You’ve Got Mail! Ohio Supreme Court Clarifies Landowner’s Duty to Motorists.

By: Jeffrey K. Lewis, Attorney and Research Specialist, OSU Agricultural and Resource Law Program

In Ohio, we are no strangers to the dreaded “black ice.”  You probably know someone that has fallen victim to this invisible nuisance.  We see it time and time again.  Someone hits a patch of black ice and inevitably swerves off the road. Sometimes, a motorist may hit a mailbox, a tree, or a telephone pole and suffer serious injury.  A common question that arises after such an incident is whether the owner or the party responsible for that tree or pole can be held liable for the motorist’s injuries.  After all, had they removed the off-road object the motorist may have just slid into a ditch without any serious injury, right?  

Well, in a recent decision, the Ohio Supreme Court clarified the duty owed to motorists by landowners or occupiers of land adjacent to a public roadway with respect to off-road objects.  The case arises after a motorist hit a patch of black ice causing him to veer off the road and hit a mailbox, which then caused his truck to roll.  The central issue of the case revolved around the landowner’s potential liability for the mailbox being within the right-of-way and causing the motorist’s truck to flip.  Below we review the Ohio Supreme Court’s decision in Snay v. Burr and the duty owed to motorists by landowners or occupiers of land.  

Background.  On December 19, 2016, Cletus Snay was driving from his home in Norwalk, Ohio to his place of work in Bellevue, Ohio.  Mr. Snay was traveling along a two-lane country road when he hit a patch of black ice that caused him to veer off the road.  Ohio Highway Patrol found Mr. Snay’s truck rolled over.  The state trooper had concluded that Mr. Snay’s truck went off the right side of the road, struck the first mailbox, owned by Matthew and Diane Burr, and began to flip, hitting the second mailbox and eventually ending up overturned further down the road.  As a result of the accident, Mr. Snay suffered damage to his spine, rendering him quadriplegic.  

After the accident, it was discovered that the Burrs’ mailbox post remained in the ground, while the second mailbox post that Mr. Snay’s truck hit was destroyed.  Mr. Burr installed his mailbox approximately 20 years before Mr. Snay’s accident.  Before installing the mailbox, Mr. Burr obtained guidelines for mailbox installation published by the United States Postal Service.  The guidelines recommended, but did not require, that a metal mailbox support be two-inch-diameter standard-steel or aluminum pipe and be buried no more than 24 inches deep.  Mr. Burr, however, used an eight-inch-diameter metal pipe that he buried 36 inches deep. 

Mr. Snay and his wife hired an accident reconstructionist that agreed with the state trooper that Mr. Snay’s truck began to roll over after hitting the Burrs’ mailbox.  However, the accident reconstructionist was of the opinion that the Burrs’ unyielding mailbox post was the mechanism that caused Mr. Snay’s truck to overturn.  The accident reconstructionist characterized the Burrs’ mailbox support as a “dangerous hazard to motorists.”  

The Snays filed suit alleging that the Burrs were negligent in constructing their mailbox because “it was supported by a thick, non-breakaway metal pipe.”  The Burrs moved for summary judgment, arguing that they owed no duty of care to Mr. Snay and that Mr. Snay’s failure to control his vehicle was the cause of Mr. Snay’s injuries, not the mailbox.  Both the trial court and the appellate court agreed with the Burrs.  The Snays then brought the case before the Ohio Supreme Court. 

What is the duty that a landowner owes to motorists traveling on a roadway with respect to off-road objects and obstructions? The Snays asked the Ohio Supreme Court to hold the Burrs liable for breaching the duty of care owed to motorists traveling on the road adjacent to their property.  The Snays argued that the Burrs negligently misused the right-of-way by creating an unreasonable hazard that a motorist might encounter when they veer off the road.  The Court disagreed. 

The Court went through a historical analysis of Ohio’s law as it relates to off-road objects and the duty owed to motorists by landowners or occupiers.  The Court found that under Ohio law “the effect that an object or obstruction in a right-of-way has on the ordinary use of the roadway” controls when determining the existence of a duty owed to motorists.  The Court reasoned that if any duty is owed to a motorist by a landowner, it is the duty to ensure that any off-road hazard does not make “the roadway unsafe for the usual and ordinary course of travel.” Examples of off-road objects that may make the roadway unsafe for the usual course of travel include corn growing in the right-of-way that obstructs a motorist’s view of cross traffic or a large sign that obstructs a motorist’s view of the road.  

The Court also found that there is no precedent to impose a duty on a landowner to remove an off-road hazard that makes only off-road travel unsafe, unless the off-road travel is shown to be an aspect of the ordinary and usual course of travel on that particular roadway.  Here the Court held that the Burrs’ mailbox did not make ordinary travel on the road adjacent to the Burrs’ property unsafe.  The Court found that the motorists traveling on the roadway usually drove on the paved area of the road.  The Court recognized that motorists are not free to drive on a right-of-way as they please and found that the Burrs’ mailbox only presented a hazard to a motorist once the motorist errantly left the road.  

