Cerri v. Clemson Excavating, Inc.

[Cite as Cerri v. Clemson Excavating, Inc., 2019-Ohio-1162.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

KENNETH U. CERRI, JR., : OPINION

Plaintiff-Appellee, :
CASE NO. 2018-G-0163
- vs - :

CLEMSON EXCAVATING, INC., et al., :

Defendants, :

MONTVILLE TOWNSHIP, et al., :

Defendants-Appellants. :

Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2015 P 000355.

Judgment: Affirmed.

Carl P. Kasunic and David F. Neilsen, Carl P. Kasunic Co., LPA, 4230 State Route 306,
Building 1, Suite 300, Willoughby, OH 44094 (For Plaintiff-Appellee).

Abraham Cantor, 9930 Johnnycake Ridge Road, Suite 4F, Concord, OH 44060 (For
Defendants-Appellants).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellants Montville Township and Montville Township Board of Trustees

(collectively “Montville”) appeal the decision of the Geauga County Court of Common

Pleas denying Montville’s motion for summary judgment based on purported

governmental immunity. Because we find there is a genuine issue of material fact, we

affirm the trial court’s judgment.
 {¶2} On April 27, 2013, appellee, Kenneth Cerri, and his friend, Nestor Bagliano,

were riding their motorcycles on Burrows Road. As they crested a hill, the pavement

abruptly ended, and the road turned to gravel. Mr. Bagliano reached the gravel first,

recognized the hazard, and signaled to Mr. Cerri. In his deposition, Mr. Bagliano testified

he struggled but successfully maintained control of his motorcycle. Mr. Cerri was not so

fortunate; he lost control of his motorcycle, was ejected, and was injured as a result.

{¶3} The record reflects that Burrows Road is located between Thompson and

Montville Townships. Pursuant to a 1989 agreement, Thompson and Montville share

responsibility for maintenance of the road by assigning each township a section of the

road for which they would be responsible. In recent practice, however, the townships

have shared the maintenance and costs of both sections depending on available funds;

the townships’ ability to perform the required maintenance; and the approval of their

respective boards of trustees.

{¶4} In 2012, the townships jointly desired to improve the “sight line” at the

intersection of Burrows and Sidley Roads, which included paving a portion of Burrows

Road, which to that point had always been a dirt and gravel road. The townships

expressed concerns about the cost, and ultimately the extent of the paving was scaled

back due to limited funding. There is conflicting evidence in the record as to whether

Montville moved forward with this project against the advice of the Geauga County

Engineer and Thompson. Regardless, project bids were solicited, Clemson Excavating,

Inc. won the bid on March 20, 2012, and completed the project October 11, 2012, leaving

the transition between pavement and gravel at the crest of the hill Mr. Cerri and Mr.

Bagliano encountered in April 2013.

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 {¶5} Mr. Cerri filed a personal injury complaint against Thompson Township, the

Thompson Township Board of Trustees, Montville Township, the Montville Township

Board of Trustees, Clemson Excavating, Inc., Geauga County Engineers, the State of

Ohio Public Works Commission, and the Ohio Department of Transportation. The claims

against the latter two defendants were subsequently dismissed.

{¶6} Mr. Cerri’s claim asserts the defendants were negligent in that, inter alia,

the location of the transition from pavement to gravel is unsafe because drivers cannot

see the transition with enough notice due to the hill, there is no “pavement ends” sign, the

edge of the pavement is a two- to four-inch-deep drop-off, there is no reduction in the 55-

mph speed limit, the gravel portion of the road contained irregularly-sized stone gravel

pieces and the gravel road was negligently maintained. He also alleged that “defendants

jointly and severally failed to maintain the roadway * * * in a reasonably safe condition for

the motoring public and to keep its roadways in repair and free from nuisance or other

hazardous conditions.”

{¶7} In response to Mr. Cerri’s complaint, Montville filed an answer and a motion

for summary judgment asserting the defense of governmental immunity set forth in R.C.

2744.01, et seq. The trial court entered judgment, in pertinent part, denying Montville’s

motion.

{¶8} Montville appeals, assigning for our review one assignment of error:

{¶9} The trial court erred in denying Montville Township’s statutory
governmental immunity because the road was in repair.

{¶10} Ordinarily, Civ.R. 54(B) requires that a trial court order that disposes of

fewer than all claims against all parties include a determination that “there is no just

reason for delay” for the order to be deemed a final, appealable order. However, R.C.

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2744.02(C) provides an exception for “[a]n order that denies a political subdivision * * *

the benefit of an alleged immunity from liability as provided under this chapter * * *,” as is

the case here. Id.

