Keith and Jacqueline Theobald v. Board of County Commissioners of Hamilton County, Ohio

COHN, Senior District Judge,

dissenting.

I dissent. Strangely, the lead opinion finds the abandoned vehicle could be found to be a nuisance, i.e. a dangerous condition, by a jury and then goes on to say as a matter of law that the timing of the removal is discretionary, i.e. Hamilton County is immune because its police officers simply had no obligation to remove the dangerous condition after 30 hours — or perhaps forever. I suggest that this is not discretion but license and that under this rule the municipality could never be held liable for a nuisance in the form of an abandoned car.

The lead opinion first notes that political subdivisions have a duty to keep public roads and highways free from nuisance under Ohio law. See ohio Rev.Code Ann. § 2744.02(B)(3) (“political subdivisions are liable for injury, death, or loss to person or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridge, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance”). It then holds that the district court was incorrect in its finding that a vehicle that has been abandoned for thirty hours could not be “an actual physical condition” and thus a nuisance under section 2744.02(B)(3). Instead, the lead opinion finds that “the nature of the abandoned vehicle’s obstruction and its dangerousness are questions of fact to be deter*420mined by a jury.”1 It next finds that “this case turns on whether the function of the patrolling officers in deciding not to have this vehicle towed was discretionary” and decides as a matter of law that “[o]n the facts of this case, their decision not to have the vehicle towed was discretionary and in no way implies recklessness on the part of the patrolling officers.”

These two holdings are incompatible. In essence, the lead opinion holds that the decision when to remove a nuisance is discretionary even if the decision whether to remove a nuisance is not. This, however, eviscerates a political subdivision’s responsibility to remove a nuisance from the road, because deciding when to remove a nuisance will always be a matter of choice. Under this interpretation of section 2744.02(B)(3), the defendant in Harp v. City of Cleveland Heights, 87 Ohio St.3d 506, 721 N.E.2d 1020 (2000), should not have been held liable for failing to remove a tree limb that was hanging over a public road, because even though the tree limb was a nuisance, it was within the city’s discretion to decide when to remove it. The Ohio Supreme Court, however, found that it was a nuisance and that the city was liable for failing to remove it. Id. at 1025. The purpose of nuisance law is to create a duty to remove nuisances. If a political subdivision can evade the responsibility to remove a nuisance by arguing that it is within its discretion to decide when to remove it, then there is no point in having a law that creates a duty to remove the nuisance at all, as section 2744.02(B)(3) clearly does.

The concurring opinion argues that there is never a duty to remove a nuisance because the purpose of section 2744.02(B)(3) is not to create an absolute duty to remove a nuisance, but rather “it may well have been to impose an enforceable duty to remove a nuisance when the municipality is engaged in a governmental or proprietary function that did not involve the exercise of discretion.” Section 2744.02(A)(1) of the Ohio Revised Code, however, states:

For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not hable in damages in a civil action for injury, death, or loss to person 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.

Section 2744.02(B)(3), which follows, then states “political subdivisions are liable for the injury, death, or loss to person or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance.” A political subdivision’s duty to remove a nuisance thus is absolute, not discretionary.2 The Ohio Court of Appeals has made this lack of discretion clear:

*421this court previously held that the “discretionary” defenses set forth in R.C. 2744.03(A)(3) and (5) do not provide immunity where the allegedly negligent act of the political subdivision constitutes a nuisance under R.C. 2744.02(B)(3).