So, if a landowner has an off-road object in the right-of-way, the Ohio Supreme Court has now ruled that the landowner’s duty is to ensure that the off-road object does not make the ordinary or usual travel of the roadway unsafe for motorists, otherwise all fixed objects like mailboxes or trees could impose liability on a landowner.   

Do landowners owe a duty of care to motorists that leave the roadway?  The Snays also argued that the Burrs’ “unreasonably dangerous construction” of the mailbox and deviation from the nonbinding guidelines of the United States Postal Service, gave rise to a duty of care to motorists that might leave the road and hit the mailbox.  Again, the Ohio Supreme Court disagreed.  

The Court again reiterated the fact that in order for a landowner or occupier to be liable there must first “be a condition or obstruction that jeopardizes the safety of traffic on the ordinarily traveled portion of the road.”  The Court reasoned that the right-of-way beyond the paved portion of the road adjacent to the Burrs’ property was not used for ordinary travel.  Therefore, the Court stated that a “vehicle traveling ordinarily and with due care on the road would not come in contact with the Burrs’ mailbox.”  The Court also reasoned that adjacent landowners are entitled to presume that motorists will observe the law and exercise ordinary care while driving on a roadway and that a motorist hitting a patch of black ice is neither normal or expected.

The Court concluded that Mr. Burr’s construction of the mailbox, even though inconsistent with the United States Postal Service guidelines, “does not warrant a departure from the general rule that the duty to motorists owed by an adjacent landowner or an occupier of land adjacent to the road extends only to conditions in the right-of-way that render ordinary travel on the regularly traveled portion of the road unsafe.”  Therefore, a landowner owes no duty to a motorist that errantly veers off the road and hits an off-road hazard.  

Conclusion.  As a landowner, or an occupier of land adjacent to a public roadway, it is your duty to ensure that any off-road object or obstruction does not make the ordinary and usual travel of the roadway unsafe.  Only then can a landowner, or occupier of land, be liable for injuries caused by an off-road object or obstruction.  Ohio does not impose a duty on landowners or occupiers of land to keep a right-of-way free of objects that may pose a danger to wayward vehicles. To read the Ohio Supreme Court’s decision, visit the Ohio Supreme Court’s website. 

It’s time to talk noxious weeds law

Poison hemlock and Canada thistle are making unwelcome appearances across Ohio, and that raises the need to talk about Ohio’s noxious weeds law.  The law provides mechanisms for dealing with noxious weeds—those weeds that can cause harm to humans, animals, and ecosystems.  Location matters when we talk about noxious weeds.  That’s because Ohio law provides different procedures for dealing with noxious weeds depending upon where we find the weeds.  The law addresses managing the weeds on Ohio’s noxious weeds list in these four locations:

1. Along roadways and railroads
2. Along partition fence rows
3. On private land beyond the fence row
4. On park lands

Along roadways and railroads.  The first window just closed for mandatory mowing of noxious weeds along county and township roads.  Ohio law requires counties, townships, and municipalities to destroy all noxious weeds, brush, briers, burrs, and vines growing along roads and streets.  There are two mandated time windows for doing so:  between June 1 and 20 and between August 1 and 20.  If necessary, a cutting must also occur between September 1 and 20, or at any other time when necessary to prevent or eliminate a safety hazard.  Railroad and toll road operators have the same legal duty, and if they fail to do so, a township may cause the removal and bring a civil action to recover for removal costs.

Along partition fence rows.  Landowners in unincorporated areas of the state have a duty to cut or destroy noxious weeds and brush within four feet of a partition fence, and the law allows a neighbor to request a clearing of the fence row if a landowner hasn’t done so.  If a landowner doesn’t clear the fence row within ten days of receiving a request to clear from the neighbor, the neighbor may present a complaint to the township trustees.  The trustees must visit the property and determine whether there is a need to remove noxious weeds and if so, may order the removal and charge removal costs against the landowner’s property tax bill. 

On private land beyond the fence row.  A written notice to the township trustees that noxious weeds are growing on private land beyond the fence row will trigger another township trustee process.  The trustees must notify the landowner to destroy the weeds or show why there is no reason to do so.  If the landowner doesn’t comply within five days of receiving the notice, the trustees may arrange for destruction of the weeds.  The township may assess the costs against the landowner’s property tax bill.

On park lands.  If the township receives notice that noxious weeds are growing on park land or land owned by the Ohio Department of Natural Resources, the trustees must notify the OSU Extension Educator in the county.  Within five days, the Educator must meet with a representative of the ODNR or park land, consider ways to deal with the noxious weed issue, and share findings and recommendations with the trustees.

