Allen Freight Lines, Inc. v. Consol. Rail Corp.

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State: Ohio

Court: Supreme Court

Docket No: 1991-0512

Case Date: 08/12/1992

Plaintiff: Allen Freight Lines, Inc.

Defendant: Consol. Rail Corp.

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Allen Freight Lines, Inc. et al., Appellees, v.
Consolidated Rail Corporation et al., Appellants.

[Cite as Allen Freight Lines, Inc. v. Consol. Rail Corp.
(1992), Ohio St.3d .]
Highways -- Railroad overpass crossing street within

municipality -- R.C. 5577.05(D) creates no duty on

municipality or railroad to alter existing structures or

provide vertical clearance for maximum-height vehicles --

R.C. 5577.05, construed.

R.C. 5577.05(D) creates no duty in the state, a municipal
corporation, county, township, or any railroad or other
private corporation to alter existing structures or
provide vertical clearance for maximum-height vehicles.
Accordingly, that section excepts such entities from
liability for failure to provide vertical clearance for
maximum-height vehicles premised on R.C. 723.01, or
theories of common-law nuisance and negligence.
(No. 91-512 -- Submitted February 12, 1992 -- Decided

August 12, 1992.)

Appeal from the Court of Appeals for Cuyahoga County, No.
57835.

On January 21, 1986, an employee of appellee Allen Freight
Lines, Inc. ("Allen Freight") attempted to drive a truck with a
height of thirteen feet six inches under a railroad bridge with
a clearance of twelve feet. The truck was owned by Allen
Freight and the bridge was owned by Consolidated Rail
Corporation ("Conrail"). The city of Cleveland ("Cleveland")
is responsible for the maintenance of the road surface below
the bridge.

Allen Freight and its insurer and subrogee, appellee Great
West Casualty Company ("Great West"), filed a complaint seeking
compensation for damages to the truck. The complaint alleged
negligence and the maintenance of a nuisance by appellants
Conrail and Cleveland in their failure to provide adequate
clearance. Appellees also alleged that the defendants had
failed to provide warning of the low clearance. The court of
common pleas granted summary judgment in favor of Conrail and
Cleveland. The court of appeals affirmed the summary judgment
in favor of Conrail on the issue of failure to warn. It is

from the court of appeals' reversal of the remainder of the
trial court's ruling that Conrail and Cleveland bring this
appeal.

The cause is now before this court pursuant to the
allowance of a motion to certify the record.

McNeal, Schick, Archibald & Biro Co., L.P.A., and William

M. Kovach, for appellees.
Gallagher, Sharp, Fulton & Norman and Robert H. Eddy, for
appellant Consolidated Rail Corporation.

Danny R. Williams, Kathleen M. Sweeney and LuAnn A.
Polito, for appellant city of Cleveland.

Moyer, C.J. The first issue presented is whether R.C.
5577.05 absolves the appellants from a duty to provide
clearance for maximum-height vehicles under the bridge. R.C.
5577.05 states:

"No vehicle shall be operated upon the public highways,
streets, bridges, and culverts within the state, whose
dimensions exceed those specified in this section.

"***

"(C) No such vehicle shall have a height in excess of
thirteen feet six inches, with or without load.

"***

"This section does not require the state, a municipal
corporation, county, township, or any railroad or other private
corporation to provide sufficient vertical clearance to permit
the operation of such vehicle, or to make any changes in or
about existing structures now crossing streets, roads, and
other public thoroughfares in this state."

