On September 13, 2004, motorcyclist Bruce Willis [yes, his real name] lost his appeal in the case of Willis v. Commodity Specialists, Inc. In my mind, the Third Appellate District made the wrong decision and issued an opinion which permits cities to discriminate against motorcycle operators in a dangerous manner.
Willis was hurt on U.S. Rt. 33 in Marysville, Ohio on August 30, 2001. As he road down Rt. 33 he came to a stretch of the highway where grain had accidentally been spilled by the driver of a Commodity Specialists, Inc. truck. The spilled grain was extensive, covered the roadway and was spread across both lanes for 20-30 feet.
When Willis approached the scene, police officers were directing traffic through the grain. Traffic had slowed to 35-45 mph and Willis could see the city was unloading equipment to clean up the spill. Willis followed the police officer’s directions and signals and rode through the spilled grain. His bike fishtailed and lost control on the slippery roadway. He crashed and suffered significant injuries. Willis then sued Commodity Specialists, Inc., its driver as well as the City of Marysville. He was able to reach a settlement with all parties except the City of Marysville. However, the trial court dismissed his claims against the city and he appealed.
Willis argued that the city of Marysville was liable for failing to keep its roadway “free from nuisance” and that the city was not “immune” from liability under these facts. Willis also argued that the actions of the Marysville police officers of allowing traffic to proceed through the nuisance did not cloak the city of Marysville with immunity.
The City claimed it had “immunity.” “Immunity,” as everybody knows from watching Survivor on TV, is a concept that means even though you should otherwise lose, you are “immune” from losing, or from liability in this case, due to some special rules. In Ohio, the special rules protect governments from liability in all but limited circumstances.
Marysville argued it was protected under an Ohio law which provides “…a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.…”
Willis argued the City of Marysville lost its immunity under another statute which provides: “…political subdivisions are liable for injury, death, or loss to persons or property caused by their negligent failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivision open, in repair, and free from nuisance ….”
The court took a very close look at the facts that were developed in case. It noted that a police officer arrived on the scene shortly after the spill and immediately contacted the street and fire departments for clean up assistance. However, the officer elected to direct traffic through the spill rather than shut down a very busy stretch of roadway.
Mr. Willis happened on the scene after the officer chose to direct traffic through the spill. He saw the grain covering the roadway. Mr. Willis also admitted that he saw the cleaning equipment on the scene and he understood that the clean up would soon be underway. However, he proceeded to drive through the substance at the officer’s direction, where he fishtailed and lost control of the bike.
Mr. Willis argued that the spill was such a “nuisance” that traffic should have been routed around the spill. If this was not possible, he argued the road should have been shut down and traffic stopped until the clean up was complete.
The court of appeals noted that Ohio courts have ruled on many different types of claims of “nuisance.” For example, hanging tree limbs or corn growing in the road’s right of way were both found to be nuisances and a city’s failure to trim the tree/corn was held to be negligence such that the city was liable for injuries caused thereby. A malfunctioning traffic signal could also be a nuisance, as could a city’s failure to maintain a road sign already in place. Willis argued that his case should be looked at in the same light as these examples.
The court of appeals refused to bite, however. The court said the grain was not a “permanent” impediment to the movement of traffic and that “not all obstructions or impediments to a municipality's highways are nuisances.” The court noted that the City of Marysville had played no role in causing the hazard and had acted promptly in getting a crew involved in cleaning it up as soon as it became aware of the spill. The court also noted that Mr. Willis described the traffic as “heavy” and that traffic would have had to stop since there was no way around the spill. According to the court, the police officer’s decision to allow traffic to proceed through the spill at 30-35 mph was not malicious or made in bad faith. The court held that no liability could attach to the city or the officer.
Oddly, the court did not cite or refer to other Ohio Supreme Court cases that could have led to a different decision. In Dickerhoof v. Canton, the nuisance alleged was a chuckhole or pothole on the shoulder of the highway. A motorcyclist was killed when he swerved to miss an object in the highway and hit the chuckhole on the berm or shoulder. The court held that this pothole could be a “nuisance” leading to liability.
The problem I have with the court appeals decision in Willis is that court appears to treat dangers to TWO wheeled vehicles differently than dangers to FOUR wheeled vehicles. The law does not so discriminate. The city must make sure roads are safe for ALL vehicles. The court of appeals failed to recognize the obvious danger the grain spill presented to two wheeled vehicles and focused on the city’s quick response. To me, “quick” does not mean “correct” and the court could have easily held that the spill presented such an inherent danger of crashing to two wheeled vehicles that the spill should have been cleared before motorcycle operators were waved along.
Mr. Willis’s 2001 spill on the spilled grain led to three years of litigation against the City. Since the court indicated he settled his claims with the grain company and the negligent driver, I can only hope that he recovered a reasonable settlement from them and took a chance on the case against the city. The downside of Willis’s gamble against the city is that the lousy court of appeals decision leaves bad law in place in the Third Appellate District of Ohio which seems to permit cities to discriminate against the operators of two wheeled vehicles.
GOOD LUCK & GOOD RIDING