Winegar v. Greenfield Polce Department3/27/2002
. 3767.01, "nuisance" is defined, for "all sections of the Revised Code relating to nuisances" as "that which is defined and declared by statutes to be such *." The Code itself contains no further guidance as to the definition of "nuisance," which, when applied to this case, establishes whether an alleged drunk driver can constitute a nuisance in this context.
However, what can constitute a nuisance for the purposes of R.C. 2744.02(B)(3) has been further illumined by the Supreme Court of Ohio. For instance, in its first opportunity to interpret R.C. 2744.02(B)(3), the Supreme Court of Ohio held that "a permanent obstruction to visibility, within the right-of-way, which renders regularly traveled portions of the highway unsafe for the usual and ordinary course of travel, can be a nuisance for which a political subdivision may be liable under R.C. 2744.02(B)(3)." Manufacturer's Nat'l Bank v. Erie Cty. Rd. Comm'n (1992), 63 Ohio St.3d 318, 587 N.E.2d 819, paragraph one of the syllabus. In Manufacturer's, the court dealt with corn growing in the right-of-way of the highway, which obstructed the view of drivers entering an intersection.
In rendering its judgment, the court relied on cases interpreting a statute that imposes a similar duty upon political subdivisions, to wit: R.C. 723.01. The Manufacturer's court discussed Fankhauser v. Mansfield (1969), 19 Ohio St.2d 102, 249 N.E.2d 789, where the court held that a malfunctioning traffic signal can be a nuisance to orderly urban street traffic. The Supreme Court of Ohio also discussed Robert Neff & Sons v. Lancaster (1970), 21 Ohio St.2d 31, 254 N.E.2d 693, where the court determined that an overhanging tree limb impeding ordinary traffic flow could be a nuisance within the meaning of R.C. 723.01. In Williams v. Pavlovich (1989), 45 Ohio St.3d 179, 543 N.E.2d 1242, the court held, "Pursuant to R.C. 723.01, illegally parked cars located on the side of a highway, which contribute generally to traffic congestion, do not constitute a nuisance giving rise to municipal liability." Id., paragraph one of the syllabus.
In Franks v. Lopez (1994), 69 Ohio St.3d 345, 632 N.E.2d 502, the Supreme Court of Ohio held that a township's alleged failure to maintain signage already in place may constitute an actionable nuisance claim. In Franks, however, the court refused to expand its nuisance definition to include design and construction defects and the failure to erect signage.
In accordance with the aforementioned decisions, this Court has held that design defects in roads do not constitute a nuisance but that water flowing across a roadway due to an improperly maintained drainage system is as much an impediment to the safe flow of traffic as a malfunctioning traffic light. See Engle v. Ogburn (1999), Washington App. No. 99CA23, unreported; Helton v. Scioto Bd. of County Commrs. (1997), 123 Ohio App.3d 158, 703 N.E.2d 841; Isreal v. Jefferson Twp. Bd. of Trustees (Dec. 10, 1990), Montgomery App. No. 12071, unreported. However, as appellant points out, there is no case law finding that an illegal activity such as drunk driving is a nuisance pursuant to R.C. 2744.02(B)(3).
In Kasunic v. City of Euclid (1989), 43 Ohio St.3d 603, 538 N.E.2d 408, the Supreme Court of Ohio denied jurisdiction to an appeal by the plaintiff involving a municipality's liability under R.C. 723.01. There, the defendant-city was aware of individuals hitting golf balls in a public park where such activity was prohibited. The plaintiff alleged that the city's failure to prevent this activity, which resulted in someone's injury, was a nuisance.
Although drunk driving is a terrible plague upon the roadways of our state and country, we decli
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