KYRIAKOS GEORGANTONIS, et al. v. CITY OF READING, OHIO, et al.
APPEAL NO. C-190615
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
August 5, 2020
2020-Ohio-3961
MYERS, Presiding Judge; BERGERON and CROUSE, JJ., concur.
Civil Appeal From: Hamilton County Court of Common Pleas; TRIAL NO. A-1805317; Judgment Appealed From Is: Affirmed
KYRIAKOS GEORGANTONIS, : APPEAL NO. C-190615
TRIAL NO. A-1805317
DIAMANTO GEORGANTONIS, :
ELENI GEORGANTONIS, : OPINION.
PANAGIOTIS GEORGANTONIS, :
and :
YIANNI GEORGANTONIS, :
Plaintiffs-Appellants, :
vs. :
:
CITY OF READING, OHIO, :
Defendant-Appellee, :
and :
HUBBELL, INC., :
HUBBELL LENOIR CITY, INC., :
SHELL OIL COMPANY, :
STRONGWELL CORPORATION, :
LONE STAR INDUSTRIES, INC., :
RICHARDS ELECTRIC SUPPLY CO., INC., :
and :
JOHN OR JANE DOES, :
Defendants. :
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 5, 2020
Flagel & Papakirk LLC, James Papakirk and Gregory E. Hull, for Plaintiffs-Appellants,
Schroeder, Maundrel, Barbiere & Powers, Lawrence E. Barbiere and Katherine L. Barbiere, for Defendant-Appellee.
{1} Kyriakos Georgantonis, Diamanto Georgantonis, Eleni Georgantonis, Panagiotis Georgantonis, and Yianni Georgantonis (“the plaintiffs“) appeal the decision of the trial court granting a
I. Factual and Procedural Background
{2} On October 4, 2016, Kyriakos Georgantonis, an employee of the Pastrimas Painting Company, was painting the side of a building on West Benson Street in Reading, Ohio. Georgantonis was working from the platform of a scissor lift raised to a height of approximately 20 feet, which he had moved into place on the sidewalk in front of the building.
{3} When Georgantonis parked the scissor lift, one of the tires of the scissor lift was positioned on top of the cover of an electric service box that had been installed by the city. As Georgantonis was working, the cover of the service box fractured, causing the scissor lift to topple over and crash onto the sidewalk and causing Georgantonis to fall to the sidewalk and sustain injuries.
{4} The plaintiffs filed a complaint and an amended complaint, alleging negligence claims against the city, and products-liability claims against companies involved in the manufacturing and/or supply of the service box.
{5} The city moved for judgment on the pleadings. The city argued that it was entitled to immunity on the plaintiffs’ claims because their allegations of negligence concerned the maintenance and repair of a public sidewalk, which is a governmental function. The plaintiffs opposed the city‘s motion, arguing that the installation, inspection and maintenance of the service box were proprietary
{6} The trial court determined that the city was entitled to immunity because the maintenance of the city‘s sidewalk was a governmental function, and that even if the amended complaint alleged injury in connection with the city‘s street-light system, the provision of street lights is a governmental function. The court granted judgment on the pleadings in favor of the city and overruled the plaintiffs’ motion for partial summary judgment. The plaintiffs now appeal.
{7} In a single assignment of error, the plaintiffs argue that the trial court erred in granting judgment on the pleadings in favor of the city and in denying partial summary judgment in their favor on the issue of governmental immunity
II. Motion for Judgment on the Pleadings
{8} Dismissal on a
{9} A trial court may grant a motion for judgment on the pleadings on the basis of an affirmative defense such as immunity where the complaint bears conclusive evidence that the action is barred by the defense. Id. at ¶ 15. A court may not grant a motion for judgment on the pleadings unless the pleadings “obviously or conclusively” establish the affirmative defense. Id.; Cristino v. Bur. of Workers’ Comp., 2012-Ohio-4420, 977 N.E.2d 742, ¶ 21 (10th Dist).
A. Three-Tiered Analysis
{10}
{11} The parties do not dispute that the city was entitled to an initial grant of immunity under
1. Governmental Function
{12}
“Governmental function” means a function of a political subdivision that is specified in division (C)(2) of this section or that satisfies any of the following:
(a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement;
(b) A function that is for the common good of all citizens of the state;
(c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function.
(Emphasis added.)
2. Proprietary Function
{13}
“Proprietary function” means a function of a political subdivision that is specified in division (G)(2) of this section or that satisfies both of the following:
(a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section;
(b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.
(Emphasis added.)
B. Sidewalk Maintenance
{14} The city claims that the allegations of the amended complaint establish that any negligence was a result of its engaging in a governmental function, sidewalk maintenance. Therefore, it claims immunity as a matter of law.
{15} In Burns v. City of Upper Arlington, 10th Dist. Franklin No. 06AP-680, 2007-Ohio-797, the plaintiff was injured as she stepped onto a manhole cover set in the sidewalk that led into the city‘s sewer system. Burns at ¶ 12. The Tenth District held that the city of Upper Arlington was engaged in a governmental function because the manhole cover was part of the sidewalk. Id. at ¶ 16. The court concluded that the city was entitled to immunity because “the conduct about which [plaintiff] complains was the maintenance of a sidewalk, and not the maintenance of a sewer.” Id. at ¶ 15. The court stated:
Although the manhole cover * * * was intended to provide access to the sewer system, it was not, in and of itself, a part of that system. It was, instead, intended to form part of the walkway for pedestrian traffic to use, and was therefore part of the sidewalk.
