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Winegar v. Greenfield Polce Department3/27/2002
ne to extend the definition of "nuisance" so far as to apply to the facts in the case sub judice. The Supreme Court of Ohio succinctly stated that the requirements that political subdivisions "keep their streets, highways and public grounds open, in repair and free from nuisance, embraces only those conditions affecting the actual physical conditions existing in or on highways, streets and public grounds themselves." (Emphasis added.) Williams, 45 Ohio St.3d at 181, 543 N.E.2d at 1245.
Appellant relies on language in Franks, supra, which states that, in determining what can be a nuisance, "the proper focus should be on whether a condition exists within the township's control that creates a danger for ordinary traffic on the regularly traveled portion of the road." Id. at 348, 632 N.E.2d at 505. This statement by the Supreme Court, however, was given in the context of ruling on whether design defects could be a nuisance for purposes of municipal liability under R.C. 2744.02(B)(3), and as such, is distinguishable from the case at bar.
Accordingly, we find: the "nuisance" exception in R.C. 2744.02(B)(3) does not apply to the case at bar; Appellee Greenfield Police Department is, as a matter of law, immune from liability under R.C. 2744.02(A)(1); and, summary judgment was properly granted in favor of the police department. Therefore, we affirm the judgment of the trial court as to Appellee Greenfield Police Department.
II. Officer Schraw
The sole remaining issue is whether Appellee Schraw may be held liable for the deceased's death, or whether he is also cloaked with immunity from liability in this matter. Appellee Schraw first contests whether a case of negligence has even been established and further argues that even if it has been so established, he is entitled to immunity. The parties specifically raise two issues concerning Officer Schraw's liability: causation and immunity. We will address each of these issues seriatim.
A. Causation
"To establish a cause of action in negligence, plaintiff must show duty, breach of that duty, and damage or injury as a proximate result of the breach." Power v. Boles (1996), 110 Ohio App.3d 29, 33, 673 N.E.2d 617, 619.
In order to survive a motion for summary judgment, appellant is required to present evidence that, when construed in her favor, could establish the causal link between the officer's actions or failure to act and the death of Benjamin Shiltz. In the case sub judice, appellant has presented evidence which, when construed in her favor, could allow reasonable minds to reach different conclusions as to whether Officer Schraw's actions, or the lack thereof, constituted a cause of the death of appellant's son.
In Anderson v. St. Francis-St.George Hospital (1996) 77 Ohio St.3d 82, 671 N.E.2d 225, the Supreme Court of Ohio explained causation as follows:
Where a breach of duty has occurred, liability will not attach unless there is a causal connection between the conduct * and the loss suffered *.
The standard test for establishing causation is the sine qua non or "but for" test. Thus, a defendant's conduct is a cause of the event (or harm) if the event (or harm) would not have occurred but for that conduct; conversely, the defendant's conduct is not the cause of the event (or harm) if the event (or harm) would have occurred regardless of the conduct. Prosser & Keeton, Law of Torts (5 Ed.1984) 266. Id. at 84-85, 671 N.E.2d at 227.
The court further stated, * the standard test for establishing causation is the "but for" test. "As a rule regarding legal responsibility, at most this must be a rule of exclusion: if the event wo
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