Even with noxious laws in place, we recommend talking before taking legal action.   If you’re worried about a noxious weed problem in your area, have a talk with the responsible party first.  Maybe the party isn’t aware of the noxious weeds, will take steps to address the problem, or has already done so.  But if talking doesn’t work, Ohio law offers a way to ensure removal of the noxious weeds before they become a bigger problem.

We explain the noxious weed laws in more detail in our law bulletin, Ohio’s Noxious Weed Laws.  We’ve also recently illustrated the procedures in a new law bulletin, Legal Procedures for Dealing with Noxious Weeds in Ohio’s Rural Areas.  Also see the OSU Agronomy Team’s recent article about poison hemlock in the latest edition of C.O.R.N.

The Ag Law Harvest

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Here’s our latest gathering of agricultural law news that you may want to know:

Congress considers bankruptcy code changes with Family Farmer Relief Act of 2019.  Senator Grassley and Representative Delgado introduced companion bills in their respective chambers of Congress that would modify the definition of “family farmer” in the federal bankruptcy code.  The change would raise the operating debt limit for a family farmer from $3.2 million as listed in the U.S. Code to $10 million.  Sometimes a small change can make a big difference.  In chapter 12 of the bankruptcy code, a “family farmer” has special options that other chapters do not offer, such as the power to determine a long-term payment schedule and pay the present market value of the asset instead of the amount due on the loan.  Many farmers had not been able to take advantage of the special bankruptcy provisions because of the low debt limit, but that may change.  For more information on the bills, click HERE for S.897 and HERE for H.R. 2336.

Congress also considers changing the number of daily hours a driver may transport livestock.  The Transporting Livestock Across America Safely Act would instruct the Secretary of Transportation to amend the rules governing drivers who transport certain animals.  The changes would loosen restrictions on the number of hours that drivers may drive, and increase the types of activities that are exempt from counting toward the maximum time.  Travel under 300 miles would be exempt from the hours of service (HOS) and electronic logging (ELD) requirements.  Both chambers of Congress are considering this bill, and both companion bills are currently in committee.  For more information on the bills and to learn about the changes proposed, click HERE for S.1255 and HERE for H.R. 487.

It’s not too late to submit comments to the FDA about its potential cannabidiol rulemaking.  Electronic or written comments can be sent to the FDA until July 2nd, although the deadline to request to make an oral presentation or comment at tomorrow’s hearing has passed.  Click HERE for more information from the Federal Register about the May 31st hearing and submitting comments.

Meatpackers face second class-action lawsuit, and R-CALF refiles.  In our last edition of The Harvest, we talked about a new class-action lawsuit filed in Illinois federal court by a number of cattle ranchers, including R-CALF, against the nation’s largest meatpacking companies.  Now, another lawsuit has been filed in Minnesota federal court also alleging a price fixing conspiracy by the meatpackers.  The second lawsuit is being brought by a cattle futures trader, rather than a rancher.  After the second suit was filed, R-CALF voluntarily dismissed its case in Illinois to refile it in Minnesota.  This refiling allows the lawsuits to be heard by the same court.

Tyson sues the USDA’s Food Safety and Inspection Service.  Tyson, which is named as a defendant in the class action suits we just mentioned, is a plaintiff in a case against the USDA’s Food Safety and Inspection Service.  The company alleges that a FSIS inspector falsified an inspection of 4,622 hogs, which were intermingled with another 8,000 carcasses, at one of its Iowa facilities in 2018.  The company claims that the false inspection required it to destroy all of the carcasses, and cost nearly $2.5 million in total losses and expenses.  The complaint, which is available HERE, alleges four counts: negligence, negligent inspection, negligent retention, and negligent supervision.  The lawsuit is based on the legal principle that an employer is liable for the actions of its employee.

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Ohio Case Law Update

Plaintiff must prove that a defendant wedding barn operator’s breach of a duty caused her harm.  Conrad Botzum Farmstead is a privately operated wedding and event barn located in the Cuyahoga Valley National Recreation Area and on lease from the National Park Service.  The plaintiff in the case was attending a wedding at the barn, where she broke her ankle while dancing on a wooden deck.  The jury trial found that the barn operator was 51% at fault for her injuries, and awarded the plaintiff compensation.  However, the barn operator appealed the decision and won.  The Ohio Ninth District Court of Appeals found that the plaintiff did not introduce sufficient evidence to prove that any act or breach of duty by the barn operator actually or proximately caused the plaintiff to fall and break her ankle.  The case raises standard questions of negligence, but it is worth noting in the Ag Law Blog because the court did not base its decision on Ohio’s agritourism immunity statute.  The case is cited as Tyrrell v. Conrad Botzum Farmstead, 2019-Ohio-1874 (9th Dist.), and the decision is available HERE.

