EDWARD GOEBEL, ET AL., PLAINTIFFS-APPELLANTS, v. VILLAGE OF MINSTER, DEFENDANT-APPELLEE, -and- HELMS & SONS EXCAVATING, INC., DEFENDANT-APPELLANT.
CASE NO. 2-21-19
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
March 21, 2022
2022-Ohio-883
Appeal from Auglaize County Common Pleas Court Trial Court No. 2020-CV-52 Judgment Affirmed
Jonathon N. Bond, Sean Alto and Jeffrey Kenney for Appellants Goebel
James D. Utrecht for Appellant Helms & Sons Excavating, Inc.
Jared A. Wagner for Appellee, Village of Minster
{¶1} Plaintiffs-appellants, Edward and Lisa Goebel, et al. (collectively, “landowners“), and defendants-appellants, Helms & Sons Excavating, Inc. (“Helms“), bring this appeal from the September 8, 2021 judgment of the Auglaize County Common Pleas Court granting summary judgment in favor of defendant-appellee, Village of Minster (“Minster“), on the grounds of sovereign immunity. On appeal, landowners and Helms both contend that Minster was not entitled to sovereign immunity.
Background
{¶2} In early 2019, Minster solicited bids from contractors for the “Northeast Sanitary Sewer Improvements” project, which called for the “reconstruction of Second Street, including the installation of storm sewer modifications, water main, sanitary sewer, service laterals, sidewalks, and curb and gutter. Also installation of sanitary sewer down a portion of Garfield and Third Street.” (Harrod Depo. Ex. H).
{¶3} The project had been contemplated as early as 2015-2016 because Minster was “having some storm water problems backed up into some people‘s homes along South Lincoln Street in the village” and because the village was “anticipating two new subdivisions coming in * * * on the northeast quarter of [Minster].” (Harrod Depo. at 9). Helms reviewed the blueprints for the project,
{¶4} After Helms commenced work on the project, problems began to arise. First, soil conditions were poorer than expected in certain areas. Second, it was discovered that the blueprints for the proposed work were not entirely accurate.1 Upon digging a trench, Helms discovered that the old sewer line was too close to the storm line to fit the new construction between them, which was what the project originally called for. Helms and a representative from Minster discussed the issue and determined that instead of running the new sanitary line between the old lines as the project originally called for, the new sanitary line would be placed over the old line, replacing the old line as the new line was placed. With this change agreed upon, work continued.
{¶5} The next problem occurred on May 16, 2019, as Helms proceeded to the removal of a buried, circular concrete structure also known as a “manhole” or a “wet well.”2 The project called for the removal of the manhole, which, at the time of excavation, was sealed and not in use. The manhole had been put in place sometime around 1994 when Minster‘s older “lift station” was renovated. During
{¶6} Helms began excavating the manhole by removing the top of the structure. With the top of the manhole removed, Helms found two pipes, or “lines,” leading into the manhole. Some testimony indicated that the second line, or pipe, going into the manhole was unexpected while other testimony intimated that the parties were aware of its presence before the top of the manhole was removed.3 Regardless, upon uncovering the second line in the manhole, Helms asked Minster‘s representative if the second line was “live,” i.e. pressurized, and what should be done with the line.
{¶7} Minster‘s representative believed that the line was abandoned—it was capped inside the manhole. All individuals who testified on the issue indicated that they believed the line was abandoned based on Minster‘s representations. Acting under the belief that the line was not pressurized and that it was, in fact, abandoned, Minster instructed Helms to continue its excavation by cutting the second line in the manhole back several feet, and capping it.4
{¶9} A GIS technician for Minster was on site daily during the project and he was present when the sewage was shooting out of the second line into the manhole and the trench. A separate Minster employee was dispatched to the “lift station” to find the valve that stopped the water flow through the line that was previously thought to be abandoned. Within thirty minutes the line was shut down. After the line was shut down, it was cut back and capped by Helms.
