RIVEREDGE DENTISTRY PARTNERSHIP v. CITY OF CLEVELAND, ET AL.
No. 110275
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
October 28, 2021
2021-Ohio-3817
EILEEN T. GALLAGHER, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-932884. JUDGMENT: AFFIRMED.
The Dolan Law Firm, L.L.C., and Michael A. Dolan, for appellant.
Eric Luckage, Chief Legal Officer, and Amanda L. Holzhauer, Assistant Legal Counsel, for appellee Northeast Ohio Regional Sewer District.
JOURNAL ENTRY AND OPINION
EILEEN T. GALLAGHER, J.:
{¶ 1} Plaintiff-appellant, Riveredge Dentistry Partnership (the “appellant“), appeals from the trial court‘s dismissal of its claims against defendant-appellee, the
The trial court erred in dismissing appellee pursuant to
Civ.R. 12(B)(6) when appellant‘s second amended complaint asserts plausible claims of negligence by appellee in the operation of its sewer system.
{¶ 2} After careful review of the record and relevant case law, we affirm the trial court‘s judgment.
I. Procedural and Factual History
{¶ 3} Appellant owns real property improved with a two-story medical office building located on Rocky River Drive in Cleveland, Ohio. Defendant, city of Cleveland (“the city“), owns and operates an off-street parking lot facility, known as Kamms Municipal Parking Lot (the “parking lot“), that adjoins appellant‘s property line. Appellant‘s adjacent property is down grade from the city‘s parking lot facility.
{¶ 4} The NEORSD is a regional sewer district organized and existing as a political subdivision of the state of Ohio under
{¶ 5} In or about 2016, the city began developing plans for a construction project to address ongoing storm-water flooding issues at the parking lot. To facilitate the project, the city submitted a storm-water grant application to NEORSD for funds to construct several storm-water retention basins to divert storm water from the parking lot facility. Among other things, the grant application required the
{¶ 6} In November 2018, the NEORSD entered into an agreement (the “Agreement“) with the city, as part of the district‘s Green Infrastructure Grant Program, for the implementation and maintenance of the project with the grant amount not to exceed $249,583.00. The NEORSD determined that the city‘s proposed project would promote the purpose of the grant program to remove stormwater from the district‘s combined sewerage system and reduce the release of combined sewage into the environment. The Agreement required the city to operate and maintain the project, stating:
3.5 Operation and Maintenance. Once constructed, the Member Community shall remain responsible for the operation and maintenance of the Member Community Project for the design life expectancy of the Project, as determined by the District. A twenty (20) year life expectancy is anticipated for the Project. The Member Community shall permit the District to provide technical review of the operation and maintenance manual developed for the Member Community Project prior to completion of construction. An annual operation and maintenance inspection report for the Member Community‘s Project shall be submitted to the District annually by April 1st following completion of construction for the design life expectancy of the Project, as determined by the District.
{¶ 7} In turn, the NEORSD agreed to the following:
2.4 District Approvals. (i) Review and approve or disapprove in writing the components of the Member Community‘s Project; (ii) inspect and
approve or disapprove in writing any and all components of the Member Community‘s Project to determine compliance with the plans and specifications of the Member Community‘s Project; and (iii) approve or disapprove in writing any changes to the Member Community‘s Project.
{¶ 8} Relevant to this appeal, the Agreement also specified as follows:
5.2 Disclaimer of Joint Venture. This Agreement is not intended to create a joint venture, partnership or agency relationship between the Member Community or the District, and such joint venture, partnership, or agency relationship is specifically hereby disclaimed.
{¶ 9} Subsequent to entering into the Agreement with the NEORSD, the city contracted with defendant Cook Paving & Construction Company (“CPCC“) to construct the storm-water retention basins.