{16} In Evans v. Cincinnati, 1st Dist. Hamilton No. C-120726, 2013-Ohio-2063, the plaintiff tripped on a broken-off signpost located on a city sidewalk. Id. at ¶ 1. The plaintiff asserted that sign maintenance was a proprietary function because signs on streets are customarily maintained by private persons. Id. at ¶ 11. This court rejected the plaintiff‘s argument, pointing out that
{17} Here, the allegations in the plaintiffs’ amended complaint related to a defect in the sidewalk surface, rather than a defect in the street-light system contained within the service box below the sidewalk. The plaintiffs alleged that the cover of the service box was flush with the surface of the sidewalk, that the cover was designed for use in “paved pedestrian areas, such as sidewalks,” and that, when the scissor lift was parked on the sidewalk, one of its tires was parked on the cover of the service box when the cover fractured, causing the scissor lift to topple onto the sidewalk. As in Evans and Burns, the conduct about which the plaintiffs complain implicates the city‘s responsibilities in connection with sidewalks. See Evans at ¶ 10; Burns at 15.
{18} The plaintiffs direct us to Scott v. Columbus Dept. of Pub. Util., 192 Ohio App.3d 465, 2011-Ohio-677, 949 N.E.2d 552 (10th Dist.), where the Tenth District reversed the trial court‘s
{19} The plaintiffs cite two cases, Martin v. Gahanna, 10th Dist. Franklin No. 06AP-1175, 2007-Ohio-2651, and Parker v. Distel Const., Inc., 4th Dist. Jackson No. 10CA18, 2011-Ohio-4727, for the proposition that several courts “have rejected the argument that the alignment of a cover within a sidewalk was somehow part of the sidewalk.” However, neither of the cited cases involved a sidewalk or involved the alignment of a cover, and each case involved a plaintiff who fell through an uncovered entry and encountered the underground system below. In Martin, the plaintiff stepped into an uncovered sewer drain located in the street, and in Parker, the plaintiff fell into an uncovered pit located at the side of a city water meter. In Martin, the court held that the need to inspect and replace missing components for the safe operation of the storm-water system related to the maintenance and upkeep of a sewer system, which is specifically designated a proprietary function. Martin at 17. In Parker, the court held that the lid of the water-meter pit was a safety feature of the underground system that protected the public from falling into holes that led underground and that therefore the lid was part of the maintenance of the water-supply system, again, a specifically designated proprietary function. Parker at ¶ 23.
{20} Here, the plaintiffs complain that Georgantonis was injured when the cover of the service box, which functioned as part of the sidewalk, failed. The allegations relate to the city‘s maintenance of the sidewalk, which is an enumerated governmental function under
C. Street Lighting
{21} Even if the plaintiffs’ allegations could be read to relate to the operation and maintenance of the city‘s street-lighting system, we hold that street lighting is a governmental function under
1. Utility
{22} The plaintiffs argue that street lighting is a proprietary function under
2. Not Customarily Engaged in by Nongovernmental Persons
{23} Next, the plaintiffs argue that street lighting is a proprietary function under
(a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section; [and]
(b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.
(Emphasis added.)
{24} The plaintiffs argue that providing street lighting is customarily engaged in by private entities. The city argues on the other hand that street lighting is not a proprietary function under
{25}
{26} In Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 559, 733 N.E.2d 1141 (2000), cited by the plaintiffs, the Supreme Court of Ohio determined that the conducting of a hog show and investigation into the competition benefitted only some Ohio citizens. See Ryll v. Columbus Fireworks Display Co., Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372, ¶ 24 (fireworks display benefitted only some citizens of the state); Brown v. Lincoln Hts., 195 Ohio App.3d 149, 2011-Ohio-3551, 958 N.E.2d 1280, ¶ 20 (1st Dist.) (village‘s act of sponsoring a festival was for the particular benefit of the village and its current and past inhabitants).
{27} However, where, as here, the function is related specifically to the safety of the public, courts have found the function to be for the common good of all state citizens, as set forth in
{28} With respect to the second prong of
{29} The plaintiffs cite two cases, Cleveland v. Pub. Util. Comm. of Ohio, 67 Ohio St.2d 446, 424 N.E.2d 561 (1981), and Ohio Power Co. v. Village of Attica, 19 Ohio App.2d 89, 250 N.E.2d 111 (3d Dist.1969), for the proposition that private corporations often provide street-lighting services, as nongovernmental actors. However, both cases involve the provision of street lighting by private companies to political subdivisions, and neither addressed whether street lighting is an activity customarily engaged in by nongovernmental persons. See Cleveland at 447-448; Attica at 91. The fact that a political subdivision contracts with a private entity to provide a governmental function does not transform the function into a proprietary one. Lyons at ¶ 46-47; McCloud v. Nimmer, 72 Ohio App.3d 533, 595 N.E.2d 492 (8th Dist.1991). We hold that the provision of street lighting on a public street does not satisfy the second prong set forth in
IV. Conclusion
{31} Whether the allegations in the plaintiffs’ amended complaint relate to sidewalk maintenance or to the operation and maintenance of a street-lighting system, the functions involved are governmental functions. Because no exception applies to remove the city‘s immunity, the trial court did not err in determining that the city was entitled to judgment on the pleadings. Given our holding that the city was immune, we do not reach the plaintiffs’ argument as to the trial court‘s denial of summary judgment in their favor on the issue of liability. We overrule the assignment of error and affirm the trial court‘s judgment.
Judgment affirmed.
MYERS, Presiding Judge.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.