GREG GUENTHER v. SPRINGFIELD TOWNSHIP TRUSTEES, et al.
Appellate Case No. 2010-CA-114
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
January 20, 2012
2012-Ohio-203
HALL, J.
Trial Court Case No. 08-CV-1075; [Cite as Guenther v. Springfield Twp. Trustees, 2012-Ohio-203.]
OPINION
Rendered on the 20th day of January, 2012.
PAUL J. KAVANAGH, Atty. Reg. #0065418, and ELIZABETH J. DUNN, Atty. Reg. #0058856, Cole Acton Harmon Dunn, 333 North Limestone Street, Post Office Box 1687, Springfield, Ohio 45501 Attorneys for Plaintiff-Appellee
JEFFREY C. TURNER, Atty. Reg. #0063154,
HALL, J.
{¶ 1} Springfield Township appeals the trial court‘s denial of summary judgment on Greg Guenther‘s tort claims alleging that the Township‘s failure to maintain drainage tiles caused his basement to flood. The Township contends that as a political subdivision it is immune from liability for any damages. This Court agrees. Guenther did not present any evidence that simple maintenance would remedy the flooding problem. Instead, the evidence shows that the drainage system had become inadequate, the reconstruction of the ditch that the tiles empty into was inadequate and the remedy was reconstruction. The Township is immune from claims concerning this drainage system‘s reconstruction. Therefore, we will reverse.
I.
{¶ 2} Greg Guenther and his family live in a house at 2566 South Burnett Road in Springfield Township, Clark County. Their property is on the east side of and adjacent to South Burnett Road, which runs north and south. On the west side of Burnett is a field, and behind Guenther‘s property, to the east, is another field. A natural swale cuts through the western field, crosses Guenther‘s property, travels north behind his property and that of a few of his neighbors, and cuts a path through the eastern field. The natural drainage of water from the field on the west to the field on the east is directly through Guenther‘s residential property.
{¶ 3} In the early 1970s, the owners of 2566 South Burnett Road (not the Guenthers) were having flooding problems and requested Springfield Township to help. In 1971, at the behest of the then property owners, the Township authorized the installation of two drainage culverts beginning on the west side of South Burnett Road, continuing under the road, with underground drainage tile traveling through what is now the Guenther property, one on the south side, the other on the north side (this pipe is actually under the north neighbor‘s property), and ending in an open ditch in the farm field behind the property. Although apparently installed at the owners’ requests, the Township did not obtain easements for the tile pipes or the ditch area.
{¶ 4} In 1990, Guenther purchased the property and moved in.
{¶ 5} On February 24, 2005, Jeffrey Briner, the Township‘s zoning inspector, received a letter from Guenther saying that for the past three years he has had problems with flooding. Guenther wrote that since he moved in the drainage ditch to the rear of his property had never been maintained. He said that, when it rained, water overflowed from the ditch into his backyard. Guenther wrote that standing water in the ditch caused mosquito problems that often prevented him from enjoying his property. Also, Guenther wrote, when it rains hard the drainage ditch backs up into the tiles, and, with a large volume of rain the north pipe backs up and water from a clean-out cover floods his front yard. The day he received the letter, Briner and John Hughel, the Township‘s road superintendent, drove out to inspect the area. That afternoon, Briner called Mark Niccolini, the ditch maintenance supervisor for the Clark County Engineer, to see if the ditch behind Guenther‘s property was part of the County‘s ditch-maintenance
{¶ 6} In March 2005, Briner met with someone from the Clark County Soil and Water Conservancy District. It suggested that grass strips be planted along the swale in the western field to control runoff from the field. Also suggested was a dry well or french drain. At the end of March, Niccolini called Briner and told him that the existing drainage tiles should be adequate to handle the amount of water running down the swale. He suggested that the Township clean out the tiles and reconstruct the drainage ditch behind Guenther‘s property. In early April, Briner told Guenther that the road crew was going to try to clean out the tiles. Briner also gave Guenther some literature on grass strip erosion control.
