JAMES PIERCE, ET AL., Plaintiffs-Appellees, v. THE CITY OF GALLIPOLIS, Defendant-Appellant.
Case No. 14CA3
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
RELEASED 07/23/2015
2015-Ohio-2995
Adam R. Salisbury, Gallipolis City Solicitor, Gallipolis, Ohio, for defendant-appellant.
D. Joe Griffith, Dagger, Johnston, Miller, Ogilvie & Hampson, Lancaster, Ohio, for plaintiffs-appellees.
Hoover, P.J.
{1} The City of Gallipolis (“appellant“) appeals the summary judgment decision of the Gallia County Common Pleas Court, which determined that appellant was not entitled to sovereign immunity under
I. FACTS
{2} The appellees allege that a sewer line owned and operated by the appellant, and located beneath the appellees’ property, cracked and caused sewage and storm water to be released from the pipe. As a result of the leak, appellees contend that “massive erosion” occurred on their property causing a land slippage and earth movement event on April 24, 2011. The landslip event allegedly caused the appellees’ residence to crack and separate; exposed the appellees to raw sewage; injured appellee James Pierce to the extent that he required hospitalization and surgery; and made their residence uninhabitable. Appellees filed a complaint for property damage, personal injury, loss of consortium, and nuisance. In their complaint, appellees alleged that appellant‘s negligent failure to maintain the sewer line caused it to crack, in turn causing the release of sewage, erosion, land slippage, and the above-described damages. Apрellant denied the allegations of the complaint.
{3} After conducting discovery, appellant filed a motion for summary judgment contending that it was immune from liability under
{4} Finney, in his affidavit, stated that there were no complaints on record of land slippage, sewer odor, or other conditions that wоuld indicate a failure of the sewer line near appellees’ residence prior to the April 24, 2011 landslip event. The Finney affidavit also incorporated a report provided to the appellant following the landslip event by Gannett Fleming Engineers and Architects, P.C (“Gannett Fleming“). The report opines that a large amount of fill on top of a steep slope of appellees’ property without compensating fill at the bottom of the slope, combined with unusually heavy rainfall in April 2011, caused the land to slip, which then, broke the sewer line. Finney also averred, in his affidavit, that appellant conducts routine maintenance of the sewer lines near appellees’ residence, including the sewer lines at issue in the case, “by regularly inspecting the lift station fed by said lines.” Finney contends that had any significant cracks or breaks in the line been present prior to the landslip event, a noticeable amount of soil would have been present at the lift station - yet no soil or other signs of breakage was ever discovered during the inspections of the lift station. Finally, Finney averred that subsequent to the landslip event, appellant hired several independent contractors to perform duties related to new construction and replacement of the sewer lines.
{6} Appellees’ memorandum contra was supported by three affidavits. First, Glenn Litman, the appellees’ neighbor, submitted an affidavit in which he averred that in the twenty years of living near the appellees, he was “aware that there was no maintenance conducted by [appellant] on the sewer line easement at any time prior to April 24, 2011 * * *.” Litman further averred that there has been several “sewer backups” in the neighborhood and that “the lack of sewer line maintenance caused the sewer line to collapse near [appellees‘] property and has caused damages to many properties along Chillicothe Road.”
{7} Second, appellee Carol Pierce submitted an affidavit in support of the memorandum contra. In her affidavit, appellee Carol Pierce averred that (1) she has lived at her residence for over twenty years, and since she has resided at the property no maintenance has ever been conducted on the sewer lines by any employee or representative of appellant prior to April 2011; (2) erosion from a collapsed sewer line caused the surface ground of her property to
{8} Finally, appellees presented the affidavit of Ben J. Stuart. Stuart is a professor of civil engineering at Ohio University with expertise in the area of hydraulics, wastewater treatment systems, and sewage systems. In his affidavit, Stuart avers that in 2013 he conducted an inspection of appеllees’ property, inspected the “old clay tile that served as the sewer line for [appellees‘] property in and before April of 2011“, and reviewed documents produced by appellant, governmental agencies, and appellee James Pierce. Stuart further averred that there
It is my opinion, based upon a reasonable degree of engineering certainty, that the lack of maintenance of this sewer line allowed the line to fall into a state of disrepair with several cracks and breaks in the line which allowed excess water to infiltrate the line and for storm water and sewer water racing at high speeds underground to cause erosion to the subsoils near the line. Over time, this erosion caused caverns to develop in and around the sewer line near the Pierce property. This erosion caused and/or exacerbated a soil slippage/subsidence event in April of 2011 which caused earth movement directly near the Pierce residence, causing damages to the Pierce property. Further, after Mr. and Mrs. Pierce advised the city of problems with the line in April of 2011, the city failed to respond in a timely fashion, allowing further erosion and slippage to occur in the easement area, causing further damages to the Pierce property and residence.