{¶ 10} In May 2020, appellant filed a civil complaint against the city and CPCC, alleging that as a result of the installation of storm-water retention basins near appellant‘s property line, appellant‘s property has been “flooded with storm water runoff from the [city‘s parking lot] on numerous occasions between May and September 2019, causing [appellant] to incur property damages, lost rents, and associated clean up expense.” Complaint at ¶ 19. The complaint alleged that the city and CPCC “jointly, severally, intentionally, recklessly, and/or negligently” caused, diverted, or allowed ground and surface water from the city‘s parking lot to be discharged onto appellant‘s property. Id. at ¶ 26-32.
{¶ 11} In September 2020, appellant filed an amended complaint to name the NEORSD as an additional defendant. A second amended complaint was later filed in October 2020. In relevant part, the second amended complaint asserted that the NEORSD (1) reviewed and approved all plans related to the storm-water retention
{¶ 12} Thus, the second amended complaint alleged that NEORSD negligently “approved, consented to, caused, directed, and diverted” storm water from its respective sewerage system into or onto appellant‘s property, and that the negligent operation of the sewerage system is a proprietary action that is excepted from the shield of immunity set forth in
{¶ 13} In November 2020, the NEORSD filed a motion to dismiss the second amended complaint pursuant to
{¶ 14} Finally, the NEORSD argued that it is immune from liability under
{¶ 15} Appellant filed a brief in opposition to the motion to dismiss, arguing that the NEORSD was “intimately involved with all aspects of the basin project, including final approval for project scope, location of the basins, schedules, changes, record keeping, reports, accounts, and any and all activities related to the project.” Thus, appellant asserted that its complaint pleaded plausible claims alleging that the NEORSD “negligently operated its combined sewerage system by diverting storm water from its system into [appellant‘s] building and property.” Appellant further maintained that
After review of the parties’ arguments, the court grants defendant NEORSD‘s motion to dismiss pursuant to Civil Rule 12(B)(6). The court finds that defendant NEORSD was not responsible for the design, construction, or location of the water retention basins. This defendant‘s only involvement was to provide the funding for the retention basin project. Accordingly, plaintiff‘s second amended complaint fails to raise a viable claim against the defendant NEORSD. Therefore, defendant NEORSD is dismissed as a defendant in the within action.
{¶ 17} Appellant now appeals from the trial court‘s judgment.
II. Law and Analysis
{¶ 18} In its sole assignment of error, appellant argues the trial court erred in granting the NEORSD‘s motion to dismiss because the second amended complaint set forth plausible claims of negligence. Appellant contends that it “has unequivocally asserted plausible claims of negligence against NEORSD in the operation of its sewer system that are not subject to
Standard of Review
{¶ 19} A
{¶ 20} To prevail on a
{¶ 21} Finally, as pertinent to this case, this court has recognized that the affirmative defense of immunity under
{¶ 22} An appellate court conducts a de novo review of a trial court‘s ruling on a
{¶ 23} In this case, the second amended complaint set forth claims of negligence, alleging that the NEORSD breached its duty of care by approving, placing, locating, and operating the storm-water retention basins in such a manner and proximity to appellant‘s property that it resulted in flooding and damage to appellant‘s building. Appellant further alleged that the NEORSD breached its legal duty not to divert, drain, and/or direct surface, ground, or storm water from their respective sewerage systems into or onto appellant‘s property.
{¶ 24} 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, 77, 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
{¶ 25} Throughout these proceedings, the NEORSD has disputed the factual allegations set forth in the second amended complaint, including appellant‘s characterization of the district‘s involvement in the construction and operation of the storm-water retention basins. The NEORSD reiterates that it “was not responsible for the design, construction, location, or operation and maintenance of the water retention basins” and that its “only involvement was to provide the funding for the retention basin project.” The NEORSD notes that the documents attached to the second amended complaint clearly show that the city, and not the district, is responsible for the operation and maintenance of both the newly constructed storm-water retention basins and the city‘s parking lot. The NEORSD further contends that “even if [it] had been involved in the design and construction of the basins, it would still be immune from liability for the alleged damages under
{¶ 26} In contrast, appellant asserts that it is disingenuous for the NEORSD to suggest that the storm-water retention basins do not “operate” as part of its sewerage system where (1) the district approved the location and placement of the basins, (2) the district has past, present, and future control over the storm-water retention basins, and (3) the storm-water basins are estimated to directly benefit
{¶ 27} We begin our discussion by addressing the NEORSD‘s position that it is immune from appellant‘s negligence claims pursuant to
{¶ 28}
{¶ 29} That immunity is not absolute, however. In the second tier of the analysis, the court determines whether any of the five exceptions enumerated in
{¶ 30} If any of the exceptions enumerated in
{¶ 31} In this case, there is no dispute that the NEORSD is a political subdivision. Accordingly, the NEORSD is immune from liability for appellant‘s alleged property damage unless any of the five exceptions to immunity enumerated in
{¶ 32} In order to demonstrate that the language set forth under
{¶ 33} The relevant function in this case involves a sewerage system. A function that involves a sewerage system could be either governmental or proprietary.
{¶ 35} In this case, appellant‘s assertion that the second amended complaint sets forth a “maintenance, operation, or upkeep issue” is not well taken. The second amended complaint, when read in its entirety, seeks damages and equitable relief from flooding issues that stem from the allegedly inadequate design or construction of the storm-water retention basins installed near appellant‘s property. Appellant is not alleging that remedying the flooding problem would involve little discretion and would be a matter of timely inspections and maintenance. Rather, the second amended complaint insinuates that in order to remedy the existing problem on the city‘s property, the defendants would, essentially, need to redesign or reconstruct
{¶ 36} We recognize that appellant is attempting to characterize the construction of the storm-water-retention basins as being inherently linked to the NEORSD‘s operation of its sewer district in order avoid the implications of
{¶ 38} There is no doubt that the Green Infrastructure Grant Program was created to “remove stormwater from the combined sewer system and reduce the release of combined sewage into the environment.” Second Amended Complaint, exhibit A. In a broad sense, we agree that the environmental projects funded by the grant program incidentally improve the NEORSD‘s ability to maintain and operate its sewer districts. However, the General Assembly has clearly distinguished negligent acts related to the design, construction, or reconstruction of a sewerage system from those related to a maintenance, operation, or upkeep issue. If this court were to adopt appellant‘s position in this matter, the distinction between these functions would be eliminated. The fact that the NEORSD‘s sewerage system benefitted, albeit indirectly, from the storm-water basin construction project on city property did not cause the function to become proprietary. Rather, the prevailing
{¶ 39} Appellant also suggests in a footnote that immunity could be defeated under the exception contained in
{¶ 40}
{¶ 41} After careful consideration, we are not persuaded by appellant‘s reliance on
{¶ 42} Having found that the sewer district is immune and that no exception to immunity applies, we find that appellant has failed to state a negligence claim against the district upon which relief may be granted. See Maclin v. Cleveland, 8th Dist. Cuyahoga No. 102417, 2015-Ohio-2956, ¶ 17.
{¶ 43} Finally, regarding appellant‘s request for injunctive relief,2 appellant correctly states that “[i]mmunity under
{¶ 44} Based on the foregoing, the trial court did not err by granting the NEORSD‘s motion to dismiss pursuant to
{¶ 45} 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 be sent to 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.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J.,* and KATHLEEN ANN KEOUGH, J., CONCUR
* Judge Larry A. Jones, Sr., concurred in this Journal Entry and Opinion prior to his death on October 7, 2021.
(The Ohio Constitution requires the concurrence of at least two judges when rendering a decision of a court of appeals. Therefore, this announcement of decision is in compliance with constitutional requirements. See State v. Pembaur, 69 Ohio St.2d 110, 430 N.E.2d 1331 (1982).)