[Cite as Ervin v. Willison, 2014-Ohio-482.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ROBERT L. ERVIN, INDIVIDUALLY, : JUDGES: 

AND AS EXECUTOR OF THE : Hon. W. Scott Gwin, P.J. 

ESTATE OF SHAYLA ERVIN, : Hon. Sheila G. Farmer, J. 

DECEASED : Hon. John W. Wise, J. 

 : 

 Plaintiff-Appellant : 

 : 

-vs- : Case No. CT2013-0022 

 : 

HAROLD WILLISON, ET AL. : 

 : 

 Defendants-Appellees : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. CC-2011-0515 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: February 10, 2014 

APPEARANCES: 

For Plaintiff-Appellant For Defendants-Appellees 

ROBERT P. DeSANTO MARK W. BASERMAN 

432 Center Street 45 South Monroe Street 

Ashland, OH 44805 Millersburg, OH 44654-1424 
Muskingum County, Case No. CT2013-0022 2 

Farmer, J. 

{¶1} On January 31, 2008, eighteen year old Shayla Ervin died after being 

struck by an automobile while she was crossing the street at a crosswalk on January 

26, 2008. She was approximately twenty-five feet short of the curb when she was 

struck by Harold Willison. 

{¶2} The pedestrian crossing was examined and it was discovered that the 

timing of the "WALK/DON'T WALK" pedestrian signal was not set at the recommended 

seconds for a pedestrian to safely cross the street. A witness, Brenda Pritt, stated Ms. 

Ervin entered the intersection while the "DON'T WALK" signal was flashing. 

{¶3} On October 6, 2011, appellant, Robert Ervin, individually, and as executor 

of the estate of Shayla Ervin, deceased, filed a complaint against Mr. Willison and 

appellees, city of Zanesville and city of Zanesville traffic signal supervisor, Fred Buck, 

for personal injury and wrongful death. Appellees filed a motion for judgment on the 

pleadings and summary judgment on November 14, 2013. Prior to a ruling, appellant 

settled with Mr. Willison. By decision filed March 5, 2013, the trial court granted 

summary judgment to appellees. A judgment entry reflecting this decision was filed on 

March 20, 2013. 

{¶4} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶5} "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR 

SUMMARY JUDGMENT WHERE THERE WAS SUFFICIENT, CREDIBLE EVIDENCE 

FROM WHICH A JUROR COULD REASONABLY FIND THAT, (1) IN THE PROCESS 
Muskingum County, Case No. CT2013-0022 3 

OF REPAIRING A PEDESTRIAN LIGHT CROSSING SIGNAL, APPELLEE 

RECKLESSLY AND NEGLIGENTLY, PROGRAMMED INTO THE SIGNAL DEVICE, A 

SHORTER CROSSING CLEARANCE TIME THAN ENGINEERING DESIGN CALLED 

FOR, AND WHICH HAD EXISTED IN THE SIGNAL BEFORE THE REPAIR WAS 

MADE NECESSARY, AND, (2) THE SHORTER CLEARANCE TIME CREATED 

INSUFFICIENT TIME FOR PEDESTRIANS TO SAFELY CROSS THE 

INTERSECTION, AND, (3) SAID INSUFFICIENT CLEARANCE TIME WAS 

PROXIMATE CAUSE OF THE PLAINTIFF'S INJURY AND DEATH." 

II 

{¶6} "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR 

SUMMARY JUDGMENT WHERE THERE WAS SUFFICIENT CREDIBLE EVIDENCE 

FROM WHICH A JUROR COULD REASONABLY FIND THAT; (1) APPELLEE FRED 

BUCK WAS EMPLOYED BY THE CITY TO REPAIR TRAFFIC SIGNALS; (2) FRED 

BUCK HAD NO DISCRETION TO CHANGE OR DEVIATE FROM, THE DESIGNED 

TIMING OF A PEDESTRIAN SIGNAL LIGHT; (3) FRED BUCK, IN THE COURSE OF 

HIS EMPLOYMENT, REPAIRED A PEDESTRIAN TRAFFIC SIGNAL RECKLESSLY, 

AND WITH INDIFFERENCE TO PUBLIC SAFETY; (4) BUCK'S KNOWLEDGE OF THE 

UNSAFE CONDITION HE CREATED WAS IMPUTED KNOWLEDGE TO HIS 

EMPLOYER; AND (5) THE DOCTRINE OF RESPONDENT SUPERIOR APPLIES." 

