COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60882 MANFRED LANG, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION BARBARA CESNIK, ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 6, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 167,429 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: For defendant-appellee The City of Shaker Heights: FRED WENDELL, III, ESQ. STEWART & DeCHANT MARGARET ANNE CANNON, ESQ. The Atrium Office Plaza MARK J. VALPONI, ESQ. Suite 850 DONNA WILLIAMS-ALEXANDER, ESQ. 668 Euclid Avenue BP America Bldg., 35th Floor Cleveland, Ohio 44114-3060 200 Public Square Cleveland, Ohio 44114-2302 - 2 - J.F. CORRIGAN, J., Appellants, Manfred and Renee Lang, appeal from the order of the trial court granting summary judgment in favor of appellee, the City of Shaker Heights, Ohio. For the reasons set forth below, we affirm. I. Appellants commenced this suit on April 4, 1989, against Barbara Cesnik and the City of Shaker Heights alleging that their combined negligence was the cause of a collision in which Manfred Lang was injured. Lang, a cyclist, was struck by Cesnik's automobile while he was attempting to cross Fairmount Blvd. in Shaker Heights. In this suit, appellants alleged that Shaker Heights was negligent in that the timing of the traffic signal did not allow him a sufficient opportunity to safely cross the street. Shaker Heights moved for summary judgment on May 16, 1990. That motion was based on the assertion that Shaker Heights was immune from liability pursuant to R.C. 2744. The trial court granted the Shaker Heights motion on September 4, 1990. On November 5, 1990, appellants dismissed their claim against Cesnik. Appellants now bring this timely appeal challenging the lower court's award of summary judgment in favor of Shaker Heights. II. For their sole assignment of error appellants argue that: - 3 - "THE TRIAL COURT ERRED IN GRANTING THE APPELLEE CITY OF SHAKER HEIGHTS' MOTION FOR SUMMARY JUDGMENT WHERE THE CITY NEGLIGENTLY CREATED A TRAFFIC TRAP BY FAILING TO PROVIDE SUFFICIENT TIME FOR PEDESTRIANS TO ENTER AND CLEAR A BUSY INTERSECTION WITH REASONABLE SAFETY." Appellants' several arguments raised in this appeal are premised on their assertions that, either Shaker Heights has no immunity in this case, or that genuine issues of material fact remain as to whether such immunity exists. This case is governed by the Political Subdivision Tort Liability Act, R.C. 2744, which was enacted on November 20, 1985. Our research discloses relatively little case law interpreting the provisions of the act which are relevant to the case sub judice. Therefore, this court must contain its construction of the statute within the parameters of the statute as written. State, ex rel. Meyer, v. ChiaraMonte (1976), 46 Ohio St. 2d 230, 238. Under R.C. 2744.02, the functions of a political subdivision are classified as either "governmental" or "proprietary." R.C. 2744.02(A)(1) provides in pertinent part: "Except as provided in division (B) of this section, 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." (Emphasis added.) Section (B) of R.C. 2744.02 provides: - 4 - "(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) 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, except that it is a full defense to such liability, when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge." (Emphasis added.) In R.C. 2744.01 (C)(2)(j) the definition of "governmental function" includes "[t]he regulation of traffic ***." Finally, even if liability could be found for the creation of a nuisance under R.C. 2744.02, R.C. 2744.03(A)(5) immunizes a municipality from such liability wherein it provides that: "A political subdivision is immune from liability if the injury, death, or loss to persons or property resulted from the exercise of judgment or discretion whether to acquire, or how to use, equipment ***." It is clear to this court that the timing of traffic signals is a "regulation of traffic" under R.C. 2744.01. In addition the facts presented to this court by both appellants and appellees demonstrate that the timing of traffic signals is highly - 5 - technical, and requires the use of a great amount of discretion in the placement of traffic equipment. It has further been demonstrated that such judgments require the use of engineering studies and the application of the Manual of Uniform Traffic Control Devices. Our examination of the nuisance issue is aided by illuminative decisions in the Ohio courts. In Ditmyer v. Board of Cty. Commrs. (1980), 64 Ohio St. 2d 146 at 148-149, a case decided long before the effective date of the Political Subdivision Tort Liability Act, the Ohio Supreme Court found that "clearly, snow removal, which does not mend, remedy, restore, or renovate roads, is not encompassed within the usual definition of repair." Concerning the duty to keep roads free from nuisance, we look to Scanlon v. Consolidated Rail Corp. (April 13, 1990), Fulton App. No. 89 FU-8, unreported, wherein the Sixth District Court of Appeals found that failure to place signs at a railroad crossing is not a nuisance. The court stated that "Fulton County's action pertaining to the placement of signs does not involve mending, remedying, restoring, or renovating a roadbed. In addition, it does not involve the placement of a physical impairment in the road." Id. In the Scanlon case, the court relied on Ditmyer, and on Covenant Ins. Co. Ltd v. Carroll Cty. Commrs. (1981), 2 Ohio App. 3d 410. In Covenant, the court ruled that placement of a sign - 6 - which gave an incorrect bridge clearance was not a nuisance, because the bridge itself was the actual impediment which constituted the nuisance. Id. In the case sub judice, the timing of traffic signals does not involve the remedying, restoration, or renovation of roads, and is not an actual impediment. Therefore, we find that it is not encompassed within the meaning of the term "repair" or "nuisance" as used in R.C. 27744.02. In reaching our conclusion that no nuisance was created by the City of Shaker Heights, we distinguish this court's recent holding in Stipanovich v. Applin (May 9, 1991), Cuyahoga App. No. 59921, unreported. As it pertains to the case sub judice, the Stipanovich decision found summary judgment to be inappropriate because "there are genuine issues of material fact surrounding the production of documents, interrogatories, deposition testimony, and the affidavit relied upon for a summary judgment." Id. at 8, 9. No such questions were raised before the trial court. In conclusion, we find that the City of Shaker Heights is immune from suit by appellant by virtue of R.C. 2744.03(A)(5). Further, we conclude that in the absence of such immunity, summary judgment would still be appropriate under Ohio Nuisance Law. Appellants' assignment of error is without merit. Judgment affirmed. - 7 - It is ordered that appellee recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., and JAMES D. SWEENEY, J. CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .