Opinion
Decided June 25, 1988.
Nicholas Edward Bunch, for plaintiffs.
Thomas M. Green, for defendants Xenia et al.
Gregory Paul Dunsky, for third-party defendant Consolidated Rail Corporation.
Anthony J. Celebrezze, Jr., Attorney General, and Susan Sullivan, Assistant Attorney General, for third-party defendant Ohio Department of Transportation.
On February 17, 1988, Justice Leonard J. Stern of this court denied the motion of the Greene County Board of Commissioners (herein "board") for an order granting summary judgment pursuant to Civ.R. 56(C).
On March 15, 1988, said board filed a motion requesting the court to reconsider or clarify the aforementioned decision. The board filed an extensive memorandum in support of its request.
Justice Stern recently passed away without ruling on this request; therefore, it is necessary that another branch of this court decide this matter. In view that the February 17, 1988 decision was an interlocutory order, Civ.R. 54(B) permits a reconsideration of said order.
The plaintiffs, Richard A. Frantz and Barbara J. Frantz, as co-administrators of the Estate of Robert Arlan Frantz, allege that their son, Robert, was wading in Shawnee Creek, a waterway in the city of Xenia, in Greene County, on June 8, 1985, when he fell into a drop-off in the creek that was approximately five feet deeper than any surrounding area of the creek. Plaintiffs allege that the drop-off in Shawnee Creek had been caused by run-off water that was being dumped into the creek by means of a drainage pipe. They claim that defendants city of Xenia and the board negligently failed to prevent this drop-off from being created in Shawnee Creek and had failed to repair the drop-off once it had been created. Robert Frantz drowned as a result of the alleged negligence.
In rebuttal to such allegations, the board has filed said motion wherein it contends that there is no statutory or common law duty owed by it to one injured while wading in a creek as a recreational user. The record reflects that affidavits were timely filed by Richard P. Eastman, Engineer for Greene County; Kathryn K. Hagler, Commissioner of Greene County; W. Reed Madden, Commissioner of Greene County; Nancy Boyer, Commissioner of Greene County; and Delmer L. Bone, Commissioner of Greene County. No affidavits were filed in opposition by any other party.
In determining a county's liability in tort, both common law and statutory duties must be addressed. Heckert v. Patrick (1984), 15 Ohio St.3d 402, 15 OBR 516, 473 N.E.2d 1204.
R.C. 305.12 states:
"The board of county commissioners may sue and be sued, and plead and be impleaded, in any court. It may bring, maintain, and defend suits involving an injury to any public, state, or county road, bridge, ditch, drain, or watercourse in the county, with respect to which the county has the primary responsibility to keep in proper repair, and for the prevention of injury to them. The board shall demand and receive, by suit or otherwise, any real estate or interest in real estate, legal or equitable, belonging to the county, or any money or other property due the county. The money so recovered shall be paid into the county treasury, and the board shall take the county treasurer's receipt for it and file it with the county auditor."
In Heckert, the Ohio Supreme Court held that R.C. 305.12 relates only to those matters "concerning either the deterioration or disassembly of county roads and bridges." Id. at 406, 15 OBR at 520, 473 N.E.2d at 1208. Similarly, for the purposes of R.C. 305.12, "obstructions or interferences are unrelated to the conditions of the roadway." Id. at 407, 15 OBR at 520, 473 N.E.2d at 1209, cited with approval in Ruwe v. Bd. of Cty. Commrs. of Hamilton Cty. (1986), 21 Ohio St.3d 80, 21 OBR 377, 488 N.E.2d 157.
A review of the case law decided under R.C. 305.12 and its predecessor, G.C. 2408, reveals two recognized principles. First, the intent of the General Assembly was to place a duty on the commissioners only in matters concerning either the deterioration or disassembly of county roads and bridges. Starling v. Bd. of Commrs. (1935), 53 Ohio App. 293, 7 O.O. 97, 4 N.E.2d 921 (liable for rut in berm of road); Whitney v. Niehaus (1915), 4 Ohio App. 208 (liable for trench in roadway); Daus v. Commrs. (1927), 6 Ohio Law Abs. 418 (statutory duty does not extend to rock ledge upon which bridge abutment rests), cited with approval in Heckert, supra, 15 Ohio St.3d at 407, 15 OBR at 520, 473 N.E.2d at 1208-1209. See, also, Gelbman v. Second Natl. Bank of Warren (1984), 9 Ohio St.3d 77, 9 OBR 280, 458 N.E.2d 1262 (liability in negligence will not lie in the absence of a special duty owned by the defendant). Second, liability will not be imposed under the scope of the statute when the obstructions or interferences (or, as in this case, a drop-off) are unrelated to the conditions of the roadway. Western Pa. Natl. Bank v. Ross (C.A. 6, 1965), 345 F.2d 525 (no liability for tree limbs obscurring view of stop sign); Ebert v. Commrs. of Pickaway Cty. (1907), 75 Ohio St. 474, 80 N.E. 5 (not liable for piles of stone placed on roadside); Ditmyer v. Bd. of Cty. Commrs. (1980), 64 Ohio St.2d 146, 18 O.O.3d 372, 413 N.E.2d 829 (snow removal is not encompassed within R.C. 305.12), cited with approval in Heckert, supra, at 407, 15 OBR at 520, 473 N.E.2d at 1209.