{¶ 7} The Township Trustees approved the ditch reconstruction project later in 2005. There was considerable delay due largely to the eastern field owner‘s lack of permission, including delay in obtaining an easement, and the best that was accomplished was a right of entry. There was also delay because a neighbor was required to repair a septic system that was leaking into the ditch, and another neighbor‘s sump pump discharged water into the ditch. The project did not get underway until April 2008.
{¶ 8} In early June 2008, it rained hard. Approximately 4-5 inches of rain fell overnight causing heavy flooding throughout the Township and County. Guenther‘s basement flooded, and his affidavit states the water caused more than $20,000 in damage. On August 13, 2008, Guenther filed a complaint against the Township seeking to recover damages and seeking injunctive relief. The complaint contains a claim for negligence and a claim for trespass on the basis that the pipes under his property were without easement. In July 2010, the Township moved for summary judgment, arguing that Guenther‘s claims were barred by the statute of limitations and, alternatively, that it was entitled to political-subdivision immunity. A magistrate denied summary judgment, finding genuine issues of material fact existed concerning the statute of limitations and the Township‘s immunity, and the Township objected. On November 1, 2010, the trial court adopted the magistrate‘s decision.
{¶ 9} The Township appealed.
II.
{¶ 10} The Township assigns two errors. It argues that the court erred by not granting summary judgment based on immunity. And the Township argues that the court erred by not granting summary judgment based on the statute of limitations.
{¶ 11} A court should grant summary judgment if it is shown (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., Inc. (1978), 54 Ohio St.2d 64, 66; see
1. Political-Subdivision Immunity
A. Sewer System
{¶ 12} Generally, political subdivisions are immune from tort liability.
{¶ 13} There is no dispute in the facts that two pipes run through the yards into a ditch on the adjacent rear farmland. They were installed in 1971 because of drainage problems in the area. In his complaint, filed August 13, 2008, Guenther refers to the culvert-tiles-ditch as a storm water drain and a drainage ditch. His answers to interrogatories, signed June 16, 2009 refer to the arrangement as drainage tile or ditches, although at one point he does
respond that he received an insurance payment of $10,000.00 for sewer backup. Finally, in his affidavit dated August 18, 2010 filed opposing summary judgment, he refers to the water diversion as storm sewer drain pipes and a storm sewer drain system but he does not express any particular expertise for classifying it as a sewer system. Contrarily, the affidavit of Jeffrey Briner states: There is no storm sewer system in the Burnett Road area. Furthermore, as is evident from the trespass allegations, the Township does not have easements to control the pipes. It does not own and does not have an easement for the ditch, and the reconstruction was delayed due to a lack of right of entry to redo the ditch.
{¶ 14} The question is not what the parties might call the drainage tiles and ditch but whether they qualify as a sewer system contemplated by the statute allowing
Therefore, because the ditch in question is not part of a sewer system, its maintenance is a governmental, not proprietary, function * * *. Id. ¶17.
{¶ 15} On Burnett Road, other than at the western terminus where the pipes were adjacent to the public roadway, the Township did not have easements and had no legal authority to enter upon the lands to maintain the pipes and the ditch. Moreover, the installation was at the localized request of the two complaining homeowners. There is no evidence that the pipes and ditch are part of a larger system. We conclude that the two pipes and ditch are not a sewer system that exposes the Township to liability for negligent maintenance.
{¶ 16} We are aware that this court decided Holbrook v. Brandenburg, Clark App. No. 2007-CA-106, 2009-Ohio-2320, which may seem to be inconsistent. In Holbrook, a two-pipe culvert extended from Holbrook‘s property, under Victory Road, and joined into an open culvert on Brandenburg‘s property. Bethel Township allowed Brandenburg to dam the culvert pipes with a concrete enclosure that caused water to back up and flood the Holbrook home. Holbrook sued Brandenburg and the Township. The Township claimed immunity. This court determined that the Holbrooks had demonstrated an exception to immunity, specifically, allegedly negligent maintenance of a sewer system under
there was no legal right to enter the land to maintain the pipes under Guenther‘s yard and the ditch in the farm field beyond. Needless to say, the facts and arguments in Holbrook are not before us.
