Sheperd v. Akron
2012 Ohio 4695
Ohio Ct. App.2012Background
- In March 2007, a water main break on Cordova was reported; the sewer and highway departments were on site and had backfilled the excavation with cold patch.
- The water department reduced flow to the affected pipe and did not shut off water completely; two barricades were placed originally, but it is disputed who placed or maintained them.
- Less than 24 hours later, residents Shepherd and Johnson were injured when their car fell into the excavation; the hole was obscured by water and barricades were absent.
- The City of Akron sought summary judgment claiming immunity under R.C. Chapter 2744; the trial court denied immunity, holding the City liable.
- Key issues centered on whether the City fell within an exception to general immunity for negligent failure to repair (R.C. 2744.02(B)(3)) and whether discretionary-immunity defenses (R.C. 2744.03(A)(3)/(A)(5)) apply.
- The court ultimately held immunity existed for the decision to schedule repairs on Monday, but there remains a genuine issue of material fact regarding failure to barricade the site.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2744.02(B)(3) applies to defeat immunity | Shepherd argues the City negligently failed to keep the road in repair. | City contends no negligent repair failure is proven. | Partial immunity denied; genuine issue as to barricade negligence. |
| Whether 2744.03(A)(3)/(A)(5) discretionary-immunity defenses apply | Appellees contend barricade decisions were non-discretionary and not protected. | City asserts discretionary acts are immune unless malice or wanton conduct shown. | Immunity not established as a matter of law; material facts remain regarding barricades. |
Key Cases Cited
- Lambert v. Clancy, 125 Ohio St.3d 231 (2010-Ohio-1483) (three-tier immunity analysis for political subdivisions)
- Nayman v. Kilbane, 1 Ohio St.3d 269 (1982) (appeals as final when immunity denied under 2744.02; Civ.R. 56 standards)
- Hubbell v. Xenia, 115 Ohio St.3d 77 (2007-Ohio-4839) (final, appealable order when immunity is denied under 2744.02)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (summary-judgment standard; burden-shifting framework)