Immunity Under R.C. Chapter 2744
Generally, pursuant to R.C. Chapter 2744, political subdivisions are not liable for injury or death to persons in connection with the political subdivision’s performance of a governmental or proprietary function. However, R.C. § 2744.02(B)(3) provides exceptions to that general grant of immunity, including one for the “negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads.”
Bibler et al. v. Stevenson et al.
The Third District Court of Appeals recently considered the issue of political subdivision immunity under R.C. § 2744.02(B)(3) in Bibler v. Stevenson, 38 N.E.3d 952, 959 (3d Dist. 2015). There, appellee Stevenson failed to stop at a stop sign at an intersection in Findlay, Ohio, and collided with appellants Bibler. Id. at 954. Stevenson claimed that she was unable to see the stop sign because it had been blocked by tree foliage. Id. The Biblers filed suit against Stevenson for failure to stop, as well as the City of Findlay for failing to ensure that the stop sign was visible. Id. The Third District Court of Appeals upheld the trial court’s determination that the City of Findlay was entitled to political subdivision immunity, based on several factors. Id. at 954, 959.
First, the Third District noted that, in order for the City of Findlay to be exempt from immunity, the stop sign at issue in that case must be considered part of the “public road.” Id. at 956. Under R.C. § 2744.01(H), the term “public roads” does not include traffic control devices (such as stop signs), unless the device is mandated by the Ohio Manual of Uniform Traffic Control Devices (“OMUTCD”). Id. at 956-57. Next, the Third District reviewed the OMUTCD, which specifies that “[s]tandards using the word ‘should’ are considered to be advising, but not mandating, the particular signage or other device.” Id. at 957. Finally, the Third District found that the stop sign at issue was regulated by a section of the OMUTCD that used the word “should,” meaning that it was not mandated by the OMUTCD and, therefore, did not fall under the meaning of “public road.” Id. Accordingly, the Third District upheld the trial court’s determination that R.C. § 2744.02(B)(3) did not apply and the City of Findlay was entitled to immunity. Id.
However, on December 29, 2016, the Supreme Court of Ohio reversed the Third District’s decision. Bibler v. Stevenson, Slip Opinion No. 2016-Ohio-8449. The Court agreed with the Third District that the main issue was whether the stop sign was mandated; however, the Court relied on R.C. § 4511 to ultimately reach a different conclusion. Id. at ¶ 11-12. The Court noted that, pursuant to R.C. 4511.11(A), local authorities and their jurisdictions shall maintain traffic control devices “in accordance with the department of transportation manual of uniform system of traffic control devices[.]” Id. at ¶ 13. The Court further stated that “[o]ne of the requirements of R.C. 4511.01 through 4511.76 is the requirement in R.C. 4511.65(A) for the mandatory erection of stop signs (or some other traffic-control device) at intersections involving through highways[.]” Id. at ¶ 16. The Court noted that the stop sign at issue was located at an intersection involving a through highway and, therefore, reasoned that the stop sign was mandated. Id. at ¶¶ 17-18.
The Court further acknowledged that the OMUTCD failed to properly align with the language of R.C. § 4511.65. Id. However, the Court held that the purpose of the OMUTCD is simply to instruct political subdivisions as to how to comply with statutes, and the OMUTCD “does not undermine the underlying empowering statutes.” Id. Consequently, the Court held that the stop sign at issue in Bibler was mandatory and, thereby, part of the “public road.” Id. at ¶ 20. Consequently, the Court held that the City of Findlay was “not immune pursuant to R.C. § 2744.02(B)(3) and is potentially amenable to liability.” Id. Based upon this finding, the Court remanded the case back to the trial court for a determination as to whether the stop sign was, in fact, not in repair, or negligently obstructed. Id
Effect of Bibler v. Stevenson
Although the Supreme Court of Ohio’s decision in Bibler does not completely undermine the law established by past cases, it does allow for a broader definition of “public roads.” This makes it easier for courts to find that R.C. § 2744.02(B)(3) applies to exempt a political subdivision from immunity under R.C. § 2744. Specifically, the Court’s decision in Bibler indicates that, even when a stop sign, or other traffic control sign, is not deemed mandatory under R.C. § 2744 or the OMUTCD, courts are still justified in finding that the signage is mandatory based on the language of R.C. § 4511.65. When a sign is considered mandatory, it is part of the “public road,” and, as stated in R.C. § 2744.02(B)(3), a political subdivision can be liable for negligent failure to remove an obstruction to a “public road.”
However, it is important to note that the decision in Bibler was written by Justice Pfeifer, who has staunchly and consistently opposed the application of political subdivision immunity in various other cases considered by the Court. Moreover, Justice Lanzinger wrote a dissenting opinion to Justice Pfeifer’s decision, and stated that R.C. § 2744.01(H)’s definition of “public roads” only mentions the OMUTCD, and makes no mention of R.C. § 4511.65. Bibler, at ¶ 27. Justice Lanzinger reasoned that courts should not be able to use R.C. § 4511.65 as a basis to exempt political subdivisions from immunity under R.C. § 2744.02(B)(3) because it is never mentioned in R.C. Chapter 2744.
In sum, although the Court’s decision in Bibler may make it easier for courts to find that political subdivisions are exempt from immunity due to R.C. § 2744.02(B)(3), it is apparent that there is disagreement among the Supreme Court justices regarding this issue, and the Bibler decision was certainly not unanimous. However, in order to avoid additional costly litigation and possible liability resulting from the Supreme Court of Ohio’s recent decision, political subdivisions should make every effort to ensure that stop signs, and other traffic control devices are not obscured by tree foliage, or other obstacles.