Jones v. Shelly Co., 106 Ohio App.3d 440, 666 N.E.2d 316, 319-20 (1995).3 While the situation here is failure to remove a nuisance rather than creation of a nuisance, the result is no different.4

Despite the clear creation of a duty to remove nuisances in section 2744.02(B)(3), the concurring opinion finds that “[u]n-questionably, the decision whether to usé personnel to remove a car from the emergency lane or berm of a public highway is purely discretionary” and therefore argues that the municipality is not liable for failing to remove it — ever. Its only support for this finding is that

The political subdivision is immune from liability if the injury, death, or loss to persons 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,

orno Rev.Code Ann. § 2744.03(A)(5) (2002) (emphasis added). The concurring opinion does not explain why section 2744.03(A)(5) should apply, though, when section 2744.02(B)(3) is clearly applicable and denies immunity.5 All actions by a municipality involve the use of people at some point, so it is not enough to say that an action is discretionary, and therefore immune from liability, just because it involves the use of people. The Ohio courts have recognized and rejected the approach taken by the concurring opinion; “[b]ut a political subdivision can not simply assert that all of its decisions are discretionary in order to obtain protection under R.C. 2744.03(A)(3) and (A)(5).” Hacker v. Cincinnati, 130 Ohio App.3d 764, 721 N.E.2d 416, 420 (1998).6

• Even though the exact timing of the removal of a nuisance is a matter of choice, this does not translate into an unfettered *422discretion to defer removal indefinitely. According to the lead and concurring opinions, a municipality can allow a nuisance in the form of an abandoned vehicle to remain on a public highway until it rusts away to nothing simply because the decision whether to remove it involves the use of persons and is therefore discretionary. Discretion does not connote an unlimited choice but a reasoned choice — a choice that must not be exercised arbitrarily or irrationally. While it would obviously be inappropriate in most circumstances to hold a political subdivision liable for not immediately removing a motor vehicle which may become a nuisance, at some point in time it must be deemed to have waited too long. At that point, it would be liable for any injury caused by the nuisance.

I believe that just as a jury should determine whether the abandoned vehicle constituted a nuisance, a jury — not a judge — should determine whether the County failed to remove the abandoned vehicle within a reasonable amount of time.

. Unlike the concurring opinion, I agree with the lead opinion's finding that the vehicle could be a nuisance.

. The concurring opinion cites Ohio Revised Code section 4513.61 (holding that the sheriff "may order into storage any motor vehicle ... that has been left ... within the right-of-way of any road or highway, for forty-eight hours or longer ... except that when such a motor vehicle constitutes an obstruction to traffic it may be ordered into storage immediately”) to support its argument that the decision to remove a nuisance is discretionary. When read in conjunction with section 2744.02 and Ohio case law, though, it is evident that the statute merely defines the first time at which the sheriff is authorized to *421remove a motor vehicle, and it should not be read to mean that the decision whether to remove the nuisance is discretionary.

. The Ohio Supreme Court's dictum in Franks concerning the discretionary nature of the design and posting of signs presents a situation different from the case here; it is impossible to decide whether and where to post signs and what their content should be without exercising discretion, but if a municipality has a duty to remove a nuisance, then it may do so without exercising discretion. See Franks v. Lopez, 69 Ohio St.3d 345, 632 N.E.2d 502, 506 (1994).

. Overhanging branches and foliage which obscure traffic signs, malfunctioning traffic signals, signs which have lost their capacity to reflect, or even physical impediments such as potholes, are easily discoverable, and the elimination of such hazards involves no discretion, policy-making or engineering judgment. The political subdivision has the responsibility to abate them and it will not be immune from liability for its failure to do so.

Franks, 632 N.E.2d at 505.

. The concurrence also notes that removal of a nuisance is not one of the exceptions to section 2744.03(A)(5), but section 2744.03(A)(5) only applies if this is a discretionary act. This circular reasoning begs the real question: is this a discretionary act?

. The Ohio Court of Appeals earlier stated:

In oral argument before this court, the city asserted that discretion would be involved in almost any actions of city employees, including a situation where a city vehicle, engaged in a proprietary function, negligently turned left in front of oncoming traffic. In the city's view, such an act — turning left in the exercise of a 'judgment call’— would be 'discretionary.' Thus R.C. 2744.03(A)(5) would afford the city a complete grant of immunity, unless the act was *422performed in a willful or wanton manner. Horsefeathers. Unfortunately, too many courts have fallen victim to this specious argument.

McVey v. Cincinnati, 109 Ohio App.3d 159, 671 N.E.2d 1288, 1290 (1995).