2020 Ohio 3961
Ohio Ct. App.2020Background
- On October 4, 2016, Kyriakos Georgantonis, working on a scissor lift parked on a Reading, Ohio sidewalk, was injured when a city-installed electric service-box cover fractured and the lift toppled.
- Plaintiffs (Georgantonis family members) sued the City of Reading for negligence and named product-defendant suppliers for the service box.
- The city moved for judgment on the pleadings under Civ.R. 12(C), asserting political-subdivision immunity under R.C. Chapter 2744; plaintiffs sought partial summary judgment on liability and opposed immunity.
- The trial court granted judgment on the pleadings for the city, concluding the alleged conduct implicated governmental functions (sidewalk maintenance and/or street lighting).
- Plaintiffs appealed, arguing the city performed proprietary functions (street-light utility) and thus R.C. 2744.02(B)(2) liability applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the alleged negligence concerns a governmental function (sidewalk maintenance) or a proprietary function | Injury resulted from a fractured service-box cover that is part of a street-light utility; thus the activity is proprietary | The cover was part of the sidewalk surface; maintenance/repair of sidewalks is an enumerated governmental function | Held governmental: allegations concerned the sidewalk surface and implicated sidewalk maintenance immunity |
| Whether R.C. 2744.02(B)(2) (liability for negligent performance of proprietary functions) applies | City established and maintained a street-light system (a utility), triggering the proprietary-function exception | Street lighting and sidewalk maintenance are governmental functions; exception does not apply | Exception does not apply; immunity stands |
| Whether street lighting is a proprietary ‘‘utility’’ under R.C. 2744.01(G)(2)(c) | Street lighting is a utility and falls within the statute’s list of utility-related proprietary functions | The statute’s listed utilities contemplate utility plants/operations; mere provision of street lights does not equal establishing/operating a utility | Held not a proprietary utility as pleaded; mere allegation that system is a utility is an unsupported legal conclusion |
| Whether street lighting is a proprietary function under R.C. 2744.01(G)(1) (not listed as governmental and customarily done by nongovernmental persons) | Private entities commonly provide lighting; street lighting is customarily performed by nongovernmental actors | Street lighting serves the common good and promotes public safety and is not customarily provided by nongovernmental persons on public streets | Held governmental: street lighting serves the common good and is not customarily engaged in by nongovernmental persons on public streets |
Key Cases Cited
- Cristino v. Bur. of Workers' Comp., 977 N.E.2d 742 (10th Dist. 2012) (affirmative defenses like immunity may justify dismissal only if pleadings conclusively show the defense)
- Scott v. Columbus Dept. of Pub. Util., 192 Ohio App.3d 465 (10th Dist. 2011) (distinguishing sidewalk-cover defects from defects in underlying sewer support—complaint alleging underlying-system maintenance can implicate proprietary functions)
- Fedarko v. Cleveland, 12 N.E.3d 1254 (8th Dist. 2014) (distinguishing cases where plaintiff fell through a cover into the underground system)
- Greene Cty. Agricultural Soc. v. Liming, 733 N.E.2d 1141 (Ohio 2000) (function that benefits only some citizens may be non-statewide; used for comparators on what serves the common good)
- McCloud v. Nimmer, 595 N.E.2d 492 (Ohio App. 1992) (contracting out a governmental function does not convert it into a proprietary function)
- Cleveland v. Pub. Util. Comm. of Ohio, 424 N.E.2d 561 (Ohio 1981) (examples of private companies providing street-lighting services to municipalities; does not make street lighting a private/customary activity)