707 N.E.2d 967 | Ohio Ct. App. | 1998
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *35 "This case involves over fifty homeowners that have been dewatered by the City of Rittman as a result of the City of Rittman's pumping of groundwater during the operation of its municipal wellfield."1
The appellants are homeowners and residents who live in and around the village of Sterling in Wayne County, Ohio. The appellants use wells to supply their household and domestic water needs. In 1973, the city of Rittman ("city") purchased a parcel of property near the village of Sterling. Preliminary studies were conducted and plans were approved for the drilling of three wells on the parcel. The wells were completed and placed into operation by 1980. Approximately five hundred thousand to seven hundred fifty thousand gallons of water a day are pumped from this wellfield to serve the needs of the city's residents. *36
On January 4, 1994, the appellants filed suit against the city, alleging that they suffered damages as a result of the city's use of the wellfield. Specifically, they claim that the aquifer from which they draw has been lowered due to the city's pumping of huge amounts of water, forcing them to endure water shortages and poor quality water, as well as forcing them to drill new wells and purchase new pumps and water-softening equipment. The appellants' first amended complaint asserts two claims. The first claim alleges that the city caused unreasonable harm to the appellants as a result of its pumping of groundwater from the wellfield. The second claim alleges that the appellants will suffer irreparable harm in the future and that the appellants have no adequate remedy at law. The appellants pray for both damages and an injunction. We will address the appellants' prayer for damages in the first part of this opinion, and the appellants' prayer for a permanent injunction against the city in the second part of this opinion.
The city denies that its use of the wellfield has caused appellants' problems. The city claims that most of the appellants' wells were shallow, with older narrow well casings and shallow well pumps. The city alleges that the redrilling of these wells was inevitable due to the age of the wells and the advent of newer technology.
The trial court granted the city's motion for partial summary judgment pursuant to R.C.
The city thereafter moved the court for summary judgment "as to all the claims of all the plaintiffs" based on sovereign immunity pursuant to R.C.
The appellants appeal from the granting of summary judgment, assigning three errors. The city cross-appeals, assigning two errors. We affirm.
"The trial court committed error by reversing itself and holding that defendant was entitled to summary judgment because of sovereign immunity under Revised Code Chapter 2744."
The city's second cross-assignment of error states:
"The trial court erred in failing to grant summary judgment in favor of the city of Rittman based on upon the discretionary provisions set forth in Revised Code §
These assignments of error require us to determine if and under what conditions a municipality's establishment and operation of a wellfield outside of its boundaries expose it to liability to individual homeowners and residents who are affected by such wellfield.
Doubts must be resolved in favor of the nonmoving party. Hortonv. Harwick Chem. Corp. (1995),
The burden of showing that no genuine issue of material fact exists falls upon the party requesting summary judgment, and is specified in Dresher v. Burt (1996),
"The moving party cannot discharge its initial burden under Civ. R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ. R. 56(C) which affirmatively *38 demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ. R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." (Emphasis sic.)
These principles were reaffirmed in Vahila v. Hall (1997),
We initially note that the trial court must base its grant of a motion for summary judgment on evidence meeting the standards of Civ. R. 56(C), quality evidence, not on statements counsel makes to the court regarding what a party intends or does not intend to prove. Therefore, we must examine the evidence submitted with the city's motion for summary judgment and determine whether, based on that evidence, summary judgment in favor of the city was appropriate.
"There are no correlative rights existing between the proprietors of adjoining lands, in reference to the use of such water in the earth, or percolating under its surface. Such water is to be regarded as part of the land itself, to be enjoyed absolutely by the proprietor within whose territory it is; and to the law governing the use of running streams is inapplicable."
The Frazier court further stated:
"In the absence of express contract, and of positive authorized legislation, as between proprietors of adjoining lands, the law recognizes no correlative rights in respect to underground waters percolating, oozing or filtrating through the earth[.]" Id. at 311.
This was the law in Ohio until 1984, when the Supreme Court of Ohio reconsidered the common law as it applied to groundwater inCline,
"(1) A proprietor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another unless
"(a) the withdrawal of groundwater unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure,
"(b) the withdrawal of ground water exceeds the proprietor'sreasonable share of the annual supply or total store of groundwater, or
"(c) the withdrawal of the ground water has a direct and substantial effect upon the watercourse or lake and unreasonably causes harm to a person entitled to the use of its water." (Emphasis added.)
