EDWARD GOEBEL, ET AL., PLAINTIFFS-APPELLEES, v. VILLAGE OF MINSTER, DEFENDANT-APPELLANT, -and- HELMS & SONS EXCAVATING, INC. DEFENDANT-APPELLEE.
CASE NO. 2-20-14
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
November 30, 2020
2020-Ohio-5467
SHAW, P.J.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2020 CV 0052 Judgment Affirmed
APPEARANCES:
Jane M. Lynch and Jared A. Wagner for Appellant
Sean R. Alto and Jeffrey T. Kenney for Appellee
{1} Defendant-appellant, Village of Minster (“Minster“), brings this appeal from the June 3, 2020 judgment of the Auglaize County Common Pleas Court denying, in part, its
Background
{2} In early 2019, Minster began soliciting bids from area contractors for a project known as “Northeast Sanitary Sewer/Second Street Sewer Project.”1 (Doc. No. 1). “The project was essentially the reconstruction of Second Street and the sewer systems in that area.” (Id.) Helms & Sons Excavating, Inc. (“Helms“) submitted the lowest bid, and the bids were discussed at a Minster Council meeting on April 2, 2019. At that meeting, the Minster Council expressed concerns about Helms “and the ability to do the work called for in the project based upon negative feedback from other municipalities.” (Id.) Nevertheless, Minster entered into a contract with Helms for the reconstruction of Second Street. Minster also hired
{3} Pursuant to the contract, the work to be performed by Helms “included the installation of storm sewer modifications, water main, sanitary sewer, service laterals, sidewalks, curb and gutter, and installation of a sanitary sewer down a portion of Garfield and Second Streets.” (Id.) Helms began its work on or about April 22, 2019. During the initial construction phase, Helms discovered what was described as an abandoned sewer line on Second Street and Helms reported the discovery to Minster. Thereafter, Minster specifically instructed Helms to remove the abandoned sewer line.
{4} During the removal—or “destruction” as appellees alleged—of the sewer system, Helms created a “trench box” on Second Street to stop water from the canal from interfering with work. Appellees alleged that Helms negligently constructed the trench box.
{5} On May 17, 2019, it rained, causing water in the canal to rise. “The rising water and sediment in the canal entered the pipe that was blocked by the trench box.” (Id.) According to the complaint,
This negligent construction caused water to flood the trench box and the lift station, which in turn caused the lift station pumps to stop working. Once the pumps at the lift station stopped working, sewage from the lift station flooded into the [appellees‘] homes causing substantial damage to the [appellees‘] real and personal
property, as well as the loss of use of their homes for a substantial period of time.
(Id.)
{6} Appellees are a group of individual landowners in Minster who were impacted by the sewage. On April 15, 2020, appellees filed a complaint against Minster and Helms alleging negligence in the destruction of a sewer system pursuant to
{7} Helms filed an answer on May 1, 2020, denying negligence, and asserting that appellees were not third-party beneficiaries and had no privity of contract in this matter. Further, Helms’ answer stated that Helms
located a server line, which was not on the plans and, pursuant to the Contract, properly reported it to [Minster] and otherwise accepted instructions from [Minster] and Choice One Engineering. Such instructions included an instruction to remove said server line because it was dead and abandoned and no longer in use, which turned out to be incorrect.
(Doc. No. 12).2
{8} On May 8, 2020, Minster filed a
{9} On May 26, 2020, appellees filed a memorandum contra to Minster‘s motion to dismiss arguing that pursuant to their allegations and supporting Ohio case authority, Minster was engaged in a proprietary function for which an exception to immunity applied, namely the destruction of a sewer system “which is explicitly identified as a proprietary function under
{11} On June 3, 2020, the trial court filed an entry denying Minster‘s motion to dismiss with regard to the negligence claim, but granting Minster‘s motion to dismiss with regard to the breach of contract claim. The trial court reasoned as follows.
[T]he court finds that the Complaint filed herein sets forth sufficient allegations that [Minster] directed and controlled [Helms] with respect to the destruction of a sewer line which apparently was not on the mapped portion of the sewer system but was found during the construction project that included both sanitary and storm sewers. There are sufficient allegations that [Minster] exercised discretion in dealing with the unexpected location of the additional sewer line that falls within a proprietary function as it chose to directly exercise the discretion in the performance of the contract as to this unexpected sewer line.
The specifics in this case demonstrate that [Minster‘s] action in exercising its proprietary function was not a part of the contract and the “overarching” project. Instead, this was a new, unexpected matter that was decided and acted upon by [Minster] and its officials. The general rule of connecting all laterals and not blocking pre-existing tile was ignored. If Helms * * * would have simply failed to connect existing pipes on its own accord, [Minster‘s] role in the overarching project would have been governmental only, and Helms * * * negligence in the manner it dealt with the unexpected pipe would have been solely its problem.
