Update: On November 24, 2021, the Supreme Court of Ohio handed down a merit decision in this case. In a 5-2 opinion written by Chief Justice O’Connor, joined by Justices Kennedy, Fischer, DeWine and Stewart, the Court held that the Burrs owed no duty to Snay under the facts of this case. Justice Donnelly dissented, joined by Justice Brunner.  Read the merit decision here.

“Are you telling me then a homeowner cannot reinforce their mailbox if they are the victim of repeated vandalism?”

Chief Justice O’Connor, to counsel for the Snays

“How do we analyze the postal regulations?”

Justice Brunner to counsel for the Burrs

On June 16, 2021, the Supreme Court of Ohio heard oral argument in Cletus Snay, et al. v. Matthew Burr, et al., 2020-1057. At issue in this case is whether a landowner owes a duty to a motorist who strikes the landowner’s off-road reinforced mailbox built close to the edge of a rural roadway.

Case Background

In December 2016, fifty-nine-year-old Cletus Snay had an accident while driving to work in the afternoon. While Snay does not remember the specifics of the accident, his truck apparently hit a patch of black ice, slid off the roadway, and struck the Burrs’ mailbox in the right-of-way less than two feet from the road’s edge before rolling over. A state trooper who arrived on the scene testified that Snay’s truck fishtailed after striking the Burrs’ mailbox, which Matthew Burr had installed himself, using a metal pipe thicker in diameter and buried deeper than recommended by the postal service. Burr installed this reinforced mailbox to prevent vandals from destroying it, as they had done in the past.

Snay sustained serious injuries from the accident and is now a quadriplegic. Snay and his wife sued Burr and his wife in December 2018, seeking damages allegedly caused by the Burrs’ reinforced mailbox. Relying on Turner v. Ohio Bell Tel. Co, the trial court granted the Burrs’ motion for summary judgment, holding that “Ohio law does not impose a duty owed to motorists who lose control of their vehicles, leave the traveled portion of the roadway, and strike an off-the-road object within the right of way.” The Snays appealed.

In a 2-1 decision, the Sixth District affirmed the trial court’s judgment. The majority held that the Burrs owed no duty to the Snays, reasoning that there was no evidence to suggest that the placement of the mailbox created an unsafe condition for normal travel, had Mr. Snay stayed within the marked lanes of the roadway. The majority also found that the record did not support a finding that the Burrs’ conduct proximately caused Mr. Snay’s injury. Like the trial court, the majority relied on Turner and other similar cases in finding for the Burrs.  The majority also held that the mailbox was an open and obvious hazard which would obviate any duty on the part of the landowner in this case.

The dissenting judge would find that the majority overlooked the role of foreseeability in its duty analysis, and that its causation analysis was flawed. She would find that the Burrs owed the Snays a duty under the particular facts of this case, namely, to install their mailbox in a manner unlikely to cause injury. Here, Matthew Burr disregarded postal recommendations about the construction of posts, knew of other accidents along the road at issue, and had actual knowledge of the unreasonably dangerous hazard he built on his property. From this reasonable minds could conclude there was a duty here that was breached. The dissenting judge would also find that reasonable minds could differ on whether the Burrs’ construction of their mailbox was a proximate cause of the injury to Mr. Snay, and that the affidavit of the Snays’ expert supports this conclusion.  The dissenting judge also found Turner and many of the other cases relied on by the majority to be inapplicable to the instant case, primarily because they focused more on utility companies than private landowners.

Read the oral argument preview of the case here.

Key Precedent

*Restatement of the Law 2d, Torts, Section 368 (1965) (“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway is subject to liability for physical harm thereby caused to persons who . . . are traveling on the highway, or . . . foreseeably deviate from it in the ordinary course of travel.”

Shrieve v. United States, 16 F.Supp.2d 853 (N.D. Ohio 1998) (The alleged violation of postal guidelines as to the placement and construction of rural mailboxes does not show negligence per se.)

Strunk v. Dayton Power & Light Co., 6 Ohio St.3d 429 (1983) (Unless an off-road condition renders a road unsafe for usual and ordinary travel, no duty is owed to motorists.)

