Weldon v. Prairie Twp.Weldon v. Prairie Twp.
Rendered on November 16, 2010
Robert D. Holmes, for appellants.
Reminger Co., LPA, Michael J. Valentine, and Zachary B. Pyers, for appellees.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Appellants, Richard A. Weldon and Joy E. Weldon (“appellants“), filed this appeal seeking reversal of a judgment by the Franklin County Court of Common Pleas granting a directed verdict in favor of appellees, Prairie Township and the members of the township‘s Board of Trustees (“appellees“). For the reasons that follow, we affirm.
{¶3} After exchanging discovery, appellees filed a motion for summary judgment. Appellees first argued that they were not responsible for the sewer line, as the township did not have any ownership interest in the sewer system, and had not undertaken any responsibility for repairs. In further support of the motion, appellees argued that they were entitled to immunity as a political subdivision pursuant to
{¶4} The trial court initially granted the motion for summary judgment because appellants had not filed any response rebutting the evidence offered by appellees in
{¶5} The trial court then issued a new decision and entry denying the motion for summary judgment. The trial court construed the nature of the conduct upon which appellants based their complaint as involving the maintenance, destruction, operation, and upkeep of a sewer system, which is a proprietary function rather than a governmental one.
{¶6} The case then proceeded to a jury trial. During opening statements, appellants’ counsel stated that the evidence would show that the 1992 storm sewer construction was performed by an independent contractor, that it was the independent contractor that broke appellants’ sewer pipe, and that it was the independent contractor that performed the attempted repair of the pipe. Appellees then made a motion for directed verdict, arguing that the exceptions to political subdivision immunity do not
{¶7} The trial court sustained the motion for directed verdict, and entered judgment in favor of appellees. Appellants then filed this appeal, asserting eight assignments of error:
Plaintiffs’ Assignment of Error No. 1
The trial court erred in taking from the jury the factual question as to whether the duty to repair damage to the sanitary sewer serving Plaintiffs’ residence involved public safety, health and avoidance of public nuisance and was non-delegable by Prairie Township, and failing to address that question itself.
Plaintiffs’ Assignment of Error No. 2
The trial court erred in failing to recognize that Prairie Township was a “Public Authority” under
Ohio Revised Code 153.64 with a duty to determine and give notice, and monitor its contractor with respect to the location and depth of the sanitary sewer serving plaintiffs’ property, and any breakage thereof.
Plaintiffs’ Assignment of Error No. 3
The trial court erred in ignoring uncontroverted evidence in the record, by affidavit and expected testimony, that Prairie Township, in 1992, undertook construction of the storm sewer serving Plaintiffs’ residence illegally, by not filing construction plans with the Franklin County Sanitary Engineer; by failing to pre-determine the depth of the sanitary sewer from public records, resulting in breakage of the sanitary sewer; by failure to report the breakage to the Franklin County Sanitary Engineer; failure to get a permit for repair and get inspection of the repair, and permitting an improper repair with no bedding to prevent eventual sinking and back-up of sewerage into Plaintiffs’ residence, in 2007 and 2008.
The trial court erred in failing to recognize, as a matter of law, that under
O.R.C. 2744.01(G)(2)(d) the duty of maintenance and repair of the sanitary sewer by Prairie Township was a proprietary function not immune from suit; that it was continuous and existed in 2008 irrespective of what Prairie Township, or its contractor, or contractor‘s employee did or didn‘t do in 1992.
Plaintiffs’ Assignment of Error No. 5
The trial court erred in failing to apply the law as to circumstances affording Plaintiffs’ right to recover damages, the measure of damages, and Plaintiffs’ property rights.
Plaintiffs’ Assignment of Error No. 6
The trial court erred in failing to recognize that Plaintiffs’ forced expenditure of Plaintiffs’ own funds in 2007 and 2008, for cleanouts, investigation, and to make sanitary sewer repairs in the public right-of-way, caused by Prairie Township‘s actions and omissions and by actions of its contractors in 1992, amounted to an unconstitutional taking under the
Ohio Constitution Article I Section 19 .
Plaintiffs’ Assignment of Error No. 7
The trial court erred in relying on the case of Howell vs. City of Canton, (2007 CA 00035, Oct. 27, 2008), which involved a government activity immune from suit.
Plaintiffs’ Assignment of Error No. 8
The trial court erred in relying on the case of Joseph Amurri dba Columbus Billiard Supply, Plaintiff, Appellee v. City of Columbus, (Court of Appeals, Tenth District, No. 84 AP 597, 598, 618, 681, and 682), which found municipal liability for work involving public safety, though denying recovery of prejudgment interest and attorney fees.
{¶8} In their brief, appellants do not separately argue each assignment, but instead mix the separate assignments into one single argument. Essentially, appellants’
{¶9}
{¶10} The trial court granted a directed verdict in favor of appellees based on political subdivision immunity. In reviewing a claim of political subdivision immunity,
{¶11} In this case, in denying appellees’ motion for summary judgment, the trial court concluded that appellants’ complaint was based on conduct by the township that constituted a proprietary function rather than a governmental function. Specifically, the trial court concluded that appellants’ claims were based not on construction of the storm sewer, which would have been considered a governmental function, but were instead based on the repairs made to appellants’ sanitary sewer after it was broken during construction of the storm sewer, which the court concluded was a proprietary function.1
{¶12} The distinction between governmental and proprietary functions was important in this case because one of the exceptions to the general rule that a political subdivision is not liable for damages caused by any act or omission in connection with a governmental or proprietary function provides that “[e]xcept 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.”
{¶13} The trial court directed a verdict in favor of appellees after appellants’ counsel stated that the evidence would show that an independent contractor had performed the work upon which appellants’ claims were based.
{¶14} In opening statement, appellants’ counsel stated that the independent contractor hired by Prairie Township performed the repairs to appellants’ sanitary sewer line after it was broken during construction of the storm sewer. Counsel did not say that the evidence would show that Prairie Township exercised any control over the independent contractor‘s attempted repair, nor does it appear from the record that the township may have exercised some control over the independent contractor in completion of the repairs.
{¶15} In several of their assignments of error, appellants seek to avoid application of the statutes governing political subdivision immunity by setting forth a number of arguments. First, appellants argue that repair of the damage to appellants’ sanitary sewer was a duty that Prairie Township owed to appellants because it was a matter of public safety, and the township could not avoid liability by delegating that duty to an independent contractor. In some cases, Ohio courts have recognized that a political subdivision may not avoid liability for negligence by delegating performance of an action to an independent contractor, where the action involves serious hazards to public safety. Amurri v. Columbus (Feb. 28, 1985), 10th Dist. No. 84AP-597 (case
{¶16} Appellants also argue that the township undertook construction of the storm sewer without filing construction plans with the Franklin County Sanitary Engineer, by failing to pre-determine the depth of the sanitary sewer, by failing to report the break in the sanitary sewer to the Sanitary Engineer, by failing to obtain a permit before repairing the break, and by permitting the repair to be performed without proper bedding. Appellants point to
{¶17} However, we have held that
{¶19} Finally, appellants argue that the actions taken by appellees, resulting in their being required to expend money to investigate and make repairs to the sanitary sewer, constitute an unconstitutional taking under
{¶20} Appellants’ assignments of error are overruled. Having overruled the assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and McGRATH, JJ., concur.
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