[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.
2 {¶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.
3 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,
4 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
5 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
6 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.
7 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
8 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.
9 {¶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
10 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
11 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,
12 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.
13 _______________________
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.