[Cite as Estate of Morgan v. Ohio Dept. of Transp., 2010-Ohio-5969.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The Estate of Marlee Grace Morgan,
Plaintiff-Appellant,
:
:
No. 10AP-362
(C.C. No. 2006-3869)
v.
:
(REGULAR CALENDAR)
Ohio Department of Transportation,
Defendant-Appellee.
:
:
The Estate of Shane Morgan,
:
Plaintiff-Appellant,
:
No. 10AP-382
(C.C. No. 2006-3991)
v.
:
(REGULAR CALENDAR)
Ohio Department of Transportation,
Defendant-Appellee.
:
:
D E C I S I O N
Rendered on December 7, 2010
Cassity Law Offices, Michael E. Cassity and Robin J. Levine,
for appellant The Estate of Marlee Grace Morgan.
David E. Grimes, for appellant The Estate of Shane Morgan.
Richard Cordray, Attorney General, John P. Reichley and
Peter E. DeMarco, for appellee.
APPEAL from the Court of Claims of Ohio
KLATT, J.
Nos. 10AP-362 and 10AP-382
{¶1}
2
Plaintiffs-appellants, the Estates of Shane and Marlee Grace Morgan,
appeal from a judgment of the Court of Claims of Ohio finding defendant-appellee, the
Ohio Department of Transportation ("ODOT"), not liable for the automobile accident that
caused Shane and Marlee Morgan's deaths. For the following reasons, we affirm.
{¶2}
On June 10, 2005, at approximately 7:30 p.m., Shane Morgan ("Shane")
was driving his mother, Roberta Morgan ("Roberta"), and his daughter, Marlee Morgan
("Marlee") from his house to Roberta's house. Both Shane and Roberta lived in Adams
County, which is located in southwestern Ohio and borders the Ohio River. To get to
Roberta's house, Shane drove south on State Route 41 ("S.R. 41"), a two-lane road. As
Shane approached the intersection with Ripley Pike, he lost control of his 2005 Toyota
Corolla.
{¶3}
Immediately before it intersects with Ripley Pike, S.R. 41 South curves
slightly to the left. Ripley Pike and S.R. 41 meet at a T-shaped intersection, with Ripley
Pike forming the base of the "T." If a motorist traveling south on S.R. 41 wishes to turn
onto Ripley Pike, he must make a right-hand turn.
{¶4}
A creek known as Bradysville Run flows parallel to Ripley Pike within feet of
the road. Bradysville Run is on the right side of a motorist traveling along Ripley Pike
towards S.R. 41. Immediately before Ripley Pike intersects with S.R. 41, Bradysville Run
makes a 90-degree turn so that it runs parallel to the right side of S.R. 41 South.
Bradysville Run flows alongside S.R. 41 for a few feet before making another 90-degree
turn and entering into a culvert that runs underneath S.R. 41. The culvert consists of two
large side-by-side corrugated metal pipes. When Bradysville Run emerges on the other
Nos. 10AP-362 and 10AP-382
3
side of the culvert, it merges with a larger creek that parallels S.R. 41 on the east side of
the road.
{¶5}
When Shane lost control of his Corolla, he failed to steer the car to the left
to continue driving on S.R. 41. Instead, he drove straight ahead, crossing Ripley Pike
and driving into the grass between Ripley Pike and Bradysville Run.
The car then
entered Bradysville Run. Although Bradysville Run is generally dry, it fills rapidly after a
hard rain. Unfortunately, earlier that day, Adams County had experienced heavy rain for
an extended length of time. Bradysville Run was full and flowing forcefully when Shane's
car hit the creek. The force of the water carried the car, floating upside down, into one of
the culvert pipes.
{¶6}
When the Corolla impacted with Bradysville Run, both Shane and Roberta
were thrown from the car, swept through the culvert, and washed into the larger creek.
Shane suffered a broken neck, and he died from this injury. Roberta survived largely
unharmed. Marlee, only 20-months old, remained strapped in her car seat throughout the
ordeal. Emergency first responders removed the car from the culvert quickly, but Marlee
had already drowned.
