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ROBERT L. ERVIN, INDIVIDUALLY, AND AS EXECUTOR OF THE ESTATE
OF SHAYLA ERVIN, DECEASED, Plaintiff-Appellant -vs- HAROLD WILLISON,
ET AL., Defendants-Appellees
Case No. CT2013-0022
COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT,
MUSKINGUM COUNTY
2014-Ohio-482; 2014 Ohio App. LEXIS 468
LexisNexis(R) Headnotes
DISPOSITION: Affirmed.
CASE SUMMARY:
OVERVIEW: HOLDINGS: [1]-The trial court did not
err in dismissing the traffic signal supervisor from the
lawsuit because service was not made in a manner
"reasonably calculated" to reach him; [2]-Because the
estate executor did not demonstrate that the faulty timing
was anything other than a mistake, and the city did not
know of the error until the accident, the exception to
immunity under R.C. 2744.02(B)(3) did not apply;
[3]-Even if the timing of the pedestrian signal had fallen
within the exception under R.C. 2744.02(B)(3), immunity
existed under R.C. 2744.03(A)(3) and (5) because the
decision to set the walk interval at nine seconds was a
discretionary decision and there was nothing to suggest
that appellees' judgment or discretion was exercised with
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governmental
or
proprietary
function.
R.C.
2744.01(C)(2)(e) and (j) state a "governmental function"
includes the regulation of the use of, and the maintenance
and repair of, roads, highways, streets, avenues, alleys,
sidewalks, bridges, aqueducts, viaducts, and public
grounds, and the regulation of traffic, and the erection or
non-erection of traffic signs, signals, or control devices.
Governments > Public Improvements > Bridges &
Roads
Torts > Public Entity Liability > Liability > State Tort
Claims Acts > Exclusions From Liability
[HN6] See R.C. 2744.02(B)(3).
Governments > Public Improvements > Bridges &
Roads
[HN7] R.C. 2744.01(H) provides that "public roads"
means public roads, highways, streets, avenues, alleys,
and bridges within a political subdivision. "Public roads"
does not include berms, shoulders, rights-of-way, or
traffic control devices unless the traffic control devices
are mandated by the Ohio manual of uniform traffic
control devices.
Governments > Public Improvements > Bridges &
Roads
[HN8] The timing of traffic signals does not involve the
remedying, restoration, or renovation of roads, and is not
an actual impediment. Therefore, it is not encompassed
within the meaning of the term "repair" (or nuisance) as
used in R.C. 27744.02.
Torts > Public Entity Liability > Liability > State Tort
Claims Acts > Exclusions From Liability
[HN9] See R.C. 2744.03(A)(3) and (5).
Governments > Public Improvements > Bridges &
Roads
[HN10] The timing of pedestrian signals is included in
Section 4E.10 of the Ohio Manual of Uniform Traffic
Control Devices (OMUTCD). The OMUTCD lists
guidelines and options regarding the length of the walk
interval. The section uses the word "should" and not
"shall." There are no specific mandates as to the timing of
the pedestrian signals. Said section states "the walk
interval should be at least 7 seconds in length" with the
option that "walk intervals as short as 4 seconds may be
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used."
COUNSEL: For Plaintiff-Appellant:
DeSANTO, Ashland, OH.
ROBERT
P.
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IV
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