Opinion
No. 87-03571.
Decided July 28, 1988.
Kevin L. Shoemaker, for plaintiffs Eugene Woodruff et al.
Anthony J. Celebrezze, Jr., Attorney General, and Susan M. Sullivan, Assistant Attorney General, for defendants.
On May 23, 1988, defendants filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C). The plaintiffs subsequently filed a response to said motion.
The file indicates that plaintiffs filed a complaint on March 13, 1987, wherein they stated the following pertinent allegations:
"6. Plaintiffs' claims arise from a train/motor vehicle collision which occurred on March 17, 1985 in German Township, Fulton County, Ohio at a railroad crossing intersecting County Road 24, which is a two-lane roadway running north and south.
"7. The crossing where the collision occurred consists of two tracks which run east and west and was marked with a crossbuck sign, but had no protective devices or other means of preventing vehicle traffic from moving onto the tracks.
"8. Consolidated Rail Corporation (hereinafter referred to as `Conrail') owns, maintains, and/or otherwise has under its control the railroad tracks that cross County Road 24 at the railroad crossing where plaintiffs' decedents were killed.
"9. On March 17, 1985, at approximately 10:30 p.m. decedent Dean Dunham was the owner and occupant of a motor vehicle which was proceeding from the north in a southerly direction on County Road 24, approaching the Conrail tracks. At said time and place, decedent Wayne R. Woodruff was an occupant in the Dunham vehicle.
"10. On March 17, 1985 at approximately 10:30 p.m., a train owned, operated and/or under the control of Conrail was travelling from the east approaching the crossing at County Road 24.
"11. The Dunham vehicle stopped to the north of the railroad crossing, then entered upon the crossing and was on the tracks when struck by the train owned, operated and/or under the control of Conrail.
"12. The collision of the Conrail train with the Dunham vehicle caused the deaths of Wayne R. Woodruff and Dean Dunham.
"* * *
"15. In 1973, the Ohio General Assembly enacted legislation extending the authority of ODOT to cooperate in providing warning devices at railway-highway grade crossings throughout Ohio.
"16. Pursuant to Chapter 5523 of the Ohio Revised Code, ODOT, through the director, has a duty to determine the probability of accidents at each crossing and to pursue the installation of warning devices at those crossings which are determined to be dangerous.
"17. Although aware of the high number of accidents at the crossing where Wayne R. Woodruff and Dean Dunham were killed, ODOT failed to properly determine the probability of accidents or to pursue the installation of warning devices at the crossing.
"18. Adequate warning devices at the subject crossing would have prevented the collision which resulted in the death of Wayne R. Woodruff and Dean Dunham.
"* * *
"23. Pursuant to Chapter 4907 of the Ohio Revised Code, it is the duty of the PUCO to determine whether certain railroad crossings in the State of Ohio are dangerous.
"24. If the PUCO determines that a crossing is dangerous, it then has the duty to require the installation of warning devices to protect the public.
"25. The PUCO failed to properly and within a reasonable time determine that the subject crossing was dangerous.
"26. The PUCO likewise failed to require the installation of warning devices which would have prevented the collision which resulted in the deaths of Wayne R. Woodruff and Dean Dunham."
The party against whom a Civ.R. 12(C) motion is made is entitled to have all the material allegations in his complaint, with all reasonable inferences to be drawn therefrom, construed in his favor as true. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 63 O.O.2d 262, 297 N.E.2d 113; State, ex rel. Carter v. Cleveland City School Dist. Bd. of Edn. (1985), 17 Ohio St.3d 105, 17 OBR 224, 477 N.E.2d 1134.
Plaintiffs maintain that since the Public Utilities Commission of Ohio ("PUCO") failed to properly determine, within a reasonable time, that the subject crossing was dangerous and failed to require the installation of warning devices, PUCO was responsible for this accident. Plaintiffs allege that the Ohio Department of Transportation ("ODOT") was negligent in that it violated R.C. 4511.10 and 4511.11 and its statutory duties shared with PUCO.
Upon review of the record, filings pertinent to said motion and the applicable law, the court finds that the motion is well-taken and is hereby GRANTED.
In Hull v. Baltimore Ohio R.R. Co. (1987), 37 Ohio App.3d 94, 524 N.E.2d 175, syllabus, the Franklin County Court of Appeals held:
"1. The board of trustees of a township has no statutory duty to install safety devices at railroad crossings under its jurisdiction.
"2. The decision of a board of trustees of a township not to install safety devices at railroad crossings is an exercise of an executive or planning function involving a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion, with the result that the decision is shielded from liability by the doctrine of sovereign immunity."
In Mitchell v. Cleveland Elec. Illum. Co. (1987), 30 Ohio St.3d 92, 30 OBR 295, 507 N.E.2d 352, paragraph two of the syllabus, the court held:
"A municipality's determination that a specific entity constitutes or does not constitute a nuisance is a basic policy decision requiring a high degree of official judgment or discretion, and thus the municipality is immune from tort liability for making or failing to make such a determination."
In Winwood v. Dayton (1988), 37 Ohio St.3d 282, 283-284, 525 N.E.2d 808, 809-810, the court stated and held the following:
"The issue presented by this cause is whether a municipality is liable in tort for damages alleged to be caused by the lack of traffic control devices at an intersection. We hold that no such liability may be imposed.
"In Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228, this court partially abolished the judicially created doctrine of municipal immunity. Id. at paragraph one of the syllabus. This immunity was preserved, however, for `* * * those acts or omissions involving * * * the exercise of an executive or planning function 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 paragraph two of the syllabus.
"Appellant argues that a municipality's decision not to install traffic control devices at a particular intersection is not a `basic policy decision' involving the exercise of `a high degree of official judgment or discretion * * *' within the meaning of Enghauser, supra. Citing this court's subsequent decision in C D Partnership v. Gahanna (1984), 15 Ohio St.3d 359, 15 OBR 480, 474 N.E.2d 303, appellant contends that the exception to liability described in Enghauser was reserved for `policymaking activities * * * at the heart of municipal governance * * *.' C D Partnership at 364, 15 OBR at 484, 474 N.E.2d at 307. Appellant submits that the decision of whether to place traffic control devices at an intersection does not rise to the level of basic policy, but rather involves simple day-to-day decision making. We do not agree.
"* * *
"Similarly, the case before us today concerns a municipal decision requiring the consideration of basic policy and the exercise of independent judgment. The factors involved in determining the necessity or advisability of installing traffic control devices include the regulation of traffic patterns and traffic flow at the specific location and in surrounding areas, fiscal priorities, safety, and various engineering considerations. Thus, the decision to install or to forgo traffic control devices at a particular intersection is a planning function, involving basic policy considerations and the exercise of a high degree of official discretion. It follows, therefore, that appellee is immune from tort liability under Enghauser. Id. at paragraph two of the syllabus."
The cited cases in this opinion and the defendants' memorandum clearly demonstrates that the defendants' motion is well-taken.
Accordingly, the defendants' motion for summary judgment is GRANTED. Plaintiffs' complaint shall be dismissed.
Complaint dismissed.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.