Appellees contend that despite R.C. 5577.05, both the city
and the railroad had a duty to Allen Freight to provide
adequate clearance. Appellees' theories of liability are
common-law negligence and nuisance as to Conrail, and nuisance
as to Cleveland pursuant to R.C. 723.01.1 They contend that
the nuisance was a qualified nuisance, as opposed to an
absolute nuisance. "[A] civil action based upon the
maintenance of a qualified nuisance is essentially an action in
tort for the negligent maintenance of a condition, which, of
itself, creates an unreasonable risk of harm, ultimately
resulting in injury. The dangerous condition constitutes the
nuisance. The action for damages is predicated upon carelessly
or negligently allowing such condition to exist." Rothfuss v.
Hamilton Masonic Temple Co. (1973), 34 Ohio St.2d 176, 180, 63
O.O.2d 270, 272, 297 N.E.2d 105, 109. "In such case, of
course, negligence must be averred and proven to warrant a
recovery." Taylor v. Cincinnati (1944), 143 Ohio St. 426, 441,
28 O.O. 369, 375, 55 N.E.2d 724, 731. Accord Kubitz v.
Sandusky (1964), 176 Ohio St. 445, 27 O.O.2d 422, 200 N.E.2d
322; Curtis v. Ohio State Univ. (1986), 29 Ohio App.3d 297, 29
OBR 363, 504 N.E.2d 1222. The allegations of nuisance and
negligence therefore merge, as the nuisance claims rely upon a
finding of negligence.

Appellants maintain that as a matter of law there was no
negligence, and therefore no nuisance, because no duty to
provide clearance for Allen Freight's vehicle existed. We
agree.

The issue raised has not previously been addressed by this
court, although several related cases are instructive. In
Yackee v. Napoleon (1939), 135 Ohio St. 344, 14 O.O. 231, 21
N.E.2d 111, paragraph six of the syllabus, this court held that
"[w]here an overhead railroad bridge *** originally met the
reasonable requirements of travel over the street spanned by
the bridge, but has since become insufficient in clearance
above the street by reason of changed conditions in lawful
modes of street travel, it is the duty of the railroad company
to make such alterations in its bridge as become essential to
so meet changed conditions as to permit such travel with
reasonable safety." Yackee, however, was decided prior to the
amendment in 1949 to G.C. 7248-2, the predecessor of R.C.
5577.05, that declared that the statute imposed no duty on a
municipality or railroad to provide clearance for
maximum-height vehicles. See 123 Ohio Laws 557, 558.

After this amendment, the Court of Appeals for Cuyahoga
County decided a case identical in relevant facts to the one
before us. In Brelo v. New York Central RR. Co. (1960), 112
Ohio App. 145, 150, 16 O.O.2d 63, 66, 168 N.E.2d 609, 612, the
court held: "[R.C. 5577.05] was not intended to regulate the
minimum clearances of overpasses, of railroads or otherwise, or
to create by legislation a nuisance out of every bridge in Ohio
where the clearance, although sufficient when built, did not
provide sufficient clearance to accommodate vehicles coming
within the amended extension of motor vehicle height limits.
The last paragraph of the amendment settles this question." In
its opinion the court also noted that "[t]here can be no doubt
that the Legislature intended by this amendment [to R.C.
5577.05] to nullify the law of the case of Yackee ***. This
purpose was clearly accomplished." Id. at 150, 16 O.O.2d at
65, 168 N.E.2d at 612.

This court similarly found that R.C. 5577.05 eliminated
any duty to provide clearance for maximum-height vehicles: "We
believe that Section 5577.05, Revised Code, does release a
municipality from any obligation to provide vertical clearance
for maximum size vehicles, and to the extent that the Yackee
case stood for the proposition that a municipality had to
provide clearance for maximum size vehicles it is no longer
controlling." (Emphasis sic.) Robert Neff & Sons, Inc. v.
Lancaster (1970), 21 Ohio St.2d 31, 36-37, 50 O.O.2d 80, 83,
254 N.E.2d 693, 696. In Neff, however, the court went on to
say that "we are unable to find that the 1949 amendment to
Section 7248-2, General Code (now Section 5577.05, Revised
Code), abolishes completely the rule contained in the first
paragraph of the syllabus of Yackee that the duty imposed upon
a municipal corporation to keep its streets open, in repair and
free from nuisance extends to conditions and structures above
the surface of the street as well as upon the surface of the
street." Id. at 37, 50 O.O.2d at 83, 254 N.E.2d at 697. The
Neff court came to this conclusion because that case involved a
limb overhanging the roadway. The stated concern in Neff was
that such a limb "could reach down so far as to impede even
ordinary vehicular traffic," as opposed to maximum-height
traffic. Id. at 37, 5 O.O.2d at 83, 254 N.E.2d at 696.

