TAMICKA NELSON v. CITY OF CLEVELAND, ET AL.
No. 98548
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 14, 2013
[Cite as Nelson v. Cleveland, 2013-Ohio-493.]
McCormack, J., Keough, P.J., and E.A. Gallagher, J.
JOURNAL ENTRY AND OPINION; REVERSED AND REMANDED; Case No. CV-729088
Earl F. Ghaster
Kubyn & Ghaster
8373 Mentor Avenue
Mentor, OH 44060
ATTORNEYS FOR APPELLEES
Barbara Langhenry
Director of Law
City of Cleveland
Jerome A. Payne, Jr.
Assistant Director of Law
Room 106 - City Hall
601 Lakeside Avenue
Cleveland, OH 44114
{¶1} Plaintiff-appellant, Tamicka Nelson (“Nelson“), appeals the trial court‘s decision granting summary judgment in favor of the defendant-appellee, city of Cleveland (“the City“). The trial court determined that the City is entitled to sovereign immunity under
Substantive Facts and Procedural History
{¶2} The basic facts of this case are not in dispute. On June 29, 2008, Nelson was traveling eastbound on State Route 2 in the City, near the Edgеwater Park exit. As she approached the exit sign, Nelson noticed a large puddle of standing water that extended across all three lanes of traffic. There were no cars ahead of her. She entered the puddle while traveling approximately 40 miles per hour. Upon entering the puddle, Nelson lost control of her car and struck a median. Nelson testified that cars continued on through the water, passing her vehicle after the collision. As a result of this accident, Nelson suffered personal injury and рroperty damage.
{¶3} On June 11, 2010, Nelson filed a complaint against the City and John Does #1-3 in the Cuyahoga County Court of Common Pleas.1 In her complaint, Nelson alleged that the City was negligent in failing to keep public roads open and free from
{¶4} On February 8, 2012, the City filed a motion for summary judgment pursuant to
Assignments of Error
{¶5} Nelson now appeals the trial court‘s order, raising the following assignments of error:
- The trial court erred to the prejudice of Appellant-Plaintiff by granting Appellee-Defendant City of Cleveland‘s Motion for Summary Judgment based upon an erroneous finding that the sovereign immunity exception set forth in
Section 2744.02(B)(2) does not apply based upon the unsubstantiated fact that “there was no evidence of negligence.” - The trial court erred to the prejudice of Appellant-Plaintiff by granting Appellee-Defendant City of Cleveland‘s Motion for Summary Judgment
based upon an erroneous finding that the sovereign immunity exception set forth in Section 2744.02(B)(3) does not apply as “water is not an obstruction.”
Standard of Review
{¶6} Summary judgment is appropriate where it appears that: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) 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., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978);
{¶7} The burden is on the movant to show that no genuine issue of material fact exists. Id. Conclusory assertions that the nonmovant has no evidence to prove its case are insufficient; the movant must specifically point to evidence contained within the pleadings, depositions, answers to interrogatories, written admissions, affidavits, etc., which affirmatively demonstrate that the nonmovant has no evidence to support his claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264;
{¶8} An appellate court reviews a trial court‘s grant of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Accordingly, appellate courts must independently review the record to determine if
Political Subdivision Immunity
{¶9} Chapter 2744 of the Ohio Revised Code, the Political Subdivision Tort Liability Act, contains a comprehensive statutory scheme for the tort liability of political subdivisions and its emрloyees. The statutory framework begins with
For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. 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 person or property allegedly caused by any act or omission of the political subdivision or an emplоyee of the political subdivision in connection with a governmental or proprietary function.
R.C. 2744.02(A)(1) .
{¶10} The statute enumerates five exceptions to the general grant of immunity. The five exceptions are provided in
{¶11} Nelson further asserts that the City is liable under
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 caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads, except that it is a full defense to that liability, when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge.
R.C. 2744.02(B)(3) .
{¶12} The statute also provides several defenses for political subdivisions and their employees. Relevant to this case is
In a civil action brought against a political subdivision or an employeе 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, * * * [t]he 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.
{¶13} In order to correctly determine whether immunity applies with respect to a political subdivision, a detailed analysis is required. The Ohio Supreme Court determined that the applicability of the immunity statute requires a three-tier analysis:
Determining whether a political subdivision is immune from tort liability pursuant to
R.C. Chapter 2744 involves a three-tiered analysis. GreeneCty. Agricultural Soc. v. Liming (2000), 89 Ohio St.3d 551, 556-557, 2000-Ohio-486, 733 N.E.2d 1141. The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. Id. at 556-557, 733 N.E.2d 1141; R.C. 2744.02(A)(1) . However, that immunity is not absolute.R.C. 2744.02(B) ; Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 1998-Ohio-421, 697 N.E.2d 610.The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in
R.C. 2744.02(B) apply to expose the political subdivision to liability. Id. at 28, 697 N.E.2d 610. At this tier, the court may also need to determine whether specific defenses to liability for negligent operation of a motor vehicle listed inR.C. 2744.02(B)(1)(a) through (c) apply.If any of the exceptions to immunity in
R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses inR.C. 2744.03 apply, thereby providing the political subdivision a defense agаinst liability.Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.
