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White v. Ohio Dept. of Transp.12/12/1990
H. BROWN, J.
For the reasons which follow, we reverse the judgment the court below as to ODOT, affirm as to its disposition of the directed verdict, and remand for new trial.
The Ohio Manual of Uniform Traffic Control Devices for Streets and Highways ("MUTCD") has been adopted as the state's official specifications for highway signs and markings pursuant to the mandate of R.C. 4511.09. R.C. 4511.10 requires ODOT to comply with the MUTCD in erecting and maintaining highway signs and markings. Slavick v. Ohio Dept. of Transp. (1988), 44 Ohio App.3d 19, 22-24, 540 N.E. 2d 748, 751-753; Pierce v. Ohio Dept. of Transp. (1985), 23 Ohio App.3d 124, 127-128, 23 OBR 235, 239, 491 N.E. 2d 729, 732-733; cf. Royce v. Smith (1981), 68 Ohio St.2d 106, 22 O.O. 3d 332, 429 N.E. 2d 134 (R.C. 4511.11 requires townships arid other local authorities to comply with the MUTCD in erecting and maintaining highway signs). Based on Section 2F-1 of the MUTCD, the court osappeals held that ODOT has a duty to cut roadside foliage along county and township roads intersecting state highways, where the foliage obstructs the view of traffic signs which ODOT is required to maintain.
Section 2F-1 of the MUTCD states in pertinent part:
"Special attention and necessary action should be taken to see that weeds, trees, shrubbery and construction materials do not obscure the face of any sign."
As ODOT notes, the word "should" in the MUTCD denotes an "advisable usage, recommended but not mandatory." MUTCD Section 1D-2. Thus, Section 2F-1 of the MUTCD, by itself, does not require ODOT to cut roadside foliage which obscures traffic signs.
However, ODOT is subject to a general duty to maintain the state highways. R.C. 5535.01(A), 5535.08. ODOT does not dispute that these statutes require it to exercise "ordinary, reasonable care" in maintaining these highways. This general duty of care includes a requirement that ODOT exercise reasonable care to ensure that roadside foliage within the right-of-way for state highways does not obstruct a driver's view of traffic signs or signals.
Our recognition of this particular duty does not end the inquiry, because the instant case does not involve signs controlling traffic on a state highway. Though ODOT erected and maintained the stop signs governing Morgan-Ross Road as part of its maintenance of S.R. 126, Morgan-Ross Road is not a state highway, but a "township road" as defined in R.C. 5535.01(C).
R.C. 5535.08 provides that " he state, county, and township shall each maintain its roads, as designated in section 5535.01 * * *." R.C. 5571.02 also provides that " he board of township trustees shall have control of the township roads of its township and shall keep them in good repair. * * *" These statutes impose a general duty on Ross Township to maintain Morgan-Ross Road. As with ODOT's general duty to maintain the state highways, this duty includes a requirement that the township exercise reasonable care to ensure that foliage along its roads does not obstruct a driver's view of traffic signs or signals. Further, the township is subject to an express statutory duty to cut roadside foliage "between the first and twentieth days of June, the first and twentieth days of August, and, if necessary, between the first and twentieth days of September of each year or whenever necessary to prevent or eliminate a safety hazard." R.C. 5579.08.
The General Assembly has expressly placed the duty to cut foliage along Morgan-Ross Road on the township, and has gone so far as to specify particular dates during the growing season when the foliage is to b
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