2018 Ohio 1120
Ohio Ct. App.2018Background
- David and Jamie Deem sued the Village of Pomeroy, village officials, and employee Shannon Spaun after two hillside slides in Oct–Nov 2011 damaged their home; they alleged a leaking village water line and negligent repair efforts caused the slides.
- Plaintiffs alleged: village failed to locate/repair a leaking pipe, broke a water line with a backhoe while attempting repairs, and failed to stabilize or remediate the hill after the first slide, causing a second slide.
- The Village moved for summary judgment asserting statutory immunity under Ohio's Political Subdivision Tort Liability Act (R.C. Chapter 2744), arguing the acts were governmental (flood control) and, alternatively, discretionary (R.C. 2744.03(A)(3) and (A)(5)); Spaun argued individual immunity (R.C. 2744.03(A)(6)).
- Trial court denied summary judgment, finding the Village not immune because the allegations concerned proprietary maintenance/operation of a municipal water supply system and did not involve protected discretion; the court did not rule on Spaun's individual immunity.
- On appeal, the Fourth District affirmed in part, reversed in part, and remanded: it agreed R.C. 2744.02(B)(2) (proprietary-function exception) applied and immunity was not reinstated under R.C. 2744.03(A)(3)/(A)(5), but it vacated the judgment to permit the trial court to decide Spaun's individual immunity under R.C. 2744.03(A)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2744.02(B)(2) (liability for negligent performance of proprietary functions) applies | Deem: claims arise from negligent maintenance/operation of the municipal water system and post-slide remediation (proprietary) | Village: conduct constituted governmental flood-control measures, not proprietary maintenance | Held: Exception applies — allegations concern proprietary water-supply maintenance/operation and a logical nexus to plaintiffs' loss |
| Whether R.C. 2744.03(A)(3) or (A)(5) reinstates immunity (discretionary-policy/planning or discretionary use of resources) | Deem: Village’s actions were routine maintenance/repairs and not discretionary policy/planning | Village: decisions about stabilization, removal of trees, trenches, resource allocation were discretionary policymaking/discipline under (A)(3)/(A)(5) | Held: Immunity not reinstated — appellants failed to show the challenged acts were protected discretionary policymaking or high-order resource-allocation decisions |
| Whether the trial court erred by not deciding Spaun’s individual immunity under R.C. 2744.03(A)(6) | Deem: Spaun’s conduct was reckless/bad-faith or otherwise outside immunity exceptions | Spaun: entitled to individual immunity unless acts were manifestly outside duties or done with malicious purpose/bad faith/wanton/reckless | Held: Appellate court declined to decide for first time on appeal; remanded for trial court to determine Spaun’s individual immunity under R.C. 2744.03(A)(6) |
Key Cases Cited
- Cater v. Cleveland, 83 Ohio St.3d 24 (Ohio 1998) (sets out three-tiered R.C. 2744 immunity analysis)
- Elston v. Howland Local Schools, 113 Ohio St.3d 314 (Ohio 2007) (discusses R.C. 2744.02 general immunity and exceptions)
- Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351 (Ohio 1994) (employee immunity: negligence insufficient where acts within official duties)
- Smith v. McBride, 130 Ohio St.3d 51 (Ohio 2011) (standard of review for summary judgment; de novo review)