STATE OF OHIO, ex rel. DAVID M. NIX, et al. v. BATH TOWNSHIP, et al.
C.A. No. 25633
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT
November 2, 2011
[Cite as State ex rel. Nix v. Bath Twp., 2011-Ohio-5636.]
WHITMORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2009-08-6109
{¶1} Defendant-Appellant, Bath Township, appeals from the order of the Summit County Court of Common Pleas, denying its motion for summary judgment on the issue of governmental immunity. This Court affirms.
I
{¶2} Plaintiff-Appellees, David and Sarah Nix (“the Nixes“) and Robert and Celeste Eller (“the Ellers“), own adjoining lots located on Treecrest Drive in the Yellow Creek Woods Subdivision of Bath Township. One of the two water collection systems on Treecrest Drive drains water from the road and other properties through a pipe, which discharges the water at the boundary point of the Nixes’ and the Ellers’ properties. As a result of the water discharging, both properties sustained erosion damage. In 1989, Bath Township added to the existing water collection system, which had been installed by the County in the 1960s. Specifically, Bath Township installed additional drainage facilities, adding a catch basin, grating, extended
{¶3} During the 1990s, David Nix made several repairs and changes to the drainage facilities that Bath Township installed. In 1993, a pipe that Bath Township had installed pulled away and Nix reconnected it. In 1996, the same pipe pulled away again and, when he could not reconnect it because it had filled with sand and debris, Nix bought a new pipe, positioned it over the old pipe, and connected it to the system. He also filled in the open drainage ditch near the road, blocked the windows of the catch basin in the same area, built two weirs to slow the flow of water, added French drains, and installed both underground perforated pipe in the filled-in ditch and an alternate inlet that drained into the covered catch basin. Bath Township was unaware of the work that David Nix performed.
{¶4} In 2009, the Nixes and the Ellers discovered that a portion of the drainage pipe that Bath Township had installed in 1989 had torn apart. The tear was situated above the point at which the extension pipe previously had disconnected and been replaced by Nix. As a result of the break in the pipe, water flowed from that portion of the pipe rather than being carried to its intended termination point. The Nixes’ and the Ellers’ properties sustained serious erosion damage due to the breakage of the pipe. The Nixes and the Ellers contacted Bath Township after the pipe tore and asked it to remedy the tear, but Bath Township declined to take any action to remedy the tear.
{¶5} On August 18, 2009, the Nixes and the Ellers brought suit against Bath Township, alleging negligence, trespass, and nuisance and seeking a declaratory judgment, writ of mandamus, and injunction. Bath Township ultimately sought an award of summary judgment on the grounds that all of the foregoing claims were barred both by the statute of limitations and its
{¶6} Bath Township now appeals from the trial court‘s order and raises three assignments of error for our review. For ease of analysis, we consolidate two of the assignments of error.
II
Assignment of Error Number One
“THE TRIAL COURT ERRED IN DENYING BATH TOWNSHIP THE BENEFIT OF IMMUNITY PURSUANT TO
R.C. 2744.02(A) WHERE NONE OF THE EXCEPTIONS OUTLINED INR.C. 2744.02(B) APPLY.”
Assignment of Error Number Two
“THE TRIAL COURT ERRED IN DETERMINING THAT BATH TOWNSHIP WAS NOT IMMUNE IN FINDING THAT BATH TOWNSHIP‘S ACTIONS WERE NOT DISCRETIONARY UNDER
R.C. 2744.03 .”
{¶7} In its first and second assignments of error, Bath Township argues that the trial court erred by denying its motion for summary judgment as to the Nixes and the Ellers’
{¶8} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. 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. (1977), 50 Ohio St.2d 317, 327.
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 (1996), 75 Ohio St.3d 280, 292-93. Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in
{¶9} Generally, political subdivisions are immune from civil liability “for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary
Exceptions to Immunity
{¶10} Bath Township first argues that the trial court erred by concluding that it was not entitled to retain its general grant of immunity. Bath Township avers that the Nixes and the Ellers brought suit against it on the basis of a governmental function, not a propriety one. Specifically, Bath Township argues that this case involves one of the following: (1) “[t]he regulation of the use of, and the maintenance and repair of *** aqueducts *** and public grounds“; (2) “[t]he provision or nonprovision, planning or design, construction, or reconstruction of *** a sewer system“; or (3) a flood control measure.
