Muenchenbach v. Preble County

742 N.E.2d 1128, 91 Ohio St. 3d 141

• Court: Ohio Supreme Court
• Decided: March 14, 2001
• Docket: No. 99-1930
• Status: Published

Opinions

Alice Robie Resnick, J.

On October 24, 1995, plaintiffs-appellants, Richard, Geraldine, and Ruth Muenchenbach, were driving north on West FlorenceCampbellstown Road in Jackson Township, Preble County. As they passed the intersection of West Florence-Campbellstown Road and State Route 122, appellants drove by a small “men working” sign and two Preble County pickup trucks. After traveling about another mile and a half, appellants encountered a four-wheeled 1983 Ford Model 5610 tractor, equipped with a street-sweeping brush on the front and a scraper blade on the back, sitting motionless on the east side of the road. Richard slowed his own vehicle, sounded his horn, and attempted to pass the vehicle on the left. At that time, the tractor, which was operated by William House, a highway service worker employed by the Preble County Engineer, made a sudden left turn toward a private driveway and struck appellants’ vehicle, causing it to leave the roadway and roll over into a field.

Appellants filed a negligence action against defendants-appellees, Preble County, the Board of Commissioners of Preble County, and the Preble County Engineer. The trial court granted summary judgment in favor of appellees on the basis that they were immune from liability under R.C. 2744.02(A)(1), and the court of appeals affirmed the judgment. In so doing, both courts held that the exception to immunity contained in R.C. 2744.02(B)(1) did not apply because appellants’ damages were not caused by the negligent operation of a “motor vehicle” as that term is defined in R.C. 4511.01(B). In particular, they found that the vehicle operated by House was not a motor vehicle under R.C. 4511.01(B) because it constituted excepted construction equipment.

The cause is now before this court pursuant to the allowance of a discretionary appeal.

The issues presented in this case involve whether the vehicle in question was a motor vehicle pursuant to R.C. 4511.01(B), whether the immunity provided in the exception found in R.C. 2744.02(B)(1) attaches under the facts of this case, and whether, as a result of the above inquiries, material questions of fact exist that prevent the granting of summary judgment in favor of appellees.

R.C. 2744.02(A)(1) provides:

“Except as provided in division (B) of this section, a political subdivision 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(B)(1) sets forth the following exception to this broad grant of immunity:

“Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent operation of any motor vehicle by their employees upon the public roads, highways, or streets when the employees are engaged within the scope of their employment and authority.” (Emphasis added.)

Since R.C. 2744.01(E) provides that for purposes of R.C. 2744.02, “motor vehicle” has the same meaning as in R.C. 4511.01, the question is whether the vehicle in this case is a motor vehicle as defined in R.C. 4511.01.

R.C. 4511.01(B) defines “motor vehicle” as follows:

“ ‘Motor vehicle’ means every vehicle propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires, except motorized bicycles, road rollers, traction engines, power shovels, power cranes, and other equipment used in construction work and not designed for or employed in general highway transportation, hole-digging machinery, well-drilling machinery, ditch-digging machinery, farm machinery, trailers used to transport agricultural produce or agricultural production materials between a local place of storage or supply and the farm when drawn or towed on a street or highway at a speed of twenty-five miles per hour or less, threshing machinery, hay-baling machinery, agricultural tractors and machinery used in the production of horticultural, floricultural, agricultural, and vegetable products, and trailers designed and used exclusively to transport a boat between a place of storage and a marina, or in and around a marina, when drawn or towed on a street or highway for a distance of no more than ten miles and at a speed of twenty-five miles per hour or less.” (Emphasis added.)

Since the only dispute in this case concerns the application of the italicized exception, the determinative issue narrows to whether the vehicle operated by House constitutes “other equipment used in construction work and not designed for or employed in general highway transportation.”

In addressing this issue, the courts below considered the decision of the Court of Appeals for Cuyahoga County in Putka v. Parma (1993), 90 Ohio App.3d 647, 630 N.E.2d 380. In that case, the plaintiffs’ decedent was struck and killed by a city-owned Model 680 H Construction King backhoe as she crossed the intersection of Spring Garden Road and Ridge Road in Parma, Ohio. At the time of the accident, the backhoe was being driven by a city employee from the city service garage to a work site. Otherwise, the vehicle was used exclusively in construction work and not designed to be operated on streets and highways.

