Carney v. McAfee

Wright, J. The gravamen of this case is whether a municipality can be held liable under R.C. 723.01 for damages resulting from an automobile accident on a bridge located on a state highway within the municipality, where the bridge was designed and constructed by the state and the state is responsible for maintaining and inspecting the structure. All of appellees’ claims against appellant were premised on alleged violations of R.C. 723.01. Thus, if appellant owed a duty to appellees, which would be a prerequisite to liability, it would be a duty that arises under R.C. 723.01. This statute, as it read at the time of the accident, provided: “Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance.” To determine whether a duty was owed to appellees under this statute, we must first decide whether appellant is amenable to a lawsuit under the facts set forth in this case. Although we have overruled the judicially created doctrine of sovereign immunity, we have repeatedly held that immunity may still be provided by statute. Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26, 2 OBR 572, 442 N.E. 2d 749, paragraph two of the syllabus; Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31, 35, 6 OBR 53, 56, 451 N.E. 2d 228, 232; Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118, 6 OBR 178, 451 N.E. 2d 787. R.C. 723.54, as it was in effect at the time of the accident, provided in pertinent part: “The legislative authority of a municipality shall designate a municipal official to have responsibility for inspection of all bridges or portions thereof within such municipality, except for bridges on the state highway system and the county highway system. " * * * “A municipal corporation shall not be liable for damages under section 723.01 of the Revised Code for injuries to person or property on bridges for which the municipal corporation does not have the responsibility of maintenance or inspection.”3 (Emphasis added.) [55] Therefore, to determine whether statutory immunity is available to a municipality under this provision, we must decide what political subdivision is responsible for maintaining or inspecting the structure involved in the instant case. It is clear that Ohio law places such responsibility directly on the state of Ohio. R.C. 5523.17 provides, in pertinent part, that: “After the completion of the work of constructing * * * a separated crossing * * *, the separated crossing and the approaches thereto shall be kept in repair as follows: ‘ ‘(A) When the public way crosses the tracks of any railroad company by a structure carrying the highway over such tracks the responsibility for inspection and the cost of maintenance shall be borne by the state; H * * “(C) All such public ways and their approaches shall be inspected, maintained, and kept in repair by the state.” Since the bridge was constructed by the state as a separation crossing over a railroad, it is apparent that this statute applies and the state is obligated to maintain and inspect the structure.4 Simply because the city of San-dusky received state highway funds to maintain state roads within the city and sometimes performed repair work on these roads, including the bridge in question, does not show that the municipality assumed, or the county relinquished, any responsibility for maintaining or inspecting the bridge in question. Evidence that the city installed a guardrail on the bridge after the accident is not conclusive of responsibility either. The bridge was, and currently remains, a part of the state highway system; it was never dedicated to the city as a public street as was the case in Lengyel v. Brandmiller (1942), 139 Ohio St. 478, 22 O.O. 521, 40 N.E. 2d 909. In fact, the state inspects the bridge annually, and on its inspection report, it designates Erie County as the party responsible for maintenance. It is an undisputed fact that the bridge was designed and constructed by the state as part of the state highway system. As such, the state was obligated to inspect and maintain the structure and the approaches thereto, including the “watch for ice on bridge” signs that were erected on State Route 250 near the structure. As we stated in Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St. 3d 92, 30 OBR 295, 507 N.E. 2d [56] 352, paragraph one of the syllabus, “R.C. 723.01 does not create a duty requiring a municipality to protect individuals from, or warn them of, dangers existing on property which is beyond its corporate limits or control.” (Emphasis added.) Nevertheless, the appellate court below held the city of Sandusky was liable “either under R.C. 723.01 for a nuisance or upon common-law negligence grounds” for failure to maintain the flashing, ice-warning signs in accordance with R.C. 4511.11. As discussed supra, such a holding lacks merit because liability against the city under R.C. 723.01 is precluded by the statutory immunity provisions of R.C. 723.54. In addition, a common-law negligence claim against the city of San-dusky, which was not specifically pleaded in the complaint, is unfounded because the duty to maintain signs on a state highway — even those signs erected by a city — is delegated