Ohio History Connection can use eminent domain to cancel Moundbuilders Country Club’s lease.  A Licking County judge ruled in early May that the Ohio History Connection, formerly the Ohio Historical Society, can reclaim full ownership of land that it had leased to a country club.  The Moundbuilders County Club has operated a golf course around prehistoric Native American earthworks for decades under a long-term lease with the state.  The Ohio History Connection sought to have the lease terminated in order to give the public full access to the earthworks as part of a World Heritage List nomination.  The judge viewed the request as sufficiently in the public interest to apply Ohio’s eminent domain laws.

Rules of the Road for Farm Machinery

Not only have you read it in the almanac, but you also feel it when you walk outside.  Spring is finally arriving, and your field awaits.  As the weather improves, farm machinery and equipment will head back on the roads for planting season.  We wanted to take a moment to look at Ohio’s roadway laws and how they apply to farm machinery.

State law includes both special requirements and special exceptions for farm machinery operating on Ohio roadways.  “Farm machinery” broadly means all machines and tools used in agriculture, whether for planting, harvesting, or transporting agricultural products.  The special rules that apply to farm machinery are primarily safety driven, and impose additional and different requirements on farmers when compared to other drivers.

Fortunately, we have a law bulletin, available HERE, that explains these special requirements and exceptions.  The law bulletin, titled “Rules of the Road: Navigating Ohio Roadway Laws for Farm Machinery,” sifts through the statutes and regulations to boil down topics like:

• How does Ohio law define farm machinery?
• What are the marking requirements for farm machinery traveling on roads?  Specifically, when are slow moving vehicle (SMV) emblems, speed identification symbols (SIS), lighting, and reflectors required?
• How do vehicle weight and dimension limits apply to farm machinery?
• When is it okay to operate left of center when the road’s lane is too narrow?
• When must traffic control devices like signs, signals, and flaggers be followed?
• When may farm machinery enter a freeway?

Additionally, you can also learn more about Ohio’s laws regarding Speed Identification Symbols HERE, and Ohio’s laws regarding All-Purpose Vehicles (APVs) HERE.  It can be a lot of information to keep in mind, especially given how busy a farmer’s life gets this time of year.  That is why we do our best to explain the law in simple, to-the-point law bulletins and blog posts.

ODA proposes changes to Ohio’s noxious weeds list

Wild carrot, Oxeye daisy, and wild mustard will no longer be prohibited noxious weeds in Ohio if the Ohio Department of Agriculture’s (ODA) revisions to the noxious weeds list become effective. ODA is proposing to remove the three plants after its five year review of plant species considered “noxious” for purposes of Ohio law. The agency is also proposing adding these 12 species to the noxious weeds list:

• Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
• Field bindweed (Convolvulus arvensis)
• Heart-podded hoary cress (Lepidium draba sub. draba). Hairy whitetop or ballcress (Lepidium appelianum)
• Perennial sowthistle (Sonchus arvensis)
• Russian knapweed (Acroptilon repens)
• Leafy spurge (Euphorbia esula)
• Hedge bindweed (Calystegia sepium)
• Serrated tussock (Nassella trichotoma)
• Columbus grass (Sorghum x almum)
• Musk thistle (Carduus nutans)
• Forage Kochia (Bassia prostrata)
• Water Hemp (Amaranthus tuberculatus)

The director of ODA has the legal authority to designate noxious weeds. Several Ohio laws provide for control and removal of designated noxious weeds along public highways, toll roads, and railroads, and on private property.  The current noxious weeds list also contains the following plants, which will remain on the list:

• Grapevines: (Vitis spp.), when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
• Canada thistle (Cirsium arvense L. (Scop.))
• Poison hemlock (Conium maculatum)
• Cressleaf groundsel (Senecio glabellus)
• Musk thistle (Carduus nutans)
• Purple loosestrife (Lythrum salicaria)
• Mile-A-Minute Weed (Polygonum perfoliatum)
• Giant Hogweed (Heracleum mantegazzianum).
• Apple of Peru (Nicandra physalodes)
• Marestail (Conyza canadensis)
• Kochia (Bassia scoparia)
• Palmer amaranth (Amaranthus palmeri)
• Kudzu (Pueraria montana var. lobata)
• Japanese knotweed (Polygonum cuspidatum)

ODA is requesting public comments on the revised list of noxious weeds through April 27, 2018.  E-mail comments to ecomments@agri.ohio.gov or mail them to Legal Section, Ohio Department of Agriculture, 8995 E. Main St., Reynoldsburg, Ohio 43068.  Learn more about noxious weed laws in our bulletin, here.

Electronic Logging Device rule compliance delayed for agriculture

The Federal Motor Carrier Safety Administration (FMCSA) has issued a second 90-day waiver from the Electronic Logging Device (ELD) rule for agricultural transportation.  The agency had previously issued a waiver that was set to expire on March 18, 2018.  The ELD rule requires commercial haulers to utilize electronic technology that automatically records hours-of-service (HOS) data.

