Barbara E. Glover et al., Plaintiffs-Appellees, v. City of Columbus, Defendant-Appellant.
No. 17AP-332 (C.P.C. No. 16CV-4428)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 27, 2018
2018-Ohio-4743
HORTON, J.
(REGULAR CALENDAR)
Rendered on November 27, 2018
On brief: Walton + Brown, LLP, Chanda L. Brown, and Sean L. Walton, for appellees. Argued: Chanda L. Brown.
On brief: Zach Klein, City Attorney, Janet R. Hill Arbogast, and Sarah L. Harrell, for appellant. Argued: Janet R. Hill Arbogast.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, the City of Columbus (“city“), appeals a judgment of the Franklin County Court of Common Pleas that denied the city‘s motion for summary judgment. The city argued that it was entitled to immunity pursuant to
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} For purposes of this appeal, the following are the relevant facts and procedural history. The city began a capital improvements project, the Johnstown Road Area Waterline Improvements Project (“the project“), in appellees’ neighborhood in February 2014. Defendant Darby Creek Excavating, Inc. (“Darby Creek“) was awarded work as the general contractor and began work on March 13, 2014. The project included
{¶ 3} Plaintiffs-appellees, Barbara Glover and her husband Harold Glover, filed this lawsuit on May 6, 2016, naming the city and Darby Creek as defendants. The complaint alleges that Barbara Glover was injured in a trip and fall on February 18, 2015, while taking out the trash and walking on the street outside her home located at 644 Northview Boulevard in Columbus, Ohio. The complaint asserts that she tripped and fell “in a huge pot-hole/pit that was partially filled with gravel and covered in snow.” (Compl. at ¶ 7.) Appellees allege that the “pit and gravel had been created as a result of maintenance work being done on the sewage system near [their] home by * * * the City [and] Darby Creek.” (Compl. at ¶ 10.)
{¶ 4} On March 13, 2017, Darby Creek filed a motion for summary judgment arguing that “[n]o evidence exists that [it] breached any duty owed to Plaintiffs, or that any breach was a proximate cause of Plaintiffs’ injuries.” (Def. Darby Creek‘s Mot. at 4.) On the same date, the city filed a motion for summary judgment based on (1) its entitlement to immunity from appellees’ claims pursuant to
{¶ 5} The trial court issued a journal entry on April 14, 2017, which, (1) granted Darby Creek‘s motion for summary judgment, and (2) denied the city‘s motion for summary judgment on appellees’ claims. In regard to Darby Creek, the trial court found that:
Plaintiffs have not offered any Rule 56 evidence showing the existence of a hole made by Darby Creek while they had constructive possession of the street and adjacent property that could be found to have proximately caused Ms. Glover‘s fall.
Darby Creek did not breach any duty owed to plaintiffs, nor did its actions or omissions proximately cause Ms. Glover to fall on February 18, 2015. Accordingly, Defendant Darby Creek‘s motion is GRANTED. It is DISMISSED from this lawsuit.
(Emphasis sic.) Id. at 6.
{¶ 6} In regard to the city, the trial court stated the law in this area and found that:
“The determination as to whether a political subdivision is immune from suit is purely a question of law properly determined by a court prior to trial and preferable on a motion for summary judgment.” Martin v. City of Gahanna, 10th Dist. No. 06AP-1175, 2007-Ohio-2651, 2007 Ohio App. LEXIS 2449, ¶ 9 (quoting Summerville v. Columbus, 10th Dist. No. 04AP-1288, 2005-Ohio-5158, ¶ 12). “In reviewing a claim of political subdivision liability,
R.C. 2744.02(A)(1) directs [the court] to begin with a presumption of immunity.R.C. 2744.02(A)(1) sets forth the general rule that a ‘political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act of omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.’ The plaintiff must then present evidence that one or more of the exceptions to immunity set forth inR.C. 2744.02(B) apply. In order for certain of the exceptions to apply, the court must determine whether the case involves a governmental or a proprietary function. If any of the exceptions are found to apply, the political subdivision may assert an affirmative defense set forth inR.C. 2744.03(A) .” Martin at ¶ 14.The City argues that
R.C. 2744.01(C)(2)(l) applies, and this is a “governmental function,” making it immune. That subsection states that “[t]he provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system” is a “governmental function.” Plaintiffs contend thatR.C. 2744.01(G)(2)(c) applies instead, and this is a “proprietary function,” meaning that the City is not immune. That subsection states that “[t]he establishment, maintenance, and operation of a utility, including, but not limited to, ...a municipal corporation water supply system” is a “proprietary function.”Maintaining water lines is a proprietary function under
R.C. 2744.01(G)(2)(c) . The specific controls over the more general language in the immunity statute. Accordingly, the City of Columbus is not immune.* * *
Questions of fact remain as to whether the City breached a duty owed to plaintiffs and whether that breach proximately caused Ms. Glover‘s fall and subsequent injuries. Accordingly, the City‘s motion is DENIED.