{9} Later in the affidavit, Stuart again clarified his opiniоn as follows:
It is my opinion, based upon a reasonable degree of engineering certainty, that the City of Gallipolis breached its duty to have a maintenance plan to properly care for the clay sewer line adjacent to Mr. and Mrs. Pierce‘s property. It is my opinion, based upon a reasonable degree of engineering certainty, that the City of Gallipolis breached its duty by failing to conduct maintenance on the sewer line adjacent to the Pierce property for a period in excess of 20 years. It is my opinion, based upon a reasonable degree of engineering certainty, that it is foreseeable to any reasonable person in the field of sewer maintenance that if a clay sewer line is
not maintained for a рeriod in excess of 20 years that the sewer line will fall into a state of disrepair with the potential to cause damages to nearby landowners. It is my opinion, based upon a reasonable degree of engineering certainty, that the lack of maintenance by the City of Gallipolis in this case directly and proximately caused the sewage subsidence event on April 24, 2011 which directly and proximately caused damages to the residence of Carol and James Pierce at 23 Chillicothe Road, Gallipolis, Ohio. It is further my opinion, that the City of Gallipolis breached its duty to conduct maintenance/repairs after it was advised by Mr. and Mrs. Pierce about the subsidence event in April of 2011. The city‘s failure to conduct repairs for a period of eight months thereafter cаused further and more extensive damage to the Pierce property and residence.
{10} Following the filing of appellees’ memorandum contra, the appellant filed a response brief. Attached to appellant‘s response brief was another affidavit from Finney, in which Finney averred, inter alia, that within a month of the landslip event the appellant contracted to have a new sewer line constructed near appellees’ residence. Finney also stated that, following the landslip event, he responded to appellees’ complaints of sewer seepage and conducted follow-up testing of ground samples and found no evidence of seepage. In addition to the briefs and summary judgment evidence, the trial court also heard oral argument on the motion for summary judgment.
{11} After considering the briefs and oral argument, the trial court issued a decision and entry denying appellant‘s motion for summary judgment. In reaching its decision, the trial court concluded that the appellees’ allegations related to the negligent maintenance of the sewer lines, and that a political subdivision‘s failure to maintain its sewer system is a proprietary act. Thus,
II. ASSIGNMENTS OF ERROR
{12} Appellant asserts the following assignments of error for review:
First Assignment of Error:
The Trial Court erred in finding that material facts exist so as to deny Appellant‘s motion for summary judgment as to Plaintiffs‘/Appellees’ alleged damages regarding the initial land subsistence event in April 2011. The trial court should have found that the conduct about which Plaintiffs complain related to a governmental, not proprietary, function and the City was immune pursuant to Ohio Revised Code Section 2744.
Second Assignment of Error:
The Trial Court erred in finding that material facts exist so as to deny Appellant‘s motion for summary judgment as to Plaintiffs‘/Appellees’ alleged damages regarding the initial land subsistence event in April 2011. The trial court should have found that Plaintiffs cannot еstablish a causal connection between the conduct about which they complain and the land slip event[.]
Third Assignment of Error:
The Trial Court erred in finding that material facts exist so as to deny Appellant‘s motion for summary judgment as to Plaintiffs‘/Appellees’ alleged damages regarding the initial land subsistence event in April 2011. The trial court should have found that Plaintiffs cannot establish that the conduct about which they complain was, in fact, negligent[.]
Fourth Assignment of Error:
The Trial Court erred in finding that material facts exist so as to deny Appellant‘s motion for summary judgment as to alleged losses suffered by Plaintiffs/Appellees during the reconstruction of the neighborhood sewer line. The
trial court should have found that the City was immune pursuant to Ohio Revised Code Section 2744 as described herein.
Fifth Assignment of Error:
The Trial Court erred in finding that material facts exist so as to deny Appellant‘s motion for summary judgment as to alleged losses suffered by Plaintiffs/Appellees during the reconstruction of the neighborhood sewer line. The trial court should have found that it is unclear from Plaintiffs complaint if they are complaining about the action or inaction of City‘s employees or an independent contractor hired by the City to perform work subsequent to April 24, 2011.
