IN THE SUPREME COURT OF OHIO

JOHN S. FARLEY, et al.,

Plaintiffs/Appellants,

V.

DUKE CONSTRUCTION, et al.,

Defendants/Appellees.

On Appeal from the Franklin CountyCourt of Appeals, Tenth AppellateDistrict, Case No. 08 APE-03-192

CASE NO. 09-0155

APPELLEES UNION COUNTY, UNION COUNTY COMMISSIONERS, UNIONCOUNTY SHERIFF'S OFFICE AND UNION COUNTY SHERIFF ROCKY W.

NELSON'S MEMORANDUM IN OPPOSITION TO APPELLANTS' MEMORANDUMIN SUPPORT OF JURISDICTION

Plaintiffs/Appellants:

Frank E. Todaro, Esq. (0038500)Todaro & Wagoner Co., L.P.A.471 East Broad Street, Suite 1303Columbus, Ohio 43215Tel: 614-242-4333Fax: 614-242-3948Email: Frank(Wodarolaw.comAttorney for Plaintiffs/AppellantsJohn S. Farley and Elizabeth Farley

CLERK OF CoUPNTSUPR-`ME CUURT OF OFIiO

Defendants/Appellees:

Douglas C. Boatright, Esq. (0042489)Isaac, Brant, Ledman & Teetor, LLP250 East Broad Street, 9`h FloorColumbus, Ohio 43215Tel.: 614-221-2121Fax: 614-365-9516Email: dcb(aisaacbrant.comAttorney for Defendants/AppelleesUnion County, Union CountyCommissioners, Union County SheriffsOffice and Union County Sheriff Rocky W.Nelson

Michael J. Valentine, Esq. (0038806)Reminger & Reminger650 East State Street, Suite 400Columbus, Ohio 43215Tel: 614-228-1311Fax: 614-232-2410Email: mvalentine(a)remin eg r.comAttorney for Defendants/AppelleesDuke Construction & Tartan WestDevelopment

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William Scott Lavelle, Esq. (0015132)Lavelle, Jurca & Lashuk, LLC6797 N. High Street, Suite 314Worthington, Ohio 43085Tel: 614-228-6885Fax: 614-228-0146Email: slavelle@lavellejurcaComAttorney for Defendant/AppelleeMcDaniel's Construction

David A. Caborn, Esq. (0037347)Caborn & Butauski Co., LPA765 S. High StreetColumbus, Ohio 43206Tel: 614-445-6265Fax: 614-445-6295Email: dcabom a,sbcelobal.netAttorney for Defendant/AppelleeSheperd Excavating

Stephen C. Findley, Esq. (0010715)Freund, Freeze & Arnold65 East State Street, Suite 800Columbus, Ohio 43215Tel: 614-827-7300Fax: 614-827-7303Email: sfindley@,ffalaw.comAttorney for Defendant/AppelleeCrager Brothers Trucking

TABLE OF CONTENTS

Appellees' Position On Whether This Case Involves A Constitutional IssueOr Is Of Public Or Great General Interest ....................................... 1

Argument ......................................................................................... 4

Conclusion ........................................................................................ 12

Certificate of Service ........................................................................... 12

APPELLEES' POSITION ON WHETHER THIS CASE INVOLVES ACONSTITUTIONAL ISSUE OR IS OF PUBLIC OR GREAT GENERAL INTEREST

This matter does not involve a Constitutional issue and but for mentioning the

Constitution in the first sentence of page 1 of the Appellants' Memorandum In Support Of

Jurisdiction, it is not mentioned again. This matter involves the Political Subdivision Tort

Liability Act contained in Chapter 2744 of the Ohio Revised Code. This Court has ruled in the

past, as have the other lower courts, that the Political Subdivision Tort Liability Act is

constitutional. hi Menefee v. Queen City Metro (1989), 49 Ohio St.3d 27, this Court held:

The statute serves two purposes. It conserves the fiscal resources ofpolitical subdivisions by limiting their tort liability. Secondly, it permits injuredpersons, who have no source of reimbursement for their damages, to recover for atort committed by the political subdivision.