The city claimed that it was immune from liability pursuant to R.C. Chapter 2744 on the basis that the backhoe was excepted from the definition of motor vehicle under R.C. 4511.01(B) as “other equipment used in construction work and not designed for or employed in general highway transportation,” and also as “hole-digging machinery” and “ditch-digging machinery.” In rejecting the city’s claim, the court in Putka applied the following test:

“[A] backhoe is not a ‘motor vehicle’ within the provision of R.C. 4511.01(B) if it is used for its intended purpose; however, where a backhoe is operated on the public road like any other vehicle, it cannot be exempt as a matter of law from being classified as a ‘motor vehicle’ on the pretext that it traveled a short distance.” Id., 90 Ohio App.3d at 652, 630 N.E.2d at 383.

The court explained that “any implication that a vehicle can roam around the public road and not be treated as a ‘motor vehicle’ within the meaning of R.C. 4511.01(B) would be inconsistent with the intent of the legislative exemptions. The exempted vehicles must be used for their intended purposes in order for the exemption to lie. * * * An exemption cannot be given based on what a vehicle’s supposed function should be, but what it was being used for at the time of the incident.” Id., 90 Ohio App.3d at 651, 630 N.E.2d at 383.

The trial court in the present case found the reasoning in Putka “logical and sound and therefore persuasive.” However, the trial court found that the accident in this case occurred while the vehicle was being used in construction work, rather than in general highway transportation, and rejected appellants’ affidavit statements to the contrary. The court of appeals distinguished Putka on the basis that “the accident in this case occurred within the construction zone,” and also rejected appellants’ affidavits.

A large portion of appellants’ affidavits is admittedly conclusory in nature. The affidavits submitted by appellees are also conclusory to the extent that they recite the definitional language of the statute. Indeed, the evidence in this case consists entirely of these affidavits, answers to interrogatories, an accident report, and several copies of photographs of the vehicle. Nevertheless, a careful examination of the record reveals that, aside from the conclusory allegations, there is sufficient evidence to create a genuine issue of material fact under the so-called “use standard” as applied to the construction equipment exception to the definition of “motor vehicle” in R.C. 4511.01(B).

According to the affidavits submitted by appellees, House was working for the County Engineer on a road construction project that entailed repaving West Florence-Campbellstown Road between State Route 122 and Crawfordsville-Campbellstown Road. “Construction zone” and “men working” signs were posted at both intersections north and south of the “country block.” The vehicle that House was operating on October 24, 1995, was equipped with a “slow-moving vehicle” reflector sign and two large yellow flashing lights mounted on the cab. At the time of the accident, House had just completed packing gravel berm on the east side of the highway, and was preparing to turn left into a private drive so that he could turn around and head south in order to pack down freshly dumped gravel on West Florence-Campbellstown Road.

According to appellants’ affidavits, there was one small “men working” sign approximately fifteen to twenty feet north of State Route 122, but no “construction zone” sign. As they passed this sign, appellants drove between two county pickup tracks, one on each side of West Florence-Campbellstown Road. The employees in these trucks were talking to each other across the road, but did not warn appellants that there was construction work further up the road. As they drove north, appellants first observed the tractor from three-fourths of a mile away, and watched it during their entire approach. The vehicle never moved until the accident; there were no flashing yellow lights or a “slow-moving vehicle” sign on the vehicle; there was no freshly dumped gravel for House to pack down on West Florence-Campbellstown Road south of his position; and House was “by his own statement * * * involved in making a left-hand turn into a private driveway in order to turn the tractor around and return down the road * * * in order to get warm in the county pick up trucks.”

Based on this evidence, it appears that a genuine issue of fact remains as to whether the vehicle in this case was employed in general highway transportation at the time of the accident. Accordingly, the application of a use standard compels the conclusion that summary judgment is not appropriate under Civ.R. 56(C).

However, appellees challenge the concept of a use standard as being in derogation of the statutory language and propose that we classify all vehicles equipped for and used in construction work as excepted construction equipment, regardless of how they were used at the time of the accident. It appears to be appellees’ overall contention that the limiting or modifying language “used in construction work and not designed for or employed in general highway transportation” signifies an intent to classify “other equipment” on the basis of a vehicle’s inherent qualities, or its general, principal, or dedicated use, rather than on the basis of its current actual use. However, the arguments advanced by appellees, and the authorities on which they rely, convince us that the opposite is true.

