Maras v. Girard

2025 Ohio 608

• Court: Ohio Court of Appeals
• Decided: February 24, 2025
• Docket: 2024-T-0065
• Status: Published

Opinion

[Cite as Maras v. Girard, 2025-Ohio-608.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

BRITTANY MARAS, CASE NO. 2024-T-0065

Plaintiff-Appellant, Civil Appeal from the - vs - Court of Common Pleas

CITY OF GIRARD, OHIO, Trial Court No. 2023 CV 01153 Defendant-Appellee.

OPINION

Decided: February 24, 2025 Judgment: Affirmed

Michael D. Rossi, Guarnieri and Secrest, 151 East Market Street, P.O. Box 4270, Warren, OH 44482 (For Plaintiff-Appellant).

James A. Climer, Zachary W. Anderson, John D. Pinzone and Frank H. Scialdone, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendant-Appellee).

MATT LYNCH, J.

{¶1} Plaintiff-appellant, Brittany Maras, appeals from the judgment of the

Trumbull County Court of Common Pleas, granting summary judgment in favor of

defendant-appellee, the City of Girard. For the following reasons, we affirm the judgment

of the lower court.

{¶2} On September 5, 2023, plaintiffs Maras and Kourtnie Lichty filed an

Amended Complaint against Girard and CSX Transportation. It alleged that the plaintiffs’

four-wheeler vehicle, or ATV, “collided with a passing CSX train as a direct and proximate

result of City of Girard’s negligent failure to keep its West Liberty Street in repair and free

from obstructions and/or CSX’s negligent business practices and operations,” resulting in serious injuries. The plaintiffs subsequently dismissed the complaint against CSX and

Lichty later withdrew as a plaintiff.

{¶3} Girard filed an Answer on September 19, 2023, asserting, inter alia, that it

was entitled to immunity as a political subdivision pursuant to R.C. Chapter 2744.

{¶4} On June 21, 2024, Girard filed a Motion for Summary Judgment. It argued

that the “alleged roadway is the termination of a street entering onto private railroad

tracks” and it was not required to maintain areas “that the traveling public has no right to

drive upon.” It argued that it was not required to keep roads in a state of repair for ATVs

which are not permitted to travel on streets under the Girard Codified Ordinances. Maras

argued in her opposition that the road was in an obvious state of disrepair, given the loose

bricks. The following facts were asserted through deposition testimony and exhibits:

{¶5} On October 22, 2022, Kourtnie Lichty was driving an ATV with Brittany

Maras as her passenger. Lichty had ridden ATVs for approximately eight years and did

so about once or twice a week. While Lichty did not have a set route, she typically rode

in the woods due to the fact that it was illegal to ride on public roads. During the October

22 ride, they traveled through several wooded areas and then drove down West Liberty

Street in Girard. Lichty had ridden on this street many times and described it as a steep

downhill brick road with a dead end. There was a barrier at the end of the road which she

was able to drive around on the ATV. When Lichty drove around the barrier on October

22, she was driving around 4 m.p.h. and had to brake because of the incline of the road.

After she began to turn the ATV around the barrier to drive beside the train tracks, the

wheels of the ATV sunk into bricks and rocks and she was “pretty sure we kicked a brick

into it,” which then prevented her from turning the ATV. She described that the bricks at

the end of the road were falling apart. She stated: “There was a big pile of rocks and 2

Case No. 2024-T-0065 there were bricks. So either we were sliding in the big pile of rocks . . . and then we slid

into [a passing train] sideways – it clipped my front rack.” The two suffered injuries as a

result of hitting the passing train.

{¶6} Brittany Maras had frequently been a passenger of Lichty’s and considers

her to be a safe driver. She indicated that the two had been drinking some alcoholic

beverages before riding that day, although she was not concerned that Lichty was

impaired. She observed that at the end of West Liberty, there was a barrier covered in

brush. She agreed that the road had been a dead end for a long time. Before hitting the

train, Lichty had been applying the brakes but they were not effective.