The reason for delaying the ELD rule for agriculture, according to the agency, is to provide more time for the agency to address agriculture’s unique needs.  Agriculture has argued that HOS provisions that mandate a ten hour off-duty period for drivers put agricultural commodities like livestock, fish, bees, and plants at risk by extending the transportation period.  Although the HOS rule contains several exemptions for agriculture, such as for personal conveyances and for transport of commodities within a 150-air mile radius of the source, many argue that the exemptions need further clarification and that electronic logging device technology does not recognize the agricultural exemptions.  In addition to delaying the ELD compliance date for agriculture, FMCSA also promises to provide further guidance on the Hours-of-Service exemptions and their relationship to the ELD rule.   The guidance should help drivers understand if and how the ELD rule applies to their transportation of agricultural goods.

FMCSA’s announcement of the new waiver is available here.  Read our previous post on the ELD rule here.  More information about the ELD rule and agriculture is here and the HOS exemptions for agriculture are here.

March 18 might be new date for complying with Electronic Logging Device rule

Late last year, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) issued a 90-day waiver to the Electronic Logging Device (ELD) rule for livestock and agricultural commodity haulers in response to a multi-party petition by agricultural groups.  The waiver is set to expire on March 18, 2018.   Agricultural groups are now awaiting the agency’s response to a second petition they’ve filed, which seeks another waiver and limited exemption from the ELD rule for agriculture before the March 18 waiver expiration date.  There is also talk that Congress will delay the ELD rule for agriculture, as proposed by H.R. 3282, but time is running out for a legislative fix.

The ELD rule, which became effective last December 18, requires commercial haulers to utilize electronic technology that automatically records hours-of-service (HOS) data rather than using the current practice of recording data on paper logs.  Congress directed the Secretary of Transportation to adopt regulations requiring ELD use in commercial motor vehicles that are involved in interstate commerce and operated by drivers who are required to keep records of duty status (RODS).  The purpose of the rule is to create a safer work environment for drivers by making it easier and faster to accurately track, manage, and share the data.

The intent of the 90-day waiver for agriculture was to provide the agency more time to clarify the rule’s applicability to agriculture, which included considering agricultural exemptions from the rule.  Agricultural groups also asked the agency to review and clarify the HOS, RODS and Commercial Driver’s License (CDL) exemptions for agriculture.   While it hasn’t yet responded to the second petition to extend the ELD waiver, the FMSCA did recently provide additional explanations of the ELD rule’s application to agriculture, along with clarifications of HOS and CDL requirements.   The information is available on the agency’s website.

How does the ELD rule apply to agriculture?

Here’s a summary of the FMSCA’s explanation of how the ELD rule applies to agricultural situations:

1. The following are “agricultural exemptions” from HOS regulations, which would also remove the vehicle or driver from the ELD rule:
   • “Covered farm vehicles,” which means vehicles that are:
     • Registered in a state with a license plate or other designation that allows law enforcement to identify it as a farm vehicle;
     • Operated by the owner or operator of a farm, or an employee or family member of the owner or operator;
     • Used to transport agricultural commodities, livestock, machinery, or supplies to or from a farm;
     • Not used in for-hire motor carrier operations;
     • 26,000 pounds or less and operating anywhere in the country, or 26,001 pounds or more and operated anywhere in the state of registration or operated across state lines within a 150-air mile radius of the farm.
   • Drivers who transport agricultural commodities, including livestock, live fish and bees, within a 150-air mile radius of the farm.
     • Once a driver operates beyond the 150-air mile radius, HOS regulations apply and the driver must use an ELD for movement beyond the 150-air mile mark.
     • Note that FMCSA has recently published proposed guidance on this exemption for vehicles traveling to pick up an agricultural commodity or returning from a delivery point and for trips beyond 150 air-miles from the source of the agricultural commodity. The proposed guidance is here.
     • Also note that drivers transporting commercial bees or livestock in interstate commerce are exempt from the HOS 30-minute break requirement when bees or livestock are on the vehicle.
2. If a vehicle or a combination of vehicles (truck and trailer) has a gross vehicle weight rating (GVWR), a gross combination weight rating (GCWR), a gross vehicle weight (GVW), or a gross combination weight (GCW) of 10,001 pounds  or more and the operation is not otherwise excepted as described above, FMCSA regulations generally apply to the driver but the driver is not subject to the ELD rule in the following situations:
   • A driver operates within a 100-air mile radius of the normal work reporting location and works no longer than 12 hours per day. This is the same exception that applies to preparation of a logbook.
   • A driver uses paper RODS no more than 8 days in any 30-day period.
   • A vehicle is older than model year 2000.
3. Non-business related transportation of horses and other animals:
   • The ELD rule does not apply to the transportation of horses and other animals to shows and events, as long as the transportation is not business related or for-hire (even if prize and scholarship money is offered).
   • Note that FMCSA has recently updated its guidance for non-business related transportation of horses, available here.