{¶ 7} The city‘s appeal, which was filed on May 5, 2017, is taken pursuant to
II. ASSIGNMENT OF ERROR
{¶ 8} Appellant assigns a single assignment of error for our review:
The trial court erred when it denied the motion for summary judgment filed by the City of Columbus, thereby denying the City the benefit of immunity.
III. DISCUSSION
{¶ 9} When seeking summary judgment on the ground that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party‘s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). A moving party does not discharge this initial burden under
{¶ 10} Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). See Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). “When reviewing a trial court‘s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Bank Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997).
{¶ 11} The only issue before this court is whether or not the city is immune under
{¶ 12} The city argues that
{¶ 13} Appellees argue that the project was a proprietary function because it involved the maintenance and upkeep of a sewer system, and/or the establishment, maintenance and operation of a municipal corporation water supply system. The trial court held that “[m]aintaining water lines is a proprietary function under
{¶ 14} In Repasky, the plaintiff was injured when she and a companion rode a tandem bicycle across an area of road construction. The road construction was part of a project that consisted of water main and storm sewer repair and replacement, as well as road construction and paving. Id. at ¶ 2. The plaintiff rode over a two-foot to four-foot wide cut in the pavement. “The cut resulted from a trench that was previously dug to install a
{¶ 15} Like the appellees in this case, the plaintiff in Repasky argued that the city of Upper Arlington was engaged in a proprietary function since the construction project involved the maintenance and upkeep of a sewer system and the “establishment, maintenance and operation of a municipal corporation water supply system.” Id. at ¶ 12. However, we held that “[t]he replacement of a storm sewer line constitutes the construction or reconstruction of a sewer system, not the maintenance and upkeep of a sewer system nor the maintenance of a water supply system.” Id. at ¶ 13. Consequently, Upper Arlington was engaged in a governmental function and was entitled to immunity. Id. Our application of Repasky to the present case yields the same result.
{¶ 16} Our review shows that the project at issue in this case was not the routine maintenance of water lines or the repair of a water main break. The project involved a decision to completely reconstruct, update, or upgrade its water supply system in appellees’ neighborhood by completely replacing the water mains and lines. The city retained an engineer to produce a detailed design for the project, then solicited bids and awarded the construction contract in the amount of $2,296,930.08 to Darby Creek. The construction project included replacing old water mains under the streets (which necessitated digging trenches in the streets), replacing water lines and water service lines, filling in the trenches, and repaving the streets. The project included replacing approximately 10,650 feet of water lines, replacing water mains under the streets, and replacing water service lines. This capital improvements project took over one year to complete, from February 2014 to April 2015.
{¶ 17} Since the city was involved in the construction or reconstruction of the water supply system, it was engaged in a governmental function and is immune from liability pursuant to
{¶ 18} Other appellate courts have reached the same conclusion as this court in similar cases. “Municipal decisions regarding updating or upgrading, rather than simple
{¶ 19} The application of Repasky to this case is dispositive. The city was involved in a construction project that replaced water mains and connection lines. As with the replacement of a sewer line, the replacement of water mains and lines “constitutes the construction or reconstruction of a [water supply system], not the maintenance and upkeep of a * * * water supply system.” Id. at ¶ 13. Since the city was involved in the construction or reconstruction of the water supply system, it was engaged in a governmental function and is immune from liability pursuant to
IV. DISPOSITION
{¶ 20} For the foregoing reasons, we sustain the city‘s sole assignment of error. We reverse the judgment of the Franklin County Court of Common Pleas and this matter is remanded for further proceedings consistent with this decision.
Judgment reversed; case remanded.
BROWN, P.J. and DORRIAN, J., concur.