Summary
noting that "[w]e are not here concerned with the adoption of a plan for a sanitary sewer or for the construction or maintenance of *** sewers, but with the negligence of the defendant in permitting two taps *** and the [defendant's] failure *** to remedy the situation"
Summary of this case from Meeker v. Akron Health Dept.Opinion
No. 37609
Decided July 3, 1963.
Municipal corporations — Tort liability — Negligence in operation of proprietary function — Operation of sewer system.
APPEAL from the Court of Appeals for Franklin County.
The plaintiffs own and reside on property on Graham Road in the defendant village of Reynoldsburg. Plaintiffs' home is connected with an eight-inch sanitary sewer which runs beneath Graham Road and is maintained and operated by the village. Plaintiffs pay a sewer rent to the village.
East of Graham Road and outside the corporate limits of the village there is an allotment known as Marabar Heights. This allotment, consisting of approximately 38 acres of land and containing about 100 new homes, is on higher ground than Graham Road and is serviced by two eight-inch sanitary sewer lines which are tapped into the eight-inch sanitary sewer line under Graham Road, with the consent of the defendant village.
The eight-inch sewer line under Graham Road was adequate to serve the properties on that road before the Marabar Heights sewer lines were tapped into it, but, after such tapping in, the Graham Road line became inadequate to serve both Graham Road residents and Marabar Heights. When it rained, the Graham Road line became overloaded and sewage backed up into the basements of plaintiffs' residence and other residences on Graham Road.
Plaintiffs brought the instant action in the Columbus Municipal Court to recover for the damages thus sustained, claiming defendant was careless and negligent in overloading or permitting to be overloaded the above-mentioned eight-inch Graham Road sanitary sewer and in allowing such overloaded condition to exist after receiving notice thereof.
The main legal issue presented in the trial court was whether the defendant was acting in a governmental or proprietary capacity in permitting the taps into the Graham Road sewer.
A verdict was rendered for the plaintiffs, and the judgment thereon was affirmed by the Court of Appeals.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. Thomas M. Herbert, for appellees.
Messrs. Dresbach, Crabbe, Newlon Bilger, Mr. Wilbur W. Jones and Mr. William W. Stevenson, for appellant.
We are not here concerned with the adoption of a plan for a sanitary sewer or for the construction or maintenance of either Graham Road or Marabar Heights sewers, but with the negligence of the defendant in permitting two taps from the Marabar Heights sewer into the Graham Road line and the failure on the part of defendant, after notice thereof, to remedy the situation causing damage to plaintiffs' property. Defendant contends that in so doing it was acting in a governmental capacity and is not liable for the resulting damage. Plaintiffs contend that it was acting in a proprietary capacity and is liable for such acts.
This court is of the opinion that the defendant, in permitting the Marabar Heights sewer lines to be tapped into the Graham Road sewer, was engaged in the operation or management of an existing sewer system, a proprietary function, and is liable for damages resulting from its negligence in such operation. See Hack v. City of Salem, 174 Ohio St. 383.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH and HUNSICKER, JJ., concur.
HUNSICKER, J., of the Ninth Appellate District, sitting by designation in the place and stead of HERBERT, J.
I concur in the judgment, but for the reasons stated in my concurring opinion in Hack v. City of Salem (1963), 174 Ohio St. 383, I disagree with the method employed in reaching this judgment.