What if the ELD rule applies to an agricultural situation?

Drivers who are subject to the new ELD rule must understand and be able to use ELDs by the required deadline, which FMCSA states includes knowing how to annotate and edit RODS, certify RODS, and collect required supporting documents. Drivers must also know how to display and transfer data to safety officials when requested.  For information about meeting the ELD requirements, visit the FMSCA’s ELD page.

For more information on understanding FMCSA regulations

Learn more about the ELD rule and other FMCSA regulations that might apply to agriculture in this excellent publication by our colleagues, Tiffany Dowell Lashmet at Texas A&M and Beth Rumley at the National Agricultural Law Center:   Outline for Analyzing Federal Motor Carrier Safety Administration Regulation: Applicability for Agriculture. 

Township Trustees, Farmers and Problem Trees, Weeds and Vegetation: Let’s all Follow the Legal Process

Peggy Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program           .

Tree obstructions, unwanted vegetation and noxious weeds are serious matters for Ohio farmers, which is why several Ohio laws provide mechanisms for addressing these problems through the board of township trustees.   Two recent Ohio court cases illustrate the practical impacts of the laws and demonstrate the consequences of both following and failing to follow the processes provided by these laws.

The first case, Kilroy v. Jackson Township, concerned the clearing of weeds and vegetation in a partition fence row.   The case recently resulted in a judgment of over $56,000 against the board of trustees of Jackson Township in Montgomery County, including an unusual finding of personal liability against each trustee.  The court determined that the trustees failed to perform a settlement agreement with the Kilroys concerning the clearing of their neighbor’s fence row.  The settlement agreement arose from a lawsuit filed by the Kilroys asking the court to require the township trustees to perform their legal duties to have the neighbor’s fence row cleared of weeds and vegetation.

Ohio Revised Code 971.34 allows a landowner in a rural area to ask a neighbor to clear his or her side of a partition fence between the properties and, if the landowner fails to do so, to petition the township trustees to step in and resolve the problem.  The trustees must view the property and determine whether the fence row contains brush, briers, weeds and vegetation and if so, “shall cause them to be cut, by letting the work to the lowest bidder, or by entering into a private contract therefor.” The Kilroys petitioned the trustees under this process after their neighbors failed to clear the fence row when requested, but the trustees did not act on the petition or arrange for removal of the vegetation.

After the Kilroys filed suit against the trustees and the neighbors, the parties entered into a settlement agreement in which the neighbors agreed to clear the fence row and the trustees agreed to have the row cleared if the neighbors didn’t do the work.  The Kilroys later filed a second complaint alleging breach of the settlement agreement after neither the trustees nor the neighbors cleared the fence row.  The second complaint included individual claims against the trustees for intentional interference with a contract and civil conspiracy.  The neighbors finally cleared the fence row, but the Kilroys maintained the lawsuit against the trustees.  The parties entered into a second settlement agreement in which the trustees agreed to pay the sum of $15,000 and to issue an apology letter to the Kilroys.  Eventually, the matter ended up in court again for a breach of the agreement because the Kilroys did not receive either the $15,000 or the apology letter.   The trial court determined that the trustees had signed the settlement agreement in both their official and individual capacities and had subsequently breached the agreement; the court awarded the Kilroys $15,000 as specified in the agreement plus an additional $37,558 in attorney fees and $3,888 for fees paid to expert witnesses.  The trustees filed an appeal, but the Second District Court of Appeals agreed with the trial court’s decision.

Contrast the Kilroy case with a second dispute in Sterling Township, Brown County, where a farmer could not drive his new combine down a township road because of overgrown trees and brush along the road.  The farmer asked the trustees to trim the trees and vegetation but the trustees did not do so.  The farmer then trimmed the vegetation himself and submitted an invoice to the township for $1,863.  When the township did not pay the invoice, the farmer filed a lawsuit claiming that the township trustees had failed in their duty to keep the road free of obstructions and had also failed to eliminate a known safety hazard.  Included in the suit was a request to remove the trustees from office for failure to perform their official duties.  The Brown County Municipal Court dismissed the farmer’s case and the farmer filed an appeal on the claim alleging that the trustees had failed their statutory duty to maintain the roadway.

The court of appeals analyzed Ohio Revised Code sections 5571.02 and 5579.08, which state that a township shall keep its roadways in good repair and shall cut or destroy all brush, briers, vines, and noxious weeds growing along the roadways between the first and twentieth days of June, August and, if necessary, September.  The court noted that these sections of law do not provide the process for a private cause of action against the trustees as demanded by the farmer.  To enforce the law, the farmer must follow the proper legal process, explained the court, which is to first formally request the trustees to perform the action and then ask the court for an order compelling the action, referred to as a “writ of mandamus,” if they fail to do so.