Cline, supra,
Upon remand of Cline, the court of appeals held that the new rule could be applied retrospectively. Cline v. Am. AggregatesCorp. (1989),
The Supreme Court of Ohio discussed the effect of the governmental/proprietary distinction in Haas v. Hayslip (1977),
However, from 1854-1977, the Supreme Court of Ohio had consistently held that the defense of immunity was not available to a municipality for negligence in the performance ofproprietary functions. Id. at 136, 5 O.O.3d at 111,
The courts of Ohio have also classified the activities of municipalities as either discretionary or ministerial activities. See Gleason Van Winkle, The Ohio Political Subdivision Tort Liability Act: A Legislative Response to the Judicial Abolishment of Sovereign Immunity (1986), 55 U. Cin. L. Rev. 501, 503. A municipality was protected for acts involving discretion or judgment, while it was not protected when it merely implemented policy. Dayton v. Pease (1854),
On December 15, 1982, the Ohio Supreme Court again addressed the issue of sovereign immunity in Haverlack v. Portage Homes,Inc. (1982),
A little more than six months later, on July 20, 1983, the Supreme Court of Ohio again addressed the issue of sovereign immunity, clarifying its holding in Haverlack, supra:
"The judicially created doctrine of municipal immunity is,within certain limits, abolished, thereby rendering municipal corporations subject to suit for damages by individuals injured by the negligence or wrongful acts or omissions of their agents or employees whether such agents and employees are engaged in proprietary or governmental functions.
"Under this decision abolishing municipal immunity, no tortaction will lie against a municipal corporation for those acts oromissions involving the exercise of a legislative or judicialfunction or the exercise of an executive or planning functioninvolving the making of a basic policy decision which ischaracterized by the exercise of a high degree of officialjudgment or discretion. However, once the decision has been made to engage in a certain activity or function, municipalities will be held liable, the same as private corporations and persons, for the negligence of their employees and agents in the performance of the activities." (Citations omitted and emphasis added.)Enghauser Mfg. Co. v. Eriksson Eng., Ltd. (1983),
The Supreme Court of Ohio applied the Enghauser rule retroactively in C D Partnership v. Gahanna (1984),
"The equal protection clause of the federal Constitution does not assure uniformity of judicial decisions. The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law." Zagorski, supra, at 12, 15 OBR at 10,
Therefore, common-law immunity based on the discretionary nature of a municipal function was available to the city from 1980, when the wellfield began operations, until the General Assembly codified immunity for political subdivisions in Ohio. *43
"Except as provided in Division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision in connection with a governmental or proprietary function."
Pursuant to R.C.
It is clear that negligence with respect to a proprietary function was required under pre-R.C. 2744 case law in order for a municipality to be liable. R.C.
"The establishment, maintenance, and operation of a utility, including but not limited to * * * a municipal corporation water supply system."
Several statutory defenses available to a municipality merely codify the common law defenses based on the discretionary/ministerial distinction. R.C.
"(A) In a Civil action brought against a political subdivision * * * to recover damages for injury, death, or loss to persons or property allegedly caused by any act or omission in connection with a * * * proprietary function, the following defenses or immunities may be asserted to establish nonliability: *44
"* * *
"(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
"* * *
"(5) The political subdivision is immune from liability if the injury, death, or loss to persons or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use equipment, supplies, material, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, bad faith, or in wanton or reckless manner."
Applying common law and subsequent statutory law to the case before us, we find that the general rule is that the city is not liable for injuries arising out of its establishment, maintenance, and operation of the wellfield. Nevertheless, the city may be liable if the injury was caused by the negligence of the city. However, even if the appellants prove negligence, the city may escape liability if it can prove a defense available both (1) under the common law prior to the enactment of R.C.
Counsel for appellants admitted to the trial court that the appellants did not intend to show negligence on the part of the city, stating:
"And we're not claiming that the operation of their well field was negligent. We're not bringing an expert in who's going to say they could have done this better or they could have done that better."
The trial court, upon learning that the appellants did not intend to introduce evidence of negligence, granted the city's motion for summary judgment. As we *45 noted above, basing summary judgment on a statement of counsel does not satisfy Civ. R. 56(C).
Irrespective of whether the trial court was correct in its determination that the appellants were required to prove negligence in order to overcome immunity (as opposed to proving the factors set forth in the Restatement balancing test for reasonable water use), we would still affirm on the basis that the city was exercising its discretion in establishing and operating the wellfield, and has proven such by submitting Civ. R. 56(C) quality evidence in support of its motion for summary judgment.
The city has cross-appealed, assigning as error the trial court's decision not to base summary judgment in favor of the city on the statutory defenses set forth in R.C.