In Wauseon v. Badenhop (1984), 9 Ohio St.3d 152, 9 OBR 442, 459 N.E.2d 867, the court held that a farm tractor is a “vehicle” for purposes of conviction under R.C. 4511.19, but it is not a “motor vehicle” for purposes of a license suspension under R.C. 4507.16. In so holding, we relied on R.C. 4507.03, which provides that no person shall be required to obtain an operator’s license for the purpose of driving “any farm tractor * * * temporarily drawn, moved, or propelled upon the highway,” and R.C. 4501.01(B), which specifically excludes “agricultural tractors” from the definition of “motor vehicle.” Id., 9 Ohio St.3d at 154, 9 OBR at 443, 459 N.E.2d at 869.

At the time that Badenhop was cited for driving under the influence of alcohol, he was driving the farm tractor pulling two farm wagons of people on a hayride in the city of Wauseon. Appellees correctly observe that our decision in Badenhop “did not cause a specifically excluded vehicle to transform into a ‘motor vehicle’ simply because it was being operated on a public road.” More to the point, our decision to classify the tractor in Badenhop as an excepted agricultural tractor under R.C. 4501.01(B) was not affected by how it was being used at the time of the citation. Appellees argue, therefore, that the classification of the tractor in the present case as excepted construction equipment under R.C. 4511.01(B) should likewise not depend upon its use at the time of the accident. We disagree.

R.C. 4501.01(B) and 4511.01(B) except agricultural tractors from the definitions of “motor vehicle” on the basis of their principal use, rather than on the basis of their use at any particular time. Under the definitions of “agricultural tractor” in R.C. 4501.01(C) and 4511.01(J), a vehicle is classified as an agricultural tractor when “used principally for agricultural purposes.”

In contrast, R.C. 4501.01(B) and 4511.01(B) do not except construction equipment from the definition of “motor vehicle” on the basis of its principal use or dedicated purpose. They do not provide that construction equipment is excepted when used “principally,” “primarily,” or “generally” for construction purposes, or in construction work. They do provide that, in order for other equipment used in construction work to be excepted, it must not be “employed in general highway transportation.” The term “general” is very clearly used not to modify the term “employed,” but to modify “highway transportation.” We believe that if the General Assembly intended for construction equipment to be classified and excepted according to its principal, primary, general, or dedicated use, regardless of how used when it causes damage or injury, then it is incumbent upon the General Assembly to so provide.

Moreover, the court’s determination in Badenhop was premised on the interplay of three code sections — R.C. 4501.01(B), 4507.16, and 4507.03. The application of a use standard is arguably inconsistent with the licensing exemptions granted under R.C. 4507.03, which provides:

“No person shall be required to obtain a driver’s or commercial driver’s license for the purpose of driving or operating a road roller, road machinery, or any farm tractor or implement of husbandry, temporarily drawn, moved, or propelled upon the highway.” (Emphasis added.)

However, the application of a use standard is entirely consistent with the traffic law exemptions granted under R.C. 4511.04, which provides:

“Sections 4511.01 to 4511.78, inclusive, section 4511.99, and sections 4513.01 to 4513.37, inclusive, of the Revised Code do not apply to * * * other equipment while actually engaged in work upon the surface of a highway within an area designated by traffic control devices, but apply to such * * * vehicles when traveling to or from such work.

“The drivers of * * * other vehicles utilized in * * * road surface maintenance, while engaged in work upon a highway, * * * shall be exempt from criminal prosecutions for violations [of specified code sections]. Such exemption shall not apply to such drivers when their vehicles are not so engaged.” (Emphasis added.)

In addition, aside from references to “agricultural” or “commercial” tractors, each time the term “tractor” appears generally in R.C. Chapter 4511, it is modified or qualified by the phrase “being used in constructing” or “while being used in * * * construction.” See R.C. 4511.64 and 4511.69. Thus, we cannot agree with appellees’ assertion that Badenhop extends to preclude a use standard from being applied to determine whether a nonagricultural tractor constitutes excepted construction equipment for purposes of immunity under R.C. 2744.02.

