Bauer v. Brunswick, 2011 Ohio 4877

Bauer built a house in Brunswick in 1973; the neighborhood has a surface water retention system (swales, culverts, ditches) rather than a full sanitary sewer, in place since 1975.
His basement flooded in 1976, 1987, 1997, and again in December 2004; after 2004, Bauer had maintenance done on the downspout/sump pump connection and reported to the City that surface water backing up might cause flooding.
Bauer filed suit in Medina County, alleging negligence (failure to upgrade the sewer system), continuing trespass, and sought mandamus to compel property appropriation; the trial court granted summary judgment for the City.
The City argued it was immune under R.C. 2744.02(A) because upgrading a sewer system is a governmental function, with no applicable exception.
The trial court’s decision relied on the characterization that upgrading the sewer system is a governmental function, not a proprietary duty, and thus immune from liability.
Bauer also argued the mandamus claim was timely; the court held the claim was time-barred under R.C. 2305.07 or 2305.09(E), depending on the theory, but in any case timely filing did not defeat immunity.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether upgrading a sewer system is a governmental function	Bauer argues the City’s duty is proprietary, not governmental.	City contends upgrading is a governmental function and thus immune.	Upgrading a sewer system is a governmental function; immunity applies.
Whether there are genuine facts creating liability for failure to upgrade	Bauer contends there are fact issues about neglect to upgrade.	City asserts no liability absent a concrete exception.	No liability because governmental function immunity applies and no exception present.
Whether any exception under R.C. 2744.02(B) applies to defeat immunity	Bauer asserts an exception applies due to negligent proprietary duties.	City argues no applicable exception exists for this case.	No R.C. 2744.02(B) exception applies; immunity stands.
Whether Bauer’s mandamus claim was timely	Bauer argues discovery of fault in 2005 makes the claim timely.	City notes accrual upon discovery and that Bauer had suspicions as early as 1987; timely filing fails.	Mandamus claim time-barred; discovery rule and filing date foreclose relief.

Essman v. Portsmouth, 127 Ohio St.3d 1544 (2011-Ohio-647) (upgrade involves governmental function; proprietary duty not implicated)
Ivory v. Austintown Twp., 2011-Ohio-3171 (2011-Ohio-3171) (sewer system upgrade analyzed as governmental function)