2019 Ohio 3099
Ohio Ct. App.2019Background
- Plaintiff Frank Smith owns Lake Erie–front property in Euclid; an earlier owner granted the City an easement for an overflow sanitary relief sewer that runs through Smith’s lot.
- In 2012 a sinkhole developed behind a retaining wall; City workers found a hole in the sewer pipe and repaired it by patching the pipe and filling the erosion with cement-based "flowable fill."
- In 2016 a second sinkhole developed; Smith alleges the 2012 City repairs caused or failed to prevent later erosion and damage to his breakwall, boathouse, landscaping, and steps.
- Smith sued the City for breach of easement (contract) and negligence/nuisance; the City moved for summary judgment asserting statutory immunity under R.C. Chapter 2744 and that its 2012 repair decisions did not cause the damage.
- The trial court denied summary judgment, finding genuine issues of material fact about (1) whether the City had a duty under the easement to maintain the sewer, and (2) whether the City negligently performed proprietary sewer maintenance and thus is not immune. The City appealed the denial of immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether breach-of-easement claim is subject to immunity under R.C. Chapter 2744 | Smith: the easement creates contractual duties; breach-of-easement is a contract claim not barred by R.C. 2744.09(A) | City: the easement claim is essentially negligence in disguise and should be evaluated for immunity | Court: Breach-of-easement can be treated as a contract claim; R.C. 2744.09(A) removes immunity for contractual claims — appellate court lacks jurisdiction over that claim in this interlocutory appeal |
| Whether the City is immune from tort liability for alleged negligent maintenance of the sewer under R.C. Chapter 2744 | Smith: sewer maintenance is a proprietary function; R.C. 2744.02(B)(2) abrogates broad immunity; the City’s repair may have been negligent | City: repairs (including choice to use flowable fill) were discretionary uses of supplies/resources protected by R.C. 2744.03(A)(5) | Court: sewer maintenance is a proprietary function so the immunity exception applies; but genuine factual disputes exist whether the City exercised ordinary care or merely discretionary judgment — summary judgment on immunity denied |
| Whether the City’s 2012 decision to use flowable fill is protected discretionary conduct under R.C. 2744.03(A)(5) | Smith: City failed to properly prepare a base; experts say flowable fill merely masked the problem — not ordinary care | City: superintendent exercised judgment about materials and methods (flowable fill) and inspected the work; thus the decision is protected | Court: factual disputes about adequacy of the repair and whether the acts were routine/proprietary (non-discretionary) vs. discretionary preclude applying the §2744.03(A)(5) defense at summary judgment |
| Whether summary judgment was appropriate on the negligence/nuisance claim and related immunity defense | Smith: evidence raises genuine issues of causation and care; discovery rule applies | City: established no causal link and asserted immunity; alternative defenses noted | Court: genuine issues of material fact exist regarding causation, duty, and immunity; summary judgment properly denied |
Key Cases Cited
- Riscatti v. Prime Props. Ltd. P’ship, 137 Ohio St.3d 123, 998 N.E.2d 437 (2013) (clarifies limits of interlocutory appeals from denial of political-subdivision immunity)
- Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 696 N.E.2d 201 (1998) (summary-judgment standard under Civ.R. 56)
- Greene Cty. Agric. Soc. v. Liming, 89 Ohio St.3d 551, 733 N.E.2d 1141 (2000) (three-tier R.C. 2744 immunity analysis)
- Colbert v. Cleveland, 99 Ohio St.3d 215, 790 N.E.2d 781 (2003) (describes immunity framework for political subdivisions)
- Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250, 148 N.E. 846 (1925) (municipalities that construct/maintain sewers have duty to keep them in repair like private persons)
- Doud v. Cincinnati, 152 Ohio St. 132, 87 N.E.2d 243 (1949) (municipal liability for failure to keep sewers free from conditions causing private-property damage)