III. SUMMARY JUDGMENT STANDARD
{13} We review the trial court‘s decision on a motion for summary judgment de novo. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we afford no deference to the trial court‘s decision and independently review the record and the inferences that can be drawn from it to determine whether summary judgment is appropriate. Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, ¶ 12; Grimes v. Grimes, 4th Dist. Washington No. 08CA35, 2009-Ohio-3126, ¶ 16.
{14} Summary judgment is appropriate only when the following have been established: (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 only one conclusion, and that conclusion is adverse to the nonmoving party.
IV. LAW AND ANALYSIS
{15} In its first assignment of error, appellant contends that the trial court erred in denying its motion for summary judgment for the claims and damages associated with the initial landslip event because it is immune from liability under
{16}
{17} Second,
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.
{18} Finally, if liability exists under
{19} In the case sub judice, the parties do not dispute that appellant is entitled to the general grant of immunity under
{20}
{21} Under
{22} Here, appellant contends that the appellees’ true complaints rest upon a governmental function (i.e., its failure to replace or improve the sewer line), and thus, that
{24} In the case sub judice, appellant has not offered any evidence suggesting that the sewer system was improperly designed or constructed, thus necessitating the need to reconstruct the system prior to the initial landslip event. Nor have the appellees made such claims. To the contrary, аppellees in their complaint and summary judgment affidavits repeatedly emphasize that their claimed injuries resulted from appellant‘s alleged failure to repair damage to the sewer line, to inspect it, to remove obstructions, or to remedy general deterioration. In particular, the appellees presented the affidavit of Stuart, their expert, in which Stuart opined that the “lack of maintenance of [the] sewer line“, over twenty years, “allowed the line to fall into a state of disrepair with several cracks and breaks in the line which allowed excess water to infiltrate the line and for storm water and sewer water racing at high speeds underground to cause erosion to the subsoils near the line.” Furthermore, appellee Carol Piеrce and the appellees’ neighbor,
{25} Based upon the record before us, we reject appellant‘s contention that the damages caused by the initial landslip event stemmed from the negligent design or the City‘s failure to reconstruct the sewer lines as opposed to the negligent maintenance of the sewer lines. Instead, we conclude that the allegations set forth in appellees’ complaint properly allege negligent maintenance, rather than negligent design. Furthermore, appellees have presented evidence that, if proven, would establish that appellant negligently maintainеd the sewer lines near their residence. Accordingly, if proven, appellant‘s negligent performance of its proprietary function of maintaining its sewer system would expose it to liability under
{26} In its second assignment of error, appellant contends that the trial court erred in denying its motion for summary judgment because appellees have failed to establish that the alleged negligent maintenance of the sewer lines proximately caused the landslip event and resulting damages. As discussed above, before
{27} Appellant‘s argument in support of its second assignment of error centers around the Gannett Fleming report submitted with the first Finney affidavit. In the report, appellant‘s
{28} Appellant, however, entirely dismisses the Stuart affidavit submitted by the appellees. In his affidavit, Stuart opined that appellant‘s lack of maintenance caused the sewer line to crack and break allowing sewage and other effluent to leak, which in turn caused soil erosion, the development of caverns underground, and the eventual landslip event. Appellant contends that because appellees or other nearby landowners never complained of a sewer leak, the Stuart affidavit should be summarily ignored.
{29} In essence, appellant engages in a weighing of the evidence and argues that its expert‘s opinion on causation should be believed over the appellees’ expert opinion. Weighing of the evidence is not proper on summary judgment review. Rather, it is clear that a genuine issue of material fact on causation exists, necessitating review by a trier of fact. Accordingly, appellant has not established immunity from liability under
{30} In its third assignment of error, appellant contends that it is immune from liability, and that the trial court erred in denying its motion for summary judgment, because appellees cannot prove that its conduct constituted a breach of the duty оf care it owed appellees. More specifically, appellant contends that it did conduct routine maintenance of its sewer lines, had no
{31} The existence and conditions of a duty between two parties is determined by the nature of the relationship between them. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 23, citing Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98, 543 N.E.2d 1188 (1989). The duty element of negligence poses a question of law for the court to determine. Id. at ¶ 22. “[T]he existence of a duty depends upon the foreseeability of harm: if a reasonably prudent person would have anticipated that an injury was likely to result from a particular act, the court could find that the duty element of negligence is satisfied.” Id. at ¶ 23, citing Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998); Commerce, supra, at 98; Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). Duty has also been described as “the court‘s ‘expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ ” Id. at ¶ 24, quoting Prosser, Law of Torts (4th ed.1971), 325-326. Thus, there is no explicit formula for determining whether a duty exists and the existence of a duty is largely dependent upon the facts and circumstances present. See Payne v. Vance, 103 Ohio St. 59, 67, 133 N.E. 85 (1921).
