Marich v. Bob Bennett Construction Co.

116 Ohio St. 3d 553
CourtOhio Supreme Court
DecidedJanuary 17, 2008
DocketNo. 2006-1827
StatusPublished
Cited by22 cases

This text of 116 Ohio St. 3d 553 (Marich v. Bob Bennett Construction Co.) 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
Marich v. Bob Bennett Construction Co., 116 Ohio St. 3d 553 (Ohio 2008).

Opinion

Moyer, C.J.

I

{¶ 1} This appeal presents two issues for our review: (1) whether R.C. 5577.05 and 4513.34 take precedence over City of Norton Codified Ordinances 440.01 and (2) if so, whether a party who complied with the ordinance but not with the statutes is negligent per se for a resulting injury. For the following reasons, we hold that the statutes take precedence over the ordinance and that a holding of negligence per se is inappropriate in this case.

[554]*554II

{¶ 2} On November 8, 2002, appellant John Goss was driving a tractor-trailer on Clark Mill Road in Norton, Ohio, as part of his employment with appellant Bob Bennett Construction Company. The trailer was carrying a bulldozer, and the entire apparatus was 124 inches wide. While on Clark Mill Road, Goss stopped the tractor-trailer and began disconnecting and unloading the bulldozer. Appellee John Marich drove his vehicle into the stationary tractor-trailer.

{¶ 3} Marich and his wife, appellee Nada Marich, filed a negligence suit against Goss and the company (collectively, “Bennett”) for his injuries and her loss of consortium. The Mariches subsequently filed a motion for partial summary judgment, arguing that Bennett was negligent per se for operating an oversized vehicle on public roads without a proper permit from the city of Norton. To support this motion, they cited R.C. 5577.05(A)(4), which limits to 102 inches the width of most vehicles traveling on public roads,1 and R.C. 4513.34(A), which allows persons to apply for a permit to operate an excessively wide vehicle from either the state director of transportation or the relevant local authorities for roads under their jurisdiction. Pursuant to R.C. 4513.34(A), if an applicant demonstrates good cause, the relevant authority may issue a special written permit that authorizes the operation of an excessively wide vehicle on any highway in that jurisdiction.

{¶ 4} Because the company admitted that it had neither sought nor procured a permit from the city of Norton to operate a vehicle in excess of the statutory width limits on Clark Mill Road, the trial court granted the Mariches’ motion and ruled that Bennett was negligent per se for violating R.C. 5577.05.

{¶ 5} Bennett sought reconsideration on the basis of Norton Codified Ordinances 440.01(c)(1). This ordinance purported to eliminate the permit requirement for vehicles traveling on certain roads in the municipality, including Clark Mill Road. In his deposition, the Norton police chief reinforced this point by stating that, even if Bennett had sought a permit for Clark Mill Road, he would not have issued it because of the exception in the ordinance. Given this information, the trial court ruled that this blanket exception to the permit requirement was permissible under Norton’s home-rule powers and that Bennett was not negligent per se for its operation of the tractor-trailer. The case proceeded to trial, and the jury rendered its verdict in favor of Bennett.

{¶ 6} The Mariches appealed to the Court of Appeals for Summit County, which held that R.C. 5577.05 took precedence over Norton Codified Ordinance 440.01 and that Bennett was negligent per se for failing to abide by the statute. [555]*555Further, the court remanded the matter for a determination of whether Bennett is liable for the Mariehes’ injuries. We accepted Bennett’s discretionary appeal of both issues.

Ill

{¶ 7} Section 3, Article XVIII of the Ohio Constitution, commonly known as the “Home Rule Amendment,” gives municipalities the “authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” This case requires us to determine whether Norton Codified Ordinances 440.01 is in conflict with, and therefore invalidated by, R.C. 5577.05 and 4513.34.

{¶ 8} As a preliminary matter, Bennett argues that Norton has statutory authority under R.C. 715.22, 723.01, 737.022, and 4511.07 to enact ordinances such as the one at issue. Bennett suggests that these statutes supplement the city’s authority under the Home Rule Amendment, giving Norton enhanced power to control the streets within its jurisdiction. However, as we stated in Geauga Cty. Bd. of Commrs. v. Munn Rd. Sand & Gravel (1993), 67 Ohio St.3d 579, 621 N.E.2d 696, the power to enact ordinances comes solely from the Constitution: “While the effect of R.C. 4511.07 * * * could be viewed as very much like a grant of authority to the municipality, the municipality does not need the grant of authority because it already possesses it pursuant to its home rule powers. The power comes from the Ohio Constitution; it does not come from R.C. 4511.07.” (Emphasis sic.) Id. at 584, 621 N.E.2d 696. We see no reason to deviate from this conclusion for the other statutes cited by Bennett. See also Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519, paragraph one of the syllabus.

{¶ 9} We use a three-part test to evaluate conflicts under the Home Rule Amendment. “A state statute takes precedence over a local ordinance when (1) the ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police power, rather than of local self-government, and (3) the statute is a general law.” Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, ¶ 9. We will address these elements out of order as follows.

A. Police power or local self-government

{¶ 10} Athough the issue whether the ordinance is an exercise of local self-government or of the municipality’s police power is the second element in the Canton test, we will consider it first: “If an allegedly conflicting city ordinance relates solely to self-government, the analysis stops, because the Constitution authorizes a municipality to exercise all powers of local self-government within its jurisdiction.” Am. Financial Servs. Assn. v. Cleveland, 112 Ohio St.3d 170, 2006-Ohio-6043, 858 N.E.2d 776. ¶ 23.

[556]*556{¶ 11} An ordinance created under the power of local self-government must relate “solely to the government and administration of the internal affairs of the municipality.” Beachwood v. Cuyahoga Cty. Bd. of Elections (1958), 167 Ohio St. 369, 5 O.O.2d 6, 148 N.E.2d 921, paragraph one of the syllabus. Conversely, the police power allows municipalities to enact regulations only to protect the public health, safety, or morals, or the general welfare of the public. See Downing v. Cook (1982), 69 Ohio St.2d 149, 150, 23 O.O.3d 186, 431 N.E.2d 995. While local self-government ordinances are protected under Section 3, Article XVIII of the Ohio Constitution, police-power ordinances “must yield in the face of a general state law.” Am. Financial Servs. Assn., 112 Ohio St.3d 170, 2006-Ohio-6043, 858 N.E.2d 776, ¶ 23.

{¶ 12} Norton Codified Ordinances 440.01 is a part of Chapter 440, which pertains to commercial and heavy vehicles. The ordinance prohibits from city streets and highways vehicles exceeding the state load limits and describes the process by which a vehicle may be granted an exception from those limits. It sets forth the municipality’s authority to issue permits to applicants for operating vehicles in excess of the dimensions specified in Norton Ordinances 440.02,2

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116 Ohio St. 3d 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marich-v-bob-bennett-construction-co-ohio-2008.