Manufacturer's National Bank v. Erie County Road Commission

587 N.E.2d 819, 63 Ohio St. 3d 318, 1992 Ohio LEXIS 502
CourtOhio Supreme Court
DecidedApril 1, 1992
DocketNo. 91-1302
StatusPublished
Cited by83 cases

This text of 587 N.E.2d 819 (Manufacturer's National Bank v. Erie County Road Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manufacturer's National Bank v. Erie County Road Commission, 587 N.E.2d 819, 63 Ohio St. 3d 318, 1992 Ohio LEXIS 502 (Ohio 1992).

Opinions

Herbert R. Brown, J.

The Sixth Circuit Court of Appeals has certified the following questions to us:

“(1) Does a political subdivision’s statutory duty under R.C. 2744.02 to keep a roadway ‘free from nuisance’ require the use of reasonable care to ensure that corn growing within a rural roadway’s right-of-way does not obstruct the visibility of drivers on the roadway such that drivers’ view of cross-traffic at intersections is impaired?

“(2) What, if any, duty of care does a possessor of rural agricultural land owe to those on public roads abutting the land for physical harm caused by an obstruction created by cultivated crops on the land?”

As a state-law question certified by federal court, the issues before us are questions of law, not of fact. Although our decision may affect the outcome of the federal litigation, the federal court hears and decides the cause by applying the law, as we determine it, to the facts of the case. Scott v. Bank One Trust Co., N.A. (1991), 62 Ohio St.3d 39, 42, 577 N.E.2d 1077, 1079.

I

Township’s Statutory Duty of Care

Petitioners claim that the cornfield, growing in the right-of-way, constituted an actionable nuisance because it obstructed Mrs. Murray’s vision to the extent that it rendered the intersection unsafe. Petitioners predicate the township’s liability on R.C. 2744.02(B)(3), which provides in part:

[321]*321“Political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivision open, in repair, and free from nuisance * * (Emphasis added.)

Because the General Assembly recently enacted R.C. 2744.02(B)(3), no case law under that statute has yet developed to construe a political subdivision’s duty in the circumstances presented to us here. Therefore our analysis begins with cases arising under R.C. 723.01, a similar statute using the words “free from nuisance.”1

R.C. 723.01 obligates municipal corporations to keep highways and streets open for the purposes for which they were designed and built — to afford the public a safe means of travel. Fankhauser v. Mansfield (1969), 19 Ohio St.2d 102, 108, 48 O.O.2d 103, 106-107, 249 N.E.2d 789, 792-793; Lovick v. Marion (1975), 43 Ohio St.2d 171, 172, 72 O.O.2d 95, 96, 331 N.E.2d 445, 446; Dickerhoof v. Canton (1983), 6 Ohio St.3d 128, 130, 6 OBR 186, 188, 451 N.E.2d 1193, 1195; Strunk v. Dayton Power & Light Co. (1983), 6 Ohio St.3d 429, 430, 6 OBR 473, 475, 453 N.E.2d 604, 605. Like R.C. 723.01, R.C. 2744.02(B)(3) imposes on political subdivisions a duty of care to keep highways open and safe for public travel.

Furthermore, case law construing R.C. 723.01 has focused on whether the alleged nuisance rendered the roadway unsafe for the usual and ordinary modes of travel. Lovick v. Marion, supra, 43 Ohio St.2d at 172-173, 72 O.O.2d at 96-97, 331 N.E.2d at 446-447; Dickerhoof v. Canton, supra, 6 Ohio St.3d at 130-131, 6 OBR at 188-189, 451 N.E.2d at 1195-1196; Strunk v. Dayton Power & Light Co., supra, 6 Ohio St.3d at 430-431, 6 OBR at 475, 453 N.E.2d at 605-606.

The township claims that its duty under R.C. 2744.02(B)(3) to keep roadways free from nuisance applies only where the nuisance existed on the paved or travelled portion of the highway or where the nuisance interfered with a traffic or safety control device. We disagree.

The township’s duty under R.C. 2744.02(B)(3) extends to conditions in the right-of-way that directly affect the highway’s safety for the regular and ordinary course of traffic. The right-of-way is appropriated for a governmen[322]*322tal purpose related to the highway. Although not in effect at the time of the accident, present R.C. 4511.01(UU)(2) is helpful and defines “right-of-way” as follows:

“A general term denoting land, property, or the interest therein, usually in the configuration of a strip, acquired for or devoted to transportation purposes. When used in this context, right-of-way includes the roadway, shoulders or berm, ditch, and slopes extending to the right-of-way limits under the control of the state or local authority.” (Emphasis added.)

In determining a township’s duty under R.C. 2744.02(B)(3) or a municipality’s under R.C. 723.01, the focus should be on whether a condition exists within the political subdivision’s control that creates a danger for ordinary traffic on the regularly travelled portion of the road.

Contrary to the township’s assertion, prior case law has recognized that a municipal corporation’s liability under R.C. 723.01 is not limited to physical conditions in the roadway itself. In Fankhauser, supra, we held that a malfunctioning traffic signal can be a nuisance to orderly urban street travel, even though not physically part of the roadway. See, also, Robert Neff & Sons v. Lancaster (1970), 21 Ohio St.2d 31, 50 O.O.2d 80, 254 N.E.2d 693 (overhanging tree limb impeding ordinary traffic could be nuisance within the meaning of R.C. 723.01). We have also recognized that a municipal corporation may be liable for injuries resulting from its failure to keep the shoulder of the highway in repair and free from nuisance where such defect renders the highway unsafe for normal travel. Dickerhoof supra.

The township directs our attention to Strunk, supra, in which we refused to extend a municipality’s duty under R.C. 723.01 past the portion of the highway considered the berm or shoulder, and held that as a matter of law a light pole located adjacent to a roadway or the shoulder was not a portion of the highway within the meaning of R.C. 723.01.

On closer examination, however, the court in Strunk focused on whether the light pole was a condition that made the roadway unsafe for the usual and ordinary course of travel. In Strunk, the placement of the light pole adjacent to the roadway’s shoulder did not jeopardize the safety of ordinary traffic on the highway. To the extent the language in Strunk is inconsistent with our holding today, our opinion in Strunk is hereby modified.

The roadway, the space immediately above the roadway, the shoulder, the berm, and the right-of-way are all under the control of the political subdivision. See present R.C. 4511.01(UU)(2). The township has a duty to keep the areas within its control free from nuisance, i.e., conditions that directly jeopardize the safety of traffic on the highway. Where the township fails in its duty, it may be liable for injuries proximately caused by the nuisance.

[323]*323A permanent obstruction to a driver’s visibility can be a nuisance which makes the usual and ordinary course of travel on the roadway unsafe.

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Bluebook (online)
587 N.E.2d 819, 63 Ohio St. 3d 318, 1992 Ohio LEXIS 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manufacturers-national-bank-v-erie-county-road-commission-ohio-1992.