Wanamaker v. Bucyrus
2012 Ohio 5232
Ohio Ct. App.2012Background
- 2009–2010 city highway reconstruction project (Downtown Street & Storm Sewer); APC prime contractor for the project in Bucyrus, affecting Wanamaker’s building on Sandusky Street.
- June 9, 2010: APC backhoe damaged Wanamaker basement wall; four foundation blocks misaligned; water leakage and musty odor resulted, showroom window damaged from hammering.
- Sept. 24, 2010: Wanamakers sued City and APC for damage; alleged improper equipment use, negligent hiring/retention, health impacts from wall seepage; sought punitive and compensatory damages.
- Discovery revealed Wanamaker basement wall protruded into public right of way beneath sidewalk.
- Feb. 29, 2012: City and APC separately moved for summary judgment; City argued immunity and wall encroachment; APC argued entity/agency relationship with City; trial court denied both motions (summary judgments).
- Trial court rulings led to two appeals: reversal as to 3-12-02 (City) and affirmation as to 3-12-03 (APC) on certain grounds; appellate consolidated for opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City is entitled to governmental immunity under RC 2744. | Wanamakers contend immunity exceptions apply due to proprietary function. | City argues immunity under RC 2744.02(A)(1) applies; wall encroachment does not remove immunity. | City entitled to immunity; immunity not defeated by asserted exceptions. |
| Whether APC is entitled to immunity as an agent of the City. | APC claims City controlled the project, making APC an employee for immunity purposes. | City did not clearly direct or participate in the specific sidewalk removal; status as independent contractor remains disputed. | Genuine issues of material fact exist regarding City–APC relationship; summary judgment inappropriate for APC. |
Key Cases Cited
- Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988) (burdens in summary-judgment procedure)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (party seeking summary judgment must show no genuine issue of material fact)
- Conley–Slowinski v. Superior Spinning & Stamping Co., 128 Ohio App.3d 360 (1998) (de novo review of summary-judgment grant)
- Hortman v. City of Miamisburg, 110 Ohio St.3d 194 (2006) (three-tier immunity analysis under 2744.02; exceptions apply or not)
- Cater v. Cleveland, 83 Ohio St.3d 24 (1998) (construction of governmental vs. proprietary immunity)