The legislature was aware of the broad definition the court had been giving to the term "nuisance," and made a conscious choice to substitute the word "obstructions" to limit municipality exposure.
Training is essential to success, and live burns are a particularly effective means of training for structural fire suppression. However, when departments conduct live burns outside of an established training facility, special hazards may be presented.
On Jan. 24, 2004, the Miami (Ohio) Township Fire Department conducted a controlled burn in an abandoned dwelling. The burn site was an elevated area accessed by a driveway that ran from Bear Creek Road, a gently rolling rural road. Bear Creek Road has several curves, and many yellow caution signs were posted along it to indicate the type of curve that lies ahead and the recommended speed at which the curve should be negotiated. One such sign, located near the burn site's driveway, indicated a sharp right curve ahead and posted the maximum speed at 30 mph.
Because it was winter and the water used during the burn ran down the driveway to Bear Creek Road, fire department personnel visited the burn site that evening to ensure that the fire was out and to apply road salt as needed. At approximately 6 p.m., they did not find any ice on the road, but nonetheless they spread a 5-gallon bucket of salt where water had run down onto the roadway. They returned at about 7:30 p.m. and remained there for approximately 30 minutes, again checking the road for water and ice. They didn't find any and did not salt the road again. Local police also patrolled the area, and at approximately 9 p.m., evidence indicated that the northbound side of the road was wet.
At approximately 10 p.m., Christopher Howard drove his car northbound on Bear Creek Road with a passenger who later reported that Howard had managed to negotiate the curve near the burn site successfully at 50 mph approximately 10 minutes earlier and was attempting to repeat that feat at 60 mph — twice the speed recommended for the curve. After entering the left-hand curve just past the burn site, Howard lost control of the car and crashed into a tree. He died instantly.
The first police officer to arrive at the accident scene noticed icy conditions on the roadway. He found water running onto the road and noted that it had frozen in some places and had turned slushy in others. Other officers dispatched to the scene also observed water, slush and ice on the roadway, as well as fresh water flowing onto the roadway from the drive to the burn site. After investigating the accident, police concluded, "Stricken with water, rock salt and some ice, [Howard] failed to negotiate the left-hand curve, over-corrected and locked up the brakes. Unable to maintain or regain control, he crossed the center line, striking a sign post and coming to final rest roof first around a tree."
Investigators recovered the sensing diagnostic module in the airbag sensor from Howard's car after the accident. It confirmed that he had been traveling at 60 mph five seconds before the accident. Although the plaintiffs' reconstructionist, Fred Lickert, agreed that Howard had attempted to make the turn in Bear Creek Road at a "careless" rate of speed, he concluded that the roadway itself presented a hazardous condition to its ordinary users. Lickert's opinion was that it was possible for a vehicle under optimal conditions, to negotiate the curve at speeds in excess of 70.9 mph. He also concluded that the "actions and inactions of the Miami Township Fire Department in failing to address the hazardous condition of the roadway were a proximate and contributing cause of this fatal accident."
Donald Howard, as administrator of the estate of Christopher Howard, brought suit against Miami Township and the Miami Township Fire Division, alleging that the township was liable for Christopher's death because Christopher had lost control of his vehicle when it hit "black ice" that had formed on the roadway due to Miami Township's negligence. The township moved for summary judgment, asserting that it was immune from liability under the Ohio Political Subdivision Tort Liability Act.
The trial court agreed with the township, concluding that general blanket immunity applied and that there was no applicable exception to that immunity. In other words, it dismissed the claim. Howard appealed to the Court of Appeals for Montgomery County, which reversed the trial court decision.
The suit eventually found its way to the Ohio Supreme Court in the case of Howard v. Miami Twp. Fire Div., 119 Ohio St. 3d 1, 2008-Ohio-2792. As is customary in summary judgments, the court accepted as proven for the purpose of deciding the motion the opponent's allegations: that there was ice on Bear Creek Road and that the ice was the result of water used by the fire department at the burn site.