The state could have extended sovereign immunity to all claims against a politicalsubdivision. Instead, it carved out limited classifications in response to reasonableconcems. Whether the state's classification best achieves its purpose is not ourinquiry. In a rational-basis analysis, we must uphold the statute unless theclassification is wholly irrelevant to achievement of the state's purpose.McGowan v. Maryland (1961), 36 U.S. 420, 425. "A statutory discrimination willnot be set aside if any state of facts reasonably may be conceived to justify it. Id at426. (Emphasis in original)

Id at 29. See, also, O'Tolle v. Denihan (2008), 118 Ohio St.3d 374, 2008 Ohio 2574 at ¶¶93 and

95:

¶93 Although he did not appeal to this court, appellee did challenge theconstitutionality of the inununity statutes in his second assignment of error at thecourt of appeals, and he raises that argument in his merit brief.

*¶95 In reviewing our precedent and that of numerous appellate courts, weconclude that this issue is one that is settled and need not be discussed any furtherin this case. Cf Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666, 1995 Ohio 295,653 N.E.2d 1186; Fabrey, 70 Ohio St.3d 351, 1994 Ohio 368, 639 N.E.2d 31;Bundy v. Five Fires Metroparks, 152 Ohio App.3d 426, 2003 Ohio 1766, 787N.E.2d 1279, P 45-47. Appellee's challenge, therefore, fails.

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Nor is this matter one of Public or Great General Interest. As to this issue,

Plaintiffs/Appellants merely bemoan the holding in Howard v. Miami Twp. Fire Div., 119 Ohio

St.3d 1, 2008 Ohio 2792. Plaintiffs/Appellants contend that the Court's definition of

"obstruction", as it is used in Ohio Revised Code § 2744.02(B)(3), is ambiguous and cannot be

applied by the courts of Ohio. This is simply untrue. The definition is clear and the courts will

be able to apply it as intended on a case by case basis. Furthermore, Plaintiffs'/Appellants'

position that the Court should revisit Howard, supra, and make the term "obstruction" broader

and then simply limit its application to the traveled portion of the roadway is disingenuous.

Section 2744.02(B)(3) is already limited to "obstructions" on the traveled portion of "public

roads". Section 2744.01(H) defines "public roads" as follows:

"Public roads" means public roads, highways, streets, avenues, alleys, and bridgeswithin a political subdivision. "Public roads" does not include berms, shoulders,rights-of-way, or traffic control devices unless the traffic control devices aremandated by the Ohio manual of traffic control devices.

This language expressly limits the § 2744.02(B)(3) exception to immunity to the traveled portion

of the roadway as Plaintiffs/Appellants "suggest".

In addition, as already recognized by this Court, the General Assembly clearly meant to

limit the exception to the general immunity available to political subdivision more than what it

had been prior to April 9, 2003 because it changed the language within § 2744.02(B)(3) from

"nuisance" to "obstruction". Plaintiffs/Appellants are not asking this Court to change its

definition of "obstruction" because they believe the Court has misinterpreted the word; they are

asking this Court to prevent or bar the application of the changes made by the General Assembly.

They simply object to the higher standard needed to overcome a political subdivision's immunity

in roadway cases. The accident at issue herein occurred on December 25, 2005.

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Finally, this is not the case for re-addressing the Courts holding in Howard, supra. There

is nothing in this case which would justify altering the application of the definition of

"obstruction". The Howard matter involved ice on a roadway. This matter involves mud on the

roadway. In both cases, the plaintiffs alleged that a slippery condition was the cause of the

accidents. There is no difference between the Howard matter and the instant matter.

Plaintiffs/Appellants are not alleging that the mud on the road in this matter prevented motorists

from using the roadway. Plaintiffs/Appellants are saying that the mud was a condition which

made travel a little more difficult but not impossible. Plaintiffs/Appellants herein simply desire

the Court to change the definition of "obstruction" to be the same as "nuisance". They want this

Court to return to the broader exception to immunity which existed prior to April 9, 2003.

