dissenting. The instant case is before this court on an appeal of the allowance of a motion to dismiss granted the city of Dayton and affirmed by the court of appeals. The majority is satisfied to merely affirm the dismissal. I am not. Thus, I dissent.
Decedent, Glen E. Strunk, collided with a light pole adjacent to a limited access highway after his automobile was struck in the rear end. The pole had no protective guardrail around it to prevent an accident, such as this, nor was it of a break-away design as recommended in the Federal Highway Safety Act of 1966, Chapter IV, Title 23, U.S. Code. Strunk died as a result of the injuries sustained in the collision with the light pole. This action was instituted against the city based upon its failure to maintain the highway in a nuisance free condition as required by R.C. 723.01.
The appellee, city of Dayton, maintains that a defect must be within the “traveled portion” of a roadway before a city can be liable for the injuries resulting from such defect. It is this contention that provides the basis for the judgment of the court today. However, what the court fails to perceive is that this case involves a limited access highway as defined by R.C. 5535.01 et seq. Pursuant to R.C. 5501.01:
“As used in [Chapter] * * * 5535 of the Revised Code:
U* * *
“(C) ‘Road’ or ‘highway’ includes bridges, viaducts, grade separations, appurtenances, and approaches on or to such road or highway.” (Emphasis added.)
This definition is crucial to the analysis of the case herein. R.C. 723.01 places a duty on municipalities to maintain their highways so as to keep them, “open, in repair, and free from nuisance.” In State, ex rel. Walter, v. Vogel (1959), 169 Ohio St. 368 [8 O.O.2d 406], the court decided that, “[flighting systems for urban portions of ‘limited access highways’ (as defined in Section 5535.02, Revised Code) are appurtenances thereto * * The Vogel case involved a question of the use of tax money to maintain and pay for the lighting of highway light poles. The majority, sub silentio, finds this to be a distinguishing fact. If this “distinction” actually exists, then it means that municipalities are responsible for the maintenance of the light poles on their limited access highways but are not liable for any injuries which may result from a failure to maintain such light poles in a nuisance free manner. Such result is absurd.
In Fankhauser v. Mansfield (1969), 19 Ohio St. 2d 102 [48 O.O.2d 103], this court held that a traffic signal could be considered part of a highway and that thus, “[a] petition alleging that a municipality failed to repair an electric traffic signal * * * states a cause of action against the municipality for maintaining a nuisance in violation of Section 723.01, Revised Code.” See, also, Royce v. Smith (1981), 68 Ohio St. 2d 106 [22 O.O.3d 332].
*433Thus, Fankhauser in conjunction with Vogel, and R.C. 5501.01 (C) stand for the proposition that light poles are appurtenances of limited access highways, and if they are not properly maintained or create a nuisance, the city may be held liable in a cause of action, depending upon what a jury decides.
The allowance of the dismissal to stand in the present case is improper. The mere fact that the majority did not find the light pole to be within the “traveled portion” of the highway does not relieve the city of liability for any nuisance the pole may create, either by its design or its location. There are substantial questions of fact presented in this case which should have gone to a jury for resolution. A light pole on a limited access highway is an appurtenance to that highway. The determination of whether an appurtenance to a limited access highway is a nuisance as defined by R.C. 723.01 is a question of fact and not a question of law.
It is for the foregoing reasons that I dissent. I would reverse the judgment of the court of appeals and remand this case to the trial court for trial to a jury.
J. P. Celebrezze, J., concurs in the foregoing dissenting opinion.