Applying the rationale from this case authority, it is clear that R.C. 305.12 does not apply in the instant action. A drop-off in a creek bed is outside "the purview of a statutorily created duty with respect to the commissioners." Ruwe v. Bd. of Cty. Commrs. supra, 21 Ohio St.3d at 82, 21 OBR at 378, 488 N.E.2d at 158.
The second aspect of the liability test involves answering whether a duty exists under the common law. The Ohio Supreme Court held in Zents v. Bd. of Commrs. (1984), 9 Ohio St.3d 204, 9 OBR 516, 459 N.E.2d 881, that "once the decision has been made [by a county] to engage in a certain activity or function, a county will be held liable, the same as private corporations and persons, for the negligence of its employees and agents in the performance of their activities." Id. at syllabus. "It is thus necessary for plaintiffs seeking redress against a governmental entity to establish the requisite elements of the alleged tortious conduct." Ruwe v. Bd. of Cty. Commrs., supra, 21 Ohio St.3d at 82, 21 OBR at 379, 488 N.E.2d at 159. "This includes the existence of a legal duty." Id. The critical element for the court's determination is whether the county had a duty, or voluntarily assumed a duty, to keep the Shawnee Creek free from drop-offs where it passes under the Detroit Street Bridge. In the instant case, it is the court's opinion that the board is not responsible for the maintenance or upkeep of streams or creeks. The county only becomes involved in such matters upon the filing of a petition of the surrounding property owner(s) with the board. R.C. 6131.02 and 6131.04. Only after the receipt of such a petition, and at a "regular or called" session of the board, may the county commissioners decide to:
"[L]ocate, construct, reconstruct, straighten, deepen, widen, alter, box, tile, fill, wall, dam, arch, change the course, location, or terminus of, straighten, deepen, remove obstructions from, or widen any ditch, drain, watercourse, floodway, river, creek, or run, or construct any levee, wall, embankment, jetty, dike, dam, sluice, revetment, reservoir, holding basin, control gate, breakwater, or other structure for control of water, or vacate any ditch or drain by proceedings as provided in sections 6131.01 to 6131.64 of the Revised Code." (Emphasis added.) R.C. 6131.02.
Further, any such "improvement" must be found by the board to be necessary and "conducive to the public welfare," with the benefits exceeding the costs. In this case, no such petition was ever filed.
Also, inspection of the bridge involved in this case, to wit, the Detroit Street Bridge, is the responsibility of the Ohio Department of Transportation ("ODOT"). See, e.g., Starcher v. Logsdon (1981), 66 Ohio St.2d 57, 20 O.O.3d 45, 419 N.E.2d 1089; see also, Weiher v. Phillips (1921), 103 Ohio St. 249, 133 N.E. 67 (state highways are under the exclusive power and control of the state highway department and no duty is enjoined upon county commissioners to maintain and repair the same); see Bellard v. Commrs. (1928), 31 Ohio App. 224, 167 N.E. 404 (the county is not liable for negligence in not repairing a state road, required to be maintained by the state). Such inspection includes the Shawnee Creek. Following an inspection, ODOT furnishes the office of the county engineer with a copy of its findings. In this case, ODOT inspected the bridge and creek in January 1985, approximately five months before the accident. The ODOT report rates the "alignment" and "water adequacy" of the channel as a "2," which means in "fair condition-minor deficiency, item still functioning as designed." The summary of the channel item is rated a "7," which equals "generally good." No mention of a "drop-off" is made. The minor deficiency cited is the formation of a "gravel island beneath the structure," which "is diverting [the water] flow toward the [bridge] abutments." However, this is not specified as a serious hindrance to the functioning of the bridge. Id.; see also, Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St.3d 92, 95, 30 OBR 295, 297, 507 N.E.2d 352, 355 (no duty under R.C. 723.01 to warn of dangers existing on property which is beyond corporate limits or control).
Even assuming, arguendo, that the commissioners in this case are negligent, they are immune because the decision (assuming one was made) not to dredge the creek, etc., is discretionary and immune pursuant to the Supreme Court's holding in Zents v. Bd of Commrs., supra. The Zents court clearly stated that "[n]o tort action will lie against a county for those acts or omissions involving the exercise of an executive or planning function or involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion." Id. at syllabus.