{¶7}
The administrators of Shane's and Marlee's estates each filed suit against
ODOT, asserting that ODOT was negligent in the design, construction, and maintenance
of S.R. 41 at and near the intersection with Ripley Pike. The trial court consolidated the
actions for a joint trial, bifurcated the issues of liability and damages, and proceeded with
a bench trial as to ODOT's liability. After a four-day trial, the trial court issued a decision
finding that appellants had failed to prove that ODOT acted negligently, and alternatively,
Nos. 10AP-362 and 10AP-382
4
that ODOT was entitled to immunity. In accordance with this decision, the trial court
rendered judgment in ODOT's favor in a judgment entry dated March 22, 2010.
{¶8}
Appellants now appeal from the March 22, 2010 judgment, and they assign
the following errors:
[1.]
The Trial Court erred in holding Defendant/Appellee
was not negligent.
[2.]
The Trial Court erred in finding the totality of the
evidence failed to establish this particular stretch of State
Route 41 (the accident area) was unreasonably dangerous.
[3.]
The Trial Court erred in finding Defendant/Appellee is
entitled to discretionary immunity.
{¶9}
Because they are related, we will consider appellants' first two assignments
of error together. By these assignments of error, appellants argue that the trial court
erred in failing to find ODOT negligent in its maintenance of the stretch of S.R. 41 where
the accident occurred. Specifically, appellants contend that the manifest weight of the
evidence establishes that ODOT breached its duty to maintain S.R. 41 in a reasonably
safe condition and that the breach proximately caused Shane's and Marlee's deaths. We
disagree.
{¶10} To recover on a negligence claim, a plaintiff must prove that:
(1) the
defendant owed the plaintiff a duty, (2) the defendant breached that duty, and (3) the
breach of the duty proximately caused the plaintiff's injury. Wallace v. Ohio Dept. of
Commerce, Div. of State Fire Marshal, 96 Ohio St.3d 266, 2002-Ohio-4210, ¶22;
Chambers v. St. Mary's School, 82 Ohio St.3d 563, 565, 1998-Ohio-184.
The duty
element of a negligence claim may be established by common law, legislative enactment,
or the particular circumstances of a given case. Wallace at ¶23; Chambers at 565.
Nos. 10AP-362 and 10AP-382
5
{¶11} Multiple statutes impose upon ODOT a general duty to maintain the state
highways. R.C. 5501.11(A)(1) mandates that ODOT "shall * * * maintain * * * the state
system of highways and the bridges and culverts thereon." R.C. 5535.08(A) requires
ODOT to "maintain [state] roads." As used in R.C. 5501.11(A)(1) and 5535.08(A), "roads"
and "highways" include "all appurtenances to the road or highway, including but not
limited to, bridges, viaducts, grade separations, culverts, lighting, signalization, and
approaches on or to such road or highway." R.C. 5501.01(C). Consequently, from R.C.
5501.11(A)(1) and 5535.08(A) arises ODOT's legal duty to maintain the state highways,
as well as all appurtenances thereto, in a reasonably safe condition. White v. Ohio Dept.
of Transp. (1990), 56 Ohio St.3d 39, 42; Galay v. Dept. of Transp., 10th Dist. No. 05AP383, 2006-Ohio-4113, ¶52; Rahman v. Ohio Dept. of Transp., 10th Dist. No. 05AP-439,
2006-Ohio-3013, ¶29; Gregory v. Ohio Dept. of Transp. (1995), 107 Ohio App.3d 30, 33;
Leskovac v. Ohio Dept. of Transp. (1990), 71 Ohio App.3d 22, 26-27; Rhodus v. Ohio
Dept. of Transp., 67 Ohio App.3d 723, 729. ODOT, however, is not an insurer of safety
for travelers of its highways. Galay at ¶52; Rahman at ¶29; Gregory at ¶33; Rhodus at
729-30.