{¶11} We first address Bath Township‘s contention that it was entitled to retain its general grant of immunity because the additional drainage facilities it installed here constituted either “[t]he regulation of the use of, and the maintenance and repair of *** aqueducts *** and public grounds” under
{¶12} As to its argument that the drainage facilities constituted a flood control measure, Bath Township relied upon one case, Engel v. Williams County, 6th Dist. No. F-07-027, 2008-Ohio-3852, and a single portion of deposition testimony where a Summit County Engineer testified that the act of removing water from the roadway near the Nixes’ and the Ellers’ properties helped prevent flooding. There was no evidence in the record, however, that the area was prone to flooding in the least. Bath Township‘s own road superintendent, John Peltier, testified in his deposition that he was not aware of any road flooding issue in that area during his fifteen years as road superintendent. Further, Engel is wholly inapplicable to the case at hand. Engel involved Williams County‘s struggle to keep one of its county roads free from standing water and flooding, which the road frequently experienced after rainfall. Engel at ¶2-4. Specifically, the case revolved around the County‘s maintenance of a ditch that was designed to handle run-off water from the road and channel the water to an adjacent field through drains situated in the ditch. Id. at ¶17. The case hinged upon the fact that the ditch was part of a major,
{¶13} Unlike Engel, the drainage facilities at issue here were part of a sewer system. Bath Township connected the drainage facilities to the County‘s existing drainage system on Treecrest Drive. Although the drainage facilities did move water that otherwise might have accumulated elsewhere, Bath Township has not pointed to any law standing for the proposition that the diversion of water, in and of itself, constitutes a flood control measure. Were it otherwise, every sewer system would be a flood control measure. Here, there is no evidence that the Treecrest Drive area had a problem with flooding. The additional drainage facilities that Bath Township installed simply carried the water collected from the County‘s drainage system to a lower termination point than it otherwise would have been deposited. Bath Township failed to demonstrate the existence of a genuine issue of material fact as to whether its actions constituted a flood control measure. As such, the trial court did not err by rejecting that argument.
{¶14} The only remaining subsection under which Bath Township claimed a general grant of immunity was
“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; and in the performance of such duty the municipality is in the exercise of a ministerial or proprietary function and not a governmental function within the rule of municipal immunity from liability for tort.” Doud v. Cincinnati (1949), 152 Ohio St. 132, 137.
A problem of design is one that, to rectify, “would require extensive redesigning and reconstructing of the system to meet current demands.” Zimmerman, at *3. Maintenance problems are classified as those that may be remedied through repairs, inspections, the removal of obstructions, and attention to general deterioration. Id. See, also, Duvall v. Akron (Nov. 6, 1991), 9th Dist. No. 15110, at *2-3 (discussing distinction between design problems and maintenance problems in the context of a city sewer system).
{¶15} In its motion for summary judgment, Bath Township relied upon the deposition testimony of David Nix and Phillip Degroot, an expert retained by the Nixes and the Ellers. Nix testified that a period of heavy rain occurred in April 2009 and the lots at issue sustained erosion damage after a pipe that Bath Township installed in 1989 tore apart. Nix opined that the pipe failed because its diameter was too small to accommodate the amount and velocity of the water that flowed in the pipe during a heavy downpour. He also admitted that he made numerous
{¶16} Degroot opined that the additional drainage facilities that Bath Township installed in 1989 helped to ease the erosion problems that would have occurred on the properties at issue had the County design been left intact. He further opined, however, that Bath Township incorrectly installed its pipe because it was not properly anchored given the steep slope it was on. According to Degroot, the slope of the pipe, combined with its smaller diameter, caused water to flow faster inside the pipe. The overall effect was that the pipe vibrated, loosened without being properly anchored, and ultimately fatigued and broke apart from the vibrations. Degroot specified that the pipe at issue broke at the point at which the slope changed and the vibrations would have been significant.
{¶17} Bath Township argues that all of the foregoing testimony supports the conclusion that this was an issue of negligent design, not maintenance. It argues that this case is analogous to Dowell v. North Canton, in which the Fifth District determined that the City was not liable for
{¶18} Unlike the landowner in Dowell, however, the Nixes and the Ellers did not experience any problems on their land for several years after Bath Township installed its additional drainage facilities. In 2009, when the pipe at issue finally tore apart, it was nearly twenty years old. The ultimate conclusion of the expert, upon whose testimony Bath Township relies, was that the pipe broke due to fatigue. Even if the design that Bath Township selected caused the drainage pipe to fatigue more quickly than another design might have, it was ultimately the fatigue that caused the pipe to fail and damage the property here, not the design itself. Bath Township stipulated that it did not take any action whatsoever to inspect, to maintain, or to repair the additional drainage facilities it installed in 1989. See Doud, 152 Ohio St. at 137-38 (discussing political subdivision‘s duty to maintain and to remain diligent and protect against the deterioration and dilapidation of a sewer system). It did not point to any evidence demonstrating that a genuine issue of material fact existed with regard to the drainage problem being one of design, rather than maintenance. That is, Bath did not set forth a genuine
Defenses to Liability
{¶19}
“[A] 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.
“***
“[A] 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.”
R.C. 2744.03(A)(3),(5) .
