Harp v. City of Cleveland Heights

Cook, J.,

dissenting. Where there once was liability under R.C. 2744.02(B)(3) for political subdivisions with notice of existing, potentially dangerous, off-road conditions, political subdivisions now face liability for off-road conditions that merely threaten to become a nuisance. The majority here unduly expands a political subdivision’s potential liability for failure to keep public roads “open, in repair, and free from nuisance.”

Today’s decision expands an exception to sovereign immunity in two steps: first, the majority broadens the definition of “nuisance” under R.C. 2744.02(B)(3) to include a previously unrecognized category of conditions; second, the majority charges the political subdivision here with constructive notice of a nuisance — a fallen branch — before it qualified as a nuisance.

1. Expanding the Definition of “Nuisance”

The majority’s decision reverses two lower courts and denies immunity to the city here even though the city enjoys broad immunity. See R.C. 2744.02(A) and (B). Our past practice — exemplified by a case from half a century ago concerning the exact language at issue here — -has been to construe exceptions to sovereign immunity narrowly. See Wall v. Cincinnati (1948), 150 Ohio St. 411, *51538 O.O. 289, 83 N.E.2d 389 (construing the phrase “open, in repair, and free from nuisance” strictly, due to its being in derogation of common-law sovereign immunity). We examine two cases upon which the majority relies to illustrate its expanded nuisance definition.

In one of the principal cases relied upon by the majority, this court held that a “permanent obstruction to visibility, within the highway right-of-way, which renders the regularly travelled portions of the highway unsafe for the usual and ordinary course of travel, can be a nuisance for which a political subdivision may be liable under R.C. 2744.02(B)(3).” (Emphasis added.) Manufacturer’s Natl. Bank of Detroit v. Erie Cty. Rd. Comm. (1992), 63 Ohio St.3d 318, 587 N.E.2d 819, at paragraph one of the syllabus. In the other principal case relied upon by the majority, this court held that a “township’s alleged failure to maintain * * * signage already in place may constitute an actionable nuisance claim” (emphasis added) under the township immunity exception. Franks v. Lopez (1994), 69 Ohio St.3d 345, 348, 632 N.E.2d 502, 505.

Both of these cases centered on the physical location of a dangerous condition for purposes of nuisance liability. Both simply stand for the proposition that “nuisance” may indeed include a dangerous condition that exists outside the physical confines of the roadway itself, yet still obstructs the flow or visibility of traffic on the roadway. Today, however, the majority defines nuisance to include a “threatened” condition, not directly connected to the roadway, that never obstructed or impeded the flow or visibility of traffic until the very moment that an accident occurred.

In Manufacturer’s, a cornfield growing in the right-of-way affected the safety of ordinary traffic by continually impairing drivers’ sightlines around the corner at an intersection. The Manufacturer’s court explicitly stressed the limits of its decision, noting that “[o]ur decision today does not imply that a political subdivision may be held liable for a temporary obstruction to visibility such as an illegally parked car.” (Emphasis‘added.) Manufacturer’s, 63 Ohio St.3d at 323, 587 N.E.2d at 823, fn. 2.

In Franks too, we expressly restricted the scope of nuisance liability for purposes of R.C. 2744.02(B)(3). Franks, 69 Ohio St.3d at 346, 632 N.E.2d at 503-504. The Franks court reiterated Manufacturer’s holding that a nuisance is an existing condition that creates dangers for ordinary traffic and determined that a township’s failure to maintain signage that was “already in place” when the accident occurred could constitute actionable nuisance. Id., 69 Ohio St.3d at 348, 632 N.E.2d at 505.

Thus, Manufacturer’s and Franks were both cases that defined “nuisance” under the immunity exception as an existing obstruction or condition that actually impeded the safe flow of traffic before the accident in question occurred. *516Just recently, we reaffirmed this position when we held that nuisance has most often been defined to include “physical obstructions that interfere with visibility and create an unsafe condition.” Cater v. Cleveland (1998), 83 Ohio St.3d 24, 30, 697 N.E.2d 610, 616.

In this case, however, the majority uses Manufacturer’s and Franks as springboards for its much broader holding that a tree limb — which prior to the accident in question did not obstruct or interfere with visibility or traffic in any way — may qualify as a nuisance under R.C. 2744.02(B)(3). But here, even the majority concedes that “no one claims that the limb hung so low as to obstruct the flow or visibility of traffic on Lee Boulevard” at any time prior to the accident. The limb, therefore, did not constitute a nuisance of the type recognized in Manufacturer’s or Franks.

2. Expanding the Concept of Constructive Notice

Even if this tree limb could properly qualify as a nuisance under broadly worded dicta culled from Franks and Manufacturer’s, the city could not properly be charged with having constructive notice on these facts. Though the majority recites the three elements of constructive notice, the majority appears to focus on the third — that the city’s reasonable apprehension of “potential danger” is required in order to charge it with constructive notice. But this strategy glosses over the two additional requirements for constructive notice: that constructive knowledge of a nuisance may be imposed only where the nuisance “ ‘existed in such a manner that it could or should have been discovered [and] that it existed for a sufficient length of time to have been discovered.’ ” (Emphasis added.) Franks, supra, 69 Ohio St.3d at 349, 632 N.E.2d at 505, quoting Beebe v. Toledo (1958), 168 Ohio St. 203, 207, 6 O.O.2d 1, 3, 151 N.E.2d 738, 741. In Franks, because “[o]verhanging branches and foliage which obscure traffic signs * * * are easily discoverable,” we determined that there was a question of fact as to whether the township could be charged with constructive notice of the dangerous condition. Id.

The Franks court’s interpretation of constructive notice in the context of a roadway nuisance would absolve the city here. The tree branch in this case, like all tree branches that grow over public roads, posed only a potential to become a nuisance. This road was “free from nuisance” until this branch fell. Since the branch did not become a nuisance until it fell, there is no constructive-notice issue. That is, it cannot be said that the city failed to remedy the potentially dangerous condition (the fallen branch) within a reasonable time. The branch did not obstruct or impede the flow or visibility of traffic until it fell.

The majority stresses the limits of its decision, noting that actual or constructive notice remains a prerequisite to liability under R.C. 2744.02(B)(3). It would *517seem that the practical effect of this limitation would be to discourage municipalities from inspecting at all those tree limbs that exist above roadways.

For the foregoing reasons, I would affirm the judgment of the court of appeals.

Lundberg Stratton, J., concurs in the foregoing dissenting opinion.