2019 Ohio 3465
Ohio Ct. App.2019Background
- TWC contracted with the city of Westerville to install underground cable/conduit; TWC hired Stat Communications to perform directional drilling near Spring Creek Drive in October 2015.
- Appellant Chang owns property nearby (125 Gibson Place); on October 28, 2015 his tenant reported a sewage-flooded basement.
- A private plumber and the city found a blocked sanitary lateral at the rear/side of 99 Gibson Place; repair work uncovered broken clay pipe, conduit crossing the trench area, and loose soil.
- Chang sued TWC, Stat, and the city alleging the excavation occurred in the wrong place, violated the city permit, violated R.C. 3781.30 (excavator duties), and committed negligence, seeking damages for repairs and cleanup.
- The trial court granted the city’s judgment on the pleadings and later granted TWC’s and Stat’s Civ.R. 12(C) motion, concluding Chang lacked privity/third‑party beneficiary status under the permit, R.C. 3781.30 does not create a private cause of action or impose the locating duty on the excavator as alleged, and Chang failed to plead facts establishing duty or causation for negligence.
- Chang appealed pro se without proper assignments of error; the appellate court affirmed, addressing the principal arguments on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 3781.30 creates a private right of action and was violated by Stat | Stat violated excavation duties in R.C. 3781.30 (clearance, monitoring, careful excavation, damage reporting) causing the sewer damage | Stat argued plaintiff alleged only statutory boilerplate, R.C. 3781.30 sets a standard of care but provides no private cause of action and does not assign line‑locating duty to excavator | Court: complaint lacks specific factual allegations; R.C. 3781.30 does not create a private right of action as pleaded and does not impose the locating duty as alleged; affirmed |
| Whether Chang can sue to enforce terms of the city permit (contract) | Chang claimed excavation violated the city permit and restoration obligations, entitling him to relief | Defendants argued the permit is a contract between city and TWC; Chang was not a party nor an intended third‑party beneficiary so he lacks privity | Court: Chang not in privity and not an intended third‑party beneficiary; cannot recover under the permit; affirmed |
| Negligence claim: duty, causation, and damages | Chang alleged negligence based on defendants’ excavation activities causing the broken sewer and basement flooding | Defendants argued Chang failed to plead facts establishing a duty owed to him, or factual causation linking their work to the damage (mere proximity insufficient) | Court: Complaint failed to allege duty or specific causal facts; speculative allegations insufficient; negligence claim fails; affirmed |
| Appellate procedural compliance | Chang proceeded pro se and filed a brief without assignments of error | Defendants (and court) noted appellate rules require assignments of error; failure permits dismissal or summary affirmance | Court: Although pro se, Chang is held to same standards; failure to include assignments of error justified affirmance, but court addressed merits briefly and affirmed |
Key Cases Cited
- Sabouri v. Ohio Dept. of Job & Family Servs., 145 Ohio App.3d 651 (10th Dist. 2001) (pro se litigants are held to same rules and standards as represented parties)
- State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352 (2003) (same appellate procedural standards for pro se litigants)
- Grant Thornton v. Windsor House, Inc., 57 Ohio St.3d 158 (1991) (only parties or intended third‑party beneficiaries may sue on a contract)
- Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75 (1984) (elements required for negligence cause of action)
- Ohio Edison Co. v. Wartko Constr., 103 Ohio App.3d 177 (11th Dist. 1995) (excavator who notifies OUPS fulfills duty to inform itself of approximate utility locations)