Calet v. E. Ohio Gas Co.
83 N.E.3d 218
Ohio Ct. App.2017Background
- On Aug. 25, 2012, plaintiff June Calet tripped and severely injured her wrist and back when her foot fell into a six-inch, uncovered PVC hole (a water curb box) in the tree lawn while moving from the street to the sidewalk during a run on Brown St., Akron.
- Calet sued East Ohio Gas Co. and later amended to name the City of Akron for negligent maintenance; the City cross-defended and asserted political-subdivision immunity.
- The City moved for summary judgment arguing it was immune under R.C. 2744.02(A) and, alternatively, that sidewalks (not public roads) and lack of notice defeated liability; it also asserted discretionary-function defenses under R.C. 2744.03.
- The trial court denied the City’s motion, concluding evidence could support that the hazard was an access component of the City’s water distribution system (a proprietary function) and that the City may have had notice.
- On appeal the sole issue was whether the City was entitled to immunity as a political subdivision or whether the proprietary-function exception (R.C. 2744.02(B)(2)) applied, restoring liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City is immune as a political subdivision under R.C. 2744.02(A) | Calet: hole was part of water system maintenance (proprietary), so exception applies and City is liable | City: general immunity applies; hazard was sidewalk condition (not proprietary) so immunity remains | Court: remanded denial of summary judgment affirmed — material facts support proprietary-function exception |
| Whether the defect was a result of proprietary function (water system) vs. sidewalk condition | Calet: evidence (photos, supervisor testimony, PVC curb box) shows hole was a water curb box installed/maintained by City | City: the dangerous condition was the sidewalk/tree lawn, not a water-utility component | Court: evidence permits reasonable inference hazard was a water distribution access box (proprietary function) |
| Whether City had notice / whether summary judgment appropriate on notice | Calet: City installed the curb box and employees had attended that location previously, so actual/constructive notice is plausible | City: no actual or constructive notice; therefore no liability | Court: factual dispute about notice prevents summary judgment for City |
| Whether discretionary-function defenses under R.C. 2744.03 restore immunity | Calet: claim concerns negligent maintenance of a specific installation, not discretionary policymaking | City: decisions about inspections, resource allocation are discretionary and restore immunity | Court: City failed to identify a specific discretionary act tied to the hazard; defenses do not bar claim at summary judgment |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (standard of review for summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (summary judgment standards under Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party’s burden in summary judgment)
- State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447 (nonmoving party’s reciprocal burden)
- Hill v. Urbana, 79 Ohio St.3d 130 (installation/maintenance of water system is a proprietary function)
- Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28 (proprietary-function exception under R.C. 2744.02(B)(2))
- Friebel v. Visiting Nurse Assn. of Mid-Ohio, 142 Ohio St.3d 425 (summary judgment inappropriate when facts are subject to reasonable dispute)
- Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551 (construction of R.C. 2744.03(A)(5) discretionary defense)
- Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7 (appellate summary judgment review principles)