{¶7} James Dylan Maras, Lichty’s boyfriend and Maras’ brother, testified that he

was familiar with the area where the incident occurred and indicated that it is used by

ATV riders to cross from one area to another due to the existence of a river. He testified

that the barrier at the end of the road was never completely across the street so ATV

riders are able to go around it.

{¶8} Jeremy Kibler, Maras’ cousin, arrived at the scene of the accident, and

Lichty stated, “I went to hit the brakes and I slid.” He described there were “three

barricades” on West Liberty but they were off to the side and a truck could fit through the

space at the end of the road.

{¶9} Girard City Engineer Dennis Meek testified that in the 1920s, a viaduct was

completed which eliminated public access to cross the railroad at the end of West Liberty

Street. A 1984 construction drawing showed no public right-of-way existed across the

tracks. Various work had been conducted on West Liberty Street over time, including a

project completed in 2017, but not at the end of the street near the railroad tracks.

Relating to repairs to that area, he stated: “I would be wasting city money on a street 3

Case No. 2024-T-0065 that’s not used. . . [and] is a dead-end street.”

{¶10} When asked about how the bricks had separated at the end of the road,

Meek testified that he believed the only traffic in that area was four-wheelers or ATVs:

“There’s no other reason why anybody would ever want to go there. It’s an unregistered

vehicle on a public street going to private property.” He indicated the existence of ATV

tracks in the area of the dead end. City employees were unsure when the barrier was

erected at the dead end but Meek believed it was placed there to prevent vehicles from

going onto the CSX right of way. He indicated that there is a “no outlet” sign at the top of

the hill which leads down to the end of West Liberty.

{¶11} Photographs demonstrate that West Liberty Street ends shortly before a

gravel area beside the train tracks. They show no road or crossover for traffic over the

train tracks. On the right-hand side of the end of the road, there is a concrete barrier and

brush/overgrowth. The barrier does not cross the entirety of the road. Around the area

of the barrier, the bricks in the road begin to split apart and there is an area of missing

bricks with exposed concrete just prior to the area of gravel surrounding the train tracks.

Some bricks are scattered or piled in the gravel near the tracks.

{¶12} The trial court issued a Judgment Entry on August 6, 2024, granting Girard’s

Motion for Summary Judgment. It found that there were no genuine issues of material

fact in dispute and Girard was entitled to immunity. It determined that the exception for

liability relating to negligent failure to keep public roads in repair and remove obstructions

did not apply because Maras was not on a public road at the time of the accident.

{¶13} Maras timely appeals and raises the following assignment of error:

{¶14} “The trial court erred in entering summary judgment in favor of Defendant-

Appellee.” 4

Case No. 2024-T-0065 {¶15} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated, (2)

“the moving party is entitled to judgment as a matter of law,” and (3) “it appears from the

evidence . . . that reasonable minds can come to but one conclusion and that conclusion

is adverse to the party against whom the motion for summary judgment is made, that

party being entitled to have the evidence . . . construed most strongly in the party’s favor.”

{¶16} A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio

St.3d 102, 105 (1996). “A de novo review requires the appellate court to conduct an

independent review of the evidence before the trial court without deference to the trial

court’s decision.” Peer v. Sayers, 2011-Ohio-5439, ¶ 27 (11th Dist.).

{¶17} Maras argues that the trial court “eschewed the ‘three-step analysis,’

instead opting to conclude that Appellant Maras never established the second-step

‘exception’ to immunity because ‘Plaintiff’s accident did not occur on a public road and

therefore Girard cannot be held liable.’”

{¶18} “R.C. Chapter 2744 establishes a three-tier analysis to determine whether

a political subdivision is immune from liability.” Ruckman v. Smith, 2022-Ohio-1813, ¶ 12

(11th Dist.), citing Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556 (2000).

“The first tier is the general rule that a political subdivision is immune from liability incurred

in performing either a governmental function or a proprietary function.” Id. at ¶ 13; R.C.

