OHIO BELL TELEPHONE CO. v. CITY OF CLEVELAND
No. 98683
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 31, 2013
[Cite as Ohio Bell Tel. Co. v. Cleveland, 2013-Ohio-270.]
S. Gallagher, P.J., Rocco, J., and Keough, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Common Pleas Court, Case No. CV-732218
Barbara A. Langhenry
Interim Director of Law
City of Cleveland
By: John Mills
Assistant Director of Law
601 Lakeside Avenue, Room 106
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William H. Hunt
W.H. Hunt Legal Group, LLC
24500 Center Ridge Road
Suite 170
Westlake, OH 44145
Edward L. Bettendorf
45 Erieview Plaza
Suite 1400
Cleveland, OH 44114
{¶1} Appellant, city of Cleveland (“the City“), appeals the decision of the Cuyahoga County Court of Common Pleas that denied its motion for summary judgment. For the reasons stated herein, we affirm.
{¶2} Appellee, The Ohio Bell Telephone Company (“Ohio Bell“), filed this action against the City alleging claims of negligence. Ohio Bell alleged that the City negligently damaged its underground utility facilities while performing excavation in connection with the water main leak on Pearl Road in Cleveland on June 1, 2009. Ohio Bell also sought damages resulting from contemporaneous flooding to its nearby central office. The complaint was later amended to include specific allegations of wanton and reckless cоnduct.
{¶3} The City filed a motion for summary judgment, as well as a subsequent amended motion for summary judgment. The City claimed, in part, that it was entitled to statutory immunity under
{¶4} The trial court aptly set forth the factual background of the case as follows:
Factual background
A. Ohio Bell‘s allegations
Ohio Bell is a public utility doing business as AT&T Ohio, which owns underground utility facilities1 buried throughout the state and Cuyahoga County. (Second Am. Compl., ¶¶ 1-4; Answer to Sec. Am. Compl., ¶ 1.) Ohio Bell alleges that whilе the City was working on an
Ohio Bell first alleges that the City engaged in a number of negligent acts which, in addition to the office leak, caused damage to its underground utility facilities;
- The City “failed to maintain reasonablе clearance between [Ohio Bell‘s] underground utility facilities and the cutting edge or point of powered equipment“; and
- The City “failed to preserve and protect the markings of the approximate location of [Ohio Bell‘s] underground facilities and otherwise failed to excavate in a careful and prudent manner,” in breach of common-law and statutory standards. (Second Am. Compl., ¶ 9; id. ¶¶ 5 & 9.)
Ohio Bell also claims that the City‘s “excavation in the near and clearly visible proximity to [Ohio Bell‘s] facilities was wanton and reckless without any regard for the protection of [Ohio Bell‘s] property.” (Second Am. Compl., ¶ 13.) Ohio Bell seeks $105,378.90 in damages, which represents the “reasonable cost of restoration and loss of use” between the date of damage and the date Ohio Bell completеd its restoration. (Id. at ¶¶ 10 & 14.)
1. The City‘s submission
In support of its amended motion for summary judgment, the City submits the affidavit of Brian Campbell, a City Division of Water employee who “performs repairs on City water infrastructure throughout Northeast Ohio.” (Am. MSJ, Ex. A., ¶¶ 1 & 3.) [Footnote omitted.] Campbell states that he was “dispatched” to the site at issue on June 1, 2009 “to locate the site of a water main break beneath the road surface.” (Am. MSJ, Ex. A, ¶¶ 1 & 5.) He “observed аt the location that the conditions were creating an emergency in need of immediate attention.” (Id. at ¶ 5.) “Using a rotary tool, [Campbell] drilled through the top two to three feet of pavement only.” (Id. at ¶ 6.) Then, “[w]ithout the aid of a mechanical device, [he] inserted test rods into the drilled holes to a depth of about nine feet, in order to find the location of the break.” (Id. at ¶ 7.) In other words, Campbell successfully inserted the test rods an additional 6 to 7 feet through earth and other subsurface matter to a depth of about 9 feet.
Campbell then opines that his conduct was not negligent, asserting that “[a]t all times while I was at the location“;
- “I used all equipment in a manner consistent with industry standards.” (Id. at ¶ 8.)
- “I exercised all due care in the use of the equipment.” (Id. at ¶ 9.)
- “I exercised all due care in observing аny markings designating underground utilities.” [Id. at ¶ 10.]
