Opinion
Case No. C-1-00-864
February 22, 2001
Memorandum and Order
Plaintiffs, Keith Theobald, his wife, and his children, initiated this action after Mr. Theobald suffered catastrophic injuries in an automobile collision on October 23, 1998. His automobile collided with one driven by Walter Richter on Interstate 275 within the city limits of Montgomery, Ohio. Mr. Richter's vehicle had collided with one abandoned by Keith Shouse on the right side of the interstate, some two feet outside the far right traffic lane. Mr. Shouse's vehicle had been parked there for approximately thirty hours at the time of the collision.
The parties agree that Hamilton County and the City of Montgomery share responsibility for the maintenance of the portion of Interstate 275 that lies within the limits of the City. Plaintiffs sue the Hamilton County Board of Commissioners, the Hamilton County Sheriff, the Hamilton County Highway Department, the City of Montgomery, the Montgomery Highway Department, and the Montgomery Chief of Police for negligence under Ohio law. Plaintiffs are Indiana residents, and this matter is before the Court solely on the basis of the Court's diversity jurisdiction.
Defendants the City of Montgomery, the Montgomery Highway Department, and the Montgomery Chief of Police (collectively, the "Montgomery Defendants") move for the dismissal of Plaintiffs' claim against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. They contend that plaintiffs have not stated a claim of negligence against them upon which relief may be granted under Ohio law. They further contend that the only proper defendant for any claim against the City and its departments or officials is the City itself.
Plaintiffs have not responded to the portion of the Montgomery Defendants' motion that pertains to the naming of a proper party-defendant. The Court concludes that Plaintiffs do not oppose that portion of the motion and hereby GRANTS the motion (Doc. 6) as it pertains to the Montgomery Highway Department and the Montgomery Chief of Police. This matter is before the Court upon the City of Montgomery's motion to dismiss Plaintiffs' negligence claim against it (Doc. 6)
Plaintiffs have explicitly agreed to the dismissal of their negligence claim to the extent that it may be construed as a claim against either the Mayor or the Chief of Police of the City of Montgomery.
1. Rule 12(b)(6)
The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true. See Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993) (citing Nishiyama v. Dickson County, 814 F.2d 277, 279 (6th Cir. 1987)). To that end, for purposes of a motion to dismiss under the Rule, the complaint must be construed in the light most favorable to the nonmoving party and its allegations taken as true. See Scheuer v. Rhodes, 416 U.S. 232 (1974);Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). To survive a motion to dismiss under Rule 12(b)(6), "a . . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (citations and internal quotation marks omitted). The test for dismissal under Rule 12(b)(6), however, is a stringent one. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hartford Fire Insurance Co. v. California, 509 U.S. 764, 811 (1993) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). See also Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1189 (6th Cir. 1996). Consequently, a complaint will not be dismissed pursuant to Rule 12(b)(6) unless no law supports the claim made, the facts alleged are insufficient to state a claim, or an insurmountable bar appears on the face of the complaint.
2. Analysis
Political subdivisions, including municipalities, are generally immune from liability "for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision . . . in connection with a governmental or proprietary function." Ohio Revised Code ("O.R.C.") § 2744.02(A)(1). See also Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998). The immunity is not absolute, however. See Cater, 83 Ohio St.3d at 28. Five statutory exceptions apply. See id.
Two of those statutory exceptions are invoked by plaintiffs in this matter. First, they invoke O.R.C. § 2744.02(B)(3), which provides, in pertinent part, as follows:
[P]olitical 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 subdivisions open, in repair, and free from nuisance . . . .
plaintiffs contend that the City of Montgomery failed to keep Interstate 275 free from nuisance on October 23, 1998 and that its failure resulted in injury and loss to Plaintiffs.
Plaintiffs also invoke the exception to immunity provided in O.R.C. § 2744.02(B)(5)
In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to persons or property when liability is expressly imposed upon the political subdivision by a section of the Revised Code. Liability shall not be construed to exist under another section of the Revised Code merely because a responsibility is imposed upon a political subdivision or because of a general authorization that a political subdivision may sue and be sued.