{¶10} Meanwhile, Minster hired a company with a vacuum truck to come in and clean out the excavated trench and manhole that had been filled with sewage, concrete, and rubble due to the eruption from the pipe. Notably, the eruption from the pipe “removed earth and stone material[,] * * * [and] undermined the storm sewer * * * by taking all the earth away from it and then the stone from around the bottom of it and the side of it to where it was exposed[.] * * * [Helms] c[ould] see that line now.” (Nichols Depo. at 72).
{¶11} Throughout the evening of May 16, 2019, the individual with the vacuum truck and some Helms employees removed debris from the trench/manhole area. Helms employees on site indicated that the individual using the vacuum truck
{¶12} It was sprinkling rain around 11:30 p.m. when the Helms employees finished at the site for the night. The forecast called for rain but Helms’ employees were not overly concerned about it because “there was no talk of 5 inches of rain in like three hours.” (Musgrave Depo. at 42). Before they left the site, Helms employees had cleared the area so there was an open flowing trench and they sealed the area off so people could not get in. A trench box and steel plates were employed to protect the trench itself.
{¶13} Through all of these issues, including the severed line that was thought to be abandoned and the filling of the trench/manhole, there was no indication that any of the landowners’ homes were flooded.
{¶14} During the early morning hours of May 17, 2019, in the hours after the trench had been cleared, five or more inches of rain fell in the Minster area. The
{¶15} A Minster employee was called at approximately 3:30 a.m. on May 17, 2019, and notified that an inch or two of water was in a landowner‘s basement. He indicated he had seen flooding in basements before but never on Second Street. The Minster employee went to the construction site and found the manhole completely full of water.
{¶16} One of Helms’ employees was back at the trench by 7:00 a.m. on May 17, 2019. To help remedy the flooding/water backup situation, a metal plate was placed in front of the canal to block the flow of additional water into Minster‘s storm sewer. Once the plate was in place, the pumps at the lift station were able to remove the excess water and the flooding receded in approximately 45 minutes.
{¶17} On April 15, 2020, landowners filed a complaint against Minster and Helms alleging negligence in the destruction of a sewer system pursuant to
{¶18} 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.
{¶19} On May 8, 2020, Minster filed a Civ.R. 12(B)(6) motion to dismiss the complaint filed by appellees arguing that Minster was entitled to sovereign immunity. Further, Minster argued that landowners had no grounds to attempt to enforce the contract between Minster and Helms. The landowners opposed Minster‘s motion.
{¶20} On June 3, 2020, the trial court filed an entry denying Minster‘s motion to dismiss the negligence claim on sovereign immunity grounds at such an early stage of the litigation; however, Minster‘s motion to dismiss with regard to the breach of contract claim was granted.
{¶21} Minster appealed the denial of its motion to dismiss the negligence claim on sovereign immunity grounds to this Court in Goebel v. Minster, 3d Dist. Auglaize No. 2-20-14, 2020-Ohio-5467. Ultimately we affirmed the trial court‘s
{¶22} With the case returned to the trial court, on December 18, 2020, Minster filed an answer to landowners’ complaint asserting, inter alia, the defense of sovereign immunity. Minster also filed a cross-claim against Helms asserting, inter alia, a claim for breach of contract.
{¶23} On December 28, 2020, Helms filed an answer to Minster‘s cross-claim and filed its own cross-claim against Minster. Minster subsequently filed an answer to Helms’ cross-claim.5
{¶24} Discovery proceeded with interrogatories being served and answered and numerous depositions being taken and filed with the trial court.
{¶25} On July 12, 2021, Minster filed a motion for summary judgment asserting sovereign immunity. Minster argued that it was entitled to immunity, that the parties had not established an exception to immunity, and that even if the parties
{¶26} On August 9, 2021, Helms filed a memorandum in opposition to Minster‘s summary judgment motion claiming that Minster was negligent in maintaining its sewer system in several respects unrelated to the construction project such that it constituted negligence in the performance of a proprietary function. Further, Helms argued that Minster specifically directed it to excavate the “abandoned” line.