III 

{¶7} "THE TRIAL COURT ERRED IN FINDING AS A BASIS FOR SUMMARY 

JUDGMENT, THAT APPELLANT FAILED TO PROVE NEGLIGENT SUPERVISION 

CLAIMS WHERE THERE WAS SUFFICIENT CREDIBLE EVIDENCE FROM WHICH A 
Muskingum County, Case No. CT2013-0022 4 

JUROR COULD REASONABLY FIND THAT; (1) THE CITY HAD A CLEAR DUTY TO 

THE PUBLIC TO PROPERLY REPAIR AND MAINTAIN MANDATED PEDESTRIAN 

TRAFFIC SIGNALS, (2) THE CITY OWED MEMBERS OF THE PUBLIC, AT A 

MINIMUM, ORDINARY CARE IN SUPERVISING THE ACTIVITY OF MAINTAINING 

AND REPAIRING SAID SIGNALS, AND (3) THE CITY'S LACK OF SUPERVISION 

OVER FRED BUCK AND THE REPAIR AND MAINTENANCE ACTIVITY WAS A 

CONTRIBUTING, OR SOLE PROXIMATE CAUSE OF APPELLANT DECEDENT'S 

INJURY AND DEATH." 

IV 

{¶8} "THE COURT ERRED IN FINDING THE DEFENDANT, FRED BUCK 

WAS NOT SERVED A COPY OF THE COMPLAINT AND THAT THE PRESENT 

LAWSUIT WAS NOT COMMENCED AGAINST BUCK, WHEN THE DEFENDANT, 

BUCK WAS TIMELY SERVED THE COMPLAINT." 

IV 

{¶9} We will address this assignment first as it resolves several issues 

pertaining to appellee Buck. 

{¶10} Appellant claims the trial court erred in finding a failure of service on Mr. 

Buck, as he was a city employee and service at City Hall was sufficient. We disagree. 

{¶11} Appellant's complaint lists Mr. Buck's address as "3910 Dorothy Drive, 

Zanesville, Ohio, 43701" which is his private residence. Mr. Buck worked out of the 

Traffic Signal Division office located at "203 Hamline Avenue in Zanesville" and did not 

maintain an office at City Hall. See, Second Aff. of Fred Buck, attached to Appellees' 

February 19, 2013 Reply Memorandum as Exhibit City SJ Ex. N. Service of process on 
Muskingum County, Case No. CT2013-0022 5 

Mr. Buck was made to the Dorothy Drive address and was returned unclaimed. See, 

Unclaimed Envelope filed October 25, 2011. 

{¶12} In his answer filed November 3, 2011, Mr. Buck specifically raised 

insufficiency of process (Tenth and Eleventh Defenses). There is no indication in the 

record of any specific service on Mr. Buck at the office on Hamline Avenue or City Hall. 

Although the city of Zanesville was served at "Zanesville City of c/o Mayor Howard 

Zwelling, City Hall 1st Fl Rm 105, Zanesville, OH, 43701," Mr. Buck was not specifically 

served at the City Hall address. 

{¶13} In Akron-Canton Regional Airport Authority v. Swinehart, 62 Ohio St.2d 

403 (1980), the Supreme Court of Ohio found service of process may be made to an 

individual's business address as long as service comports with the requirement of due 

process. Due process requires notice be reasonably calculated, under all the 

circumstances, to reach the interested parties. The Swinehart court at 406 noted 

"certified mail service sent to a business address can comport with due process if the 

circumstances are such that successful notification could reasonably be anticipated." 

{¶14} In this case, service was not made in a manner "reasonably calculated" to 

reach Mr. Buck. Service to his private residence was returned unclaimed. No further 

attempts at service were made. Service was not sent to the Hamline Avenue address, 

and although service was made to City Hall, it was addressed to the city of Zanesville 

only; it did not include Mr. Buck. 

{¶15} Upon review, we find the trial court did not err in dismissing Mr. Buck from 

the lawsuit. 

{¶16} Assignment of Error IV is denied. 
Muskingum County, Case No. CT2013-0022 6 

II, III 

{¶17} Appellant claims the trial court erred in determining appellees' actions 

were covered by immunity under R.C. Chapter 2744 and were not covered under the 

exception of R.C. 2744.02(B)(3). We disagree. 

{¶18} Summary Judgment motions are to be resolved in light of the dictates of 

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. 

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211: 

Civ.R. 56(C) provides that before summary judgment may be 

granted, it must be determined that (1) no genuine issue as to any 

material fact remains to be litigated, (2) the moving party is entitled to 

judgment as a matter of law, and (3) it appears from the evidence that 

reasonable minds can come to but one conclusion, and viewing such 

evidence most strongly in favor of the nonmoving party, that conclusion is 

adverse to the party against whom the motion for summary judgment is 

made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 

628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 

Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274. 