As it stands based upon the face of the allegations, both the contractor [Helms] and [Minster] played a role in exercising discretion on this sewer line and each might be found negligent upon sufficient proof.
(Doc. No. 25). The trial court concluded that there were sufficient allegations made to negate immunity.
{12} Next, the trial court analyzed whether the allegations, if proven, would establish that Minster‘s actions were reckless and the trial court found that the complaint alleged sufficient facts to warrant, if believed, a conscious disregard or indifference to an obvious risk of harm to property of others.
{13} However, the trial court did find that the appellees’ breach of contract claim was unsupported “as there was no manifestation of any intention to grant [third-party beneficiary] status to the [appellees] or the general public” in the contract between Minster and Helms. (Doc. No. 25). Thus the trial court granted Minster‘s motion to dismiss the appellees’ breach of contract claim only.
{14} Following the denial of its motion to dismiss based on sovereign immunity, Minster filed the instant appeal, seeking review of its immunity claim pursuant to
Assignment of Error No. 1
Whether the factual allegations in the Complaint demonstrate that Minster‘s alleged negligence occurred within the context of a reconstruction project involving the repair and maintenance of a
Assignment of Error No. 2
Whether the removal of a single abandoned sewer line constitutes the destruction of a sewer system within the meaning of
Assignment of Error No. 3
Whether the Village of Minster is entitled to immunity under
{15} As the assignments of error all address the trial court‘s denial of Minster‘s
First, Second, and Third Assignments of Error
{16} In its assignments of error, Minster contends that the trial court erred by denying its motion to dismiss the negligence claims brought by the appellees. More specifically, Minster argues that the actions alleged in this matter were governmental rather than proprietary, for which there was no exception to immunity, that the actions regarding the previously unknown sewer line did not constitute the “destruction” of a sewer line within the meaning of proprietary functions under
Standard of Review
{17} A
Sovereign Immunity Framework
{18} Ohio‘s Political Subdivision Tort Liability Act, which governs political subdivision liability and immunity, is codified in
Analysis
{19} It is undisputed in this case that Minster is a political subdivision. Therefore, pursuant to the first tier of immunity analysis in
{20} Turning to the second tier of the immunity analysis, which concerns potential exceptions to the general grant of immunity, appellees asserted, and the trial court found, that an exception to immunity applied in this situation under
(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
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(2) Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.
{21} Pursuant to the definitions of “proprietary functions” in
{22} However, Minster contends that its actions in this matter were not proprietary as the trial court found, but rather governmental under
[C](2) A “governmental function” includes, but is not limited to, the following:
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(e) The regulation of the use of, and the maintenance and repair of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and public grounds;
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(l) The provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system[.]
{23} Minster contends that pursuant to
{24} Contrary to Minster‘s arguments, when considering the allegations in the complaint in the light most favorable to the appellees, the “destruction” of a sewer line could fall under a proprietary function as defined above in
{25} Here, the allegations were that once the old sewer lines were discovered, Helms went to Minster and asked what should be done. Minster then
{26} Moreover, as appellees argue in their brief, there is some case authority, albeit not exactly on point, that suggests that the actions here dealing with a sewer line could be proprietary rather than governmental, which would fall under the exception listed above in
{27} Based only on the complaint, we agree with the trial court, in our de novo review, that there are sufficient allegations made to negate immunity in this matter when applying all due considerations regarding motions to dismiss. Thus we must proceed to the third tier of the immunity analysis.
{28} Minster argues on appeal that even if we determined that appellees alleged sufficient facts to establish that their injuries were the result of a proprietary function, Minster‘s immunity should be reinstated under
(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
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(5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
{29} Minster contends that the construction of the trench box in this case amounted to the use of a piece of equipment, and that “the decision to utilize and install a trench box constituted the positive exercise of judgment portraying the considered adoption of a particular course of conduct in relation to the removal of the abandoned sewer line.” (Appt.‘s Br. at 15). Minster argues that there were no allegations whatsoever that the construction of the trench box was malicious, in bad faith, wanton, or reckless, therefore Minster was entitled to the reinstatement of immunity.3
{30} Importantly, Minster‘s argument focuses on the construction of the trench box, rather than Minster‘s decision to remove the sewer line itself, seemingly without further inspection as to whether it was providing some utility, or whether its removal might cause issues. At the very least we must presume as much, and make all reasonable inferences that way when construing the
{32} In sum, at this very early stage of the proceeding, we are unable to find that it is “beyond doubt from the complaint that the plaintiff[s] can prove no set of facts entitling [them] to recovery.” O‘Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), at syllabus. This is not a finding that Minster is necessarily liable or even that immunity could not be established later in a summary judgment proceeding if undisputed facts warranted such a finding. But at this stage of the proceeding, given our standard when analyzing a
Conclusion
{33} For the foregoing reasons, Minster‘s assignments of error are overruled and the judgment of the Auglaize County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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