B. Maintenance or Reconstruction; Proprietary or Governmental
{¶ 17} Even if we were to assume that the Burnett Road pipes and ditch constituted a sewer system, we believe immunity still would apply. Planning, design, construction or reconstruction of a sewer system is shielded by immunity; maintenance or operation is
{¶ 18} The Township argues that Guenther‘s claim actually concerns a governmental, not proprietary, function because the flooding problem cannot be fixed with simple maintenance. Rather, argues the Township, the drainage system needs to be entirely redesigned and reconstructed. Ohio courts have used the problem‘s remedy to determine whether actions concerning a sewer system are governmental or proprietary. A complaint is properly characterized as a maintenance, operation, or upkeep issue when remedying the sewer problem would involve little discretion but, instead, would be a matter of routine
maintenance, inspection, repair, removal of obstructions, or general repair of deterioration. Essman, at ¶32 (Citations omitted), quoted in Austintown, at ¶15. But the complaint presents a design or construction issue if remedying a problem would require a [political subdivision] to, in essence, redesign or reconstruct the sewer system. Essman, at ¶32-33 (Citations omitted), quoted in Austintown, at ¶15.
{¶ 19} Guenther‘s complaint alleges that runoff water flowing down the swale in the field across South Burnett Road washes corn stalks from the field to the drainage tiles. According to one of Guenther‘s interrogatory answers, the drainage tiles become clogged with corn stalks, the runoff water backs up, the water level on the west side of the road rises, and eventually it becomes high enough that water crosses the road into his yard (and into his basement). This has been happening periodically, according to Guenther, since about 1995. Guenther says that the Township has tried to clean out the drainage tile but it continues to clog. According to another of his interrogatory answers, at a June 2008 Township Trustee meeting, Briner said that another drainage system higher up was not functioning, so the runoff water that normally flowed through that system is now flowing down the swale on the other side of the road. The amount of runoff water running toward Guenther‘s property, then, has increased.
{¶ 20} The system that the Township designed and installed in 1971 to alleviate the flooding on Guenther‘s property is apparently inadequate. A fix recommended by the County was completed in early 2008 with reconstruction of the ditch. Although he complains about flooding for years, the peak event resulting in the $20,000.00 flooding damage to Guenther‘s basement was just two months after reconstruction of the ditch. With the advent
of no-till farming, which Guenther refers to in the interrogatories, crop residue (like corn stalks) is not plowed or disked into the soil and remains in fields, allowing runoff water to wash it away, which exacerbates the flooding problem. The evidence reveals the Township has cleaned out the stalks several times, but the problem returns. Guenther believes that the solution is simply to clean out the drainage tiles, and his affidavit states that his flooding resulted from lack of maintenance. But his affidavit demonstrates no expertise to qualify him to render this opinion, and he has presented no other evidence that simple maintenance is
{¶ 21} Because reconstruction or redesign of what we have assumed for analysis is a sewer system is a governmental function, the negligent-proprietary-function exception does not apply here. The
{¶ 22} The first assignment of error is sustained.
2. Statute of Limitations
{¶ 23} The magistrate found genuine issues of material fact existed concerning whether the immunity statute‘s limitations period applied to either the negligence claim or the trespass claim. In the second assignment of error, the Township argues that both are so barred. We sua sponte question whether this Court has jurisdiction over this assignment of error.
{¶ 24} Ordinarily, an order denying summary judgment is not final and therefore may not be appealed. See Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 90. But [a]n order that denies a political subdivision * * * the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.
{¶ 25} We therefore lack jurisdiction to consider the denial of summary judgment based on the Township‘s statute-of-limitations defense. See Essman, at ¶10 (concluding the same); Makowski, at ¶8 (same).
3. Guenther‘s Motion for Attorneys’ Fees
{¶ 26} Guenther has moved this Court to award him reasonable attorneys’ fees and costs, arguing that the Township‘s appeal is frivolous because its lack of immunity is clear. Based on the outcome of this appeal, the motion is denied.