Murphy v. Corrollton Mfg. Co., 61 Ohio St.3d 585 (1991) (“It is a well-established principle of tort law that an injury may have more than one proximate cause.”)

Mfr.’s Natl. Bank of Detroit v. Erie Cty. Rd. Comm., 63 Ohio St.3d 318 (1992) (“Where an abutting landowner or occupier uses the highway right-of-way in a manner inconsistent with a highway purpose, and where such usage constitutes an unreasonable hazard to users of the highway, the land owner or occupier may be liable for damages proximately caused by the improper use of the right-of-way.”)

Queen City Terminals v. General Am. Transp. Corp., 73 Ohio St.3d 609 (1995) (A defendant’s conduct may be a proximate cause of an injury if there is “some reasonable connection between the act or omission of the defendant and the damage the plaintiff has suffered”; Ohio uses the substantial factor test to determine liability when multiple factors may have caused the injury, and whether or not the conduct was a substantial factor is a question of fact.)

*Turner v. Ohio Bell Tel Co., 2008-Ohio-2010 (“When a vehicle collides with a utility pole located off the improved portion of the roadway but within the right-of-way, a public utility is not liable, as a matter of law, if the utility has obtained any necessary permission to install the pole and the pole does not interfere with the usual and ordinary course of travel.”)

Cromer v. Children’s Hosp. Med. Ctr. of Akron, 2015-Ohio-229 (“[T]he existence of duty depends on the foreseeability of injury.”)

Freiburger v. Four Seasons Golf Ctr., 2007-Ohio-2871 (10th Dist.) (A hazard is open and obvious if it is “free from obstruction and readily appreciated by an ordinary person.”)

*Cited by counsel at argument.

At Oral Argument

Arguing Counsel

Kathleen J. St. John, Nuremberg, Paris, Heller & McCarthy Co., L.P.A., Cleveland, for Appellants Cletus and Kelly Snay

Douglas G. Leak, Hannah Campbell & Powell LLP Akron, for Appellees Matthew and Diane Burr

The Snays’ Argument 

The issue in this case is whether a landowner whose property abuts the roadway owes a duty to the motoring public to refrain from maintaining a hazardous object in the right-of-way close to the road’s edge. The hazardous object in this case was a severely reinforced mailbox post that the landowner Matthew Burr constructed knowing this was contrary to postal service guidelines which he consulted before building his mailbox post. He also knew these guidelines were designed for the safety of the motoring public. His mailbox had been knocked over before and his objective was to prevent repeat vandalism to his mailbox post.

Cletus Snay was on his way to work when he slid on black ice and collided with the mailbox post, which did not break away, contrary to postal service guidelines. This collision initiated the rollover which resulted in Mr. Snay’s quadriplegia. The trial court and the court of appeals majority distilled from prior decisions of this court a rule of law that no duty is owed to motorists who leave the regularly traveled portion of the road and encounter an obstacle in the right-of- way. Such a rule is not justified by this court’s prior decisions and is contrary to fundamental principles of tort law.

A duty does exist in this case. The general rule with respect to affirmative conduct is that all people owe a duty to exercise reasonable care to refrain from affirmative conduct that will foreseeably result in injury to others. There are some “no duty” exceptions to that rule. Each of the no duty rules is based on public policy considerations. One such no duty rule involves natural conditions which are treated differently than artificial conditions that the landowner creates.

Foreseeability is a key factor in the determination of duty. Section 368 of the Second Restatement of Torts provides good guidance with respect to the question of foreseeability. For example, a fence of non-breakaway construction located one foot from the roadway is different from a fence or a mailbox that is 15 feet away from the roadway because it is less foreseeable that a motorist is going to encounter it and be injured. Here, the landowner consciously constructed his mailbox for the very purpose of resisting force by motor vehicles. This mailbox is so close to the edge of the roadway that if you look at the photographs in the record, you can’t even see where the road ends and the edge of the road begins.

The question in this case is whether there is sufficient public policy justification to relieve the landowner of the duty of ordinary care that would otherwise exist. The Snays submit there is no public policy justification under these circumstances. The spring gun cases are illustrative in this context. They set forth the general principal that an owner of property is not justified in inflicting dangerous instrumentalities such as spring guns unless the landowner had been justified in using that force had he been personally present. The public interest in preventing unreasonable risk of harm to human beings supersedes any interest one may have in the protection of his property. The law always recognizes the safety of human beings as being a superior interest to the interest in protecting personal property.