Appellees also rely on Drake-Lassie v. State Farm Ins. Cos. (1998), 129 Ohio App.3d 781, 787, 719 N.E.2d 64, 68, where the Court of Appeals for Franklin County found a “use analysis” to be “inconsistent with established rules of statutory construction.” Contrary to appellees’ assertions, however, Drake-Lassie does not stand for the proposition that use standards are inapplicable to “any of the 14 specific exclusions” contained in R.C. 4501.01(B) or R.C. 4511.01(B). Instead, a careful reading of that decision reveals that the court in Drake-Lassie rejected the view that holds use standards to be applicable across the board to all of the exceptions set forth in these statutes.

The application or rejection of a use standard should not be an all-or-nothing proposition. R.C. 4501.01(B) and 4511.01(B) are syntactically constructed to provide a working definition of “motor vehicle,” followed by a series of exceptions. Some of these exceptions are specific in nature and some are general in nature; some are characterized as a type of vehicle and some are distinguished by function. Some of the exceptions are followed by limiting or modifying clauses, or subject to definitional qualifications, while others stand unqualified.

A use standard may be applied to determine whether a vehicle constitutes excepted construction equipment because that exception is subject to the qualification that such equipment not be “employed in general highway transportation.” There has been some debate over whether, and to what extent, a use standard properly applies beyond the confines of the exception for construction equipment. See Floch v. Farmers Ins. Group of Cos. (1994), 97 Ohio App.3d 394, 397, 646 N.E.2d 902, 904; Putka, supra, 90 Ohio App.3d at 653, 630 N.E.2d at 383-384 (Nahra, P.J., dissenting); State v. Conner (1983), 13 Ohio App.3d 179, 13 OBR 214, 468 N.E.2d 320; State v. Devilbliss (C.P.1961), 16 O.O.2d 404, 406, 88 Ohio Law Abs. 592, 596, 177 N.E.2d 74, 76; 1956 Ohio Atty. Gen. Ops. No. 6474. However, the issue presented in this case has nothing to do with any exception other than the exception for construction equipment, and our decision today is so limited. Thus, it is not necessary for us to determine whether the court in Putka wént too far in applying a use standard to any of the exceptions not modified by the phrase “not designed for or employed in general highway transportation.”

However, we disagree with the statement in Putka that a use standard may generally be applied “in determining whether a vehicle is a motor vehicle within the meaning of the statute.” Id., 90 Ohio App.3d at 651, 630 N.E.2d at 382. A vehicle is a motor vehicle under R.C. 4511.01(B) if it is “propelled or drawn by power other than muscular power or power collected from overhead electric trolley wires” and does not fall within any of the enumerated exceptions. The use standard can do no more than vitiate the particular exception that justifies its application in the first place; it cannot apply to reformulate a definition of motor vehicle provided by the General Assembly.

Finally, appellees rely on Berry v. Motorists Mut. Ins. Co. (1983), 13 Ohio App.3d 228, 13 OBR 280, 468 N.E.2d 922, and Groff v. Motorists Mut. Ins. Co. (May 24, 1989), Summit App. No. 13919, unreported, 1989 WL 54705. However, neither the backhoe in Berry nor the payloader in Groff was employed in general highway transportation at the time of the accident. The accident in Berry occurred while the backhoe was being operated off a public road, and the accident in Groff occurred while the payloader was performing construction work on a bridge, in a lane that was closed to traffic, with barrels having been set up to keep traffic out of the work area.

For all of the foregoing reasons, we hold that for purposes of R.C. 2744.02(B)(1), a “use standard” is an appropriate test for determining whether a vehicle is excepted from the definition in R.C. 4511.01(B) of “motor vehicle” on the basis that it constitutes “other equipment used in construction work and not designed for or employed in general highway transportation.”¹

Accordingly, the judgment of the court of appeals is reversed, and the cause is remanded to the trial court for further proceedings.

Judgment reversed and cause remanded.

Douglas, F.E. Sweeney and Pfeifer, JJ., concur. Douglas, J., concurs separately. Moyer, C.J., and Lundberg Stratton, J., dissent. Cook, J., dissents.

1 . We recognize that the determination of whether a particular vehicle falls within a definition of a “motor vehicle” is normally a question of law. However, in the specific circumstances before us in this case, the statutes at issue unavoidably compel an inquiry into whether, as a question of fact, the vehicle under scrutiny fulfilled the terms of R.C. 4511.01(B)’s exception for construction vehicles not “employed in general highway transportation.”