Plaintiffs contend that O.R.C. § 4513.61 imposes a duty upon the City of Montgomery to remove abandoned vehicles and that the breach of that duty may give rise to liability.
a. Section 2744.02(B)(3)
The parties agree that the determination whether O.R.C. § 2744.02 (B)(3) applies to the City of Montgomery's failure to remove the Shouse vehicle from the side of Interstate 275 on or before October 23, 1998 turns on one issue. Specifically, they agree that the Court must determine whether a vehicle sitting two feet outside the far right traffic lane of an interstate may constitute a nuisance on a public road or highway. Two decisions of the Ohio Supreme Court elucidate the contours of the nuisance exception to political subdivision immunity.
In the recent decision in Harp v. Cleveland Heights, 87 Ohio St.3d 506 (2000), the court concluded that "an unsound tree limb that threatens to fall onto a public road from adjacent property can be a nuisance that makes the usual and ordinary course of travel of the roadway unsafe."Id. at 512. The court, thus, narrowed the nuisance inquiry to a question of whether the alleged nuisance has the capacity to obstruct or impede the flow of traffic, whether or not it is actually doing so. See Id. The court observed that O.R.C. § 2744.02(B)(3) "contains no language that limits a political subdivision's duty to the removal of obstructions from public roads." Id.
The City of Montgomery argues that the exception of O.R.C. § 2744.02(B)(3) does not apply to Plaintiffs' claim because the Shouse vehicle could not have been a nuisance inasmuch as it was sitting two feet off the interstate. The analysis of the Harp court forecloses that argument. It opens a second line of argument for Defendants, however.
Unlike the unsound tree limb at issue in Harp, the Shouse automobile had no capacity to enter the public roadway. The tree limb was classified a nuisance, prior to its fall onto the roadway, because of the danger that it would fall into the roadway. See Harp, 87 Ohio St.3d at 512. It is distinguishable from the Shouse vehicle in that the vehicle could not enter the roadway and obstruct or impede the flow of traffic absent an intervening act by a third party.
In that respect, the Shouse vehicle was identical to the alleged nuisance in Williamson v. Pavlovich, 45 Ohio St.3d 179 (1989), a case decided under O.R.C. § 723.01. In Williamson, the court considered whether a string of illegally parked cars opposite a public school constituted a nuisance. The court held that "illegally parked cars located on the side of a highway, which contribute generally to traffic congestion, do not constitute a nuisance giving rise to municipal liability." Id. at syllabus ¶ 1. The court based its holding upon two facts: the illegally parked cars were not an "actual physical condition" or an "obstruction." See Williamson, 45 Ohio St.3d at 183.
Section 723.01 imposes a duty upon municipalities to keep public highways free from nuisances. The Ohio Supreme Court has deemed consideration of case law interpreting § 723.01 appropriate in determining when a political subdivision may be held liable under § 2744.02(B)(3). See Harp, 87 Ohio St.3d at 509 (citing Franks v. Lopez, 69 Ohio St.3d 345, 348 (1994); Manufacturer's National Bank of Detroit v. Erie Cty. Rd. Commission, 63 Ohio St.3d 318, 321 (1992))
The court identified an actual physical condition as a condition that "possess[es] an element of permanency." Williamson, 45 Ohio St.3d at 182. The court did not delineate a period of time after which a condition possesses a period of permanency, and no court applying §§ 723.01 and/or 2744.02(B)(3) has delineated that period.
Plaintiffs contend that the Shouse vehicle, which had been illegally parked alongside Interstate 275 for thirty hours, possessed an element of permanency. The Court notes, however, that Ohio statutory law does not permit a municipality to remove a vehicle that is not obstructing traffic until it has been left on a public street for "forty-eight hours or longer." O.R.C. § 4513.61. Absent other guidance from the courts of Ohio, the Court is persuaded that an illegally parked vehicle does not constitute an actual physical condition possessing an element of permanency until it has been left alongside a public street for at least forty-eight hours. Accordingly, the Court concludes that Plaintiffs have not alleged facts that would support a finding that the Shouse vehicle, which had been illegally parked for thirty hours, was an actual physical condition and, therefore, a nuisance.
Plaintiffs have also failed to allege facts that would support a claim that the Shouse vehicle was an obstruction. The Williamson court identified a physical obstruction as something that significantly obstructs or impedes the flow of traffic. Parked two feet away from the far right traffic lane, the Shouse vehicle neither significantly obstructed nor impeded the flow of traffic. Even at the time of the collision, it was the Richter vehicle, not the Shouse vehicle, that constituted the obstruction to the flow of traffic that resulted in Plaintiffs' injuries. Accordingly, applying the reasoning of the Ohio Supreme Court in Williamson, supra, the Court concludes that Plaintiffs have not alleged facts that would support a finding that the Shouse vehicle was a nuisance at the time of the collision in which Plaintiffs suffered their injuries.