2. Ohio Bell‘s submission
a. City work orders
In opposition to summary judgment, Ohio Bell submitted work orders and a follow-up work order that the City had produced in discovery. (Brief Contra Am. MSJ, Ex. 7, ¶ 2.) The work order of J. Lally, who apparently is a Division of Water investigator, provides that he arrived on the scene at 6:00 p.m. on June 1, 2009. (Id., Ex. 1, unnumbered p.1.) He states that he “found bad leak on main[.] Investigate found [leak] on [east] side of Pearl[.] Called fоr crew & located couple [line valve], for crew
Campbell‘s work order indicates that he arrived at the site at 7:30 p.m. on June 1, 2009 (about 1.5 hours after Lally) to investigate a “bad leak” on the 10” water main. (Id. at Ex. 2, p. 1.) His notes indicate, in part, that he “located line valve[;] got [measurements] for main[;] drilled test hole [;] street very thick[;] had hard time trying to hit pipe[;] drilled test holеs till relief crew [arrived].” (Id. at Ex. 2, p 1.] Campbell left at 1:15 a.m. the next morning after being relieved by Randall Barkley. (Id.) Although the main apparently had not been turned off by the time Campbell left the site, he had contacted Ohio Underground Utility Protection Services (“OUPS“) 3 at some point during his almost six-hour stay. (Id.)
Barkley‘s follow-up work order dated June 2, 2009 indicates that he arrived at 1:15 a.m. and exchanged paperwork with Campbell. (Id. at unnumbered p. 3) Barkley then toоk his own measurements and began to drill test holes. (Id.) Drilling stopped to “turn a 10” valve off so OUPS could mark out a utility.” (Id.) This follow-up work order indicates that the main was turned off at 5:40 a.m. and that drilling resumed when OUPS completed its marking. (Id.)
According to Barkley, “We got stopped again by AT&T with regards to water flooding their building & potential to knock out service for the city. We stopped drilling & began locating [&] shutting off line valves.” (Id.) Barkley explained that “[w]e had to jack-hammer a valve out & flush out the hv [?] at State Rd.” (Id.) After shutting the main down, the crеw “assisted AT&T with pumping two of there [sic] vaults down by our job site.” (Id.)
b. Affidavits [Footnote omitted.]
i. Utility locators
Ohio Bell also submitted in opposition to summary judgment the affidavits of two United States Infrastructure Corporation (“USIC“)
Jackson advised the water department personnel that utilities facilities were present and that telephone facilities existed “below the street.” (Id. at ¶ 8.) He waited at the site until the water was turned off, and then he began placing markings that showed the location of underground utilities. (Id. at ¶ 10.) Jackson states that he “completed marking the telephone facilities at 0137 [1:37 a.m.] on June 2, 2009.” (Id. at ¶ 11.)
Wemmer arrived at the site around 9:00 a.m. on June 2, 2009 and, like Jackson, “observed numerous test holes drilled in the pavement of Pearl Rd., located approximately five feet from a telephonе company manhole.” (Id., Ex. 5 at ¶ 6.) Wemmer also noticed “markings placed by USIC in the area where the test holes were drilled.” (Id. at ¶ 7.)
“After excavation and removal of the pavement surface in the damage area, [Wemmer] observed a concrete-encased conduit containing telephone lines.” (Id. at ¶ 8.) He also noticed “a hole drilled in the top surface of the conсrete-encased conduit of the same type and the same size as the test holes drilled in the pavement directly above the conduit in the damage area.” (Id. at ¶ 9.) Once the concrete conduit sheathing was removed, Wemmer then “observed shattered PVC conduit pipe in the area directly under the hole bored in the concrete casting.” (Id. at ¶ 10.) One shattered PVC conduit pipe cоntained damaged telephone cable, and another was empty. (Id. at ¶¶ 10-11.) Wemmer opines that the damage to the PVC conduit and the telephone cable “is consistent with the type of damage by a concrete drill of the type used to drill the test holes [that he] observed in the pavement and the conduit above the damage area.” (Id.)
The affidavit of Michael D. Diederich, a senior Technical Network Services Manager for Ohio Bell, supports the factual observations of USIC employees Jackson and Wemmer. (Brief Contra MSJ, Ex. 6, ¶ 1.) Diederich was at scene, acting as supervisor of Ohio Bell personnel charged with repairing the damage to its cable and conduit. (Id. at ¶¶ 2-4.) He “observed that the drilled holes at the pavement surface traced directly to the conсrete top of the Telephone Company duct package and into the blue plastic duct and further into the back sheath of the cable.” (Id. at ¶ 5).
{¶ 5} Ultimately, the trial court concluded that “[t[he City failed to demonstrate that its actions involved anything other than routine decisions in how to repair a water main leak” and that the immunity provided in
{¶ 6} The City filed this appeal, raising one assignment of error for our review. The City claims the trial court erred in not granting summary judgment to the City on the basis of sovereign immunity under
{¶ 7} Appellate review of summary judgment is de novo, governed by the standard set fоrth in
{¶ 8} The Ohio Supreme Court has outlined a three-tier analysis for determining whether a political subdivision is entitled to immunity under
{¶ 9} As to the first and second tiеrs of the analysis, we recognize that the City‘s maintenance and operation of a municipal water supply system is a proprietary function,
{¶ 10}
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.