In this case, the farmer did not formally present his request to have the trees trimmed to the township trustees.   He had called each trustee personally by phone and had visited one trustee at his home.  The County Prosecutor had advised the farmer to make an official complaint to the trustees, but the farmer never attended a trustee meeting or made a formal complaint about the vegetation.  By choosing instead to take matters into his own hands and trim the trees and vegetation himself, the farmer had “self-imposed” his own damages, said the court.  Seeking reimbursement for his own work was not the proper method for enforcing the township’s duty to clear the vegetation.

The lesson here should be clear to both township trustees and farmers.  Ohio law establishes duties and remedies for dealing with trees, weeds and vegetation in rural areas; township trustees must perform these duties and farmers must know how to seek a remedy.  The different outcomes from these cases illustrate the importance of knowing and following the proper legal process.

Read Kilroy v. Jackson Township here and Mezger v. Horton here.  See Ohio Revised Code sections here: 971.34 and 5579.08

Using APVs, ATVs and Four-Wheelers on Roadways for Farm Work

Peggy Kirk Hall, Asst. Professor, OSU Extension Agricultural & Resource Law

Spring planting season brings increased agricultural traffic on Ohio’s rural roads, including the use of All-Purpose Vehicles (APVs), All-Terrain Vehicles (ATVs),  Gators, Mules and other four-wheeled utility vehicles.   Laws on these vehicles have changed in recent years and there is still confusion over the new provisions.  Farmers who plan to use an APV, ATV or utility vehicle on the roadway for farm work  should take a few minutes to review the applicable laws and ensure compliance.    Consider these provisions of Ohio law:

• Licensing and registration.  A license is not required for a “utility vehicle,” which is a self-propelled vehicle with a bed designed for transporting materials, such as  a Gator or Mule.  A 2009 law required registration for APVs and ATVs, defined as “self-propelled vehicles designed primarily for cross-country travel”–but the law exempted  APVs and ATVs used for farming.  As long as used primarily for agricultural purposes and the owner qualifies for current agricultural use valuation (CAUV), the APV or ATV does not require registration or a license.  If stopped by law enforcement for failure to display registration, the farmer should explain that the vehicle is being used for agricultural purposes and the vehicle owner qualifies for CAUV.
• Operating on roadways.   The local jurisdiction has authority over the operation of a utility vehicle, APV or ATV on or near roadways.  A farmer may operate one of these vehicles on a roadway and to travel from one farm field to another if the county sheriff (or township police, if applicable) allows it.  This requires the farmer to know whether the county or township allows APVs on the road.  We checked with several county sheriff offices and learned that each allows farm-use APVs and utility vehicles on the roadways as long as operated safely.  Ohio law provides guidance on safe operation for APVs in addition to ordinary traffic rules–the vehicle may not interfere with the movement of vehicular traffic approaching from any direction and the operator must yield the right-of-way to any approaching traffic that presents an immediate hazard.   If the local jurisdiction does not allow APVs on the road or the farmer is operating the vehicle in an unsafe manner, the farmer could receive a traffic citation.
• Operating on berms or in rights-of-way.    A farmer may drive an APV or utility vehicle on the berm or shoulder of a roadway if the terrain permits such operation to be undertaken safely and without entering a traffic lane.   If the farmer cannot operate on the berm without entering a traffic lane, the farmer should operate entirely on the roadway.
• Child operators.  A child who does not hold a driver’s license may not operate an APV or utility vehicle on a roadway or on any portion of the right-of-way.  A child under the age of 16 may operate an APV on the family’s farm, and may also operate on another’s farm or private property if accompanied by a person who is at least 18 and holds a driver’s license.
• Other rules of operation.    Ohio law has several prohibitions regarding APV and utility vehicles.  A person may not operate the APV or utility vehicle on a limited access highway or its right-of-way,  on another’s private property without permission, on land or waters controlled by the state except where permitted, on the tracks or right-of-way of an operating railroad, while transporting a firearm, bow, or other implement for hunting that is not unloaded and securely encased or for the purpose of chasing, pursuing, capturing, or killing an animal or wildfowl or during the time from sunset to sunrise, unless displaying lighted lights as required by4519.20 of the Revised Code.
• Slow-moving vehicle emblems.    Farmers should be aware that there is confusion over whether an APV or utility vehicle must display a Slow-Moving Vehicle (SMV) emblem.  Ohio law requires display of an SMV emblem on any farm machinery designed for operation at 25 miles per hour or less and defines “farm machinery” as all machines and tools used in the production, harvesting and care of farm products, including farm trailers, agricultural tractors, threshing machinery, hay-baling machinery, corn shellers, hammermills, and machinery used in the production of horticultural, agricultural, and vegetable products.  But Ohio law also prohibits the use of an SMV emblem on any other vehicle.  Is an APV or utility vehicle a piece of “farm machinery” that requires an SMV, or a vehicle that should not display an SMV?  Because there is not a clear answer to this question, farmers should check with local law enforcement for its interpretation of the law.  While asking local law enforcement whether it allows farm-use APVs or utility vehicles on the roadways, also ask whether the vehicle must display an SMV sign.  Several of the law enforcement officers with whom we spoke stated that their county wanted farmers to display an SMV, but others may view that as a prohibited use of the SMV emblem.
• Mud and manure.   Ohio law prohibits the placement of any earth,  mud, manure or other injurious materials on a public highway.  Farmers should take care to clean up the road if the APV or utility vehicle leaves mud, manure or other debris on the roadway.  Violation of the law may result in criminal misdemeanor charges as well as civil liability for accidents or injuries resulting from the road debris.

