STATE EX REL. ANDY HUTTMAN, ET AL. v. CITY OF PARMA, ET AL.
No. 103691
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 1, 2016
2016-Ohio-5624
BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and Blackmon, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-12-781740
John T. McLandrich
Robert F. Cathcart
Frank H. Scialdone
Mazanec, Raskin, Ryder Co., L.P.A.
100 Franklin Row
34305 Solon Road
Solon, Ohio 44139
Gregory J. Degulis
Louis L. McMahon
McMahon, Degulis L.L.P.
812 Huron Road
Cleveland, Ohio 44115
Timothy G. Dobeck
Boyko & Dobeck
7393 Broadview Road
Suite A
Seven Hills, Ohio 44131
FOR ANDY HUTTMAN
David M. Paris
Kathleen St. John
Nuremburg Paris Heller & McCarthy
600 Superior Avenue
Suite 1200
Cleveland, Ohio 44114
Steven D. Liddle
Laura L. Sheets
Liddle & Dubin, P.C.
975 E. Jefferson Ave.
Detroit, Michigan 48207
FOR THE OHIO MUNICIPAL LEAGUE
Yazan S. Arshrawi
Philip K. Hartmann
Frost, Brown, Todd L.L.C.
10 West Broad Street
Suite 2300
Columbus, Ohio 43215
Garry E. Hunter
175 S. Third Street, #510
Columbus, Ohio 43215
{¶1} The city of Parma (“Parma“), appeals the decisions of the Cuyahoga County Court of Common Pleas denying its motion for summary judgment on political subdivision immunity and in certifying a class in favor of plaintiffs-appellees. For the following reasons, we affirm, in part, and reverse, in part.
Facts and Procedural Background
{¶2} This case arises from the “backup” flooding of Parma‘s sanitary sewer system into the basements of a number of Parma residents, including the named plaintiffs, during heavy rainfall on February 28, July 19 and July 23, of 2011.
{¶3} Plaintiffs filed a class action complaint on May 1, 2012, asserting that water and sewage invaded their properties due to the failure of Parma to exercise reasonable care in the maintenance and repair of its sanitary sewer system. Plaintiffs set forth causes of action for trespass, nuisance and negligence.
{¶4} On April 8, 2015, plaintiffs filed a motion for class certification. On April 12, 2015, Parma moved for summary judgment asserting political subdivision immunity. On September 29, 2015, the trial court granted plaintiffs’ motion for class certification and denied Parma‘s motion for summary judgment.
Law and Analysis
{¶5} Parma argues in its first assignment of error that the trial court erred in denying its motion for summary judgment on the grounds of political subdivision immunity. Ordinarily, an order denying a motion for summary judgment is not a final and appealable order within the scope of
{¶6} Our review of a trial court‘s grant of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to
{¶7} Ohio‘s Political Subdivision Tort Liability Act, codified in
{¶8} To determine whether a political subdivision is entitled to immunity from civil liability under
{¶9} If the political subdivision is entitled to immunity under
{¶10} In this case, the parties do not dispute that Parma is a political subdivision entitled to the general grant of immunity under
{¶11} Pursuant to
{¶12} Parma argues that the plaintiffs have failed to create a genuine issue of material fact with respect to whether the basement backups at issue were caused by a lack of maintenance. Parma argues that plaintiffs have failed to account for the contribution to the backups attributable to (1) poor design of the sanitary sewer system or the need for capital reconstructive improvements for which Parma would be immune, and (2) laterals,
{¶13} There is also no dispute amongst the parties that inflow and infiltration during heavy rain events on February 28, July 19, and July 23, of 2011 caused Parma‘s sanitary sewer system to experience a “surcharge” that caused the basement back-ups at issue.2 The dispute amongst the parties is the cause of such inflow and infiltration.
{¶14} The record reflects that Parma operates separate storm and sanitary sewer systems. While Parma notes that not all of the storm and sanitary sewers are separated and, thus, cites this fact as a design flaw that accounts for a portion of inflow and infiltration. Parma concedes that most of the sanitary sewer system is separated.
{¶15} Plaintiff‘s expert, Rick Arbour, opined that Parma‘s sanitary sewer system is not designed to carry storm water and lacks sufficient hydraulic capacity to convey excessive inflow and infiltration. However, due to the separated nature of Parma‘s storm and sanitary sewers, the amount of rainfall should not affect the operation of the later or cause “surcharging” and basement backups. Arbour opined that Parma failed to meet the standard of care in maintaining a sanitary sewer system and that Parma‘s breach of the standard of care caused the “surcharging” and basement backups. Arbour based
{¶16} Arbour found that Parma engaged in “virtually no preventive maintenance of its sewer system” based on admissions made by Parma‘s Public Works Coordinator and Supervisor of Sewers. Arbour found that Parma had made no effort to locate or repair sources of infiltration and inflow. Arbour opined that Parma was negligent in failing to accelerate its efforts to find and fix defects that were the source of the excessive inflow and infiltration to satisfy the minimum standard of care. Arbour also concluded that Parma was negligent in failing to develop and implement capacity, management, operations and maintenance programs to reduce backups. Arbour concluded that if the above defects, which accumulated over a long period of time, had been addressed in an effective and timely manner, such actions would have prevented the backups and flooding that occurred on the relevant dates.
