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Leach v. Dayton11/9/1994
WILSON, Judge.
This wrongful death case was filed by the plaintiff-appellant, Charlotte B. Leach, as executor of the estate of Carl W. Leach III, deceased, against the defendant-appellee, city of Dayton, Ohio.
The original complaint contained the following allegation:
"On July 29, 1990 Plaintiffs decedent died as a result of injuries sustained while operating a motorcycle in a southerly direction on Wayne Avenue, when at approximately 9:52 p.m., decedent's motorcycle struck the City of Dayton front end loader negligently abandoned by City employees on the major thoroughfare, Wayne Avenue, without any warning devices or signals whatsoever, near a broken, inoperable City of Dayton street light in the No Parking Lane."
On August 20, 1992 the plaintiff moved for summary judgment "on the issues of whether Defendant was negligent per se and whether Defendant's actions on July 29, 1990 also constituted common-law negligence."
The plaintiffs motion for summary judgment was overruled in October 1992 along with the defendant's motion for summary judgment, which was based upon the decedent's alleged failure to stop within his assured clear distance ahead.
On September 3, 1993 Dayton filed a motion in limine requesting an order "preventing Plaintiff from arguing or suggesting to the jury that the City of Dayton possessed an affirmative duty to place warning devices such as cones, barricades or flashers around the disabled front-end loader."
This case was tried before a jury beginning September 7, 1993. The motion in limine was argued in chambers and granted immediately prior to jury selection on the first day of the trial.
Dayton moved for a directed verdict at the close of the plaintiff's evidence. The court in effect found that Dayton's possible liability was limited to the breach of the duty to keep its streets "open, in repair, and free from nuisance" as provided for in R.C. 723.01 and R.C. 2744.02(B)(3). The court further found that no nuisance was involved and that Dayton was immune from liability.
The plaintiff has appealed from the judgment entry filed September 28, 1993 sustaining Dayton's motion for a directed verdict and dismissing plaintiffs case with prejudice.
There are five assignments of error. The first is:
"The trial court erred in overruling plaintiff's motion for summary judgment."
The accident in this case occurred approximately an hour after sunset.
Plaintiff's motion for summary judgment in effect asked the court to declare that Dayton's failure to have lights on the loader and other warning devices was negligence per se and common-law negligence.
Civ.R. 56(C) provides that " summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages."
Liability in this case hinges on issues of negligence, contributory negligence and proximate cause. Plaintiff's motion for summary judgment was directed only to the issue of Dayton's negligence. It, in effect, merely asked for a declaration that Dayton was negligent. Civ.R. 56 does not appear to provide for the filing of a motion seeking the relief requested by the plaintiff.
The first assignment of error is overruled.
The second assignment of error provides:
"The trial court erred in granting defendant's motion in limine, and precluding plaintiff from offering evidence at trial regarding the lack of cones, flares, barricades and other warning devices around defendant's loader at the time of the ac
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