{¶12} The duty to maintain the highways does not encompass a duty to redesign
or reconstruct the highways. Sobczak v. Ohio Dept. of Transp., 10th Dist. No. 09AP-388,
2010-Ohio-3324, ¶7; Galay at ¶29, 52, 58; Wiebelt v. Ohio Dept. of Transp. (June 24,
1993), 10th Dist. No. 93AP-117. " 'Maintenance involves only the preservation of existing
highway facilities, rather than the initiation of substantial improvements.' " Sobczak at ¶7
(quoting Wiebelt). See also Galay at ¶29, 52, 58; Rahman at ¶29; Hurier v. Ohio Dept. of
Transp., 10th Dist. No. 01AP-1362, 2002-Ohio-4499, ¶29; Treese v. Delaware (1994), 95
Nos. 10AP-362 and 10AP-382
6
Ohio App.3d 536, 543. Accordingly, ODOT does not have a duty to upgrade highways to
current design standards when acting in the course of maintenance. Sobczak at ¶7;
Galay at ¶29; Rahman at ¶29; Hurier at ¶29; Treese at 543; Wiebelt.
{¶13} In the case at bar, appellants contend that ODOT breached its duty to
maintain S.R. 41 by allowing three dangerous conditions to persist: (1) the absence of a
guardrail to protect motorists from Bradysville Run, (2) the periodic flooding of S.R. 41
when water exceeded the banks of Bradysville Run, and (3) the lack of an adequate
"clear zone" to allow motorists a location to recover after driving off S.R. 41. We will
address each alleged breach in turn.
{¶14} According to the evidence adduced at trial, the culvert at issue, as well as
the bridge over the culvert, were built in 1939. ODOT did not install guardrails shielding
the approach to the bridge until immediately after the Morgans' accident. Appellants
assert that, without an approach guardrail, the section of S.R. 41 South immediately
before the bridge was unreasonably dangerous. Appellants thus contend that ODOT
breached its duty to maintain S.R. 41 in a reasonably safe condition.
argument unavailing.
We find this
The duty to maintain only requires the preservation, and if
necessary, the replacement of existing structures. The duty to maintain does not include
a duty to institute improvements. In this case, where no guardrails existed previously, the
installation of new guardrails constituted an improvement, and thus, exceeded the scope
of ODOT's duty.
{¶15} Appellants next argue that ODOT's Bridge Inspection Manual ("Manual")
made the construction of approach guardrails necessary.
Pursuant to R.C.
5501.47(B)(2)(a), the director of ODOT has prepared and regularly updates a Bridge
Nos. 10AP-362 and 10AP-382
7
Inspection Manual to provide standards applicable to the annual inspection of all bridges
on, above, and below highways. In the 1998 and 2001 versions of the Manual, bridge
inspectors are informed how to complete the portion of the inspection form used to gather
information on the traffic safety features of each bridge. The Manual instructs bridge
inspectors to use one of three codes to grade each safety feature: (1) code "0" if the
inspected feature does not meet "currently acceptable standards," (2) code "1" if the
inspected feature meets "currently acceptable standards," and (3) code "N" if not
applicable.
{¶16} One of the safety features that bridge inspectors must grade is the
approach guardrail. Both the 1998 and 2001 versions of the Manual state:
The structural adequacy and compatibility of approach
guardrail with transition designs should be determined. A
barrier stop at the end of a bridge is rarely needed. Thus an
approach guardrail with adequate length and structural
qualities to shield motorists from the hazards at a bridge site
needs to be installed. In addition to being capable of safely
redirecting an impacting vehicle, the approach rail must also
facilitate a transition to the bridge railing that will not cause
snagging or pocketing of an impacted vehicle. Acceptable
guardrail design suggestions are contained in the AASHTO
Guide for Selecting, Locating, and Designing Traffic Barriers.
{¶17} Appellants interpret the above-quoted section as a mandatory directive that
ODOT install approach guardrails before each bridge in Ohio. We interpret this section
differently. Read in context, the quoted section merely sets forth the "currently acceptable
standard" for the design of approach guardrails. Bridge inspectors must judge whether a
bridge satisfies that standard. Nowhere in the Manual does ODOT require the upgrading
of each bridge that fails to meet the currently acceptable standard. The Manual serves as
Nos. 10AP-362 and 10AP-382
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a guide to bridge inspections, not a policy mandate that each bridge, no matter when
originally constructed, meet current design standards.
{¶18} Moreover, even crediting appellants' argument that ODOT instituted a policy
requiring approach guardrails before every bridge, appellants fail to establish the
existence of a legal duty based on that policy. As we stated above, the duty element of a
negligence claim can arise from common law, legislative enactment, or the particular
circumstances of a given case. Wallace at ¶23; Chambers at 565. Here, citing Semadeni
v. Ohio Dept. of Transp., 75 Ohio St.3d 128, 1996-Ohio-199, appellants assert that ODOT
has a legal duty to follow its own policies and deviation from a policy gives rise to a
negligence action.
Appellants misread Semadeni.
That case arose out of ODOT's
adoption of a policy addressing the installation of protective fencing on existing bridges.
Nearly five years after ODOT adopted the policy, Pietro Semadeni died after an
unidentified individual dropped a chunk of concrete from an overpass bridge, striking
Semadeni in the head. The executor of Semadeni's estate sued ODOT for negligently
failing to fence the overpass bridge. The Supreme Court of Ohio found that ODOT owed
a duty to Semadeni, and all other foreseeable motorists, based on an already existing
common-law duty. Id. at 131. Previous Supreme Court precedent had established that
persons who exercise control over real property and who are aware that the property is
subject to third-party vandalism owe a special duty to parties whose injuries are
reasonably foreseeable to take adequate measures to prevent future vandalism.
Id.
(quoting Fed. Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171). The
Supreme Court applied this common-law duty to ODOT. Thus, contrary to appellants'
Nos. 10AP-362 and 10AP-382
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contention, the Semadeni decision did not impose on ODOT a legal duty to follow each
and every policy it adopts.
{¶19} Of course, ODOT cannot ignore its written policies when designing,
redesigning, constructing, or reconstructing a highway project. "ODOT's engineers, when
undertaking and constructing a highway project, must adhere to current written standards
in order to fulfill their duty of care." Lunar v. Ohio Dept. of Transp. (1989), 61 Ohio
App.3d 143, 146. See also Longfellow v. Dept. of Transp. (Dec. 24, 1992), 10th Dist. No.
92AP-549. Thus, if ODOT had designed, redesigned, constructed, or reconstructed the
bridge at issue in 1998 or 2001, the versions of the Manual introduced at trial could have
provided evidence of the "currently acceptable standard" for bridge design and
construction as determined by ODOT.
Because the bridge here was originally
constructed in 1939 and ODOT did not redesign or reconstruct it in 1998 or 2001, the
Manual has no applicability.
{¶20} In sum, we conclude that the trial court did not err in finding that ODOT
owed no a duty to install approach guardrails. Consequently, we turn to appellants' next
argument: ODOT breached its duty to maintain S.R. 41 in a reasonably safe condition
because it did not prevent or otherwise address the periodic flooding of the highway by
storm water that overflowed the banks of Bradysville Run.
{¶21} With regard to this argument, ODOT concedes that it has a duty to keep the
culvert unobstructed so that storm water can drain freely and not flood S.R. 41. From the
yearly bridge inspection reports, ODOT knew that Bradysville Run regularly flooded S.R.
41 after heavy rainfall. However, ODOT contends that, on the day of the Morgans'
accident, it satisfied its duty to maintain the unimpeded flow of water through the culvert.
Nos. 10AP-362 and 10AP-382
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After considering the evidence, the trial court agreed, finding that Bradysville Run had not
breached its boundaries on the day of the Morgans' accident.
{¶22} Judgments supported by competent, credible evidence going to all the
material elements of the case must not be reversed as being against the manifest weight
of the evidence.
C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279,
syllabus. In reviewing a trial court's factual findings, an appellate court must presume that
the findings are correct because the trial court is best able to observe the witnesses and
use those observations in weighing the credibility of the proffered testimony. Seasons
Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81. If the evidence is susceptible to
more than one interpretation, an appellate court must construe it consistently with the trial
court’s judgment. Central Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d. 581, 584.
{¶23} Here, James Skaggs, who lives approximately one and one-half miles from
the intersection of Ripley Pike and S.R. 41, testified that he was driving on Ripley Pike
towards S.R. 41 on the evening of June 10, 2005. As Skaggs slowed for the stop sign at
the intersection of Ripley Pike and S.R. 41, Shane's Corolla skidded across his path,
through the grassy area alongside the intersection, and into Bradysville Run. According
to Skaggs, although Bradysville Run was full at that time, the water had not escaped the
banks.