Appellees have seized upon these statements in Neff as
authority for arguing that under certain circumstances a

preexisting bridge can be a nuisance because it impedes
maximum-height traffic.

Appellees may operate maximum-height vehicles only by
virtue of R.C. 5577.05. That statute additionally states that
municipalities and railroads need not provide clearance under
existing structures for such vehicles. It does not define
"reasonable clearance," but it does negate any duty to provide
clearance for vehicles operating only by virtue of the
statute. This fact was recognized in Neff and is the holding
that is relevant to this case. What may have been a nuisance
at common law no longer can be, according to this proper
exercise of legislative authority. State ex rel. Brown v.
Rockside Reclamation, Inc. (1976), 47 Ohio St.2d 76, 1 O.O.3d
46, 351 N.E.2d 448. "What the law sanctions cannot be held to
be a public nuisance." Mingo Junction v. Sheline (1935), 130
Ohio St. 34, 3 O.O. 78, 196 N.E. 897, paragraph three of the
syllabus; see, also, Toledo Disposal Co. v. State (1914), 89
Ohio St. 230, 106 N.E. 6; Francis v. Barberton (App. 1938), 28
Ohio Law Abs. 359.

R.C. 5577.05(D) creates no duty in the state, a municipal
corporation, county, township, or any railroad or other private
corporation to alter existing structures or provide vertical
clearance for maximum-height vehicles. Accordingly, that
section excepts such entities from liability for failure to
provide vertical clearance for maximum-height vehicles premised
on R.C. 723.01, or theories of common-law nuisance and
negligence.

The second issue presented is whether the trial court
properly granted summary judgment in favor of Cleveland on
appellees' claim that the city failed to adequately warn of the
twelve-foot clearance under the bridge. Evidence supporting
the parties' positions was presented to the trial court in the
form of affidavits and responses to interrogatories. The court
of appeals reversed the trial court's judgment because in its
view the evidence "did not affirmatively demonstrate that the
proper signs were actually in place at the required locations."

The court of appeals, however, stopped short of providing
a thorough analysis of the evidence presented to the trial
court. Evidence provided by the city included requisitions for
the posting of signs warning of the bridge's low clearance.
Appellees assert that summary judgment should have been denied
because the city did not put forth additional evidence
demonstrating actual placement of the signs. More important,
though, is the fact that the appellees provided no evidence in
support of their claim that signs were not in place. "A motion
for summary judgment forces the nonmoving party to produce
evidence on any issue for which that party bears the burden of
production at trial." Wing v. Anchor Media, Ltd. of Texas
(1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of
the syllabus.

On this issue appellees submitted only responses to
interrogatories from the president of Allen Freight stating the
signs were not in place. There was no evidence from the driver
of the truck. Because the president of Allen Freight had no
knowledge of the signage, or lack thereof, these responses
constituted nothing more than bare assertions and provided no
evidence supporting appellees' position. To prevail at trial

on their claim for failure to warn, appellees were required to
prove such failure and, therefore, bore the burden of producing
evidence in support of their claim to overcome the city's
motion for summary judgment.

For the foregoing reasons, we conclude that summary
judgment was properly granted by the trial court.
The judgment of the court of appeals is reversed.
Judgment reversed.

Sweeney, Holmes, Douglas, Wright, H. Brown and Resnick,
JJ., concur.
FOOTNOTE:

1 R.C. 723.01 stated:

"Municipal corporations shall have special power to regulate the use of streets. The legislative authority of a municipal corporation shall have the care, supervision, and control of the public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and the municipal corporation shall cause them to be kept open, in repair, and free from nuisance."

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