2013 Ohio 5314
Ohio Ct. App.2013Background
- David and Renee Everett sued City of Parma Heights and Cuyahoga County after repeated basement sewage backups at their home (1993, 1994, 1995, 2003, 2007).
- The Everetts repaired their private sanitary lateral and installed a backflow preventer in 2008; no further backups occurred after those repairs.
- The City owns storm sewers; Cuyahoga County maintains sanitary sewers under a 2001 contract and inspects/repairs lines periodically.
- The Everetts alleged negligence, nuisance/trespass, unlawful taking, and breach of third-party contract; on appeal they limited claims to negligence and unlawful taking.
- Plaintiffs’ expert (P.E. Peter Zwick) attributed backups to (1) inflow/infiltration causing surcharging, (2) improper lateral connection to a City manhole, and (3) inadequate lateral slope.
- City/County experts and affidavits countered that the lateral defects were private construction issues, inspections showed sewers in good repair, much inflow/infiltration comes from private property, and County televising/inspection found a sag and illegal downspout tie-in on plaintiffs’ property.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City/County liable for negligence despite governmental immunity | Everett: defendants negligently maintained sewer system causing backups; immunity inapplicable because maintenance is a proprietary function | City/County: sewer planning/construction and remedies (relief sewers, ordinance) are governmental functions; maintenance/operation here was proper; defects stemmed from private lateral | Court: Summary judgment for defendants; plaintiffs failed to show negligence by defendants and asserted remedies fall under governmental functions, so immunity applies |
| Whether plaintiffs presented expert proof of causation to a reasonable engineering probability | Everett: Zwick’s report links backups to system surcharge and manhole/lateral defects | City/County: Zwick attributes some causes to construction or measures requiring new construction (governmental); County/City experts show lateral pitched toward house and illegal downspout tie-in contributing to backups | Court: Plaintiffs’ expert tied causes mainly to private construction defects and governmental-level remedies; plaintiffs failed to prove causation attributable to defendants as proximate cause |
| Whether the asserted negligent acts arose from a proprietary function removing immunity under R.C. 2744.02(B)(2) | Everett: maintenance/operation of sewer is proprietary so immunity exception applies | City/County: proposed fixes (ordinance, relief sewers, reconstruction) are governmental (planning/construction/legislative); evidence shows routine maintenance occurred | Held: Court concluded plaintiffs didn’t show negligence arising from proprietary function; defendants retained immunity |
| Whether defendants effected an unlawful taking requiring appropriation/mandamus relief | Everett: flooding effectively took property; request that City initiate appropriation | City: mandamus petition requirements not met; no basis for appropriation | Held: Mandamus claim dismissed as plaintiffs did not bring action in the name of the State as required by R.C. 2731.04; summary judgment for defendants |
Key Cases Cited
- Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551 (2000) (discusses broad immunity afforded political subdivisions)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (movant’s and nonmovant’s burdens on summary judgment)
- State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190 (1996) (standards for granting summary judgment under Civ.R. 56)
- Baiko v. Mays, 140 Ohio App.3d 1 (1999) (de novo review of summary judgment on appeal)
- N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188 (1997) (appellate review and summary judgment principles)
- Blankenship v. Blackwell, 103 Ohio St.3d 567 (2004) (mandamus must be brought in the name of the State on relation of the applicant)