Keller v. Carroll Cty. Bd. of Commrs.

Citation: 2022 Ohio 3526Docket: 21 CA 0952

Court: Ohio Court of Appeals; September 30, 2022; Ohio; State Appellate Court

Original Court Document: View Document

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James R. Keller appealed the Carroll County Board of Commissioners' summary judgment, which was granted on August 11, 2021, based on political subdivision immunity. Keller claimed there was a genuine issue regarding the road's condition at the time of his motorcycle accident on August 13, 2015, where he lost control and collided with a truck, resulting in serious injuries. He alleged negligence, recklessness, and emotional distress, asserting that the road was unsafe and under repair by the Board at the time of the accident.

The Board moved for summary judgment, citing immunity under R.C. 2744.02, while Keller argued that the "in repair" exception applied. The trial court found undisputed facts that Keller went left of center and collided with the truck, and that the Board had completed chip and seal repairs on the road just prior to the accident, with a "Loose Gravel" sign posted. The court determined that the exception to immunity did not apply, as evidence showed the Board had performed its duties to maintain the road and no evidence indicated the road was in worse condition post-repair. Thus, the appellate court affirmed the trial court's judgment.

The court determined that the only evidence potentially satisfying the Lakota rule came from Michael Keller, the Appellant’s son, who claimed that loose gravel on Blade Road was so abundant it could be scooped like sand. However, the court found this testimony insufficient against contradicting evidence and did not apply R.C. 2744.02(B)(3) immunity exceptions. The Appellant appealed, contending that the trial court erred in granting summary judgment regarding political subdivision immunity, asserting that genuine issues of material fact existed about the road's repair status. The Appellant argued that loose stones from road resurfacing contributed to his accident, indicating the road was in disrepair. He also claimed the trial court improperly inferred against him and weighed witness credibility.

The court reviews summary judgments de novo, applying the same standard as the trial court. Summary judgment is appropriate when there is no genuine issue of material fact and reasonable minds could only reach a conclusion adverse to the nonmoving party. The moving party must demonstrate the absence of any material fact issue, after which the opposing party must provide factual evidence to support their claims. In cases of political subdivision immunity, three tiers are considered: general immunity, potential applicability of exceptions to that immunity, and available defenses.

It is undisputed that the Appellee enjoys general immunity as a political subdivision. Once this is established, the burden shifts to the plaintiff to prove that one of the exceptions applies. The relevant exception involves liability for injuries caused by a political subdivision's negligent failure to maintain public roads.

The Ohio Supreme Court has established criteria for the “in repair” exception to political subdivision liability concerning roadway injuries. This exception applies only when a political subdivision negligently fails to maintain roads in good condition, as defined by R.C. 2744.02(B)(3). The court's interpretation indicates that a road is considered “in repair” if it is in good or sound condition, without deterioration or disassembly, aligning with the plain meaning of the term "repair." In prior case law, such as Heckert v. Patrick, it was clarified that the responsibility of maintaining roads pertains specifically to addressing deterioration or disassembly.

In the case at hand, it was determined that Blade Road was in good condition at the time of the accident, and thus the county is immune from liability. Evidence was presented, including testimonies from the county highway superintendent and county engineer, confirming that the road was properly resurfaced and swept according to standard procedures prior to the incident. They acknowledged that while some loose stone may remain after a chip-seal resurfacing, the road was deemed safe and adequately maintained before the accident occurred.

County road supervisor Arthur Furbee testified about the chip and seal resurfacing process, which involves sweeping the road, filling potholes, applying emulsion or asphalt, spreading aggregate, and rolling it into the surface. He indicated that a 10% loss of aggregate post-process is standard in the industry. Despite Furbee's assertion that the road was in good condition, Appellant's witnesses, including Michael Keller, argued that chip and seal surfaces pose significant risks for motorcyclists and bicyclists. Keller described chip and seal roads as "extremely dangerous" and likened riding on them to being on ice due to the loose gravel that can shift under tires.

Expert witness Henry Lipian, a former highway patrolman, supported Keller's views, stating that loose gravel is typical for newly resurfaced chip and seal roads. He noted that it takes time for traffic to compact the gravel after application, implying that the presence of loose stone does not indicate a road in disrepair. Both Keller and Lipian concluded that the road's condition does not demonstrate any negligence on the county's part.

The presence of loose gravel is inherent to freshly chip-sealed roads, thus failing to establish a claim of negligence or a failure to maintain the road in a safe condition. As a result, the court determined that there was no triable issue regarding whether the county was responsible for the appellant's injuries, leading to a summary judgment in favor of the county. The document also references Ohio law, suggesting that for exceptions to immunity, the Legislature did not require roads to be completely hazard-free or without any defects.

The court distinguishes the current case from Lakota v. Ashtabula, noting that unlike the dangerous condition created by a depression or hole in that case, the road in question was well-maintained, although it may have had loose stone due to the chip seal resurfacing process. The court references Sanderbeck, stating that the road was recently resurfaced, contradicting claims of deterioration. The "in repair" exception to immunity is deemed inapplicable as loose stone is a characteristic of the chip seal method. The trial court found no evidence of increased danger from the repair work and noted the absence of testimony indicating the road’s condition worsened post-repair.

Appellant argues that the trial court improperly inferred against him and evaluated witness credibility, but the court concluded that Appellant failed to prove the R.C. 2744.02(B)(3) exception to immunity. Despite recognizing potential errors in the trial court's reasoning, the appellate court affirms that summary judgment was appropriate since Appellant did not meet the burden of proof necessary to establish a claim.

Ultimately, the appellate court affirms the trial court's decision, ruling that the Appellant's claims lack merit, with costs assigned to him. A certified copy of the judgment will be sent to the trial court for execution.