{¶11} Summary judgment is proper when the evidence shows “there is no genuine

issue as to any material fact, * * * the moving party is entitled to judgment as a matter of

law,” and when the evidence is construed most strongly in the nonmoving party’s favor

“reasonable minds can come to but one conclusion” adverse to the nonmoving party.

Civ.R 56(C).

{¶12} We review the trial court's decision to grant summary judgment de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). See also Cornelison v.

Colosimo, 11th Dist. Trumbull No. 2009-T-0099, 2010-Ohio-2527, ¶11 (reviewing de novo

the trial court’s denial of a motion for summary judgment based on governmental

immunity). When reviewing a decision de novo, we “conduct an independent review of

the evidence before the trial court without deference to the trial court’s decision.” Peer v.

Sayers, 11th Dist. Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶27.

{¶13} “A claim of sovereign immunity by a political subdivision requires the three-

tiered analysis provided in R.C. Chapter 2744.” Baker v. Wayne Cty., 147 Ohio St.3d 51,

2016-Ohio-1566, ¶11. See also Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-

3319, ¶7. The first tier is the general rule that a political subdivision generally is “not liable

in damages in a civil action for injury, death, or loss to persons 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.

2744.02(A)(1). See also Lakota v. Ashtabula, 11th Dist. Ashtabula No. 2015-A-0010,

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2015-Ohio-3413, ¶22. “‘Governmental functions’ include ‘[t]he regulation of the use of,

and the maintenance and repair of, roads, highways, [and] streets.’” Id., quoting R.C.

2744.01(C)(2)(e). Here, there is no dispute that Montville is a political subdivision

operating in connection with a governmental function and thus we start with the premise

that Montville is immune.

{¶14} However, political subdivision immunity is not absolute, and the second tier

looks to whether an exception to that immunity applies. Specifically at issue in this case

is the exception set forth in R.C. § 2744.02(B)(3), which states:

{¶15} 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.

{¶16} Montville acknowledges that it “could be responsible for injury caused by

the negligent failure to keep the road (1) in repair, or (2) the negligent failure to remove

obstructions from the public road.” We agree with this premise. However, in support of

its sole assignment of error, Montville argues (1) nothing in the record shows that the road

was not in repair; (2) the decision to maintain a gravel road is discretionary and thus it is

immune from liability; (3) the decision to pave only a portion of Burrows Road and how to

improve the intersection is also an immune governmental decision; (4) loose gravel does

not constitute an obstruction as defined by R.C. 2744.02(B)(3); (5) the definition of “public

roads” excludes berms, shoulders, and rights-of-way and thus are not part of the

2744.02(B)(3) exception to immunity; and (6) the 55-mph speed limit is discretionary and

thus immune from liability. While Mr. Cerri’s complaint and subsequent pleadings did

allege negligence in the design, signage, berm, culvert, and rights-of way, and speed

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limit, he also asserts that the road was improperly maintained. The distinction is important

and determinative.

{¶17} We agree with Montville that a political subdivision’s road design, placement

of signs, maintenance of berms, shoulders, and rights-of-way, and speed limits are not

an exception of “in repair” or “obstruction” under R.C. 2744.02(B)(3). Thus, such designs

and signage are immune from liability. See R.C. 2744.01(H) (“‘Public roads’ does not

include berms, shoulders, rights-of-way, or traffic control devices unless * * * mandated

by the Ohio manual of uniform traffic control devices”). However, this merely clarifies

what “in repair” does not include. Baker, supra, ¶23 (edge of pavement was not part of

the public road); Pelletier v. Campbell, 153 Ohio St.3d 161, 2018-Ohio-2121, ¶33

(overgrown foliage in “devil strip” that purportedly obstructed drivers view of stop sign did

not cause the road to be in disrepair); Lovick v. Marion, 43 Ohio St.2d 171, 172 (1975)

(catch basin and sloping drain adjacent to roadway were not part of roadway defined by

former statute); Bartchak v. Columbia Twp., 9th Dist. Lorain No. 17CA011096, 2018-

Ohio-2991, ¶6-9 (High speed limit and lack of “X”, “RR”, or “no-passing-zone” signage,

and certain transverse lines around a railroad track did not constitute disrepair or

obstruction); Bonace v. Springfield Twp., 179 Ohio App.3d 736, 2008-Ohio-6364, at ¶29

(7th dist.) (“‘in repair’ does not create a duty to change allegedly absurd designs such as

extreme and unnecessary side slopes that were constructed (and recently reconstructed)

into a road.”); Franks v. Lopez, 69 Ohio St.3d 345, (1994) (finding “defective design or

construction or lack of signage” are discretionary functions immune from liability).

