We are pleased to share Attorney Amanda Paar's article regarding Ohio's Manual of Uniform Traffic Control Devices which appeared in this month's edition of Ohio Trial Magazine.
When, if ever, is a stop sign mandated by the Ohio Manual of Uniform Traffic Control Devices?
Anyone who has ever sued a political subdivision for negligence with regard to any traffic signage issue is undoubtedly familiar with the Ohio Manual of Uniform Traffic Control Devices. It is the bible of all things "traffic control device." The law regarding a political subdivision's liability for nuisance has changed, and the terms of the Manual are becoming increasingly important in cases involving traffic control devices.
In general.
The second tier of the analysis is to determine whether any of the exceptions to immunity apply. If an exception to immunity does apply, then the third and final tier is analyzed. Namely, whether political subdivision immunity can be reinstated by the statutorily listed defenses set forth in R.C. 2744.03.
The critical inquiry with regard to traffic control devices lies in the second tier of the analysis. The law in this area has significantly changed, and today, affords even greater immunity to political subdivisions than ever before.
The good old days.
The former R.C. 2744.02(B)(3) provided that a political subdivision was liable for injury caused by its "failure to keep public roads, highways, [and] streets * * * within the political subdivisions open, in repair, and free from nuisance * * * ." Items such as malfunctioning traffic signals and overhanging tree limbs that obstructed the view of a traffic signal qualified as a nuisance under the former statute. The focus hinged on 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." Significantly, a political subdivision's failure to maintain a traffic control device that was already in place was grounds for an actionable nuisance claim. The main hurdle for a plaintiff to prove was that the political subdivision had either actual or constructive notice of the alleged nuisance.
And then it all changed.
Effective April 9, 2003, the Revised Code was amended to eliminate the nuisance language that had been in place and developed for decades. The legislature severely narrowed this exception to immunity. Now, political subdivisions are "liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads." The previous "nuisance" language was changed to "failure to remove obstructions." The new law requires plaintiffs to completely disregard the well-established nuisance law that was created and refined for decades, as it has lost nearly all persuasive authority.
The legislature also added a definition of "public roads" to be used in interpreting whether an exception to political subdivision immunity applies. The new definition of "public roads" includes traffic control devices mandated by the Ohio Manual of Uniform Traffic Control Devices. (The new definition of "public roads" also does not include sidewalks, aqueducts, viaducts, or public grounds. ) Thus, the new law imposes political subdivision liability only when a traffic control device is mandated by the Manual. When the installation of a particular traffic control device is discretionary according to the Manual, there is no liability, regardless of the political subdivision's degree of negligence in its failure to maintain the device. Thus, the pivotal question is: what traffic control devices are mandated by the Manual?
The OMUTCD.
The Manual is part of Ohio law regarding traffic control devices, and as such, a court should take judicial notice of the Manual. A "traffic control device" is all-encompassing. It includes:
all flaggers, signs, signals, markings, and devices placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.
Read tangentially, is the definition of "traffic control signal," which means:
The introduction to the Manual provides three differing levels of authority. "Standards" must be satisfied by the political subdivision. "Guidances" are provisions that should be followed. And "options" may or may not be applicable based upon the particular circumstances of the situation. For plaintiffs, only the provisions of the Manual that qualify as "Standards" impose liability to a political subdivision.
Chapter 2B of the Manual governs regulatory signs such as stop signs. It states, as a standard, that "[r]egulatory signs shall be used to inform road users of selected traffic laws or regulations and indicate the applicability of the legal requirements." A stop sign is included in the definition of a regulatory sign. The Manual provides another standard, stating, "[w]hen a sign is used to indicate that traffic is always required to stop, a STOP sign shall be used," and references a diagram of a stop sign. Using a guidance provision, the Manual states,
STOP signs should be used if engineering judgment indicates that one or more of the following conditions exist:
- Intersection of a less important road with a main road where application of the normal right-of-way rule would not be expected to provide reasonable compliance with the law;
- Street entering a through highway or street (O.R.C. Section 4511.65 provides information on through highways (see Appendix B2));
- Unsignalized intersection in a signalized area; and/or
- High speeds, restricted view, or crash records indicate a need for control by the STOP sign.