{¶14} Under this three-tier analysis, the court reaches the end of its inquiry when the acts or omissions of a political subdivision do not fit under any of the five exceptions
Analysis
I. Applicability of R.C. 2744.02(B)(2)
{¶15} Nelson‘s first assignment of error states that the trial court erred in finding that the sovereign immunity exception outlined in
{¶16} Political subdivisions are generally immune from liability incurred in performing either a governmental function or a proprietary function.
{¶17} Before
{¶18}
{¶19} “Determining whether an allegation of negligence relates to the maintenance, operation, or upkeep of a sewer system or, instead, the design, construction, or reconstruction of a sewer system is not always a simple inquiry.” Essman v. Portsmouth, 4th Dist. No. 09CA3325, 2010-Ohio-4837, ¶ 2. A complaint is properly сharacterized 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.” Id., citing Martin v. Gahanna, 10th Dist. No. 06AP-1175, 2007-Ohio-2651, ¶ 17. On the other hand, a complaint presents a design or construction issue if “remedying a problem would require a city to, in essence, redesign or reconstruct the sewer system.” Id., citing Zimmerman v. Summit Cty., 9th Dist. No. 17610, 1997 Ohio App. LEXIS 52 (Jan. 15, 1997).
{¶20} In this case, Nelson‘s allegаtion that the City‘s actions pertaining to the sewers along the Shoreway amount to a proprietary function is well taken.
{¶21} Because we find that the City‘s maintenance of its sewеr system in this case is a proprietary function, we must next address whether Nelson has set forth facts that create a genuine issue as to the City‘s negligence in that regard. Nelson alleges there was sufficient evidence of negligence to avoid summary judgment because she established that a large unnatural accumulation of a pool of water formed on the regularly traveled portion of the roadway, which the City knew or should have known, instituted a dangerous condition and that condition caused her accidеnt. For the reasons that follow, we agree.
{¶22} In order to establish negligence, one must show the existence of a duty, a breach of that duty, and the breach was the proximate cause of an injury. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 84, 472 N.E.2d 707 (1984). Negligence may not be presumed from mere proof of an injury caused by some act of the defendant. The burden is on the plaintiff to prove by a preponderance of the evidence that the defendant failed to exercise the care that a reasonably prudent person is accustomed to exercise under the same or similar circumstances. Republic Light & Furniture Co. v. Cincinnati, 97 Ohio App. 532, 536-537, 127 N.E.2d 767 (1st Dist.1954). The trier of fact may not speculate as to what the standard of care should be. Rather, where the standard of care is not a matter of common knowledge to a jury, the burden rests on the plaintiff to introduce substantial evidence from which a jury may reasonably infer the
{¶23} In this case, Nelson alleges that the City negligently maintained and/or repaired the catch basins along the Shoreway near the Edgewater exit. In support of her claim, Nelson submitted an affidavit of an expert, James D. Madden, P.E. Nelson‘s expert opined that the City has not taken the necessary measures to properly maintain the drainage system for the Shoreway located near the Edgewater exit. Affidavit ¶ 28. Specifically, Nelson‘s expert states that the condition of the drainage system “that caused the development of the standing water” at the site of the accident had been deteriorating “for a considerable time.” Affidavit ¶ 32. He further states that as the drainage condition deteriorated, larger areas of standing water would accumulate due to the debris that would progressively slow the drainage rate, and this standing water was a “hazard” and its presence was the notice of a problem with the drainage. Id. Nelson‘s expert maintains that this dangerous condition on the Shoreway could be completely eliminated by cleaning the drainage system “at an interval that would keep the drainage system functiоning properly, rather than waiting for the inevitable development of * * * standing water.” Id. at ¶ 33. Finally, Nelson‘s expert stated that, despite a history of drainage system clogging, the City‘s records confirm that there had been no maintenance of the drainage system in the area of the accident. Affidavit ¶ 32.
{¶24} The City, on the other hand, presented evidence that it regularly cleans the catch basins on the Shoreway. The Commissioner of the City‘s Water Pollution Control
{¶25} Construing the evidence in a light most strongly in favor of Nelson, we believe that genuine issues of material fact exist concerning Nelson‘s allegation that the City was negligent in its maintenance of the Shoreway. Nelsоn presented evidence, by way of her expert witness, that the hazardous condition that existed on the Shoreway at the time of the accident was the result of the City‘s failure to maintain the drainage system, including the catch basins, sewer pipes, and traps.