R.C. 6131.02, regarding the establishment and improvement of creeks and drains, is a discretionary provision. The potential actions called for in said statute are qualified by the word "may." This language reflects the intent of the legislature to afford a high degree of discretion to county commissioners in improving and altering watercourses.
In addition, the Ohio Supreme Court in Carney v. McAfee (1988), 35 Ohio St.3d 52, 517 N.E.2d 1374, recently held:
"A municipality cannot be held liable under R.C. 723.01 for damages resulting from an automobile accident on a bridge located on a state highway within the municipality, where the bridge was designed and constructed by the state and the state is responsible for maintaining and inspecting the structure."
Civ.R. 56(C) states, in pertinent part:
"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in this action, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."
The affidavits filed by the board are not disputed and they support the claim that it is the responsibility of ODOT to inspect this bridge and make any necessary repairs, or, at the very least, notify the county engineer of any defect. The record demonstrates that the board was not made aware or given notice of a drop-off in the Shawnee Creek. The board is not liable for damages caused by defects or dangerous conditions existing in Shawnee Creek, unless it has notice of the condition, either actual or constructive. See McClellan v. Ohio Dept. of Transp. (1986), 34 Ohio App.3d 247, 517 N.E.2d 1388.
Although the board is not claiming ownership or control of the creek, assuming, arguendo, that this court found it to be the owner or occupant thereof, R.C. 1533.181 grants immunity to the county against claims by recreational users.
R.C. 1533.18 states as follows:
"As used in sections 1533.18 and 1533.181 of the Revised Code:
"(A) `Premises' means all privately-owned lands, ways, waters and any buildings and structures thereon, and all state-owned lands, ways, and waters leased to a private person, firm, organization or corporation, including any buildings and structures thereon.
"(B) `Recreational user' means a person to whom permission has been granted, without the payment of a fee or consideration to the owner, lessee, or occupant of premises, other than a fee or consideration paid to the state or any agency thereof, to enter upon premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits." (Emphasis added.)
R.C. 1533.181 clearly states that the board is exempt from liability for the deceased's drowning. It reads:
"(A) No owner, lessee, or occupant of premises:
"(1) Owes any duty to a recreational user to keep the premises safe for entry or use;
"(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;
"(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user."
R.C. 1533.18 states that immunity exists when the user is hunting, fishing, trapping, camping, swimming or engaging in other recreational pursuits. Accord Mitchell v. Cleveland Elec. Illum. Co., supra. This includes the pursuit of these activities on state-owned lands. Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138, 16 O.O.3d 161, 404 N.E.2d 742. (By implication, this may be applied to the Shawnee Creek, which runs through the Greene County area.) In this instance, the deceased was engaged in a recreational pursuit when he was wading in the Shawnee Creek.
The phrase "other recreational pursuits" has been construed to include sledding at a metropolitan park. Marrek v. Cleveland Metroparks Bd. of Commrs. (1984), 9 Ohio St.3d 194, 9 OBR 508, 459 N.E.2d 873. Crabtree v. Shultz (1977), 57 Ohio App.2d 33, 11 O.O.3d 31, 384 N.E.2d 1294 (horseback riding on another's land); Fetherolf v. State (1982), 7 Ohio App.3d 110, 7 OBR 142, 454 N.E.2d 564 (a disabled person sitting on a beach watching his family swim).
It is not alleged that the deceased paid a fee to enter the Shawnee Creek. Furthermore, it cannot be disputed that he was a recreational user of the creek. A specific pursuit is comprehended within the meaning of R.C. 1533.18 if (1) it is a pursuit of an active sporting nature; (2) it requires a commitment of personal involvement or participation; and (3) whether it is generally thought of as a form of outdoor recreation. Sells v. Ohio Historical Ctr. (Nov. 30, 1982), Franklin App. No. 82 AP-508, unreported, cited with approval in Pierce v. Cleveland Metroparks Sys. (Oct. 23, 1986), Cuyahoga App. No. 51162, unreported, 1986 WL 11960.
Applying these elements to the instant action, the deceased was engaged in the personal endeavor of wading in a stream. It is clear that he was participating in an outdoor recreational activity which required his involvement. Under the terms of the statute and case law, he was a recreational user of the Shawnee Creek and, thus, the board is immune from suit.
The applicability of the attractive nuisance doctrine and whether the deceased was a trespasser will be reserved because of the lack of affidavits to support these allegations.
Therefore, for each of the stated reasons, the court finds that the board's motion for reconsideration of the February 17, 1988 entry is well taken and is hereby GRANTED. Accordingly, the board's motion for summary judgment is hereby GRANTED.
Motion for summary judgment granted.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.