III.
{¶ 27} The trial court erred by adopting the magistrate‘s opinion and by failing to grant the Motion for Summary Judgment on the issue of governmental immunity. Subsequent to the trial court‘s adoption of the denial of the Motion for Summary Judgment on November 1, 2010, the magistrate issued a Decision modifying the Magistrate‘s September 9, 2010 Decision Overruling Defendant‘s Motion for Summary Judgment on November 8, 2010. In its brief, the Township states that it filed objections to that magistrate‘s decision. (Appellant‘s brief at 2.) Objections do not appear in our record. Nevertheless, the trial court had not addressed the magistrate‘s November 8, 2010 supplemental decision when the Township filed its Notice of Appeal on December 1, 2010. The issue of what, if anything, the trial court may do with the supplemental magistrate‘s decision may well be moot, but out of caution the judgment of the trial court is reversed and the case remanded for any
RICE, J., concurs.
FROELICH, J., concurs in judgment only.
(Hon. Cynthia Westcott Rice, Eleventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Paul J. Kavanagh
Elizabeth J. Dunn
Jeffrey C. Turner
Dawn M. Frick
Hon. Richard J. O‘Neill
Notes
We note too that he has cited no statute that imposed on the Township a duty to maintain the drainage tiles. Guenther asserts that the Township has this duty, but he does not identify the basis of the duty. The Township nowhere disputes that it has this duty.
Under Ohio common law, a political subdivision has no duty to maintain a sewer structure on private property unless it benefits the public. Probst v. Summit Cty. (March 26, 1997), Summit App. No. 17810 (saying that a township has no duty to maintain a private drainage pipe), citing Irwin v. Bedford (Apr. 24, 1986), Cuyahoga App. No. 50178. Either the property that enjoys the benefits of the structure must be used for public purposes, Bibbs v. Cinergy Corp. (April 12, 2002), Hamilton App. No. C-010390 (Ohio common law holds that, where a sewer structure is on private property, a political subdivision is not obligated to maintain it unless the property has been used for public purposes.), citing Fatobene v. Warren (May 3, 1996), Trumbull App. No. 95-T-5269 ([A] city or county can be obligated to maintain a sewer structure on private property if that property has been ‘dedicated’ for public use.), citing Beauchamp v. Hamilton Twp. Trustees (May 5, 1994), Franklin App. No. 93APE09-1331, or the sewer structure itself must have some public purpose, Fatobene ([A] city or county is not obligated to maintain a sewage structure on private property if there is no indication that the sewer structure was ever used for public purposes.), citing Beauchamp. If the structure is not used for public purposes but is for private use only, a political subdivision does not have a duty to maintain it. Bibbs (If the line is not used for public purposes but is for private use, * * * a city is not obligated to maintain it.). In Irwin, supra, the court stated: [A] city has no duty to maintain a private drainage system on private property which (a) it did not construct, (b) it did not appropriate or accept, and (c) was not part of a regularly running public watercourse. (citing Caldwell v. Goldberg (1975), 43 Ohio St.2d 48, at paragraph one of the syllabus).
We recognize that Springfield Township installed the culvert pipes and drain tile at issue. And, the case of Doud v. Cincinnati (1949), 152 Ohio St. 132, is often cited for the proposition that [a] municipality is not obliged to construct or maintain sewers, but when it does construct or maintain them it becomes its duty to keep them in repair * * * Id. at 137. But even there, the court specifically determined that the sewer in question, originally private, had been incorporated into the public sewer system and had taken on a public character. Here all the record evidence supports finding that the drainage pipes are merely private. The Township installed them at the request of the 1971 owners to alleviate flooding on their property. Guenther told Briner that in the 15 years he lived there the Township had never maintained the pipes. The swale that brings the water is not part of a public watercourse. There are no easements. We question whether the Township has a duty, other than a political one, to maintain the pipes and ditch.
We note too that