception applies under R.C.
2744.02(B), however, immunity may be restored if a political subdivision can
assert one of the defenses to liability found in R.C. 2744.03.
       {¶ 27} “Political subdivision” means “a municipal corporation, township,
county, school district, or other body corporate and politic responsible for
governmental activities in a geographic area smaller than that of the state.” R.C.
2744.01(F). County appellants fall squarely within this definition of “political
subdivision,” while the term “governmental function” specifically includes “the
maintenance and repair” of roads. R.C. 2744.01(C)(2)(e).
       {¶ 28} But there are several exceptions to the general grant of sovereign
immunity, as listed by R.C. 2744.02(B).              Sanderbeck relies on R.C.
2744.02(B)(3), which provides: “[P]olitical subdivisions are liable for * * * death
* * * caused by their negligent failure to keep public roads in repair * * *.” In
responding to the county appellants’ motion for summary judgment, Sanderbeck
asserted that a material question of fact existed on whether the county appellants
had kept East Smith Road “in repair” within the meaning of R.C. 2744.02(B)(3).




                                         8
                                  January Term, 2011




          B. Scope of R.C. 2744.02(B).
          {¶ 29} For their part, the county appellants argue that “in repair” as used
in R.C. 2744.02(B)(3) refers to “maintaining a road’s condition after construction
or reconstruction.” They assert that the Ninth District Court of Appeals failed to
properly interpret the statute when it held that the testimony of Sanderbeck’s
expert was sufficient to create a genuine issue of material fact because the
expert’s testimony at best indicated a design flaw, rather than a failure to keep the
road in repair. Sanderbeck responds that the lower courts correctly determined
that the expert’s testimony, along with other evidence depicting the roadway,
created a genuine issue on whether the county appellants had kept the road in
repair.
          {¶ 30} To prevail in their motion for summary judgment, the county
appellants must show that there is no genuine issue of material fact in this case.
Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264. Sanderbeck
cannot avoid summary judgment merely by showing that some facts are in
dispute. In this case, R.C. 2744.02(B)(3) provides the possibility of an exception
to a political subdivision’s immunity from tort liability when the political
subdivision has failed to keep public roads in repair. The material issue in this
case, then, is whether the county appellants failed in their duty to keep the road in
repair. To answer this question, one must first determine the definition of the
phrase “in repair,” which is undefined in R.C. Chapter 2744.
          {¶ 31} I agree with the county appellants that the phrase “in repair” refers
to a public subdivision’s duty to maintain a road’s condition after construction or
reconstruction. In a case decided before R.C. Chapter 2744 was enacted, we
stated that a statute setting forth a duty of county commissioners to keep roads “in
proper repair” created “a duty on the commissioners only in matters concerning
either the deterioration or disassembly of county roads and bridges.” Heckert v.
Patrick (1984), 15 Ohio St.3d 402, 406, 15 OBR 516, 473 N.E.2d 1204. Given



                                           9
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the broad grant of sovereign immunity in R.C. 2744.02(A)(1), however, we
cannot read R.C. 2744.02(B)(3) as allowing a claimant to establish that an
exception to immunity exists by merely asserting that a road does not have a
certain skid-resistance number. To establish a genuine issue of material fact on
whether the road lacked appropriate maintenance, i.e., was out of repair, evidence
must be adduced to prove that the skid resistance of the roadway had deteriorated
from an earlier condition. Only in this manner can a claimant demonstrate that
the lack of adequate skid resistance is attributable to the failure to maintain a
public roadway.
        C. Insufficient evidence of “failure to keep public roads in repair”
        {¶ 32} Sanderbeck failed to submit evidence sufficient to create a genuine
issue of material fact on this crucial point.
        {¶ 33} Sanderbeck relied on the expert opinion of Richard L. Stanford II,
who gave an opinion that at the time of the crash, “East Smith Road was in
disrepair and a contributing factor in the accident that claimed Michelle
Sanderbeck's life.” Stanford stated that roadway curves have a characteristic
known as “critical speed,” which is “the speed at which the tires of a turning
vehicle attempting to negotiate the curve will begin to sideslip, often resulting in a
loss of control of the vehicle.” Stanford further testified that roads also have a
“skid number” based on their coefficient of friction that relates to their skid
resistance, and he asserted that a high-volume roadway like East Smith Road is
considered out of repair if it has a skid number of 38 or less. He therefore
believed that the “worn out” condition of East Smith Road contributed to the
accident because, at the time of the crash, the critical speed of the curve was 45
miles per hour or less and the road had a skid number of only 25.
        {¶ 34} In summary, the evidence Sanderbeck provided was that (1) the
“skid number” of the roadway is a calculation that determines the deterioration of
the pavement friction characteristics of the road or, in other words, how



