OHIO LIVE BURN WITH WATER RUNOFF & ICE --
TOWNSHIP FD AND TOWNSHIP ORDERED TO STAND TRIAL IN CIVIL SUIT FOR DEATH OF MOTORIST

On March 30, 2007, in Howard v. Miami Township Fire Division, 2007 Ohio 1508, 2007 Ohio App. LEXIS 1394, the Ohio Court of Appeals for Montgomery County held that the FD and its Township may be sued for the death of a motorist who struck a tree when he drove over ice and water on the highway due to runoff from the live burn earlier that day.  Donald Howard died on Jan. 24, 2004 in Miamisburg, OH. The court of appeals held that the Township FD and the Township do not enjoy governmental immunity since the water from the training fire created an "obstruction" on the highway, and clearing obstructions from a highway is not a discretionary governmental function.

Background:
Under Ohio Rev. Code 2744.02(B)(3), "political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads."

  The Miami Township FD conducted a live burn training exercise on Jan. 24, 2004, from 9 am until 2:30 pm. The structure was then allowed to burn and by 4:30 pm had fallen into the basement. A deputy fire chief arranged for police patrols to check occasionally throughout the night, and a crew from Station 49 was assigned to periodically visit the site to confirm the fire was out and to apply salt on Bear Creek Road if necessary.  A three-member crew from Station 49 visited the site at about 6:30 pm, and two firefighters each applied five-gallons of salt on the roadway. They testified at their depositions that there was no ice on the roadway at that time. At 7:30 pm, the crew again returned to the site and found no ice on the roadway. 

A police officer also traveled the site about 9 pm, and even made a traffic stop nearby, and found no ice on the roadway. Unfortunately, at about 9:50 pm Christopher Howard and a friend, Robin Butler were driving on Bear Creek Road in Howard's car, and he lost control on a left hand turn just pass the burn site, crashed into the tree and was killed (Robin survived). 

The burn site is on a hill, above the rural, winding roadway with 55 mph, but yellow signs just before the crash site warn motorists to slow down to 30 mph. Howard's vehicle was traveling at 60 mph, per the vehicle's SDM computer (sensing diagnostic module).

 The first police officer to arrive found water pooling on the side of road. He pointed it out to a police sergeant, who observed the water and some ice and some slush on the roadway, as well as fresh water flowing onto the road.   Plaintiff's expert accident reconstruction expert concluded that while Howard was driving too fast, if the roadway had been dry he could have negotiated the turn at speeds up to 70.9 mph.

The trial judge dismissed the lawsuit filed by Howard's parents against the FD and Miami Township, on the basis that they enjoyed governmental immunity.  The judge ruled that water on the roadway was not an "obstruction," since it did not block or otherwise close off the roadway. The Court of Appeals (3 to 0) reversed the trial judge, holding that the Ohio General Assembly intended the term "obstruction" to be broadly interpreted. The court also relied upon Ohio Attorney General published opinion letters confirming that political subdivisions have a duty to keep highways open and safe. 

The trial judge had also ruled that the Township and FD would be immune from liability since the Ohio Rev. Code protects political subdivisions from liability for "discretionary" conduct, including a live burn training exercise. Once again, the Court of Appeals (3 to 0) disagreed, holding that the application of salt to a highway was the issue, and this was not a discretionary act. The court wrote, "we find the decision to spread salt across the road not to be one which calls for discretion, policymaking or engineering judgment, but to be a reaction to an obvious physical impediment, i.e., ice forming on the paved surface. Township had a duty to remove this obstruction from Bear Creek Road, and spreading salt on the potentially hazardous icy mixture was simply the manner in which the Township attempted to fulfill its duty." 

When conducting live burns, and water runoff is an issue, this safety risk must be carefully managed.