2744.02(A)(1) (“a political subdivision is not liable in damages in a civil action for injury,

death, or loss to person . . . 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”). “The second tier of the analysis requires a court to determine 5

Case No. 2024-T-0065 whether any of the exceptions to immunity listed in R.C. 2744.02(B) apply to expose the

political subdivision to liability.” Ruckman at ¶ 13. If any such exceptions apply, the third

tier examines whether any defenses to liability in R.C. 2744.03 apply. Id.

{¶19} The trial court correctly acknowledged the general immunity of political

subdivisions and proceeded to consideration of the second tier, whether an exception

applies to that general immunity. Having found that no exception existed under R.C.

2744.02(B) to create liability, it was unnecessary to proceed to the third tier.

{¶20} As to the first tier, we observe that a governmental function includes “[t]he

regulation of the use of, and the maintenance and repair of, roads, highways, streets,

avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds.” R.C.

2744.01(C)(2)(e). Under the first tier, Girard is generally immune in its performance of

the function here, maintenance and repair of roads and streets.

{¶21} The key issue in the present matter arises in relation to the second tier:

whether an exception to general immunity applied pursuant to R.C. 2744.02(B)(3) in

relation to the repair of West Liberty Street. That section provides that “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.”

{¶22} R.C. 2744.02(B)(3) “imposes a duty on political subdivisions to keep the

roads in their control free from conditions that create a danger for ordinary traffic on the

regularly traveled portion of the road.” (Emphasis added.) Engle v. Salisbury Twp., 2004-

Ohio-2029, ¶ 18, citing Mfrs. Natl. Bank of Detroit v. Erie Cty. Road Comm., 63 Ohio St.3d

318, 321 (1992); Snay v. Burr, 2021-Ohio-4113, ¶ 18. It has also been held that “[l]iability

. . . is not imposed upon a municipality where the condition in question does not render a 6

Case No. 2024-T-0065 street unsafe for usual and ordinary modes of travel.” Lovick v. Marion, 43 Ohio St.2d

171, 172-173 (1975). See Mfrs. Natl. Bank at 321 (applying case law relating to municipal

liability in relation to political subdivision liability). Further, a political subdivision does not

negligently fail to keep part of a road in repair where it has not “been improved and made

passable for vehicular use” since the “public has no right to drive upon these types of

roads.” Shope v. Portsmouth, 2012-Ohio-1605, ¶ 18 (4th Dist.).

{¶23} Maras was a passenger on an ATV driven on West Liberty Street. She

alleged that the accident occurred when the ATV could not turn or operate properly due

to the broken bricks at the end of the road. There is no question that there was an uneven

area at the end of the road where the brick road had separated from the concrete

underneath and that bricks were scattered around that area, including in the gravel

surrounding the train tracks.

{¶24} While the foregoing is true, facts demonstrated that the area where Maras

traveled on the ATV and encountered the dislodged bricks was the dead end of West

Liberty. It did not lead to any further residences or roads and preceded a gravel area

surrounding train tracks. Lichty drove into this area after passing a concrete barrier and

while turning onto property owned by CTX immediately beside railroad tracks. It is

reasonable to conclude that this was not an area where the public would have a right to

drive or one that a typical driver would have occasion to travel in their vehicle. See Snay,

2021-Ohio-4113, at ¶ 25 (hazards off the road do not interfere with the public’s use of a

road since they are ones “a motorist properly using the usual and ordinary course of travel

would not come into contact with”) (citation omitted). This is further evidenced by the fact

that a concrete barrier had been placed on the road adjacent to the area where the bricks

had begun to separate. While the barrier did not extend entirely across the road, it 7

Case No. 2024-T-0065 demonstrated that the road ended at that area, which was buttressed by the existence of

a “no outlet” sign on West Liberty.

{¶25} Further, as noted above, the Ohio Supreme Court held that the duty for

political subdivisions under R.C. 2744.02(B)(3) is to prevent danger to “ordinary traffic”

that is on a “regularly traveled portion of the road.” Mfrs. Natl. Bank, 63 Ohio St.3d at

322. Ordinary traffic has no reason to travel onto the portion of the road where Maras

and Lichty drove as it was at the end of the road, immediately followed by gravel and

unpassable railroad tracks. It appears from the testimony that ATV drivers, including

Lichty, used this area to drive by the railroad tracks to other paths of ATV travel. However,

it cannot be concluded that this is “ordinary traffic” subject to protection under R.C.