{¶19} As an appellate court reviewing summary judgment motions, we must 

stand in the shoes of the trial court and review summary judgments on the same 

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio 

St.3d 35 (1987). 
Muskingum County, Case No. CT2013-0022 7 

{¶20} In Greene County Agricultural Society v. Liming, 89 Ohio St.3d 551, 556-

557, 2000-Ohio-486, the Supreme Court of Ohio explained the three tier analysis 

required for determining if sovereign immunity applies: 

R.C. Chapter 2744 sets out the method of analysis, which can be 

viewed as involving three tiers, for determining a political subdivision's 

immunity from liability. First, R.C. 2744.02(A)(1) sets out a general rule 

that political subdivisions are not liable in damages. In setting out this 

rule, R.C. 2744.02(A)(1) classifies the functions of political subdivisions 

into governmental and proprietary functions and states that the general 

rule of immunity is not absolute, but is limited by the provisions of R.C. 

2744.02(B), which details when a political subdivision is not immune. 

Thus, the relevant point of analysis (the second tier) then becomes 

whether any of the exceptions in R.C. 2744.02(B) apply. Furthermore, if 

any of R.C. 2744.02(B)'s exceptions are found to apply, a consideration of 

the application of R.C. 2744.03 becomes relevant, as the third tier of 

analysis. 

{¶21} R.C. 2744.02 governs immunity for political subdivisions. Subsection 

(A)(1) states the following: 

For the purposes of this chapter, the functions of political 

subdivisions are hereby classified as governmental functions and 
Muskingum County, Case No. CT2013-0022 8 

proprietary functions. 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 person 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. 

{¶22} R.C. 2744.01(2)(C)(e) and (j) state a "governmental function" includes: 

"[t]he regulation of the use of, and the maintenance and repair of, roads, highways, 

streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds," 

and "[t]he regulation of traffic, and the erection or nonerection of traffic signs, signals, or 

control devices." 

{¶23} In its judgment entry filed March 20, 2013, the trial court found the 

following on the issue of immunity: 

(6) The City is immune from liability as to governmental functions 

per Ohio Rev. Code § 2744.02(A)(1). The regulation of streets and the 

provision of traffic and pedestrian signals are governmental functions per 

Ohio Rev. Code § 2744.01(C)(2), (e) and (j); as are functions for the 

common good of all citizens and that promote public safety per Ohio Rev. 

Code § 2744.01(C)(1), (b) and (c). 

(7) Buck is immune from liability as an employee of the City per 

Ohio Rev. Code § 2744.02(A)(1) and 2744.03(A)(6). 
Muskingum County, Case No. CT2013-0022 9 

(8) No exception to the immunity per Ohio Rev. Code § 

2744.02(A)(1) exists as to Buck under Ohio Rev. Code § 2744.02(B). 

(10) The City is immune concerning claims related to traffic signal 

timing, as the lights were operating as intended, a design issue for which 

immunity applies, and not a repair. 

{¶24} Appellant argues the exception under R.C. 2744.02(B)(3) applies sub 

judice: 

Except as otherwise provided in section 3746.24 of the Revised 

Code, 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, 

except that it is a full defense to that 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. 

{¶25} The question is whether this exception applies. We find that it does not. 

{¶26} When the subject intersection was widened in 2000, the clearance time for 

the pedestrian signal was increased from nine seconds to thirteen seconds. After 

repairs were made, the clearance time was returned to nine seconds as appellees 

concede. Buck depo. at 32. Appellant argues R.C. 2744.02(B)(3) is applicable 

because the thirteen seconds was a design/construction feature of the newly widened 
Muskingum County, Case No. CT2013-0022 10 

road and the nine seconds existing at the time of the accident was a repair failure. 

Appellant argues Mr. Buck recklessly or negligently repaired the pedestrian signal and 

deliberately changed the timing from thirteen seconds to nine seconds. Appellant 

argues Mr. Buck was responsible for the insufficient timing and had knowledge of the 

unsafe timing prior to the accident. Appellant concedes there is no direct evidence, but 

argues inferences lead to these conclusions. See, Appellant's Brief at 18. Appellant 

argues the city negligently and recklessly supervised Mr. Buck's work. 

{¶27} For purposes of determining whether the exception applies, our inquiry is 

whether maintenance of a pedestrian signal at an intersection qualifies as keeping 

"public roads in repair." 