{¶18} To determine whether evidence shows a question of whether Burrows Road

itself was “in repair,” we must understand how “in repair” is defined. Since the Revised

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Code does not define “in repair” as used in R.C. 2744.02(B)(3), we consider its ordinary

meaning.

{¶19} Montville argues that we should interpret “in repair” in part based on

Pelletier, as “the state of being in good or sound condition.” Pelletier, supra, (analyzing

whether a stop sign was in good repair when overhead foliage obstructed driver’s view of

sign). We note this definition does not necessarily exclude “failure to maintain” from the

definition of “in repair.”

{¶20} In the context of road condition, courts have defined “in repair” as

“maintaining a road’s condition after construction or reconstruction, for instance by fixing

holes and crumbling pavement.” Bonace, supra, at 743. See also, Heckert v. Patrick, 15

Ohio St.3d 402, 406 (1984); Sanderbeck v. Medina, 9th Dist. Medina No. 09CA0051-M,

2010-Ohio-3659, ¶7; Emmerling v. Mahoning Cty. Bd. of Commrs., 7th Dist. Mahoning

No. 15 MA 0165, 2017-Ohio-9066, ¶33. As these are merely examples the court gave,

which, logically, are more applicable to paved roads, disrepair in a gravel road may

manifest differently. We would be remiss in our analysis to limit disrepair to holes or

crumbling pavement.

{¶21} Other courts have also included maintenance as part of keeping roadways

“in repair.” See Messenger v. Lorain Cty. Commrs., 9th Dist. Lorain No. 99CA007372,

2000 WL 1072401, *5 (Aug. 2, 2000), (once Township decided to have a gravel road,

rather than a paved road, the “township had a duty to maintain the gravel road in proper

repair and apply the gravel in a safe and reasonable manner” and therefore the “Township

is not protected by governmental immunity in this instance”), citing Fankhauser v.

Mansfield, 19 Ohio St.2d 102, (1969). See also Rastaedt v. Youngstown, 7th Dist.

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Mahoning No. 12 MA 82, 2013-Ohio-750, ¶14 (finding injury due to sewer system design

immune from liability but injury as a result of City’s failure to maintain the road not immune

from liability). In 2015 this court found, “[a] repair that causes an additional danger to

drivers cannot create a road that is ‘in repair.’” Lakota, supra, at ¶ 30.

{¶22} Finding then that negligent maintenance of a gravel road may fall within the

narrow “in-repair” exception of R.C. 2744.02(B)(3), we next consider the record before us

de novo to determine whether the evidence shows a question of material fact remains as

to whether Burrows Road was negligently maintained. Montville asserts, “[t]here is no

evidence in the record that shows that the road is not in repair.” Montville does, however,

not assert that Burrows Road was regularly maintained. Upon review of the record, we

conclude there is sufficient evidence to support a finding that Burrows Road was not in

repair.

{¶23} First, in support of his claim, Mr. Cerri’s expert, Robert Burch, says,

“Thompson Township Trustees failed to maintain Burrows Rd. in repair and free of

obstructions.” Moreover, during their depositions, both John Marsic, Montville Township

trustee, and Erwin Leffel, Thompson Township trustee, stated it is normal for ruts, ripples,

and potholes to occur on gravel roads and that a maintainer must be pulled on a regular

basis to prevent this. However, the first mention of the maintainer being used on Burrows

Road is in the Montville Township meeting minutes dated October 1, 2013, six months

after Mr. Cerri’s accident.

{¶24} Moreover, Shane Hajjar, civil engineer and deputy county engineer for

Geauga County Engineer’s Office, during his deposition, stated that the amount of

aggregate that was present on Burrows Road at the end of the “sight improvement

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project” was not suitable for long-term use. Mr. Hajjar stated that the townships placed

additional aggregate but neither he nor his office confirmed where on the road the

aggregate was placed and whether it was satisfactory for long-term use.

{¶25} Joseph LaRosa, road supervisor for Thompson Township, during his

deposition, stated that since the end of the construction project, he never ran a grader on

Burrows Road. He further testified that Clemson removed a portion of the gravel from

Burrows Road and moved to Montville Township leaving Burrows Road “in disrepair.”

When asked what he did to get the road back into repair, Mr. LaRosa stated he didn’t do

anything, but Montville had placed new gravel. The Montville meeting minutes suggest

40 tons of #4 gravel was placed on February 5, 2013, and that they expected Thompson

to pay for half of that cost.