                                          10
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susceptible a roadway is to having cars slip off the roadway; (2) a skid number of
25 was calculated for the portion of East Smith Road where the accident occurred;
(3) anything less than a skid number of 38 on a high-volume road would qualify
as “disrepaired pavement”; (4) the “critical speed” for a curve in a roadway is the
speed at which the tires of a turning vehicle will begin to slip, potentially causing
a loss of control of the vehicle; (5) Stanford’s opinion was that the critical speed
of East Smith Road at the time of the accident was at or below the posted speed
limit of 45 miles per hour; (6) East Smith Road was “in disrepair”;1 and (7) the
condition of East Smith Road was a contributing factor in the accident that
resulted in Michelle Sanderbeck’s death.
        {¶ 35} While appellee argues that Stanford’s testimony creates a genuine
issue of material fact, there was no evidence offered that established that the
roadway on the date of the accident had deteriorated from an earlier standard due
to the county appellants’ lack of maintenance.
        {¶ 36} The difference between a road containing a design defect and a
road that has fallen into disrepair is of critical importance in this case. R.C.
2744.02(B)(3) specifically provides that a political subdivision may be liable in
tort for negligent failure to keep public roads in repair. But we have held that
allegations involving design flaws “involve discretionary functions as provided in
R.C. 2744.03(A)(3) and (5)” and that “the defenses found in R.C. 2744.03(A)(3)
and (5) preclude the imposition of liability on a political subdivision for any acts
or omissions related to these discretionary functions.” Franks v. Lopez (1994), 69
Ohio St.3d 345, 349-350, 632 N.E.2d 502. We have stated further that a “plaintiff
must establish that the cause of the condition was other than a decision regarding


1. Stanford’s statement that the road was in disrepair is not based on supporting facts. “It is
improper for an expert's affidavit to set forth conclusory statements and legal conclusions without
sufficient supporting facts.” Douglass v. Salem Community Hosp., 153 Ohio App.3d 350, 2003-
Ohio-4006, 794 N.E.2d 107, at ¶ 28.




                                                11
                                  SUPREME COURT OF OHIO




design and construction” to overcome the hurdle of a political subdivision’s
immunity. (Emphasis sic.) Haynes v. Franklin, 95 Ohio St.3d 344, 348, 2002-
Ohio-2334, 767 N.E.2d 1146, ¶ 18. Although both cases construed a previous
version of R.C. 2744.02(B)(3) that contained the repealed concept of “nuisance,”
the principle remains under the current version of the statute:                       a political
subdivision is immune from liability for design or construction defects because
decisions on those matters involve discretion on the part of employees of a
political subdivision.
        {¶ 37} Sanderbeck also relies upon photographs attached to the county
appellants’ motion for summary judgment that depict the road the day after the
accident occurred, asserting that they indicate spalling, i.e., physical deterioration
of the pavement, and create a genuine issue of material fact on whether the road
was in repair for purposes of R.C. 2744.02(B)(3). Yet as with the skid number
and critical speed, the trial court was incorrect in stating that a material issue of
fact on repair was created by these photographs, for no photographs were
admitted showing the condition of the road beforehand for a basis of comparison.2
Furthermore, Sanderbeck’s assertion that his expert relied upon the photographs
in forming his opinion that the road was in disrepair is contradicted by Stanford’s
deposition statement that while the pictures depicted deterioration in the road, that
was not the “key point,” and “The key point is we have a measurement of the
friction characteristics which tell us that it was worn out or out of repair.”
        {¶ 38} Viewed as a whole and in a light most favorable to appellee, the
testimony of Stanford relates only to a potential flaw in the road’s design or
construction rather than the failure to adequately maintain the road. Stanford


2. Appellants assert that the photographs do not show that the road had deteriorated, while
appellee argues that the photographs provide evidence of deterioration. Because these
photographs cannot constitute evidence of a failure to keep the road in repair without photographs
showing the road while it was alleged to be in repair, I would not address the issue of whether the
photographs depicted deterioration.




                                                12
                                January Term, 2011




stated his opinion that at the time of the accident, the road’s skid number fell
below accepted standards and that the critical speed of the road was below the
posted speed limit. Each of these measurements, however, concerns the design or
construction of the road. Because the county appellants are immune from liability
for faulty design or construction, this evidence is not sufficient to defeat the
county appellants’ motion for summary judgment.
       {¶ 39} Under R.C. 2744.02(B)(3), the skid resistance and critical speed of
a road do not raise a repair issue when no evidence exists suggesting that the road
had deteriorated from an earlier standard due to a lack of maintenance. I would
hold that the county appellants are entitled to immunity as a matter of law.
                                  III. Conclusion
       {¶ 40} Because I conclude that appellee, Raymond J. Sanderbeck, failed to
offer sufficient evidence to raise a genuine issue of material fact on the issue of
the political-subdivision immunity of Medina County and the Medina County
commissioners under R.C. 2744.02(B)(3), I dissent from the majority’s decision
to dismiss this case as having been improvidently accepted. I would instead
reverse the decision of the court of appeals.
       LUNDBERG STRATTON, J., concurs in the foregoing opinion.
                               __________________
       Mannion & Gray Co., L.P.A., and Bradley J. Barmen, for appellee.
       Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, and Frank H.
Scialdone, for appellants.
       Schottenstein, Zox & Dunn Co., L.P.A., Stephen L. Byron, and Stephen J.
Smith; and John Gotherman, urging reversal for amicus curiae Ohio Municipal
League.
       Isaac, Brant, Ledman & Teetor, L.L.P., Mark Landes, and Derek L.
Haggerty, urging reversal for amici curiae County Commissioners Association of




                                         13
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Ohio, Ohio Township Association, Lorain County Township Association, County
Engineers Association of Ohio, and Coalition of Large Ohio Urban Townships.
       Davis & Young and Richard M. Garner, urging reversal for amicus curiae
Ohio Association of Civil Trial Attorneys.
                           ______________________




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