{¶28} Appellant argues in the definition of "public roads" under R.C. 2744.01(H), 

traffic control devices are included: " 'Public roads' means public roads, highways, 

streets, avenues, alleys, and bridges within a political subdivision. 'Public roads' does 

not include berms, shoulders, rights-of-way, or traffic control devices unless the traffic 

control devices are mandated by the Ohio manual of uniform traffic control devices." 

Appellant argues a pedestrian signal is a "traffic control device" as mandated by the 

Ohio Manual of Uniform Traffic Control Devices (hereinafter "OMUTCD"). Appellant 

substantiates his claim with the affidavit of Michael W. Schweickart, a registered 

professional engineer. Said affidavit is attached to appellant's memorandum in 

opposition as Plaintiff's Exhibit SJ 1. Mr. Schweickart stated: "Based upon my study, 

the pedestrian signals existing on the south crosswalk of Maple and Brandywine were 

mandated by the existing OMUTCD." 
Muskingum County, Case No. CT2013-0022 11 

{¶29} In Lang v. Cesnik, 8th Dist. Cuyahoga No. 60882, 1992 WL 189552, *2 

(August 6, 1992), our brethren from the Eighth District found "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 (sic)."1

{¶30} We agree with the Lang reasoning under the specific facts of this case. 

Appellant has not demonstrated that the faulty timing was anything other than a 

mistake, and the city did not know of the error until the accident. The exception under 

R.C. 2744.02(B)(3) does not apply sub judice. 

{¶31} Assuming arguendo that the timing of the pedestrian signal falls within the 

exception under R.C. 2744.02(B)(3), we find immunity exists under R.C. 2744.03(A)(3) 

and (5) which state the following: 

(A) In a civil action brought against a political subdivision or an 

employee of a political subdivision to recover damages for injury, death, or 

loss to person or property allegedly caused by any act or omission in 

connection with a governmental or proprietary function, the following 

defenses or immunities may be asserted to establish nonliability: 

(3) The political subdivision is immune from liability if the action or 

failure to act by the employee involved that gave rise to the claim of 

liability was within the discretion of the employee with respect to policy-

 

1

"Nuisance" language was removed from the statute in 2007, prior to the accident sub 

judice. 
Muskingum County, Case No. CT2013-0022 12 

making, planning, or enforcement powers by virtue of the duties and 

responsibilities of the office or position of the employee. 

(5) The political subdivision is immune from liability if the injury, 

death, or loss to person or property resulted from the exercise of judgment 

or discretion in determining whether to acquire, or how to use, equipment, 

supplies, materials, personnel, facilities, and other resources unless the 

judgment or discretion was exercised with malicious purpose, in bad faith, 

or in a wanton or reckless manner. 

{¶32} We note the timing of pedestrian signals is included in Section 4E.10 of 

the OMUTCD. See, Exhibit City SJ Ex. M, attached to Appellees' November 14, 2012 

Motion for Summary Judgment. The OMUTCD lists guidelines and options regarding 

the length of the walk interval. The section uses the word "should" and not "shall." 

There are no specific mandates as to the timing of the pedestrian signals. Said section 

states "the walk interval should be at least 7 seconds in length" with the option that 

"walk intervals as short as 4 seconds may be used." In the case sub judice, the walk 

interval was nine seconds. 

{¶33} Absent a specific requirement in the OMUTCD manual, the decision in this 

case to set the walk interval at nine seconds was a discretionary decision which makes 

appellees' immune, unless the judgment was exercised with malicious purpose, in bad 

faith or in a wanton or reckless manner. There is nothing to suggest that appellees' 

judgment or discretion was exercised with malicious purpose or in bad faith or in a 

wanton or reckless manner. 
Muskingum County, Case No. CT2013-0022 13 

{¶34} Appellant alludes to some devious action that caused the timing device to 

be set at only nine seconds. However, there is no genuine issue of material fact raised 

by such an unsubstantiated inference. The conclusions argued are reached only by 

building one inference upon another, and therefore fall short of valid circumstantial 

evidence. 

{¶35} Upon review, we find the trial court did not err in granting summary 

judgment to appellees. 

{¶36} Assignments of Error II and III are denied. 

I 

{¶37} Appellant claims the trial court erred in granting summary judgment to 

appellees on the issue of proximate cause and the "DON'T WALK/WALK" signal. Given 

our decisions above, we find this assignment to be moot. 

 
Muskingum County, Case No. CT2013-0022 14 

{¶38} The judgment of the Court of Common Pleas of Muskingum County, Ohio 

is hereby affirmed. 

By Farmer, J. 

Gwin, P.J. and 

Wise, J. concur. 

 

 

 

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