The court said that critical to its analysis was the trial court's finding that the ice on Bear Creek Road did not amount to an "obstruction" under Ohio statutes. The trial court had found that the term "obstruction" should be given its ordinary definition — something that "blocks or closes up by obstacle." Because passage through Bear Creek Road had not been blocked by any obstacle, the trial court determined that the water and ice on the road did not amount to an obstruction and held that the township was not liable for Howard's death. The court noted that it had accepted the appeal for the purpose of considering two questions: First, whether an obstruction should be given the plain and ordinary meaning of an obstacle or "something that blocks or closes up by obstacle," and whether a political subdivision's duty extends only to obstacles that block a roadway for usual and ordinary modes of travel.
The court began its inquiry by observing that, generally, under Ohio law political subdivisions are not liable for injury or death in connection with a township's performance of a governmental or proprietary function. The court went on to note, however, that Ohio statutes create an exception from this immunity for injuries or deaths caused by a township's "negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads." The court pointed out that the critical term here was obstruction, which was not defined either by statute or prior court decision.
The court first resorted to Webster's New World Dictionary for a definition of obstruction, quoting it as, "1. An obstructing or being obstructed; 2. anything that obstructs; hindrance." The court then quoted Webster's definition of obstruct as, "1. To block or stop up (a passage) with obstacles or impediments; dam; clog; 2. to hinder (progress, an activity, etc.); impede; 3. to cut off from being seen; block (the view)."
The court said that if the definition of obstruction meant only to "block or stop" or to dam or clog, there would be no ambiguity and no debate that the ice on Bear Creek Road was not an obstruction, because there was no evidence that the road was not passable as a result of the ice. The court went on to say, however, that the dictionary definitions of obstruction also include the concept of hindering and impeding — concepts that do not necessarily require a complete blockage. The court then noted that the lower appellate court had held that obstruction should be interpreted to mean any object placed or erected in a public roadway that has the potential of interfering with the public's use of that roadway. The lower appellate court had concluded that an icy mixture on a public roadway has the potential of interfering with the public's safe use of the roadway by creating an opportunity for loss of traction or control of a vehicle. Therefore, the township was not entitled to summary judgment because the political subdivision had a duty of care to remove this obstruction from the road.
The Ohio Supreme Court concluded that the lower appellate court erred in this application of the law because it ignored the statutory history of the law. The court noted that prior to its most recent revision, the statute had read, "[P]olitical subdivisions are liable for injury, death, or loss to person or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the public subdivision open, in repair, and free from nuisance."
The court noted that when the law was amended in 2003, the phrase "free from nuisance" was replaced with the phrase "other negligent failure to remove obstructions." The court went on to conclude that the legislature had a specific reason for making this amendment. It said that the legislature's action in amending the law was not whimsy, but a deliberate effort to limit political subdivisions' liability for injuries and deaths on their roadways.
This led the court to review the history of the term nuisance, and to explore why the legislature had substituted the obstructions language for the "nuisance" language. It noted that over the years, the court had interpreted the term "nuisance" broadly to cover an array of acts or omission that endangered life or health. For instance, it had interpreted nuisance to include the following:
- Conditions that directly jeopardized the safety of traffic on the highway, even if the conditions did not appear on the roadway itself;
- A defective tree limb threatening to fall on a public roadway, but not actually on the roadway;
- A nuisance that arose within its municipality that caused injuries outside the political subdivision.
The court said that it discerned a legislative intent to limit political-subdivision liability for roadway injuries and deaths. The legislature was aware of the broad definition that the court had been giving to the term nuisance, and consequently made a conscious choice to substitute the word obstructions in a deliberate effort to limit municipality exposure to suit and to impose a condition more demanding than a showing of a nuisance for a plaintiff to establish an exception to immunity. The court then concluded that an obstruction must be an obstacle that blocks or clogs the roadway and not merely a thing or condition that hinders or impedes the use of the roadway or that may have the potential to do so. Accordingly, the court reversed the judgment of the appellate court and reinstated the trial court's order granting summary judgment in favor of the township, dismissing Howard's claim.
This case provides several points worthy of consideration:
- Courts provide the final word on constitutional issues. On non-constitutional issues, the legislature may limit the courts' reach by changing the law to curtail court interpretations.
- Immunity can provide important protection for fire departments, but should never be relied on in determining prudent action.
- Cases sometimes turn on very fine distinctions, a little like a past president saying it depends on what the definition of "is" is.
Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He is legal counsel for the Wisconsin state Firefighters Association and the National Volunteer Fire Council. Stittleburg is also currently the chairman of the NVFC and a director of the National Fallen Firefighters Foundation.
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