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Winegar v. Greenfield Polce Department3/27/2002
ivision in connection with a governmental or proprietary function. R.C. 2744.02(A)(1).
Appellee Greenfield Police Department is undoubtedly a "political subdivision" as defined by R.C. 2744.01(F) and performs "governmental functions" as defined by R.C. 2744.01(C)(2)(a). As such, the police department is afforded the immunity from liability provided through R.C. 2744.02(A)(1).
The immunity granted by R.C. 2744.02(A)(1) is on its face subject to five exceptions delineated in R.C. 2744.02(B). See Cater, supra. Once immunity is established, the second-tier of the analysis involves determining whether any of these five exceptions apply. Appellant contends that the exception established in R.C. 2744.02(B)(3) applies to this case. Former R.C. 2744.02(B)(3) provided that
(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
*
(3) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance, *. R.C. 2744.02(B)(3).
If any of these exceptions applies, the third tier of the analysis involves a determination of whether one or more of the defenses contained in R.C. 2744.03 apply, thereby reinstating immunity to the political subdivision. See Cater, supra. The police department contends that even if it is subject to the exception in R.C. 2744.02(B)(3), the defenses contained in R.C. 2744.03(A)(3) and (5) act to reinstate immunity. R.C. 2744.03 reads in pertinent part:
(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to persons or property allegedly caused by an act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted:
*
(3) The political subdivision is immune from liability if the action or failure to act by an employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
*
(5) The political subdivision is immune from liability if the injury, death, or loss to persons or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner. R.C. 2744.03.
We now turn to appellant's contention that the exception established in R.C. 2744.02(B)(3) applies in the case sub judice. R.C. 2744.02(B)(3) states that a political subdivision is liable for injuries caused by its failure to maintain its roadways free from nuisance. The ultimate issue in the case at bar is whether an impaired driver, operating a vehicle on the roadway, constitutes a nuisance for purposes of R.C. 2744.02(B)(3).
First, we look to the Ohio Revised Code for a determination of what constitutes a "nuisance." In R.C
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