“Routine decisions are not shielded by immunity under
{¶20} In asserting that it was entitled to have its immunity restored under either of the foregoing subsections, Bath Township categorizes the Nixes and the Ellers’ suit as a challenge to
{¶21} In sum, the trial court did not err by denying Bath Township‘s motion for summary judgment. Bath Township failed to demonstrate the existence of any genuine issues of material fact to show that it was immune from suit with regard to the Nixes and the Ellers’ negligence and nuisance claims. As such, Bath Township‘s first and second assignments of error are overruled.
Assignment of Error Number Three
“THE TRIAL COURT ERRED IN DENYING BATH TOWNSHIP THE BENEFIT OF IMMUNITY AGAINST PLAINTIFFS’ TRESPASS CLAIM.”
{¶23} In their complaint, the Nixes and the Ellers stated a claim for trespass against Bath Township based on the following assertion:
“31. Bath Township has collected water through the Treecrest Drainage System and discharged that water through the Drainage System Extension onto a portion of the Eller Property and the Nix Property resulting in severe erosion and other damage thereto. Said conduct is in violation of Bath Township‘s continuing duty to manage and control the water in the Treecrest Drainage System in a manner that does not result in damage to private landowners.”
The Nixes and the Ellers later moved for summary judgment and asked the court for a declaration that Bath Township had an easement on their properties, as evidenced by its placement of drainage facilities there and its continual discharge of storm water onto their properties. On October 13, 2010, the trial court granted their motion and determined that Bath Township had an express easement on the properties or, alternatively, that the portion of the properties at issue was private land dedicated to public use. The trial court relied upon the Nixes and the Ellers’ desire to have the drainage facilities on their properties so long as the facilities functioned correctly. The court‘s decision described the easement and/or dedication as encompassing both the drainage facilities themselves and the area of land across which the collected water discharged.
{¶24} “A common-law tort in trespass upon real property occurs when a person, without authority or privilege, physically invades or unlawfully enters the private premises of another whereby damages directly ensue[.]” (Emphasis added.) Apel v. Katz (1998), 83 Ohio St.3d 11, 19, quoting Linley v. DeMoss (1992), 83 Ohio App.3d 594, 598. A theory that Bath Township
“Notably, Nix/Eller asserted a trespass claim in the alternative. Nix/Eller first sought the Court to recognize an easement possessed by Bath Township, and the attendant responsibility to maintain that easement. In the alternative, if no easement existed, Bath Township was trespassing when it collected public water for discharge onto the lands of Nix/Eller.” (Emphasis added.)
Because the trial court determined that an easement did exist, that determination eliminated the Nixes and the Ellers’ specific claim for trespass here. Compare Carter v. Orrville, 9th Dist. No. 06CA0013, 2006-Ohio-6476, at ¶16-23 (involving claim that the scope of an easement had been exceeded); Bell v. Joecken (Apr. 10, 2002), 9th Dist. No. 20705, at *2-3 (involving claim for the obstruction of an existing easement).
{¶25} The trial court did not affirmatively state that Bath Township was not entitled to immunity with regard to the Nixes and the Ellers’ trespass claim. Bath Township presumes that the trial court reached that conclusion because the court denied its motion for summary judgment. The court‘s ruling on that motion, however, focused entirely on the Nixes and the Ellers’ negligence and nuisance claims, not their trespass claim. The trial court did not specifically address the status of the trespass claim. Upon our review of the record, however, that claim was resolved by virtue of the trial court‘s October 13, 2010 entry, which concluded that an easement and/or dedication existed. While the trial court could have been clearer, its conclusion that the Nixes and the Ellers gave Bath Township the right to enter their property is akin to a conclusion that Bath Township did not trespass there. See Apel, 83 Ohio St.3d at 19 (defining trespass as an unauthorized or unprivileged entry).
{¶26} The court did not deny Bath Township immunity on the trespass claim. Rather, the trial court did not reach that issue because of its ruling in response to the Nixes and the Ellers’ motion for summary judgment. Unlike the court‘s ruling on Bath Township‘s motion for immunity, its ruling on the Nixes and the Ellers’ motion is not immediately appealable. Should the court‘s ruling on the easement and/or dedication issue later prove incorrect, Bath Township‘s argument that it is entitled to immunity on the trespass claim could be raised. At this time, however, it is moot and we decline to address it. See
III
{¶27} Bath Township‘s first and second assignments of error are overruled. Its third assignment of error is moot. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, P. J.
MOORE, J.
CONCUR
APPEARANCES:
DAVID G. UTLEY, Attorney at Law, for Appellant.
TODD M. RASKIN, Attorney at Law, for Appellant.
HAMILTON DESAUSSURE, JR., BLAKE R. GERNEY, and COLIN G. SKINNER, Attorneys at Law, for Appellee.