Finally, the lower courts are having no problem in applying the definition of

"obstruction" to cases. The Tenth District Court of Appeals had no difficulty applying the

holding in Howard, supra, to the facts of this matter. The Court of Appeals opined:

¶14 The Ohio Supreme Court recently decided that "for purposes of R.C.2744.02(B)(3), an `obstruction' must be an obstacle that blocks or clogs theroadway and not merely a thing or condition that hinders or impedes the use ofthe roadway or that may have the potential to do so." Howard v. Miami Twp. FireDiv., 119 Ohio St.3d 1, 2008-Ohio-2792, at ¶30. The obstruction at issue inHoward was ice and slush formed from water running onto a roadway following afire department's training exercise. A teenager driving a car slid on the ice; thecar spun out of control, ran off the road and hit a tree.

¶15 The roadway hazard at issue here is remarkably similar to the hazard inHoward, and the facts here present no grounds for distinguishing that decision.The mud in this case no more blocked or clogged the roadway than did the ice andslush in Howard; in both cases, the substance on the road did not block or clog theroadway, but caused the vehicles to slide. Under Howard, plaintiffs cannot provethat the R.C. 2744.02(B)(3) exception to govemmental inununity applies in thiscase, and the trial court thus properly granted summary judgment to UnionCounty. Plaintiffs' fifth assignment of error is overruled.

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Farley v. Duke Construction, et al. (December 9, 2008), Case No. O8AP-192, ¶¶14 and 15

(attached to Plaintiffs'/Appellants' Memorandum In Support Of Jurisdiction as Attachment 1).

Although there may come a time to further clarify the holding in Howard, this is not the time or

the case to do so.

This is not a matter which involves either a Constitutional issue or a Public or Great

General Interest issue. The appeal should be denied.

APPELLEES'ARGUMENT

The Plaintiffs'/Appellants' Memorandum In Support Of Jurisdiction is in two parts.

Proposition of Law No. 1 applies to the Union County Defendants/Appellees'. Proposition of

Law No. 2 applies to the other Defendants/Appellees. Defendants/Appellees Union County will

not address Proposition of Law No. 2 but they do incorporate herein, as if fully rewritten, the

Memorandums in Response to Plaintiffs'/Appellants' Memorandum In Support of Jurisdiction

filed by the Defendants/Appellees Duke Construction, Tartan West Development, McDaniel's

Construction, Shepherd Excavating, and Crager Brothers Trucking.

This Matter Is So Similar To The Facts In Howard v. Miami Twn. Fire Div.,119 Ohio St.3d 1, 2008 Ohio 2792, That The HoldinEs Herein Must Be TheSame

This matter involves a single vehicle accident which occurred on December 25, 2005 at

approximately 8:30 a.m. on Hyland-Croy Road, approximately 2/10 mile south of the

intersection of Hyland-Croy Road and McKitrick Road, Union County, Ohio. The accident was

allegedly caused by dirt tracked onto the roadway from a construction site adjacent to the

'Hereinafter Defendants/Appellees Union County, Union County Commissioners, Union CountySheriff's Office and Union County Sheriff Rocky W. Nelson will be referred to as "UnionCounty Defendants/Appellees".

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accident location, which then became muddy following a rain early on December 25, 2005.2 The

claims against the Union County Defendants/Appellees are as follows:

27. At all times pertinent to the foregoing, Defendant Union County; UnionCounty Commissioners; Union County Sheriffs [sic] Office and/or RockyW. Nelson, Sheriff hereinafter "Union County" had actual or constructivenotice of the hazardous condition on the roadway in the form of mud anddebris on Hyland-Croy Road, Union County, Ohio prior to Plaintiffs [sic]accident.

28. At all times pertinent to the foregoing Defendant Union County, with suchactual or constructive notice of the hazardous condition on the roadwayand/or nuisance on the public roadway, negligently failed to takereasonable action to remove the hazardous condition and/or warnapproaching motorists of the hazardous condition.

29. At all times pertinent to paragraph #28, Defendant Union County'sconduct was intentional, willful, wanton and reckless. 3

On December 25, 2005, Ohio State Highway Patrol Trooper Matthew Himes (hereinafter

referred to as "Trooper Himes") was on duty and patrolling in Union County when he received a

dispatch to a possible accident on Hyland-Croy Road at McKitrick Road.° He was dispatched to

the scene at 2:06 a.m. and arrived on the scene at 2:14 a.m.5 When he arrived at the location he

found a Mustang partially on the roadway and partially off the roadway on Hyland-Croy Road.6

The driver of the Mustang told Trooper Himes that he had attempted to back into one of the

entrances to a construction site adjacent to the roadway so that he could turn around.7 The driver

had missed the entrance and backed into the ditch by mistake.s The Mustang had become stuck

2 See, Second Amended Complaint at ¶¶ 8 and 12.3 See, Second Amended Complaint at ¶¶ 27, 28 and 29.4 See, Matthew Himes Deposition at pp. 5, 7-8 and 10.5 Id at 10.G Id.7 Id at 10-11 and 17-18.8 Id.

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and the driver was awaiting a tow truck to pull the vehicle from the ditch.9 Since there was no

accident, Trooper Himes did not make a report.10

Trooper Himes noted that it had been raining and there was some water and a little mud

on the roadway.' 1 He had no problem walking on the roadway but as he left the scene the tires on

the patrol vehicle spun when it began to accelerate.1Z He said the roadway had mostly water on

it at the time with some mud." After his tires slipped, he called his post and asked his dispatcher

to contact the Union County Sheriff's Office about the mud on the road.14 Trooper Himes

testified that the mud on the roadway was not much of a hazard and did not block off the road.15

Nor did he stay to see if Union County responded.16 When Trooper Himes was leaving the

scene, he placed flares in the roadway to warn motorists of the Mustang's location and not

because of the road conditions. 17 In fact, Trooper Himes saw a van pass by the disabled Mustang

and his cruiser in the southbound lane and it had no problem traveling the road.Is Following his

investigation, Trooper Himes left the area because he did not believe that it was a problem for

motorists.

Q• If you had thought it was that much of a hazard would you have stayed orgone back later?

A. Right. If I would have thought it was an extreme hazard where, youknow, anybody traveling through was going to slide off the road, then Iwould have stayed. 19

" Id at 11.io Id."Idat 12.12 Id.13Idat15and19.14Id at 20-21.^Sld at19,and33.16 Id."Idat33.^ s Id at 32-33.

Id at 33-34.

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The man who reported the Mustang off the road was Francis A. Kovacs-Colon.2D He was

traveling northbound on Hyland-Croy Road when he found the Mustang disabled a short

distance south of the intersection of Hyland-Croy Road and McKitrick Road.21 As Mr. Kovacs-

Colon drove Hyland-Croy Road at 2:00 a.m., he did not see any mud on the roadway and it was

not slick.aZ.

Ohio State Highway Patrol Trooper James Sharp (hereinafter referred to as "Trooper

Sharp") was the trooper that responded to the accident at issue herein at around 9:00 a.m.23 He

was working the 7:00 a.m. to 3:00 p.m. shift on December 25, 2005.24 He was dispatched to the

accident at 8:40 a.m.25 When Trooper Sharp got to the scene he saw the mud on the roadway.26

He referred to the mud as a "slurry" or a thick soup.Z7 As Trooper Sharp walked on the roadway,

the mud was slippery.Zs

No one testified that the road was impassable or that the mud blocked or clogged the

roadway so that motorists could not use it. hi fact, only the Farleys crashed on the road. There

is no evidence to support a finding that the mud was an obstacle to motorists.

Ohio Revised Code § 2744.02(B)(3) reads:

(3) Except as otherwise provided in section 3746.24 of the Revised Code,political subdivisions are liable for injury, death, or loss to person or propertycaused by their negligent failure to keep public roads in repair and othernegligent failure to remove obstructions from public roads, except that it is

20 See, Affidavit of Francis A. Kovacs-Colon attached to Defendants'/Appellees' Motion forSummary Judgment as Exhibit A.21 Id at ¶¶ 2, 3 and 4.22 Idat¶¶2and6.23 See, James Sharp Deposition transcript, taken April 30, 2007, at p. 5.z4ld at7.15 Id at 12." Id at 16.27 Id at 16-17 and 36.Zs Id. at 16-17 and 67.

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a full defense to that liability, when a bridge within a municipal corporation isinvolved, that the municipal corporation does not have the responsibility formaintaining or inspecting the bridge. (Emphasis added.)

Plaintiffs-Appellants contend that the mud and dirt on Hyland-Croy Road was a nuisance

which the Union County Defendants-Appellees were responsible for removing and by failing to

remove it they are liable to Plaintiffs-Appellants. This Court's decision in Howard v. Miami

Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, rejects this argument.