{¶17} Parma notes that Cuyahoga County assumed responsibility for maintaining Parma‘s sanitary sewer system in 2009 and cleaned the sewers from 2009 until 2011. However, Parma concedes that there is no information in the record regarding which
{¶18} Finally, Parma argues that the basement back-up events may have been caused by poor design of the sanitary sewer system, the need for capital reconstructive improvements, or third-party drains and downspouts illegally tied into the sanitary sewer system. Although Parma would be entitled to immunity for the first two problems and potentially not liable for the latter, these potential causes do not entitle Parma to summary judgment at this time.
{¶19} It is well accepted that two factors can combine to produce damage, each being considered a proximate cause of the injury. Czarney v. Porter, 166 Ohio App.3d 830, 2006-Ohio-2471, 853 N.E.2d 692, ¶ 7 (8th Dist.), citing Johnson v. Pohlman, 162 Ohio App.3d 240, 2005-Ohio-3554, 833 N.E.2d 313 (8th Dist.). If the original negligence continues to the time of the injury and contributes substantially thereto in conjunction with an intervening act, each may be a proximate, concurring cause for which full liability may be imposed. Id., citing Garbe v. Halloran, 150 Ohio St. 476, 83 N.E.2d 217 (1948), paragraph one of the syllabus.
{¶20} The fact that some other cause concurred with the negligence of a defendant in producing an injury, does not relieve him from liability unless it is shown such other cause would have produced the injury independently of defendant‘s negligence. Snyder v. Giant Eagle, 8th Dist. Cuyahoga No. 103176, 2016-Ohio-708, ¶ 17, citing Piqua v. Morris, 98 Ohio St. 42, 120 N.E. 300 (1918), paragraph one of the syllabus. Parma has
{¶21} Construing the evidence in a light most favorable to the plaintiffs, the evidence cited and the causation opinion presented by plaintiffs‘s expert, in this instance we find that genuine issues of material fact remain for the jury to decide on the question of causation.
{¶22} Appellant‘s first assignment of error is overruled.
II. Class Certification
{¶23} Parma argues in its second assignment of error that the trial court abused its discretion in certifying the class.
{¶24} A class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,” Califano v. Yamasaki, 442 U.S. 682, 700-701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), and “[t]o come within the exception, a party seeking to maintain a class action ‘must affirmatively demonstrate his
{¶25} “A trial judge has broad discretion in determining whether a class action may be maintained and that determination will not be disturbed absent a showing of an abuse of discretion.” Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987), syllabus. We apply the abuse of discretion standard in reviewing class action determinations to give deference to “the trial court‘s special expertise and familiarity with case-management problems and its inherent power to manage its own docket.” Id. at 201.
{¶26} Nevertheless, “the trial court‘s discretion in deciding whether to certify a class action is not unlimited, and indeed is bounded by and must be exercised within the framework of
{¶27} In Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 466 N.E.2d 875 (1984), the Ohio Supreme Court stated, “[c]lass action certification does not go to the merits of the action.” Id. at 233. However, deciding whether a claimant meets the burden for class certification pursuant to
(1) an identifiable class must exist and the definition of the class must be unambiguous; (2) the named representatives must be members of the class; (3) the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interests of the class; and (7) one of the three
Cantlin v. Smythe Cramer Co., 8th Dist. Cuyahoga No. 103339, 2016-Ohio-3174, ¶ 18, quoting Warner v. Waste Mgmt., 36 Ohio St.3d 91, 521 N.E.2d 1091 (1988);
{¶28} In this case, we find merit to Parma‘s argument that the predominance requirements under
the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
{¶29} Certification pursuant to
{¶30} “For common questions of law or fact to predominate, it is not sufficient that such questions merely exist; rather, they must represent a significant aspect of the case. Furthermore, they must be capable of resolution for all members in a single adjudication.” Marks, 31 Ohio St.3d at 204. Where common issues predominate, the class members “will prevail or fail in unison.” Musial Offices, Ltd. v. Cty. of Cuyahoga, 2014-Ohio-602, 8 N.E.3d 992, ¶ 32 (3d Dist.), quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 2, 133 S.Ct. 1184, 1196, 185 L.Ed.2d 308 (2013). Thus, in determining a motion for class certification, a court must consider what the plaintiffs will have to prove at trial and whether those matters can be presented by common proof. See Cullen at ¶ 17.
{¶31} In this case, while a common question exists regarding Parma‘s violation of the relevant standard of care due to historical negligence in the maintenance of its sewers, we cannot say that that question predominates for the same reason that we found genuine issues of material fact remain in the first assignment of error. Due to the widely varying
{¶32} As an example of the nebulous nature of broadly determining causation across all residents of Parma we note that the complaint reflects that the flooding did not uniformly occur even with the named plaintiffs. Some of the plaintiffs experienced flooding on February 28 and July 19. Others experienced flooding only on July 19. Another plaintiff experienced flooding on July 19 and July 23. None of the plaintiffs experienced flooding on all three dates.
{¶33} On the limited facts before us we cannot say that common questions of law or fact predominate. While our opinion does not completely foreclose class certification in the future, we find that under the record the trial court abused its discretion in granting class certification.
{¶34} Appellant‘s second assignment of error is sustained.
{¶35} The judgment of the trial court is affirmed in part, reversed in part and remanded to the lower court for further proceedings consistent with this opinion.
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.
EILEEN A. GALLAGHER, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and PATRICIA A. BLACKMON, J., CONCUR