"[T]his court continued tort immunity for activities involving basic planning and policymaking functions in recognition that the threat of tort liability for such activities could have a chilling effect on the ability of municipal governments to deal effectively with difficult policy issues which they must confront daily. The court in Enghauser remained acutely aware that such policymaking activities be at the heart of municipal governance, and that such essential acts of governmental decision making should not be subject to judicial second-guessing or harassment by the actual or potential threat of litigation." Id.
Post-R.C. Chapter 2744, the courts have also applied the discretionary standard, finding that the defenses set forth in R.C.
The city's activities in operating the wellfield are similar to those which Ohio courts have decided involve "weighing alternatives and making choices with *46
respect to public policy and planning characterized by a high degree of discretion and judgment." Bolding v. Dublin LocalSchool Dist. (June 15, 1995), Franklin App. No. 94APE09-1307, unreported, 1995 WL 360227. If the employee's actions were clearly not malicious, reckless, or in bad faith, then summary judgment is appropriate. Hackathorn v. Preisse (1995),
The city's motion for summary judgment was granted on the basis that the appellants did not intend to prove negligence. We need not address whether that basis was correct if we find, as a matter of law, that one of the defenses available to the city has been established by the city and cannot be refuted by the appellants. We must review the motion for summary judgment and the opposition to that motion as well as the attached evidence and determine whether the trial court's granting of summary judgment to the city was proper on any basis. We are empowered to affirm the judgment of the trial court on grounds other than those relied upon by the trial court. "[A] reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as a basis thereof." State ex rel. Carterv. Schotten (1994),
The city asserted the defense of "discretionary function" in its motion for summary judgment and has provided evidence that discretion and judgment are involved in the establishment and operation of the wellfield. First, it was a discretionary decision to purchase the property near the village of Sterling. Second, the decision to drill three wells on the parcel, at a certain depth, was also discretionary in nature. Third, the wells generally pump one at a time, which means at those times when more than one well operates, a discretionary decision has been made as to the city's need for more water at a particular time. Fourth, the city occasionally provides emergency water to industries which do not ordinarily purchase water from the city. The decision to provide emergency water involves discretion. Finally, the decision to allow residents and businesses to tie into the city water system as new customers falls squarely into the class of decisions which require judgment and discretion.
The appellants have offered no evidence that the city's discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner. To the contrary, the city has provided evidence that it conducted studies of the aquifer and met with the residents of Sterling in order to allay their concerns before drilling the wells.
Because we find that the city has proven that its establishment and operation of the wellfield renders it immune from liability, the city's second cross-assignment *47 of error is sustained, and the trial court's granting of summary judgment as to the appellants' claim for damages was proper.
Because we hold that summary judgment in favor of the city was properly granted in light of both common-law and statutory immunity defenses available to the city during the time period over which the appellants claim damages, all other assignments of error are moot and we need not address them. App. R. 12(A) (1) (c). We will however, address the appellants' claim for injunctive relief.
It seems to us that the same policy reasons that immunize the city from liability for money damages ought to apply to a prayer for injunctive relief. In Cincinnati v. Wegehoft (1928),
"The courts will not restrain, by injunction, the duly elected or appointed officials of a municipality, who are duly empowered by the municipality to select and acquire sites for and to erect thereon municipal buildings, from carrying out such conferred power where there is no abuse of discretion or bad faith on the part of such officers, claimed or established."
The court went on to say that a city's "right, and * * * duty, as well, to exercise good faith in the furtherance of good municipal government * * * cannot be enjoined by the courts" unless there was a claim of bad faith or malicious intent to injure the plaintiff's property. Id. at 138,
The judgment of the trial court is affirmed.
Judgment affirmed.
DICKINSON, P.J., and QUILLIN, J., concur.
"(A) The general assembly hereby finds and declares that the determination of the reasonableness of a use of water depends upon a consideration of the interests of the person making the use, of any person harmed by the use, and of society as a whole.
"(B) In accordance with section 858 of the Restatement (Second) of Torts of the American law institute, all of the following factors shall be considered, without limitation, in determining whether a particular use of water is reasonable:
"(1) The purpose of the use;
"(2) The suitability of the use to the watercourse, lake, or aquifer;
"(3) The economic value of the use:
"(4) The social value of the use;
"(5) The extent and amount of harm it causes;
"(6) The practicality of avoiding the harm by adjusting the use or method of use of one person or the other;
"(7) The practicality of adjusting the quantity of water use or method of use of one person or the other;
"(8) The protection of existing values of water uses, land, investments, and enterprises:
"(9) The justice of requiring the user causing harm to bear the loss."