{¶27} On August 20, 2021, landowners filed their memorandum in opposition to Minster‘s summary judgment motion arguing that Minster negligently performed a proprietary function and did not have statutory immunity, that Minster‘s negligence contributed to the flooding of the landowners’ homes, and that Minster was not entitled to have immunity reinstated.
{¶28} On September 7, 2021, Minster filed a reply in support of its summary judgment.
{¶29} On September 8, 2021, the trial court filed a judgment entry granting Minster‘s motion for summary judgment. The trial court determined that “the errors and omissions [by Minster] * * * were partially governmental and partially
2. [Minster] is entitled to the general immunity as set forth in
R.C. 2744.02(A)(2); 3. the performance by [Minster] of a proprietary function is within the exception to the general grant of immunity in accordance with
R.C. 2744.02(B)(2); 4. The performance by [Minster] of a governmental function is within the exception to the general grant of immunity in accordance with
R.C. 2744.02(B)(4) if caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function;5. there was no physical defects within or on the grounds of any building being used in connection with the performance of a governmental function, and therefore, the exception in
R.C. 2744.02(B)(4) is inapplicable;6. [Minster] may avail itself of the defense of immunity pursuant to
R.C. 2744.03(A)(5)[.] * * *67. There is no evidence of malicious purpose, bad faith, wantonness or recklessness [establishing Minster‘s defense to an immunity exception pursuant to
R.C. 2744.03(A)(5) ];8. when construed most strongly in favor of [landowners] and cross-claimant Helms, the facts do not support any genuine issue of material fact whether [Minster] is immune in this instance.
{¶30} The landowners brought the instant appeal from the trial court‘s judgment, asserting the following assignment of error for our review.
Landowners’ Assignment of Error
The trial court erred by granting the Village of Minster‘s motion for summary judgment holding that the Village enjoyed statutory immunity under
{¶31} Helms also appealed the trial court‘s judgment and asserted the following assignments of error for our review.
Helms’ First Assignment of Error
It was error for the trial court to grant summary judgment when the cause of the sewage overflowing the trench was negligence in the performance of a proprietary function, to wit: operation repair and maintenance of a sewer system.
Helms’ Second Assignment of Error
It was error for the trial court to grant summary judgment when the Village employees were directing and controlling the work of the excavation contractor, Helms and Sons, Inc.‘s direction and control which places the case in an exception to governmental immunity.
Landowners’ Assignment of Error and Helms’ Assignments of Error
{¶33} On appeal, the landowners and Helms both argue that the trial court erred by determining that Minster was entitled to sovereign immunity in this matter.
Standard of Review
{¶34} “Whether a party is entitled to immunity is a question of law properly determined by the court prior to trial pursuant to a motion for summary judgment.” Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, ¶ 12, citing Conley v. Shearer, 64 Ohio St.3d 284, 292 (1992).
{¶35} We review a decision to grant a summary judgment motion on the basis of sovereign immunity de novo. See Pelletier at ¶ 13; Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, ¶ 12. “De novo review is independent and without deference to the trial court‘s determination.” ISHA, Inc. v. Risser, 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25.
{¶36} Summary judgment is proper where there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and the conclusion is adverse to the non-moving party.
{¶37} “The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing Dresher v. Burt, 75 Ohio St.3d 280, 282 (1996). “In doing so, the moving party is not required to produce any affirmative evidence, but must identify those portions of the record which affirmatively support his argument.” Id., citing Dresher at 292. “The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; he may not rest on the mere allegations or denials of his pleadings.” Id. citing Dresher at 292.
Sovereign Immunity Framework
{¶38} Ohio‘s Political Subdivision Tort Liability Act, which governs political subdivision liability and immunity, is codified in
{¶39} The first tier of the sovereign-immunity analysis generally establishes 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 or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.”
