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Vol. 2007-02 | February, 2007

Municipal Tort Liability; Exceptions to Immunity

The often-invoked defense of political immunity from tort liability of a municipality may not always apply. The facts of a case may erode or completely eliminate the defense provided under R.C. Chapter 2744, the Political Subdivision Tort Liability Act.

In one recent decision, the Court held:” {¶7} R.C. 2744.02(A)(1) provides that a political subdivision is not liable for injury, death, or loss to persons or property incurred in connection with the performance of a governmental or proprietary function. Here, because the city was a political subdivision(fn4) and because the regulation, maintenance, and repair of public roads were a governmental function,(fn5) the city was covered by the blanket immunity set forth in R.C. 2744.02(A)(1).

{¶8} But R.C. 2744.02(B) sets forth five exceptions to this blanket immunity. As relevant here, former R.C. 2744.02(B)(3),(fn6) which was the governing law at the time of the fatal accident, provides that “political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, [and] streets within the political subdivisions open, in repair, and free from nuisance.” However, before liability may be imposed under this section, it must be shown that the city had either actual or constructive notice of the nuisance.(fn7) In order to charge a municipality with constructive notice of a nuisance, it must appear that such nuisance existed for a sufficient length of time to have been discovered, and that if it had been discovered, it would have created a reasonable apprehension of a potential danger.(fn8)

{¶9} In determining what circumstances constitute a nuisance under R.C. 2744.02(B)(3), the Ohio Supreme Court has held that the inquiry should be “whether a condition exists within the political subdivision’s control that creates a danger for ordinary traffic on the regularly traveled portion of the road.”(fn9) The court has rejected the view that a city’s “liability under R.C. 2744.02(B)(3) is limited to physical conditions in the roadway itself and does not extend to adjacent property.”(fn10) In Harp, the Ohio Supreme Court held that a tree limb, which was not physically obstructing or impeding the flow or visibility of traffic until it fell, was a nuisance under R.C. 2744.02(B)(3), because the limb presented a potential danger to those traveling on the road.

Dillard v. Cincinnati, 2005-Ohio-6819.
In a related decision, the Court also held: “Once the existence of a nuisance is demonstrated, a plaintiff must further establish that the political subdivision possessed actual or constructive knowledge of the nuisance. Harp v. Cleveland Heights (2000), 87 Ohio St.3d 506, 512, quoting Vogel v. Wells (1991), 57 Ohio St.3d 91, 97.

A habit cannot be thrown out the window, it must be coaxed down the stairs one step at a time.

Samuel Langhorne Clemens (1835-1910)
Better known by his pen name Mark Twain

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.