{¶26} There is conflicting evidence as to the condition of the road during the winter

of late 2012 and early 2013. When deposed, Mr. Marsic, and city engineer for the city of

Painesville, Leanne Exum, stated the road was “acceptable” and “safe.” At a Montville

Township Board of Trustees meeting February 19, 2013, the minutes reflect that “Burrows

Rd. (east of Rt. 528) is holding pretty well.” However, the Montville meeting minutes on

December 4, 2012, state, “Thompson Road Department ditched Burrows Rd., west of

Sidley to Route 528, on the south side. Burrows Rd., east of Sidley is getting muddy.” On

March 5, 2013, the Montville Township meeting minutes reflect:

{¶27} Mr. Marsic reported that portion of Burrows road is holding now but
feels that the worst is to come once the rainy season starts. Mrs.
Holbert felt that we should meet with the county and Thompson to
make sure we have a good agreement in place concerning that
portion of Burrows Rd. Mr. Marsic is planning to attend Thompson’s
meeting on March 6, 2013.

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 {¶28} Furthermore, it is unclear which township was responsible for the

maintenance and cost of Burrows Road and the record suggests both townships ceased

maintenance expecting the other to handle it. The Montville Township Trustee meeting

minutes state that Thompson was not responsive to requests to pay for part of

maintenance or do any maintenance itself. On October 16, 2012, the meeting minutes

state, “[t]he board is in agreement that Montville Township’s responsibility on section C &

D of Burrows Rd. is now finished.” During a meeting held November 6, 2012, a concerned

Montville resident asked that a “pavement ends” sign be placed on Burrows Road, but

she was told to contact Thompson Township. On April 7, 2013, merely 20 days before

Mr. Cerri’s accident, Ben Smith, Thompson Township Trustee, sent an email to John

Marsic and Frank Sirna, Montville Township Trustees, stating:

{¶29} Prior to the bid date for your Burrows Road Improvement Project, our
board voiced its concern regarding the reprofiling of the eastern end
of the project without provisions to stabilize and place an adequate
thickness of new stone base. The minutes of the special meeting on
February 25, 2012 summarize our discussions on the subject. We
had made the request to reevaluate the plan for this area to avoid
exactly what is happening now. The road is failing badly, and
Montville is asking Thompson to help pay for the repairs. Since the
decision to proceed was made by Montville, against the advice of the
County Engineer and Thompson, we do not feel an obligation to
invest in repairing the failing areas. We will agree to provide
equipment and labor in conjunction with Montville, but not to
purchase stone that should have been part of the improvement
contract. When the roadway is returned to the serviceable condition
that existed prior to the “improvements”, we will continue to honor
our standing agreement to split the cost of stone for normal
maintenance.

{¶30} The minutes of the Montville and Thompson townships joint meeting held

February 25, 2012, also reflect discussion about the importance of maintaining the gravel

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on Burrows Road but it is not clear from these meeting minutes which township would be

responsible for that maintenance.

{¶31} What is clear, even without Mr. Burch’s expert report, is that there is a

genuine issue of material fact as to whether Burrows Road was being maintained. The

record shows that each township expected the other township to participate in the

maintenance of Burrows Road. Without maintenance, Trustees from both townships

testified during deposition that ruts, ripples, and potholes would form. The record further

reflects some stating the road was in a safe, acceptable condition and others stated the

road was “failing badly.” As such, we find that the record contains sufficient evidence of

an issue of material fact for litigation as to whether the road was “in repair.”

{¶32} Additionally, Montville asserts there was no obstruction on Burrows Road.

On this point, we are apt to agree. Obstruction is not defined by the statute, but the

Supreme Court of Ohio has defined obstruction as used in R.C. 2744.02(B)(3) as “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 (Finding ice on the road

that had formed after a fire department training exercise was not an obstruction under the

current version of R.C. 2744.02(B)(3), noting that the result would have been different

prior to the 2003 revisions). The Court determined that to rise to the level of obstruction,

the road must block or clog the roadway. Mr. Cerri argues the gravel was abnormally

large for use on a roadway. However, even if that were true and even if it hinders or

impedes use of the roadway, there is no evidence it would block or clog the roadway.

The record does not show Burrows Road was impassable. Indeed, Mr. Bagliano

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successfully navigated the road on a motorcycle just moments before Mr. Cerri’s attempt.

