Ohio Bell Tel. Co. v. Cleveland
2013 Ohio 270
Ohio Ct. App.2013Background
- Ohio Bell filed suit against the City of Cleveland for damage to underground facilities and nearby flood loss stemming from a water main leak on Pearl Road (June 1, 2009).
- City moved for summary judgment claiming sovereign immunity under R.C. 2744.03(A)(5); trial court denied the motion.
- Ohio Bell alleged negligent repair practices, including failure to maintain clearance and protect markings near underground facilities, plus wanton/reckless conduct.
- Record evidence included City water division affidavits, USIC locator affidavits, and Ohio Bell personnel affidavits showing drilling near marked utilities and damage to conduits.
- The trial court concluded immunity did not apply; issues remained as to negligence and causation.
- The appeals court affirmed denial of summary judgment, holding genuine issues of material fact exist regarding reckless/wanton conduct and causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2744.03(A)(5) immunity applies | Ohio Bell argues City’s decisions were discretionary but not protected. | City contends discretionary judgments shield it from liability. | Immunity does not bar liability; genuine issues remain. |
| Whether City’s conduct was wanton or reckless | Ohio Bell asserts actions near utilities and before marking showed wanton disregard. | City argues decisions were routine and not reckless. | Genuine issues of material fact on wanton/reckless conduct exist. |
| Whether there is a causal link between City’s conduct and Ohio Bell’s damages | Record supports causation between drilling and damage to conduits. | Immunity or independent actions may preclude liability. | Issues of causation material; summary judgment not appropriate. |
Key Cases Cited
- Perkins v. Norwood City Schools, 85 Ohio St.3d 191 (Ohio Supreme Court 1999) (reliance on discretion limits under immunity)
- Elston v. Howland Local Schools, 113 Ohio St.3d 314 (Ohio Supreme Court 2007) (distinguishes discretionary policy decisions from routine acts)
- FirstEnergy Corp. v. Cleveland, 182 Ohio App.3d 357 (8th Dist. 2009) (routine maintenance vs. discretionary acts; immunity not guaranteed)
- McVey v. Cincinnati, 109 Ohio App.3d 159 (1st Dist. 1995) (immunity limited to broad policy discretion; implementation negligence can be liable)
- Seiler v. Norwalk, 2011-Ohio-548 (6th Dist. 2011) (negligence despite discretion; limitations of immunity in execution)
- Hawkins v. Ivy, 50 Ohio St.2d 114 (Syllabus 1977) (recklessness defined as conscious disregard of risk)
- O'Toole v. Denihan, 118 Ohio St.3d 374 (Ohio Supreme Court 2008) (establishes thresholds for knowing risk in recklessness context)