2744.02(B)(3), particularly given the fact that the use of ATVs on roads such as West

Liberty Street is prohibited by ordinance. Girard Codified Ordinances 375.03(a)(1), (3),

and (5), provides that no “all purpose vehicle,” which includes “all-terrain vehicles” shall

be operated, inter alia, “[o]n any street or highway except for emergency travel,” “[o]n any

private property,” or “[o]n tracks or right of way of any operating railroad.” In the absence

of authority to the contrary, we do not find that the fact that it was known that ATV drivers

sometimes used this road in contravention of the ordinances rendered it ordinary traffic

for the purposes of applying R.C. 2744.02(B)(3). We do not find that the scope of this

exception was intended to ensure that roads be maintained for the purposes of ATV riders

to follow a dead end road to travel on private property owned by a railroad. While political

subdivisions can be held liable for damages sustained in roadways in appropriate

circumstances, it has also been recognized that the General Assembly has previously

narrowed the scope of R.C. 2744.02(B)(3) in “a deliberate effort to limit political

subdivisions’ liability for injuries and deaths on their roadways.” Howard v. Miami Twp. 8

Case No. 2024-T-0065 Fire Div., 2008-Ohio-2792, ¶ 25-26.

{¶26} Maras argues that she does not maintain that the accident occurred on the

street itself but merely that the city’s failure to keep the street in repair resulted in the

accident because a brick became lodged in her wheel. It is accurate that R.C.

2744.02(B)(3) relates to damages “caused by [a political subdivision’s] negligent failure

to keep public roads in repair” and does not mention that the damages must occur on the

road itself. That being the case, it is still required that the accident be the result of the

condition of a road which is subject to the exception, i.e., one regularly traveled upon by

ordinary traffic as discussed above. Although the trial court mentioned specifically that

the accident did not occur on the road rather than discussing whether the road condition

caused the accident, we afford no deference to its findings in conducting de novo review.

See Oliveri v. OsteoStrong, 2021-Ohio-1694, ¶ 28 (11th Dist.) (the appellate court will

“affirm the trial court’s judgment if any valid grounds are found on appeal to support it,

even if the trial court failed to consider those grounds”) (citation omitted).

{¶27} Maras cites Steele v. Auburn Vocational School Dist., 104 Ohio App.3d 204,

207 (11th Dist. 1994), in support of the proposition that the site of the collision is not

relevant if the condition of the road caused the damages. Steele does not address this

issue but discusses immunity from liability relating to whether supervision of a school

parking lot was a discretionary function. Nonetheless, her arguments on this issue lack

merit for the reasons discussed above.

{¶28} Finally, we note that Girard filed a Notice of Supplemental Authority, citing

the Ohio Supreme Court decision of Schlegel v. Summit Cty, 2024-Ohio-5678. Schlegel

addressed the question of whether political subdivision immunity applied where the

plaintiff was “not a motorist or user of the roadway injured by a roadway condition.” Id. at 9

Case No. 2024-T-0065 ¶ 1. It determined that a political subdivision did not have immunity where a blocked

culvert caused damage to a home situated by the roadway although the property damage

did not occur on the roadway itself. Id. at ¶ 20-21. Schlegel is distinguishable from the

present matter. While the Supreme Court determined that R.C. 2744.02(B)(3) does not

contain a limitation restricting the class of person injured to only motorists or users of the

roadway, the present case does not turn on the issue of whether the loss was suffered

by a user of a roadway but instead only whether the damage that occurred was caused

by the failure to repair a public road.

{¶29} Having found that there is no applicable exception to immunity under R.C.

2744.02(B), it is unnecessary to proceed to an analysis under the third tier.

{¶30} The sole assignment of error is without merit.

{¶31} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas, granting summary judgment in favor of the City of Girard, is affirmed.

ROBERT J. PATTON, P.J.,

EUGENE A. LUCCI, J.,

concur.

Case No. 2024-T-0065