As the Court in Howard notes, the intent of the general Assembly in its 2003 revisions to

R.C. 2744.02(B)(3) was to “impose a condition more demanding than a showing of

‘nuisance’ in order for a plaintiff to establish an exception to immunity.” Id. at ¶29. Thus,

we find there is not enough evidence in the record to demonstrate Burrows Road had an

obstruction.

{¶33} Regardless, R.C. 2744.02(B)(3) creates separate exceptions for injuries or

losses caused by the “negligent failure to keep public roads in repair” and “negligent

failure to remove obstructions from public roads.” Todd v. Cleveland, 8th Dist. Cuyahoga

No. 98333, 2013-Ohio-101, ¶19. “The terms “in repair” and “obstructions” exist separately

under R.C. 2744.02(B)(3) and provide two separate, independent bases for precluding

statutory immunity with respect to public roads.” Id. at ¶14 (finding the city could be liable

for an injury caused by a hazardous pothole if it “was the result of the city's ‘negligent

failure to keep public roads in repair,’ regardless of whether the pothole also constituted

an ‘obstruction’ within the meaning of R.C. 2744.02(B)(3)”), citing Bonace, supra, at ¶29,

and Crabtree v. Cook, 10th Dist. Franklin No. 10AP-343, 2011-Ohio-5612, at ¶27

(“negligent failure to keep public roads in repair” is an alternative basis for liability and

“imposes its own distinct duty of care upon the municipality”). Therefore, because the

question of “in repair” alone is enough to defeat political subdivision immunity, a finding

of no obstruction as defined by R.C. 2744.02(B)(3) does not save appellants’ motion for

summary judgment.

{¶34} Finding that an exception to immunity under R.C. 2744.02(B)(3) applies, we

now consider the third tier of the analysis, which requires that if any exception applies,

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we must then determine whether the political subdivision has a defense to liability under

R.C. 2744.03. Lakota, at ¶9, citing Colbert. Montville does not expressly assert that any

defense under R.C. 2744.03 applies but does argue that as a political subdivision it is

immune from liability for claims arising from the political subdivision’s exercise of

discretion. This is essentially R.C. 2744.03(A)(3) and (5), which provide:

{¶35} (3) The political subdivision is immune from liability if the action or
failure to act by the employee involved that gave rise to the claim of
liability was within the discretion of the employee with respect to
policy-making, planning, or enforcement powers by virtue of the
duties and responsibilities of the office or position of the employee.

{¶36} * * *

{¶37} (5) The political subdivision is immune from liability if the injury,
death, or loss to person or property resulted from the exercise of
judgment or discretion in determining whether to acquire, or how to
use, equipment, supplies, materials, personnel, facilities, and other
resources unless the judgment or discretion was exercised with
malicious purpose, in bad faith, or in a wanton or reckless manner.

{¶38} As earlier discussed, once a political subdivision decides to have a gravel

road, its discretionary function is concluded, and it has a duty to maintain that road in

repair. Thus, political subdivisions are not immune from claims for negligent roadway

maintenance. See Messenger, supra, at *5, citing Fankhauser, supra, at 109-10;

Rastaedt, supra, at ¶14. Thus, we find no defense under R.C. 2744.03 applicable here.

As such, Montville’s assignment of error is not well taken.

{¶39} In light of the foregoing analysis, we affirm the Judgement of the Geauga

County Court of Common Pleas denying Montville’s motion for summary judgment.

THOMAS R. WRIGHT, P.J., concurs,

TIMOTHY P. CANNON, J., concurs with a Concurring Opinion.

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 _______________________

TIMOTHY P. CANNON, J., concurring.

{¶40} I concur with the majority opinion. I write separately to address Mr. Cerri’s

contention that Montville has some liability with regard to matters within its discretion,

such as whether to erect “pavement ends” signs and whether to reduce the speed limit

from 55 m.p.h. I agree with Montville that those decisions are within the discretion of the

township and are protected, to some extent, under R.C. 2744.03(A)(3). However, the

appropriate level of maintenance and repair must be judged in light of those decisions.

In other words, it may be appropriate to use large rocks to level and fill holes on a street

that has warning signs and a low speed limit. The same may not be true for a street with

no warning signs and a speed limit of 55 m.p.h.

{¶41} This principal is illustrated in case law cited by the majority: while the

township has discretion on certain decisions and is immune under R.C. 2744.03(A)(3),

the level of maintenance required to keep the roadway in repair will vary based on the

discretionary decisions made therein. Ultimately, whether alleged defects are ones of

design or improper maintenance is properly determined by a jury by considering the

discretionary actions and the state of repair collectively.

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