It is doubtful that a warning sign would have made any difference here. A motorist who inadvertently veers off the traveled portion of the road does not have time to be reading signs—he is driving and paying attention to the road. Nor is the open and obvious doctrine relevant here because this motorist inadvertently went off the road and didn’t have time to correct before encountering the mailbox. But in any case, there was no warning sign here. Mr. Snay, the person driving down the road, would not have reason to know this was a non-breakaway construction.

There cannot be a bright line rule in this situation. The common law develops on a case-by-case basis. In this case, reasonable minds could differ as to whether a duty was breached. Summary judgment was not appropriate here. The particular facts and circumstances of each situation must be individually examined.

The Burrs’ Argument

There is no duty with respect to off road hazards that do not interfere with the ordinary and usual course of travel. That’s why this court’s longstanding precedents have limited the duty to obstructions, hazards, and objects that interfere with the usual and ordinary course of travel and has not extended that duty to off road obstructions, to hazards or to motorists who veer off the roadway to the right-of-way.

The public has an absolute right to travel on the roadway in the usual and ordinary manner. But there is no duty to a motorist that veers off the road. This court has already addressed this specific issue in Turner. So, this court has already acknowledged that it is foreseeable for cars to leave the roadway. But in order for there to be liability, there must be an obstruction that interferes with the ordinary course of travel.

Foreseeability does not equate to duty, nor has it ever been the lynchpin of establishing duty. There are other aspects of duty, including this court’s precedent, policy, and other factors. This court acknowledged in Turner that it took into consideration the foreseeability of cars coming off the roadway, yet it upheld the legal principle that a duty is only imposed when an object interferes with the usual and ordinary course of travel. The plaintiffs rely heavily on foreseeability for this court to carve out an exception here. But the landowners’ conduct in this case did not in any way interfere with the roadway. 

As for the postal service guidelines, they do not set forth a duty of care; they are simply guidelines. They are not mandates and do not carry the force of law. They would only be relevant evidence for the jury to consider if the mailbox interfered with the usual and ordinary course of travel. If the postal service guidelines had been followed, that compliant mailbox would still pose an obstruction and a hazard for motorcyclists or bicyclists who veer off the roadway, as would any kind of object such as parked cars at a barbeque or a graduation party. Here it is undisputed that this mailbox did not interfere with the usual course of travel and that is why there is no duty here.

With regard to the Second Restatement 368 from 1965 this court has never adopted it. Most importantly, Section 368 does not create a duty because it only applies to those motorists who are reasonably driving on the highway or those foreseeable motorists that deviate from the roadway in the ordinary and usual course of travel. So, Section 368 would not apply here.

What Was On Their Minds

Duty and Forseeability
Isn’t duty determined by foreseeability asked Justice Brunner? She added that there can’t be duty without foreseeability. It may not be part and parcel, but it’s an element, she noted. Is foreseeability a complete question of law? Can it ever be a question of fact?  Is it mixed or is it always a question of law?

The Mailbox

What if there had been a sign on this mailbox or 5 feet in front of this mailbox that said “indestructible mailbox ahead.  Drive with caution.” Where are we then, asked Chief Justice O’Connor? Under what circumstances would it be permissible for an object such as this mailbox to be created and maintained? What if the same kids came back to demolish it with a vehicle, and they were traveling at a high rate of speed and they hit it because they expected it to break away like the other one had, and they were severely injured. Where are we then? Can homeowners not reinforce their mailboxes if they are the victim of repeated vandalism? Was the mailbox a foreseeable danger to bicyclists?

If this mailbox was not located in the right-of-way, but was closer to the house, we wouldn’t even be talking about this, would we, asked Justice Brunner?

Could the landowners who were understandably fed up with people vandalizing their property and trespassing on it, have put metal spikes around the mailbox area to puncture the wheels of any car that came over that curb, so long as it didn’t interfere with ongoing traffic, asked Justice Donnelly? Where do we draw the line?

Bright Line Rule or Case by Case?

I’m trying to understand exactly what kind of rule we should write, Justice DeWine commented. Should our holding be that anytime anyone has a reinforced mailbox that exceeds postal guidelines injury  is foreseeable and therefore there is a duty there? Is that the bright line rule or are we supposed to take these on a case-by-case basis, looking at such factors as how far it is from the road, how well travelled this road is, and whether there have been accidents there in the past. Which is it?

Do we even need a rule here, asked Justice Donnelly? Or is this just a case where under the particular facts the property owner had actual and constructive notice as to the reasons why a mailbox is supposed to be able to break away which creates an issue of fact that shouldn’t be decided on summary judgment? Wouldn’t there need to be other facts to meet the burden of proof, like in this case where allegedly the homeowner had not only constructive but actual knowledge of why mailboxes aren’t to be fortified?

Postal Service Guidelines

How do we analyze the postal regulations, asked Justice Brunner?  It was not only not size and buried too deeply but it was too close to the road, according to the postal regulations. How does that play into this? Wouldn’t those postal guidelines be relevant evidence for a jury to consider?

Natural versus Manmade Hazards

Would it be different if instead of a mailbox this was a big oak tree the landowner maintained, asked Justice DeWine? What if the landowner planted the oak tree? What if it was a farmer who had a fence?

 Utility polls are not allowed in the right-of-way, are they, asked Chief Justice O’Connor?

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a split decision. Mr. Leak, for the Burrs has a strong “no duty” argument and really stayed relentlessly on message that there is no duty with respect to off road hazards that do not interfere with the ordinary and usual course of travel. Justice DeWine seemed to be with him, and I suspect so are Justices Kennedy and Fischer.

As a retired torts professor Mr. Leak totally lost me when he argued that foreseeability does not equate to duty, nor has it ever been the lynchpin of establishing duty. I agree with Ms. St. John, for the Snays, that foreseeability is certainly a lynchpin in the duty analysis, along with public policy determinations.  I think Justices Donnelly and Brunner were with her, with the Chief leaning her way. They would not see summary judgment as appropriate here.  Justice Stewart asked no questions.

As for the postal guidelines, first there has to be a duty before they come into play, and then I think they are relevant evidence of culpable conduct, much like administrative regulations are.

To Student Contributor Liam McMillin

Once Kathleen St. John got her mic to unmute, she laid out a clear, steady argument on behalf of the Snays. She weathered Justice DeWine’s Socratic Method, but seemed stuck between wanting to draw a bright line rule and having this case decided on the particular facts. The crux of her argument was that the analysis should hinge on foreseeability because when Burr erected the mailbox, he was acting affirmatively. Justice DeWine seemed less inclined to draw a bright line from foreseeability to duty in cases like these, and Justice Donnelly appeared content to decide the case solely on the factual basis. As Ms. St. John clarified, the proposition of law was purposefully drafted narrowly to keep this particular case viewed in an individual light.

Doug Leak, on behalf of the Burrs, much preferred the court to look at the case more broadly. He rarely addressed the specifics of the case at hand, and instead spoke in broad textbook terms. For Mr. Leak, the case rests on who duty is owed to, and by his contention, duty with respect to off-road hazards is owed only to motorists in the ordinary and usual course of travel. The strangest moment of the argument was Mr. Leak’s argument that “any mailbox” would fail the purported standard requested by Snay, because of the risk to bicyclists and motorcyclists. Chief Justice O’Connor was visibly confused by this analogy, as was I. It seemed a ploy to get the court to treat Ms. St. John’s ask as a broad request.

I think the decision will depend on the scope: if the court finds that Snay is requesting a new bright line rule, they will side with Burr. If the case is decided on the specifics of the facts at hand, I think they will go with Snay. The difficult question is whether Snay’s proposition of law is narrow enough, and I am not convinced that it is to bring in enough of the justices. Justices Donnelly and Brunner would both be happy to decide this on the facts in favor of Snay, and I would bet that Justice DeWine could be convinced to shy away from creating a new rule, but the Chief may lead the charge to look at the question more broadly. In the end, I think Snay wins on the specific facts.