HALEY SHEPARD, et al. v. CITY OF AKRON, et al.
C.A. No. 26266
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
October 10, 2012
2012-Ohio-4695
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. 2010-09-6645
Dated: October 10, 2012
WHITMORE, Presiding Judge.
{¶1} Defendant-Appellant, City of Akron (“the City“), appeals from a judgment of the Summit County Court of Common Pleas denying its motion for summary judgment. We affirm in part and reverse in part.
I
{¶2} At approximately 4 p.m. on a Friday in March 2007, the City‘s water department was notified of a water main break on Cordova, a dead-end residential street. John Frank, an inspector with the water department, was dispatched to the scene. When Frank arrived workers from the sewer and highway departments were already there.
{¶3} According to Frank, the sewer department had just finished backfilling an excavation site in the street and had topped the site with “cold patch” when water began coming up through the site. Frank confirmed it was a main break and reduced the amount of water flowing to the affected pipe. Frank left the water on so that local residents would continue to
{¶4} Thompson testified that, based on the information provided to him, he decided to wait to fix the water main break until Monday morning. The Ohio Utility Protection Service (“OUPS“) was contacted to locate the utility lines in the area in preparation for the repair work.
{¶5} Less than 24-hours later, Plaintiff-Appellees, Haley Shepherd and Dorothy Johnson, were injured when their car fell into the excavation site on Cordova. The large hole was obscured by water and no barricades were present.
{¶6} Appellees filed suit against the City, and the City filed a motion for summary judgment, arguing it was immune from liability. The court determined that the City was not entitled to immunity and denied its motion. The City now appeals and raises two assignments of error for our review. To facilitate the analysis, we consolidate the assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT ERRED IN HOLDING THAT THE EXCEPTION OF
Assignment of Error Number Two
THE TRIAL COURT ERRED IN HOLDING THAT THE IMMUNITY DEFENSES OF
{¶7} In its first and second assignments of error, the City argues that the trial court erred in finding that it was not immune from liability and thereby denying its motion for summary judgment.
{¶9} Pursuant to
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶10} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Once this burden is satisfied, the non-moving party bears the burden of offering specific facts to show a genuine issue for trial. Id. at 293. The non-moving party may not rest upon the mere allegations and denials in the pleadings, but instead must point to or submit some evidentiary material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991). Accord Thatcher v. Goodwill Industries of Akron, 117 Ohio App.3d 525, 531 (9th Dist.1997).
{¶12} Determining whether a political subdivision is entitled to immunity under
General Immunity
{¶13} The first tier of the analysis begins with a general grant of immunity.
{¶14} A “[p]olitical subdivision’ * * * means a municipal corporation, township, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state.”
{¶15} “A ‘governmental function’ includes * * * the maintenance and repair of[] roads * * *”
Statutory Exception to General Immunity
{¶16} “The immunity afforded a political subdivision in
Failure to Repair
{¶17}
{¶18} Robert Brooks, a resident in the area, stated that he noticed a sink hole developing in the street at least a week before the accident. He contacted the City‘s street department on two separate occasions requesting the City repair the street or barricade the area. Johnson testified that she was aware that the City had been working on the street prior to the accident, but never noticed any barricades in the area.
{¶19} On Friday, March 2, 2007, the sewer department backfilled an excavated hole in the street and topped it with “cold patch.” Presumably while this repair was being completed the water main broke because water started coming up through the excavation site. The water main break was reported to the water department at approximately 4 p.m. The water department reduced the amount of water flowing through the affected pipe and contacted the OUPS to locate
{¶20} The evidence does not support the conclusion that the City was negligent in repairing the road. Rather, the issue is whether the City was negligent in waiting until Monday to repair the water main break, and to properly protect the area until the hazard could be remedied.
Negligent Performance of Proprietary Function
{¶21}
a. Repair of Water Main
{¶22} The water main break was reported to the water department on a Friday at approximately 4 p.m. The break was on a dead-end residential street, and the water flow to the affected pipe had been reduced. The water was not completely shut off so that local residents would continue to have service. Thompson, the supervisor on duty, decided to schedule the
{¶23} Appellees have not provided any evidence to support the conclusion that the City was negligent in waiting to repair the break until Monday. Instead the issue appears to be whether the City was negligent in its failure to barricade the hazard. After reviewing the evidence in a light most favorable to Appellees, we cannot conclude that the City was negligent in scheduling the repairs for Monday morning.
b. Barricades
{¶24} Whether the barricades were set is a material question of fact that is in dispute. John Frank, the inspector that responded to the report of the water main break, testified that workers from the sewer and highway maintenance departments were on site when he arrived. Frank testified that he normally carries barricades in his truck, but that there were already barricades on location. Frank stated that he was not sure to which department the barricades belonged. Frank testified that after he reduced the water flow to the broken pipe, he took the two barricades that were already there and set them around the excavation site. He then left the scene to attend to other locations. It is unclear from Frank‘s deposition if workers from the sewer or highway departments were still on scene when he left, leaving open the possibility that the City workers may have taken the barricades with them. Frank further testified that barricades do get moved. Sometimes “[a] contractor or somebody needs [a barricade] so they might take them.”
{¶26} Frank and his supervisor at the time, John Thompson, both testified that the area would have been a hazard if there were no barricades. Viewing the evidence in a light most favorable to Appellees, there is a material question of fact as to whether the City was negligent. Therefore, the City cannot avoid potential liability under
Statutory Defenses to Restore Immunity
{¶27} Because we have concluded an exception to immunity applies, we must proceed to the third tier of the analysis. If an
(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 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.
{¶29} Frank and Thompson testified that without barricades around the excavation site, it would have been a hazard. Barricading a hazard in a roadway would be a routine decision. Viewing the evidence in a light most favorable to Appellees, there is a material question of fact as to whether the barricades were left around the excavation site after all of the City workers left the area.
{¶30} We cannot conclude, at this stage in the case, that the City is entitled to restore its immunity under
Public Duty Rule
{¶31} Once it is determined that the City may be liable for injuries under
{¶33} The City‘s assignments of error are sustained in part and overruled in part. The City is entitled to immunity for its decision to repair the water main the following Monday morning. There remains a genuine issue of material fact as to whether the City is entitled to immunity for its failure to barricade the area.
III
{¶34} The City‘s assignments of error are sustained in part and overruled in part. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent with the foregoing opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
BETH WHITMORE
FOR THE COURT
DICKINSON, J.
CONCURS.
CARR, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶35} I would affirm the judgment below in total as I agree with the trial court that genuine issues of material fact remain. I would not narrow the issue to only the placement of barricades.
APPEARANCES:
CHERI B. CUNNINGHAM, Director of Law, and JOHN CHRISOPHER REECE and JANET M. CIOTOLA, Assistant Directors of Law, for Appellant.
GARY T. MANTKOWSKI, Attorney at Law, for Appellee.