The term "obstruction" in § 2744.02(B)(3) does not include the dirt and mud on Hyland-

Croy Road at the time of the accident. Howard, supra, defined the tenn "obstruction" for

purposes of § 2744.02(B)(3) for the first time. In Howard, the Miami Township Fire Division

was practicing its firefighting by setting a building on fire and then extinguishing the fire. As a

result of the exercise, water ran down to and across a roadway. The water froze and a vehicle

struck the ice and went off the side of the roadway and hit a tree. The accident killed the driver

of the vehicle. The trial court found that the tenn "obstruction" in § 2744.02(B)(3) meant

something which "blocks or closes up by obstacle.i29 The Second District Court of Appeals

disagreed and reversed the trial court stating that the term "obstruction" should be construed

broadly--like the Plaintiffs/Appellants contend herein--so that it included "any object that has the

potential to interfere with the safe passage of motorists on public roads.s30 This Court agreed

with the trial court and reversed the Second District Court of Appeals. You held:

We conclude that for purposes of R.C. 2744.02(B)(3), an "obstruction" must bean obstacle that blocks or clogs the roadway and not merely a thing or conditionthat hinders or impedes the use of the roadway or that may have the potential todo so. 31

29 ld at¶ 15." Id at¶l8.31Idat¶30.

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In the instant matter, there is no allegation that the mud or dirt on the roadway blocked or

clogged the road such that it could not be passed. Plaintiffs-Appellants allege that they lost

control of their vehicle because the mud was sli er . They slid on the mud and went off the

roadway and hit a tree. The mud was certainly no more slippery than the ice which formed on

the roadway in Howard. In the instant matter, other vehicles passed over the roadway without

crashin . No one has produced any evidence that the roadway was obstructed or closed as the

term is defined by this Court. Only the Plaintiffs-Appellees crashed their car on December 25,

2006. All of the other witnesses testified to varying conditions of mud and slipperiness but none,

not even the Plaintiffs-Appellants, testified that the road was impassable. The mud was not an

obstacle. The Tenth District Court of Appeals in this matter found that the facts and conditions

addressed in this case were "remarkably similar" to those in the Howard case.32 The results of

the matters should be the same. Union County Defendants/Appellees were entitled to judgment

because § 2744.02(B)(3) does not provide an exception to the general immunity available to

Plaintiffs/Appellants in these maters. The Tenth District Court of Appeals got it right.

Plaintiffs'/Appellants' Position That The Legislature Only Meant To Limit §2744.02(B)(3) To The Traveled Portions Of The Roadway And Did NotIntend To Narrow The Exception To General Immunity For The PoliticalSubdivisions Of Ohio Is Disingenuous

Had the General Assembly meant to limit § 2744.02(B)(3)'s exception to the general

immunity granted to political subdivisions to only the traveled portions of the public roads and

not to the types of hazards on the public roads, it would only have changed the definition of

"public roads" and not made the additional change from "nuisance" to "obstruction" in §

32 Farley v. Duke Construction, et al. (December 9, 2008), Case No. 08AP-192, at ¶¶14 and 15(attached to Plaintiffs'/Appellants' Memorandum In Support Of Jurisdiction as Attachment 1).

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2744.02(B)(3). As recognized by this Court, the General Assembly purposely changed the

definition of "Public Roads" in § 2744.01(H) and the language of § 2744.02(B)(3) for a reason:

...[W]e believe that the General Assembly purposely replaced the phrase "freefrom nuisance" with "other negligent failure to remove obstructions." To findotherwise is to conclude that the legislature's action in amending the statute was asuperfluous act.

Howard at ¶25. By changing both the definition of "Public Roads" and the language within the

body of § 2744.02(B)(3), the legislature clearly intended to narrow the exception to the general

immunity granted to the political subdivisions. The Court was correct in its holding in Howard

and this matter provides no basis for changing or readdressing the Court's holding in Howard.