Ohio’s CDL Provisions for Agriculture

Do you need a CDL for your farm operations?

Like many other areas of law, driver’s license regulations for agricultural situations have unique provisions and exemptions.  Recent rumors had the agricultural community concerned about possible changes in the Commercial Driver’s License (CDL) requirements for agriculture.   While the U.S. Department of Transportation has clarified that CDL provisions for agriculture will not change at the federal level, the rumors had many asking questions about when an agricultural operator needs a CDL.

Federal Authority over CDLs

The Federal Commercial Motor Vehicle Safety Act (FCMVSA) addresses driver’s licensing for commercial vehicle operators, and aims to protect public safety by establishing qualifications for those who drive large trucks and buses on public roads and highways.  The federal law delegates the actual authority over CDL licensing to each individual state, but first establishes minimum federal standards that a state must meet when issuing CDLs.  In regards to agriculture, the law specifically allows a state to create CDL exemptions for “operators of a farm vehicle which is controlled and operated by a farmer, including operation by employees or family members.”    The recent statement from the federal government about CDLs clarified that there would not be any new minimum federal standards for agriculture or any changes to the federal delegation of agricultural exemption authority to the states.  Therefore, an agricultural operator must look to the CDL laws of the state in which he or she operates.

Ohio’s CDL Exemption for Agriculture

Ohio law establishes a “farm truck operator exemption” in Ohio Revised Code 4506.03(B)(1).  This provision states that Ohio’s CDL requirements do not apply “to any qualified person when engaged in the operation of a farm truck.”   The farm truck exemption is designed to address the situation where a farmer trucks goods back and forth from the farm, but not for long distances.  Important to the exemption is the definition of “farm truck,” which is:

• A truck controlled and operated by a farmer that is used to transport:
  • Products of the farm either to or from the farm, for a distance of not more than 150 miles, including livestock, livestock products, poultry, poultry products and floricultural and horticultural products,
  • Supplies to the farm, from a distance of not more than 150 miles, including tile, fence, and every other thing or commodity used in agricultural, floricultural,horticultural, livestock, and poultry production, and livestock, poultry, and other animals and things used for breeding, feeding, or other purposes connected with the operation of the farm,
  • As long as the truck is not used in the operation of a motor transportation company or a private motor carrier.  ORC 4506.01(O).

Note that the farm truck exemption refers specifically to a truck controlled and operated by a “farmer.” The law does not provide a definition for “farmer,” however.  This raises questions about who the law covers:  are farm family members and employees included? To date, there are not any published court opinions that lend clarity to the issue.  Farm operators should be aware that a citation could be possible if an officer believes a truck operator is not a “farmer.”

The Restricted CDL for Farm-Related Service Industries

Ohio law also provides a restricted CDL for operators who service the agricultural sector on a seasonal basis.  The restricted CDL applies to eligible “seasonal” operators, which includes farm retail outlets and suppliers, agri-chemical businesses, custom harvesters and livestock feeders.  The law waives the requirements for CDL written and skills tests for eligible seasonal operators.  The seasonal operator my operate a Class B or Class C vehicle, subject to restrictions:  travel must be within 150 miles of the place of business, the seasonal period must be no more than 180 days in any twelve month period, and hazardous material transport is  limited to 1,000 gallons of diesel fuel; 3,000 gallons for liquid fertilizer; and solid fertilizer only if without accompanying organic substances.  To receive a restricted CDL for farm-related
service, the operator must file an application and meet eligibility requirements, such as one year of driving experience, no motor vehicle
violations or offenses and no license suspensions, revocations or cancellations.  ORC 4506.24.

Ohio’s CDL Laws and Other States

Ohio’s CDL provisions for agriculture are valid only within the State of Ohio.  The federal government allows a state to make reciprocal agreements for CDL licensing with other states, but no such agreements regarding agriculture exists between Ohio and another state.   Without a reciprocal agreement on agricultural exemptions, an operator who crosses state lines is engaging in “interstate” travel, which requires a CDL and raises additional federal requirements.

For information on Ohio’s CDL laws, visit the Ohio Department of Public Safety.