to the state, not a municipality.5 A duty of care owed to plaintiff by defendant is one of the factors necessary to establish an actionable cause of negligence. Strunk v. Dayton Power & Light Co. (1983), 6 Ohio St. 3d 429, 431, 6 OBR 473, 475, 453 N.E. 2d 604, 606. “Before the city can be held liable, both pleading and proof must show an obligation due the plaintiff on the part of the city, which has been violated. * * * ” Dering v. Cleveland (1921), 102 Ohio St. 94, 95, 130 N.E. 504. The dissent below was entirely correct in stating “the argument that R.C. 4511.11 is applicable is a red-herring, thrown in to further confuse the issues.” Under the facts in this case, R.C. 4511.11 cannot shift the burden of responsibility from the state to the city. And we cannot find that the city acted improperly when it took the initiative and erected signs warning of ice on the bridge, especially when it was apparent that the state itself was dilatory in alerting the driving public of this hazardous condition. Since the state was responsible for the maintenance and inspection of the bridge in question, the city of San-dusky was protected from liability by the statutory immunity conferred under R.C. 723.54. Thus, the trial court erred in not granting appellant’s motions for directed verdict and a judgment notwithstanding the verdict. Although we have empathy for appellees, injury alone will not be sufficient to support a cause of action for negligence. Taylor v. Cincinnati (1944), 143 Ohio St. 426, 430, 28 O.O. 369, 371, 55 N.E. 2d 724, 726; Leipsic [57] v. Gerdeman (1903), 68 Ohio St. 1, 67 N.E. 87. Furthermore, “* * * [t]he mere abrogation of [municipal] immunity does not free a plaintiff from establishing the required elements of the alleged tortious conduct. * * * ” Strunk v. Dayton Power & Light Co. (1983), 6 Ohio St. 3d 429, 431, 6 OBR 473, 476, 453 N.E. 2d 604, 606. See, also, Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31, 6 OBR 53, 451 N.E. 2d 228. Therefore, we hold that a municipality cannot be held liable under R.C. 723.01 for damages resulting from an automobile accident on a bridge located on a state highway within the municipality, where the bridge was designed and constructed by the state and the state is responsible for maintaining and inspecting the structure. Because the city of Sandusky is immune from liability under R.C. 723.54, we need not address the other issues raised in this appeal. Accordingly, the judgment of the court of appeals is reversed and final judgment is entered for the appellant. Judgment reversed. Moyer, C.J., Locher and Holmes, JJ., concur. H. Brown, J., concurs in judgment only. Sweeney and Douglas, JJ., dissent. Footnotes [3] R.C. 723.54 has since been amended by the Political Subdivision Tort Liability Act, which became effective on November 20, 1985. The Revised Code provision granting statutory immunity is now found at R.C. 2744.02(B)(3), which states: “Political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivision open, in repair, and free from nuisance, except that it is a full defense to such lia [55] bility, when a bridge unthin a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge. ” (Emphasis added.) [4] In addition, two related statutes, although not directly applicable to the facts in the instant case, further emphasize that the state has the obligation of maintaining and inspecting bridges on state roads. R.C. 5591.02 states: “The board of county commissioners shall construct and keep in repair all necessary bridges in municipal corporations on all state and county roads and improved roads which are of general and public utility, running into or through such municipal corporation.” R.C. 5591.21 states in pertinent part: “The board of county commissioners shall construct and keep in repair necessary bridges over streams and public canals on or connecting state, county, and improved roads.* * * ” See, also, Interurban Ry. & Terminal Co. v. Cincinnati (1916), 94 Ohio St. 269, 278, 114 N.E. 258, 260; and 1981 Ohio Atty. Gen. Ops. No. 81-007. [5] R.C. 4511.10 provides in pertinent part: “The department of transportation may place and maintain traffic control devices, conforming to its manual and specifications, upon all state highways as are necessary to indicate and to carry out sections 4511.01 to 4511.78 and 4511.99 of the Revised Code, or to regulate, warn, or guide traffic.” This statute indicates that the state is authorized to maintain traffic-control devices, such as the warning signs found here, upon all state highways. While R.C. 4511.10 also allows a municipality to place a traffic-control device on a state highway with the permission of the Director of Transportation, the responsibility of ensuring that such a device is maintained, whether the actual maintenance is furnished by the municipality or by the state itself, remains with the state. If such a traffic-control device is not properly maintained or in any other way does not conform to the “Ohio Manual of Uniform Traffic Control Devices for Streets and Highways,” the Director of Transportation is authorized to remove, or require to be removed, any nonconforming device. R.C. 4511.11(B).