{¶40} In the second tier of the analysis, we consider the potential applicability of any of the five exceptions to immunity listed in
{¶41} Finally, if any of the exceptions to political subdivision immunity in
{¶42} There is no dispute in this case that Minster is a political subdivision generally entitled to immunity under
{¶43} With immunity generally established, and the first tier of the immunity analysis completed, we turn to the second tier of the analysis to determine whether any of the exceptions to immunity listed in
(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:
* * *
(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.
* * *
(4) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of
{¶44} We will deal with the applicability of each potential exception in turn, beginning with
(C)(1) “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.
(2) A “governmental function” includes, but is not limited to, the following:
* * *
(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;
* * *
(l) The provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system[.]
By contrast,
(G)(1) “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 not customarily engaged in by nongovernmental persons.
(2) A “proprietary function” includes, but is not limited to, the following:
* * *
(d) The maintenance, destruction, operation, and upkeep of a sewer system[.]
{¶46} By contrast, Minster contends that it was performing a function specifically defined as “governmental,” namely the “construction, or reconstruction of a public improvement, including, but not limited to, a sewer system.”
“Municipal decisions regarding updating or upgrading, rather than simple maintenance and repair of existing systems have been held to be a governmental function to which immunity applies.” Matter v. Athens, 4th Dist. No. 13CA20, 21 N.E.3d 595, 2014-Ohio-4451, ¶ 22, citing Essman v. Portsmouth, 4th Dist. No. 09CA3325, 2010-Ohio-4837, ¶ 46. “[A] political subdivision‘s decision regarding an upgrade of its sewer system [or water supply system] is a governmental function. A decision to upgrade requires a political subdivision to weigh various considerations, including the availability of fiscal resources, the use and acquisition of additional equipment, and the overall design of the system.” Essman at ¶ 44. See also Smith v. Stormwater Mgt. Div., 111 Ohio App.3d 502, 507, 676 N.E.2d 609 (1st Dist.1996). Since “upgrading involves construction and design, such upgrading is a governmental, not a proprietary, function.” Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28, 2012-Ohio-3881, ¶ 1, 975 N.E.2d 952.
Glover v. City of Columbus, 10th Dist. Franklin No. 17AP-332, 2018-Ohio-4743, ¶ 18. Based on both statutory language and case authority, the cutting back and
{¶48} If landowners’ and Helms were only arguing about actions that occurred during the sewer reconstruction project, we could end the second tier analysis here. However, landowners also argue that Minster was negligent by leaving the “abandoned” line pressurized, which they contend would constitute negligent operation/maintenance/upkeep even if the other issues did not, making it a proprietary function.8
{¶49} Importantly, even if we accepted landowners’ arguments and determined that the negligence alleged by leaving the valve open to the “abandoned” line was in relation to a proprietary function,9 thus removing the cloak of immunity, Minster could still restore immunity in this matter through the defenses listed in
{¶50} In fact, to the extent that the trial court evidently determined that the functions in this matter were partly proprietary, the trial court explicitly determined
(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:
* * *
(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.
{¶51} Landowners argue that
{¶53} For these reasons, even if we assumed that this matter involved a proprietary function invoking an exception to immunity in the second tier of the sovereign immunity analysis pursuant to
{¶54} Next, we turn to Helms’ claim that the immunity exception under
{¶55} We agree with the trial court. There is no evidence that there was a defect on government grounds or in a government building in this matter to invoke
{¶56} In sum, after a de novo review, we find that Minster was entitled to summary judgment in this matter on the grounds of sovereign immunity. Therefore, the assignments of error asserted by the landowners and Helms are overruled.
Conclusion
{¶57} For the foregoing reasons the landowners’ assignment of error and Helms’ assignments of error are overruled and the judgment of the Auglaize County Common Pleas Court is affirmed.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
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