{¶24} Randy Walters, Jr., who serves as both the chief of police and a firefighter
for the Village of Manchester, testified that he was fighting a fire less than five miles from
the intersection of Ripley Pike and S.R. 41 when he was alerted about the Morgans'
accident. When Walters arrived at the accident scene, Bradysville Run was "rushing and
pretty fast." (Tr. 429.) However, Walters did not see any flooding.
Nos. 10AP-362 and 10AP-382
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{¶25} Finally, Richard C. Gable, a trooper for the Ohio State Highway Patrol,
testified that he was the first trooper to arrive at the accident scene. Gable stated that
when he arrived at the scene, Bradysville Run was only feet away from exceeding the
capacity of the two metal culvert pipes. While the water level was high, Gable did not see
the creek overflow.
{¶26} The testimony of these three witnesses provided the trial court with
competent, credible evidence to find that S.R. 41 was not flooded on the evening of
June 10, 2005. Consequently, the evidence establishes that ODOT did not breach its
duty to maintain S.R. 41 in a reasonably safe condition.
{¶27} In arguing to the contrary, appellants point to Roberta's testimony that she
heard water splashing underneath and on the sides of the Corolla when the car began to
skid. Rain inevitably causes puddles of water to form on roads. Roberta testified that it
had rained heavily earlier that day, and that it was still raining, albeit moderately, at the
time of the accident. Absent any evidence connecting the water on the road to a known
hazard, such as flooding caused by a blocked culvert, we cannot conclude that the water
on the road resulted from ODOT's failure to maintain the road.
{¶28} Finally, we turn to appellants' argument that ODOT breached its duty to
maintain S.R. 41 because it failed to provide an adequate "clear zone." According to
Lester C. Auble, Jr., appellants' expert witness, a "clear zone" is an area adjacent to the
road that allows a motorist who leaves the road an opportunity to safely recover. ODOT's
Location and Design Manual, which sets forth design standards for Ohio roads, includes
calculations for determining the appropriate clear zone widths. Using those calculations,
Auble concluded that the clear zone alongside S.R. 41 at the intersection with Ripley Pike
Nos. 10AP-362 and 10AP-382
12
did not provide a sufficient area for a motorist to stop or slow down to avoid Bradysville
Run.1
{¶29} Like the installation of a new guardrail in a location where none previously
existed, the creation or enlargement of clear zone does not fall within the ambit of
ODOT's duty to maintain the highways. Hurier at ¶29. As we stated above, the duty to
maintain only requires ODOT to preserve existing facilities. Id.; Sobczak at ¶7; Galay at
¶29, 52, 58; Rahman at ¶29; Treese at 543; Wiebelt. Thus, the construction of a clear
zone in accordance with current standards surpasses the scope of the duty to maintain.
Moreover, ODOT has no duty to upgrade a previously constructed safety feature as
technology develops. Kniskern v. Twp. of Somerford (1996), 112 Ohio App.3d 189, 195.
Consequently, ODOT had no duty to redesign and broaden a clear zone originally
constructed in 1939 to meet ODOT's 2004 standards.
{¶30} As each of appellants' bases for asserting negligence fail, we conclude that
the trial court did not err in finding that appellants did not prove ODOT negligent.
Accordingly, we overrule appellants' first and second assignments of error.
{¶31} Appellants' third assignment of error challenges the trial court's
determination that ODOT was immune from liability. ODOT's immunity constituted a
second, distinct reason for the trial court to render judgment in ODOT's favor. Given our
ruling that the trial court did not err in finding that appellants failed to prove their claims,
the immunity issue is moot.
Accordingly, we need not consider appellants' third
assignment of error.
1
Auble's opinion relied on a section of the Location and Design Manual that ODOT published in October
2004.
Nos. 10AP-362 and 10AP-382
13
{¶32} For the foregoing reasons, we overrule appellants' first and second
assignments of error, and render as moot appellants' third assignment of error. We affirm
the judgment of the Court of Claims of Ohio.
Judgment affirmed.
TYACK, P.J., and SADLER, J., concur.