Based upon these provisions, alarmingly, a stop sign is never mandated by the Manual.
To date, there is only one significant appellate decision that has discussed the recent change in political subdivision immunity with respect to stop signs. In Walters v. City of Columbus, the court addressed a situation where a driver essentially ran a stop sign, was injured, and sued the City of Columbus for its negligence in failing to remove an obstruction from the stop sign and failing to maintain or repair a public road. The "critical inquiry" before the court was "whether or not the stop sign at issue was mandated" by the Manual. The City argued that based upon the "guidance" provision of the Manual at § 2B.05, the stop sign was not mandated by the Manual, and therefore, no liability attached. The plaintiff argued the "standard" that when a "sign is used to indicate that traffic is always required to stop, a STOP * * * sign shall be used." Plaintiff argued that even though the "original decision to place a stop sign is discretionary," that "once the decision to place a sign is made, the mandates of the manual must be followed, including section 2B.04, thus making them mandated by the OMUTCD." The plaintiff also cited to Franks for the proposition that a political subdivision's failure to maintain the signage already in place constitutes a nuisance claim.
The Tenth District specifically distinguished Franks as non-applicable since the amendment of R.C. 2744.02 and R.C. 2744.01, effective April 9, 2003. It noted the absence of the nuisance language in the new statute and the new definition of "public roads." The court reasoned that if it accepted the plaintiff's logic, then
all traffic control devices would be "mandated" by the OMUTCD and the distinction in the statute between those traffic control devices that are mandated and those that are not would effectively be abrogated to the point of rendering the distinction meaningless.
The court noted the legislature's intent to "limit political subdivision liability for roadway injuries and deaths," and specified that the General Assembly used the word "obstructions" in a "deliberate effort to impose a condition more demanding than a showing of a 'nuisance' in order for a plaintiff to establish an exception to immunity." Similarly, the court read the same legislative intent into the new definition of a "public road" and determined that not all traffic devices are to be considered part of the public road. Accordingly, the court held that the stop sign at issue was not mandated by the Manual.
After this analysis, the court cited several provisions of the Manual where a traffic control device is mandatory. Yield signs "shall be used to assign right-of-way at the entrance to a roundabout intersection." Do not enter signs "shall be used where traffic is prohibited from entering a restricted roadway." A "one way" sign "shall be used to indicated streets or roadways upon which vehicular traffic is allowed to travel in one direction only." "Low clearance" signs "shall be used to warn road users of clearances less than 300 mm (12 in.) above the statutory maximum vehicle height."
Conclusion.
While some traffic control devices are mandated by the Ohio Manual of Uniform Traffic Control Devices, the Court of Appeals for the Tenth District has taken a firm stance that a stop sign is never mandated by the Manual, referencing the marked legislative intent to support political subdivision immunity. The legislature has painted this area of law with a very broad brush in favor of upholding immunity for injuries and death resulting from negligently maintained traffic control devices. Perhaps there will be a split in the districts regarding whether a stop sign is ever mandated by the Manual; time will tell. As practitioners, it is imperative under the new law to scrutinize the provisions of the Manual prior to accepting such cases in order to properly evaluate the likelihood of surviving political subdivision immunity. A copy of the manual should be on the bookshelf of every attorney who challenges political subdivision immunity. The Manual can be downloaded in full or part at http://www.dot.state.oh.us/Divisions/HighwayOps/Traffic/publications2/OhioMUTCD/Pages/default.aspx.
Traffic Regulatory Signs-Government should make policy to give the awards to those drivers who never break any traffic rule and regulation. This type of policy surely encourages people to follow the traffic rules and regulations.
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