2021 Ohio 3817
Ohio Ct. App.2021Background
- Riveredge Dentistry owns a building adjacent and downhill from the City of Cleveland’s Kamms Municipal Parking Lot. Storm-water retention basins were constructed on the city’s lot and allegedly caused repeated flooding to Riveredge’s property in 2019.
- The Northeast Ohio Regional Sewer District (NEORSD) awarded a Green Infrastructure grant to the City (not a special assessment) and required design review/approval as part of the grant Agreement; the Agreement expressly left operation and maintenance responsibility with the City and disclaimed any joint venture/agency.
- The City contracted Cook Paving & Construction Co. (CPCC) to build the basins. Riveredge sued the City and CPCC, then amended to add NEORSD, alleging NEORSD negligently approved/placed/operated basins that diverted stormwater onto Riveredge’s property.
- NEORSD moved to dismiss under Civ.R. 12(B)(6), arguing it only funded/approved the project under the grant program, did not design/construct/operate the basins, and is immune under R.C. Chapter 2744.
- The trial court granted dismissal as to NEORSD; the court of appeals affirmed, holding Riveredge alleged design/construction defects (a governmental function) rather than negligent operation/upkeep of NEORSD’s sewer system and that no statutory exceptions to immunity applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Riveredge pleaded a plausible negligence claim against NEORSD | NEORSD approved plans, placement, funded the project, and retained control over operation — thus negligently diverted stormwater | NEORSD only granted funds and reviewed designs; City designed, built, operates and maintains basins; NEORSD did not act jointly or operate the basins | Dismissal affirmed — complaint fails to state a viable negligence claim against NEORSD |
| Whether R.C. 2744.02(B)(2) (proprietary-function exception) applies | The basins function as part of NEORSD’s sewer system (operation/upkeep), so immunity exception applies | The allegations implicate design/construction (governmental), not maintenance/operation; NEORSD not responsible for upkeep | Exception does not apply; alleged harms stem from design/construction, so immunity remains |
| Whether R.C. 2744.02(B)(5) via R.C. 6119.50 imposes liability | R.C. 6119.50 (filing damage claims) creates an express liability exception | Project was grant-funded, not funded by special assessment contemplated by R.C. 6119.50; statute does not apply | R.C. 6119.50 inapplicable because funding was by grant, not special assessment |
| Whether immunity bars injunctive/declaratory relief against NEORSD | Immunity does not bar equitable relief; injunctive relief should be available | NEORSD lacks control/authority over city property/basins and cannot provide the requested equitable relief | Even though immunity may not bar equity claims in theory, NEORSD cannot provide the injunction Riveredge seeks; injunctive relief against NEORSD denied |
Key Cases Cited
- Menifee v. Ohio Welding Prods., 15 Ohio St.3d 75 (elements of negligence)
- Colbert v. Cleveland, 99 Ohio St.3d 215 (sets out three-tier R.C. 2744 immunity analysis)
- O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (standard for Civ.R. 12(B)(6) dismissal)
- Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79 (de novo review of Civ.R. 12(B)(6))
- Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250 (sewer maintenance can create liability)
- Fahnbulleh v. Strahan, 73 Ohio St.3d 666 (accept allegations in complaint as true for motion to dismiss)
- Sternberg v. Board of Trustees, 37 Ohio St.2d 115 (injunctions are extraordinary equitable relief)