Plaintiffs cite a number of decisions from Ohio courts in an effort to escape the clear holding of Williamson, as set forth in the first paragraph of its syllabus. One line of cases, represented by Franks v. Lopez, supra, includes those in which the courts have concluded that a condition not physically in the highway, such as a malfunctioning traffic signal, may constitute a nuisance if it "creates a danger for ordinary traffic on the regularly traveled portion of the road." Id. at 348 (citing Manufacturer's, supra). Those decisions do not factor into the Court's analysis in this case because Plaintiffs have not alleged facts that would support a finding that the Shouse vehicle constituted a danger to ordinary traffic on the regularly traveled portion of Interstate 275. Rather, it created a danger to traffic that left the regularly traveled portion of the highway, which then posed a danger to ordinary traffic in the regularly traveled portion.
One decision cited by Plaintiffs merits further consideration. InDickerhoof v. Canton, 6 Ohio St.3d 128, syllabus ¶ 1 (1983), a decision predating Williamson, the Ohio Supreme Court held that
[a] complaint seeking to impose liability on a municipal corporation for its alleged negligence in failing to keep the shoulder of a highway in repair and free from nuisance states a claim upon which relief may be granted.
Plaintiffs argue that Dickerhoof establishes that the Court may not distinguish between the regularly traveled portion of the highway and the shoulder in determining whether the exception of O.R.C. § 2744.02(B) (3) applies.
In Dickerhoof, the court concluded that an "enormous rut or chuckhole in the shoulder, abutting the major portion of the roadway" may constitute a nuisance for purposes of inquiry under O.R.C. § 723.01.Id. at 131. The court concluded that § 723.01 "includes the responsibility to keep the berm or shoulder of the highway in repair and free from nuisance." Id.
The Dickerhoof decision complements, and does not contradict, the decision in Williamson, supra. The Dickerhoof court concluded that a municipality is required to keep the shoulder or berm of a public road within its jurisdiction free from nuisance. It did not hold that every condition on the shoulder of a public road constitutes a nuisance, however. It considered only the condition before it, a rut or chuckhole that would have possessed an element of permanency.
The Williamson court did not base its decision regarding illegally parked cars on the fact that the cars were not in the regularly traveled portion of the roadway. Rather, it concluded that they were not a nuisance because they did not obstruct or impede the flow of traffic and were not a physical condition possessing an element of permanency. Consistent with the holdings in both Dickerhoof and Williamson, an illegally parked vehicle on the shoulder of a public road that possesses an element of permanency may constitute a nuisance. Having concluded that Plaintiffs cannot establish that the Shouse vehicle possessed an element of permanency as of October 23, 1998, or that it was an obstruction to the regular flow of traffic, the Court concludes that Plaintiffs have not alleged facts that, if proven, would give rise to a claim that the Shouse vehicle was a nuisance. Accordingly, Plaintiffs cannot establish that O.R.C. § 2744.02(B)(3)'s exception to political subdivision immunity applies to their claim against the City of Montgomery.
b. Section 2744.02(B)(5)
Plaintiffs also invoke O.R.C. § 2744.02(B)(5)'s exception to political subdivision immunity. They identify, albeit obliquely, O.R.C. § 4513.61 as the section of the Ohio Revised Code that expressly imposes liability upon the political subdivision for failure to remove abandoned vehicles from the public highways.
Section 4513.61 imposes no such liability upon political subdivisions. Indeed, that section merely authorizes, and does not require, the removal of such vehicles. It includes no express imposition of liability. Accordingly, it does not support Plaintiffs' claim that the exception of O.R.C. § 2744.02(B)(5) applies to their claim against the City of Montgomery.
3. Conclusion
For all of those reasons, the motion of the Montgomery Defendants to dismiss Plaintiffs' claim against them (Doc. 6) is hereby GRANTED. This matter will proceed on Plaintiffs' claim against the Hamilton County Board of Commissioners, Sheriff, and Highway Department.
IT IS SO ORDERED.