The Lower Courts Have Had No Problem, And Will Not Have Problem,

ApplVinQ The Howard Definition Of Obstruction In Other Matters

Plaintiffs/Appellants cite to Engel v. Williams County (August 1, 2008) 2008 Ohio 3852

as an example of the problem the lower courts have in applying the "obstruction" standard

established in Harris. Again, the Plaintiffs/Appellants have gotten it wrong. The Engel court

had no problems in applying the standard. The Engel case involved an accident which occurred

when two teenage boys' vehicle went out of control when they drove too fast into water covering

a roadway. The water was two to five inches deep. Engel at ¶2. The Engel court found that

water on the roadway was not an obstacle and therefore the county was entitled to judgment

because the exception to immunity contained in § 2744.02(B)(3) did not apply:

We acknowledge that in the case before us the substance on the roadwaywas an accumulation of water and not ice. However, the decision in Howardclearly is not limited to circumstances involving ice. As in Howard, we find thatthe water on C.R. 10 was not blocking or clogging the roadway and was thereforenot an "obstruction" as contemplated by R.C. 2744.02(B)(3).

Engle at ¶26. Plaintiffs/Appellants argue that the standard would be difficult to apply if the

water was deeper than two to five inches. Not so. Had testimony or evidence been produced

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that the decedents' vehicle could not have passed over the roadway due to the depth of the water,

the water may have been an obstacle or at least there might have been a question of fact for a

jury. Application of the "obstacle" definition is a simple matter for courts and political

subdivisions.

The real issue the Plaintiffs/Appellants are raising in this appeal was identified in Bonace

v. Springfield (December 4, 2008), 2008 Ohio 6364. hi Bonace, the plaintiffs vehicle dropped

off the shoulder of a roadway and crashed. Plaintiff sustained personal and property damages.

Id at ¶2. The Bonace court found that the roadway problem was a design defect and that the

problem was outside the ordinarily traveled portion of the roadway. Id at ¶¶31 and 32. In

discussing the case, the Bonace court identified the true objection by the plaintiff therein and the

Plaintiffs/Appellants herein:

Although nuisance no longer provides an exception to immunity, after theamendment, the immunity exception only got harder for the plaintiff to establish.See Howard, 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311, at ¶26.

Id at ¶27. This is the complaint of Plaintiffs/Appellants in this matter. They want the Court

broaden the exception to immunity set forth in § 2744.02(B)(3). They want this Court to undo

what the legislature has done. This Court was correct in its reasoning and holding in Howard

and that decision should not be disturbed. This appeal must be denied.

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CONCLUSION

For the reasons set forth above, Defendants/Appellees Union County, Union County

Commissioners, Union County Sheriff's Office and Union County Sheriff Rocky W. Nelson

respectfully request that this Court deny Plaintiffs'/Appellants' appeal in this matter and that this

matter be dismissed.

Respq,ctfully submitted,

Douglas C. Bbatright, Esq. (0042489)Isaac, Brant, Ledman & Teetor, LLP250 East Broad Street, 9lh FloorColumbus, Ohio 43215Tel: 614-221-2121Fax: 614-365-9516Email: dcba,isaacbranrt.comAttorney for Defendants/AppelleesUnion County, Union County Commissioners,Union County Sheriffs Office and Union CountySheriff Rocky W. Nelson

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing was served upon the following parties via

regular U.S. Mail, postage prepaid, this 17th day of February, 2009:

Frank E. Todaro, Esq.TODARO & WAGONER CO., L.P.A471 East Broad Street, Suite 1303Columbus, Ohio 43215Attorney for Plaintiffs/Appellants

Michael J. Valentine, Esq.REMINGER & REMINGERCapitol Square Office Building65 East State Street, Suite 400Columbus, Ohio 43215

Attorney for Defendants/AppelleesDuke Construction andTartan Development Company (West, LLC)

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William S. Lavelle, Esq.LAVELLE, JURCA & LASHUK, LLC6797 North High Street, Suite 314Worthington, Ohio 43085Attorney for Defendant/AppelleeMcDaniels Construction Corp.

David A. Caborn, Esq.CABORN & BUTAUSKI CO., LPA765 South High StreetColumbus, Ohio 43206Attorney for Defendant/AppelleeShepherd Excavating

Stephen C. Findley, Esq.FREUND FREEZE & ARNOLDCapitol Square Office Building65 East State Street, Suite 800Columbus, Ohio 43215Attorney for Defendant/AppelleeCrager Brothers Trucking

Douglas C. Boatright, Esq. (004248

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