{32} Ohio courts have long recognized that a city can be liable for the negligent maintenance of its sewers. See Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250, 255, 148 N.E. 846 (1925); Kiep v. Hamilton, 12th Dist. Butler No. CA96-08-158, 1997 WL 264236, * 6 (May 19, 1997) (“[I]f a city accepts the responsibility to maintain a sewer and is then negligent in its inspection and/or maintenance of the sewer, the city may be liable for damages proximately caused by its negligence.“). See also Essman, 2010-Ohio-4837, at ¶ 31; Malone v. Chillicothe, 4th Dist. Ross No. 05CA2869, 2006-Ohio-3268, ¶ 21; Williams v. Glouster, 4th Dist. Athens No. 10CA58, 2012-Ohio-1283 ¶ 23. In Mitchell Mfg. Co., the Ohio Supreme Court held:
The weight of authority holds that the construction аnd institution of a sewer system is a governmental matter, and that there is no liability for mere failure to construct sewers. However, the weight of authority is equally decisive in holding that the operation and upkeep of sewers is not a governmental function, but is a ministerial or proprietary function of the city.
The obligation to repair is purely ministerial. When, therefore, a municipal corporation assumes the control and management of the sewer or drain which has been constructed in a public street under its supervision, it is bound to use reasonable diligence and care to keep such sewer or drain in good repair, and is liable in damages to any property owner injured by its negligence in this respect. (Citations omitted.) Id. at 255.
{33} The Ohio Supreme Court announced a similar rule in Doud v. Cincinnati, 152 Ohio St. 132, 137, 87 N.E.2d 243 (1949):
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 and free from conditions which will cause damage to private property * * *. The municipality becomes liable for damages caused by its negligence in this regard in the same manner and to the same extent as a private person under the same circumstances.
{34} Given the above precedent, there is no doubt that appellant owed appellees a duty to maintain the sewer line. What the parties dispute, however, is whether maintenance had been
{35} Simply stated, genuine issues of material fact exist regarding appellant‘s compliance with its duty to maintain the sewer lines and whether a reasonably prudent person in similar circumstances would have anticipated that an injury was likely to result from its conduct. Accordingly, the trial court did not err in denying appellant‘s motion for summary judgment, and appellant‘s third assignment of error is overruled.
{36} In its fourth assignment of error, appellant contends that the trial court erred in denying its motion for summary judgment for the claims and damages associated with the post-landslip events, because it is immune from liability under
{38} In their complaint, appellees’ allege that after the April 2011 landslip event, their residence was exposed to raw sewage and sewage water, making the residence uninhabitable. In appellee Carol Pierce‘s affidavit, Pierce averred that after the landslip event she contacted Finney to advise him that the sewer line had broken and requested that appellant fix the problem. According to the affidavit, Finney denied that a sewer line existed in the area, and “[d]uring the days and weeks that passed * * *, sewage water and storm water continued to pour through the broken line, continuing to erode the subsoil beneath [the] property which caused the erosion and slippage to worsen and caused the foundation of [the appellees‘] home to become further damaged.” Later in the affidavit, appellee Carol Pierce clarified that appellant “took no action for more than eight months to come and repair the sewer line. During this time, over eight months, sewer water and storm water continued to pour through the destroyed line, causing further damage to my property.”
{40} Finally, in its fifth assignment of error, appellant contends that appellees have failed to identify with any meaningful specificity the conduct which gives rise to their claims. Thus, appellant contends that it is entitled to summary judgment because “various companies as independent contractors” performed repairs and improvements to the appellees’ land and the sewer lines subsequent to the landslip event of April 2011 but only the acts of the political subdivision and its employees are subject to liability under
{41} We disagree with appellant‘s contention that appellees have failed to identify with any meaningful specificity the conduct in which they complain. Rather, a review of the complaint and summary judgment evidence makes clear that appellees seek compensation for damages arising from appellant‘s alleged negligent failure to perform maintenance on the sewer
V. CONCLUSION
{42} Based on the foregoing, appellant‘s assignments of error are overruled. The judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the 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 Gallia County 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.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, A.J.: Concurs in Judgment Only.
For the Court
By: ____________________________
Marie Hoover
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.