{¶26} Because we find that
{¶27} Under this tier, the City argues that its summary judgment motion should be granted because the аlleged negligent behavior on the part of the employees of the City falls within its own judgment or discretion. In support of its position, the City provides that it has adopted a plan to clean the Shoreway catch basins in the fall, to coincide with the leaves falling. The City further states that this adopted course of action to maintain the catch basins is not routine; rather, the City‘s use of its personnel is a discretionary function that falls within the duties of the City‘s employees.
{¶28} Courts have consistently held that sovereign immunity operates to protect political subdivisions from liability based on discretionary judgments concerning the allocation of limited resources. Frenz v. Springvale Golf Course & Ballroom, 8th Dist. No. 97593, 2012-Ohio-3568, citing Hall v. Ft. Frye Local School Dist. Bd. of Edn., 111 Ohio App.3d 690, 699, 676 N.E.2d 1241 (4th Dist.1996). This immunity, however, “is not intended to protect conduct which requires very little discretion or independent judgment.” (Citations omitted.) Id. Courts have held that property maintenance, in general, does not involve “the type of judgment or discretion contemplated by
{¶29} Immunity pursuant to
{¶30} The City contends that the decision to inspect and maintain the sewer catch basins along the Shoreway involved the exercise of discretion, in particular with respect to the usе of its resources and personnel. It further argued that
{¶31} Consequently, Nelson‘s first assignment of error is sustained.
II. Applicability of R.C. 2744.02(B)(3)
{¶32} In granting summary judgment in favor of the City, the trial court also determined that
{¶33} As previously stated,
{¶34} The Ohio Supreme Court analyzed the immunity statute in order to determine whether there was sovereign immunity for ice on public roads. Howard v. Miami Twp. Fire Div., 119 Ohio St.3d 1, 2008-Ohio-2792, 891 N.E.2d 311 (“Howard I“). More on point, the Supreme Court considered the issue of whether an accumulation of ice on the roadway was an “obstruction” within the meaning of
{¶35} In Howard, a 16 year-old boy died when he lost control of his vehicle upon hitting black ice that had formed on the roadway following fire department training exercises. Id. The court of appeals in that case “held that [an] ‘obstruction’ as it is used in
“[A]n icy mixture on a public roadway has the potential of interfering with the public‘s safe use of the roadway by creating an opportunity for loss of traction and/or loss of control of a vehicle and * * *the township was not entitled to judgment as a matter of law under
R.C. 2744.02(B)(3) , because the political subdivision had a duty of care to remove this obstruction from the road.”Id. at ¶ 22, quoting Howard II, 171 Ohio App.3d 184, 2007-Ohio-1508, 870 N.E.2d 197, ¶ 26 (2d Dist.). The Supreme Court, however, rejected this broad interpretation of the meaning of the word “obstruction,” reversed the appellate court, and found that the appellate court‘s decision ignored the statutory history of
R.C. 2744.02(B)(3) :[W]e believe that the General Assembly purposely replaced the phrase “free from nuisance” with “other negligent failure to remove obstructions.” To find otherwise is to conclude that the legislature‘s action in amending the statute was a superfluous act.
We are persuaded that the legislature‘s action in amending
R.C. 2744.02(B)(3) was not whimsy but a deliberate effort to limit political subdivisions’ liability for injuries and deaths on their roadways.Howard I at ¶ 25-26. The Supreme Court further stated that the word “obstruction” requires something greater than a nuisance:
[W]e discern a legislative intent to limit political-subdivision liability for roadway injuries and deaths. The General Assembly, in furtherance of its goal, used the word “obstructions” in a deliberate effort to impose a condition more demanding than a showing of a “nuisance” in order for a plaintiff to establish an exception to immunity.
{¶36} Following the Supreme Court‘s decision in Howard I, the Sixth District Court of Appeals in Engle v. Williams Cty., 6th Dist. No. F-07-027, 2008-Ohio-3852, applied the Supreme Court‘s definition of “obstruction” within the meaning of
{¶37} In Engle, the driver of a vehicle lost control while driving through standing water on a roadway. The standing water was in a protected wetlands area that had been saturated by heavy rain. The court of appeals determined that the Supreme Court‘s decision in Howard I was not limited to сircumstances involving only ice, finding that the water in that case “was not blocking or clogging the roadway and was therefore not an obstruction as contemplated by
{¶38} The instant case involves standing water in the form of a large puddle that stretched across three lanes of traffic on the Shoreway. There is no evidence that this puddle either blocked or clogged traffic. Nelson testified that she saw no other vehicles ahead of her and, following her accident, other vehicles continued on through the puddle beyond her vehicle. While the standing water may have impeded traffic on the Shoreway, an impediment such as this does not rise to the level of an obstruction as defined by the Ohio Supreme Court in Howard I. Therefore, the exception to political subdivision immunity outlined in
{¶39} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR