Debris From a City Monument Hit a Dayton-Area Motorcyclist: Why the City Walked (McDonald v. Lacy)

Published August 21, 2018 · Ohio Appeals Courts

In May 2014, a motorcyclist was riding south on Woodman Drive in Riverside when a northbound pickup lost control, jumped into the center median and slammed into the city's decorative "entryway" monument and sign. Pieces of the monument flew across the southbound lanes, struck the rider and threw him to the pavement. He suffered serious, permanent injuries.

He had done nothing wrong. Yet on July 13, 2018, the Second District Court of Appeals, which hears appeals from Montgomery County, held that the City of Riverside and its service director could not be held liable. McDonald v. Lacy, 2018-Ohio-2753 (2d Dist.). The decision is a hard one for injured people, but it is an important lesson in how claims involving public property actually get resolved.

The facts

According to the appeals court, Riverside began an "Entryway Enhancement Project" in 2004 to put signs and monuments at several entrances to the city. The project, funded with federal and county grants, was described as improving roadway safety and drainage and beautifying the city's gateways. A design and engineering firm and a monument designer were hired, the Ohio Department of Transportation selected the construction company, and the work was finished in late 2009. On Woodman Drive, a center left-turn lane was converted into a curbed median holding a monument and sign.

About a year later, in December 2010, a driver lost control, hit the same monument and sent debris across the road. The city repaired the monument and put it back. Then came the 2014 crash that injured the motorcyclist. Afterward, the city removed the median and restored the original turn lane.

The rider sued the pickup driver, the design firms, the city and the city's service director. The trial court ruled the city and the director were immune, and the appeals court affirmed. After the immunity ruling, the rider dismissed his claims against the remaining defendants; the trial court's final entry notes that a settlement agreement was reached, without saying which parties were involved.

Why the city was immune: "governmental" versus "proprietary"

Ohio's Political Subdivision Tort Liability Act, R.C. Chapter 2744, starts from the rule that cities, counties, townships and school districts are immune from damages claims, then lists exceptions. The exception the rider relied on, R.C. 2744.02(B)(2), makes a city liable for the negligent performance of a proprietary function.

The statute divides everything a city does into two categories:

• Governmental functions are things like regulating and maintaining roads and public grounds, and the "planning or design, construction, or reconstruction of a public improvement." R.C. 2744.01(C)(2).
• Proprietary functions are activities that private businesses customarily do, such as operating a hospital, a utility, a stadium or an off-street parking facility. R.C. 2744.01(G).

The rider argued that building a decorative monument and sign is exactly what private developers do every day, and that the purpose (community identity and pride) was nothing uniquely governmental. The court disagreed. It held that the monument could not be pulled out of its larger context: it was built as part of a city project to improve roads, drainage and safety at the city's entrances, which is a governmental function. Because the overarching project was governmental, the specific act of building a monument was too, and the proprietary-function exception did not apply.

Notice what this means in practice. The court never had to decide whether the median design was negligent. Immunity ended the claim before that question was reached.

Why the service director was immune: the "reckless" bar

Individual government employees have their own, separate immunity under R.C. 2744.03(A)(6). An employee is personally immune unless his conduct was malicious, in bad faith, or "wanton or reckless."

The rider pointed out that the director knew a car had already hit the monument in 2010 and scattered debris into the opposite lanes, yet had it rebuilt in the same spot without asking the designers how to prevent a repeat. The rider's engineering expert called that a conscious disregard of a known risk.

The court held that was not enough. In its view, knowing that one motorist had hit the monument did not make it reckless to leave it there; at most, the evidence suggested negligence. And an expert's statement that conduct was "reckless" is a legal conclusion that does not, by itself, create a jury question. Ohio's courts set a very high bar for proving recklessness by a public employee, and this case shows how high.

A pattern injured people should recognize

McDonald is part of a pattern. Earlier this summer, the Ohio Supreme Court held that a city was immune when trees in the strip beside a road blocked drivers' view of a stop sign, because the obstruction was not on the road or the sign itself. I discussed that case, Pelletier v. Campbell, in June. In 2016, the Court made it harder to recover against the owners of utility poles placed near the road, as I explained in my post on Link v. FirstEnergy.

The common thread: when a fixed object near the road turns an ordinary crash into a catastrophe, the government or utility that put it there is often shielded. The claims against the government that do succeed usually fit squarely within one of the statutory exceptions, such as a negligently driven government vehicle or a failure to keep the road itself in repair.

Where recovery comes from when the city is immune

The rider in McDonald still had claims against other people, and that is the real lesson of the case. In a crash like this one, the potential sources of recovery include:

• The at-fault driver who lost control, and his auto liability insurance.
• Private design and engineering firms that planned the median and the monument. Immunity under Chapter 2744 protects political subdivisions and their employees, not private contractors hired to do the design work.
• The injured rider's own coverage, including underinsured motorist coverage if the at-fault driver's limits are too low to cover permanent injuries, and medical payments coverage on the motorcycle policy.

Each of these claims has its own deadlines and its own proof. A design-defect claim against an engineering firm, for example, requires expert analysis of the roadway and the project records, and those records must be gathered early.

What this means for you

If you are hurt because something a city built or placed near the road made a crash worse, do not assume you have a claim against the city, and do not assume you have no claim at all. Ohio's immunity law will often protect the city. But the driver who caused the crash, the private companies that designed or built the hazard, and your own insurance may still provide a full recovery. Riders in particular face skeptical adjusters, which I have written about in a post on overcoming the bias against motorcyclists.