{¶ 11} Ohio courts have been left to determine what constitutes “the exercise of judgment or discretion” in order to invoke this defense. There is limited authority from the Ohio Supreme Court on this issue. In Perkins v. Norwood City Schools, 85 Ohio St.3d 191, 193, 1999-Ohio-261, 707 N.E.2d 868, the court held that
{¶ 12} In Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, the court distinguished
an individual employee‘s exercise of judgment or discretion in determining whether to acquire or how to use equipment or facilities unless the judgment was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner * * *.
Elston at ¶ 31 (finding teachers and coaches, as employees of a political subdivision, have wide discretion under
{¶ 13} Consistent with Perkins, this court has previously recognized that
{¶ 14} Other appellate courts have observed that “immunity attaches only to thе broad type of discretion involving public policy made with ‘the creative exercise of political judgment.‘” McVey v. Cincinnati, 109 Ohio App.3d 159, 163, 671 N.E.2d 1288 (1st Dist.1995), quoting Bolding v. Dublin Local School Dist., 10th Dist. No. 94APE09-1307, 1995 Ohio App. LEXIS 2455 (June 15, 1995); Mathews v. Waverly, 4th Dist. No. 08CA787, 2010-Ohio-347, ¶ 45; see also Inland Prods., Inc. v. Columbus, 193 Ohio App.3d 740, 2011-Ohio-2046, 954 N.E.2d 141, ¶ 62 (10th Dist.) (finding decision to utilize a hydraulic gradeline modeling to predict the effects of closing a gate as a flood-control measure was an exercise of judgment or discretion under
{¶ 15} As stated in McVey, “[i]mmunity does not apply to the negligence of employees in ‘the details of carrying out the activity even though there is discretion in making choices.‘” Id. at 163, quoting Bolding. Thus, “[o]nce a decision is made, * * *
{¶ 16} In this case, the City‘s response to the water main break involved the positive exercise of judgment and discretion in the use of its equipment and resources. Campbell‘s affidavit reflects that when he responded to the location of the water main break, he observed the conditions and determined it was “an emergency in need of immediate attention.” He then determined the method and equipment to be utilized for locating the source of the break. He proceeded to use a rotary tool to drill into the pavement and inserted test rods to the depth of about nine feet in an effort to find the location of the break. Campbell was later relieved by Barkley, who continued to drill test holes. These determinations were more than routine maintenance decisions requiring little judgment or discretion. However, the record reflects genuine issues of material fact as to whether this discretion was exercised in a wanton or reckless manner.
{¶ 17} “Recklessness” requires more than mere negligence. O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 74. It has been defined as “a perverse disregard of a known risk” and requires that the actor be conscious that his
{¶ 18} The City argues that Ohio Bell failed to allege wanton or reckless behavior in its original complaint, and that its later amendment of the complaint to interject this claim was not supported by the facts. As supplemental authority, the City cites Ohio Bell Tel. Co. v. DiGioia-Suburban Excavating, LLC, 8th Dist. Nos. 89708 and 89907, 2008-Ohio-1409, a case that involved a water main break and an ensuing gas explosion, whеrein a city employee delayed shutting down a 24-inch water main until a 12-inch water main was ruled out as the source. The court found that the city was entitled to summary judgment based on political subdivision immunity when the plaintiffs alleged only negligence and not that the city had acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Id. Unlike the DiGioia-Suburban Excavating case, in this case Ohio Bell‘s second amended comрlaint included specific allegations of wanton and reckless conduct. Furthermore, as this court noted in FirstEnergy, several of this court‘s prior decisions, including DiGioia-Suburban Excavating, did not specifically address the “exercise of judgment or discretion” aspect of
{¶ 19} Here, Ohio Bell claims the City‘s workers were reckless by not waiting until OUPS markings were in place, by drilling test holes without knowing what underground utilities were present, by drilling within five feet of visible indications of underground utilitiеs, and by drilling far beyond what one would reasonably expect the depth of the street pavement to be. There was evidence that the excavation was performed near underground utility facilities that were visibly marked. There was also evidence that the excavation began before OUPS arrived to mark the location of underground utility facilities. Upon the record before us, we find therе are genuine issues of material fact as to whether the City‘s workers acted in a wanton or reckless manner in proceeding with the excavation.
{¶ 20} Furthermore, as previously discussed,
{¶ 21} Accordingly, we conclude the City is not entitled to summary judgment on the basis of sovereign immunity. The City‘s sole assignment of error is overruled.
{¶ 22} Judgment affirmed.
It is ordered that appellee recover from appellant 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 оf Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., and KATHLEEN ANN KEOUGH, J., CONCUR