Manufacturer's National Bank of Detroit, Personalrepresentative of the Estate of Patrick Murray, M.d.,deceased; Carol Murray, Individually and As Personalrepresentative of the Estate of Colette Murray, Deceased;loretta Murray, Individually, Plaintiffs-appellants, v. Erie County Road Commission, et al., Defendants,huron Township, Huron Township Board of Trustees, and Robertboos, Jointly and Severally, Defendants-appellees, 963 F.2d 117 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 963 F.2d 117 (6th Cir. 1992)

Argued May 3, 1991. Decided April 27, 1992


Appeal from United States District Court of Ohio at Toledo, Nicholas J. Walinski, Senior District Judge.

Michelle A. Thomas (argued), Richard A. Bone, and Sheri B. Cataldo (briefed), Sullivan, Ward, Bone, Tyler, Fiott & Asher, Southfield, Mich., for plaintiffs-appellants.

Willis P. Jones, Jr., Sarah A. McHugh (argued and briefed), Jones & Bahret, Toledo, Ohio, and Randal L. Strickler, Prosecutor's Office for the County of Erie, Sandusky, Ohio, for defendants-appellees.

Before: KENNEDY and SUHRHEINRICH, Circuit Judges; and LIVELY, Senior Circuit Judge.


ORDER

Plaintiffs' personal representative of the Estate of Patrick Murray, M.D. and Colette Murray, Deceased; Carol Murray and Loretta Murray appealed the summary judgment for defendants Huron Township, Huron Township Board of Trustees and Robert Boos in this action. Because undecided questions of state law governed the outcome of the case, those questions were certified to the Ohio Supreme Court pursuant to Rule XVI of the Ohio Supreme Court Rules of Practice. That Court has now answered those questions in a manner inconsistent with the decision and judgment of the District Court. The judgment of the District Court is therefore REVERSED and the action REMANDED to the District Court for further proceedings in accordance with the holding of the Ohio Supreme Court in answer to the certified questions.

The Court is deeply appreciative that the State of Ohio provides this certification procedure. The Ohio Supreme Court's entry is attached as Exhibit A and the court's opinion was decided on April 1, 1992. 63 Ohio St.3d 318, 587 N.E.2d 819 (1992).

EXHIBIT A

THE SUPREME COURT OF OHIO

1992 TERM

To wit: April 1, 1992

Manufacturer's National Bank :

of Detroit, etc., et al., Case No. 91"1302

Petitioners, :

v.

Erie County Road Commission :

et al.; ENTRY

Huron Township et al., :

Respondents. :This cause is pending before the Court on the certification of state law

questions by the United States Court of Appeals for the Sixth Circuit. For

the reasons stated in the opinion rendered herein, the Court answers the

first certified question and finds that a permanent obstruction to visibility

in the right-of-way, which renders the regularly travelled portions of the

highway unsafe for the usual and ordinary course of travel, can be a nuisance

for which a political subdivision may be liable under R.C. 2744.02(B) (3). For

the reasons stated in the opinion rendered herein, the Court answers the

second certified question and finds that where the abutting landowner or

occupier uses the highway right-of-way in a manner inconsistent with a

highway purpose, and where such usage constitutes an unreasonable hazard to

the users of the highway, the landowner or occupier may be liable for damages

proximately caused by the improper use of the right-of-way.

___________________________

THOMAS J. MOYER

Chief Justice