Opinion
Case No. 18CA53
03-14-2019
WILLIAM F. MCCORMICK, Plaintiff - Appellant v. FRANK V. FLAUGHER, JR., ET AL., Defendants - Appellees
APPEARANCES: For Plaintiff-Appellant TODD H. NEUMAN JEFFREY R. CORCORAN Allen Kuehnle Stovall & Neuman LLP 17 South High Street, Suite 1220 Columbus, Ohio 43125 For Defendants-Appellees JOHN D. LATCHNEY O'Toole, McLaughlin, Dooley & Pecora Co., LPA 5455 Detroit Rd. Sheffield Village, Ohio 44054
JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2018-CV-0554 JUDGMENT: Reversed and Remanded APPEARANCES: For Plaintiff-Appellant TODD H. NEUMAN
JEFFREY R. CORCORAN
Allen Kuehnle Stovall & Neuman LLP
17 South High Street, Suite 1220
Columbus, Ohio 43125 For Defendants-Appellees JOHN D. LATCHNEY
O'Toole, McLaughlin, Dooley &
Pecora Co., LPA
5455 Detroit Rd.
Sheffield Village, Ohio 44054 Baldwin, J.
{¶1} William F. McCormick appeals the decision of the Richland County Court of Common Pleas granting appellee, City of Ontario's Motion for Summary Judgment, dismissing McCormick's claim against the City.
STATEMENT OF FACTS AND THE CASE
{¶2} The appellee removed the headwall of a dry retention pond located near property owned by appellant. Appellant claims that appellee's removal of the headwall changed the course and amount of water flowing across his property, resulting in erosion and damage. Appellee contends that its actions were governmental in nature and were protected by the Doctrine of Sovereign Immunity. The trial court concluded that appellee was immune because "A remedy to both the original problem and [appellant's] erosion issue would require engineering studies, a redesign of the headwall and its outlets, and a reconstruction of the headwall to the new design standards" and that "[t]his places the remedy to the problem solidly within the governmental functions of Ontario, pursuant to R.C. 2744.01(C)(2)." (Judgment Entry, June 5, 2018, p.11). Appellant contends that material questions of fact remain and that the grant of summary judgment was erroneous.
{¶3} Appellant's home is in the Chamber Meadows Subdivision in the City of Ontario. The developer of Chamber Meadows installed a dry retention pond near appellant's property to control the flow of water from the development upon the surrounding properties and reduce erosion. The appellee required the installation of such features prior to approval of the subdivision and, upon completion, Section 937.16 of the Codified Ordinances of the City of Ontario required the developer to transfer the property containing the pond to the appellee to facilitate maintenance of the pond. (Wilson Deposition, Ex. 44) The record contains no evidence that the pond property was conveyed to the appellee or that an easement was granted. Despite having questionable access to the property, the city did maintain this pond on a regular basis.
{¶4} In April of 2009, appellee excavated a large v-shaped portion of the headwall of the pond and removed a control pipe. Appellant filed a complaint naming the appellee and appellant's neighbor, Frank V. Flaugher, Jr., alleging that the appellee's actions caused a flow of water on his property that previously did not exist leading to extensive erosion and loss of trees. (The claims against Flaugher are not addressed in this appeal.).
{¶5} Appellee filed a motion for summary judgment alleging that it was protected from liability by the immunity provided by R.C. Chapter 2744. The trial court analyzed the record and concluded that the material facts were undisputed and that appellee's actions were governmental and immune from any claims. The trial court reached this conclusion by applying the analysis from Coleman v. Portage Cty. Engineer, 133 Ohio St. 3d 28, 2012-0hio-3881, Essman v. Portsmouth, 4th Dist. No. 09CA3325, 2010 Ohio 4837 and Guenther v. Springfield Twp. Trustees, 2nd Dist. No. 2010-CA-114, 2012-Ohio-203, 970 N.E.2d 1058, and examining the nature of the solution to the problems described by the appellee. The trial court held that because "a remedy to both the original problem and [appellant's] erosion issue would require engineering studies, a redesign of the headwall and its outlets, and a reconstruction of the headwall to the new design standards," the actions of the appellee were governmental as defined by 2744.01(C)(2) and immune from any claims under 2744.02(A)(1). (Judgment Entry, June 5, 2018, p.11).
{¶6} Appellant filed a timely notice of appeal and submitted two assignments of error:
{¶7} "I. THE TRIAL COURT ERRED IN ENTERING THE JUNE 5, 2018 ORDER GRANTING DEFENDANT CITY OF ONTARIO'S MOTION FOR SUMMARY JUDGMENT."
{¶8} "II. THE TRIAL COURT ERRED IN NOT ENTERING AN AWARD OF SANCTIONS AFTER THE MARCH 6, 2018 SANCTIONS HEARING."
{¶9} Appellant notes that the second assignment of error was rendered moot after the filing of the appeal, so we confine our analysis to the first assignment.
STANDARD OF REVIEW
{¶10} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987).
Civ.R. 56 provides summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears *770 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, 364 N.E.2d 267 (1977).
{¶11} It is well established the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute of fact is "material" if it affects the outcome of the litigation, and is "genuine" if demonstrated by substantial evidence going beyond the allegations of the complaint. Burkes v. Stidham, 107 Ohio App.3d 363, 371, 668 N.E.2d 982 (8th Dist.1995), Myers v. Jamar Enterprises, 12th Dist. Clermont No. CA2001-06-056, 2001 WL 1567352, *2 (Dec. 10, 2001).
{¶12} The standard for granting summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996):
"* * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party."
{¶13} The record on summary judgment must be viewed in the light most favorable to the opposing party. Williams v. First United Church of Christ, 37 Ohio St.2d 150, 151-152, 309 N.E.2d 924 (1974).
ANALYSIS
{¶14} The Political Subdivision Tort Liability Act affords political subdivisions immunity from certain types of actions.
Determining whether a political subdivision is immune from liability involves a three-tiered analysis. In the first tier, R.C. 2744.02(A)(1) provides broad immunity to political subdivisions and states in pertinent part, "a political subdivision is not liable for damages in a civil action 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 function." In the second tier of the analysis, R.C. 2744.02(B) provides five exceptions that may lift the broad immunity provided for in R.C. 2744.02(A)(1). In the third tier, immunity may be reinstated if the political subdivision can demonstrate the applicability of one of the defenses found in R.C. 2744.03(A)(1) through (5).
{¶15} Whether a political subdivision is entitled to this statutory immunity is a question of law for a court's determination. Henney v. Shelby City School Dist., 5th Dist. Richland No. 2005 CA 0064, 2006-Ohio-1382, ¶ 28, citing Conley v. Shearer, 64 Ohio St.3d 284, 291, 595 N.E.2d 862 (1992).
{¶16} Appellee's characterization as a political subdivision is not disputed, so it is presumptively immune, subject to the exceptions contained in R.C. 2744.02(B). Appellant contended that the exception contained in R.C. 2744.02(B)(2) was applicable because his damages were "caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions." Appellee responded that the facts in the record describe a governmental action rendering R.C. 2744.02(B)(2) inapplicable. The trial court agreed with appellee and concluded summary judgment was appropriate relying upon the authority of Guenther v. Springfield Twp. Trustees, supra, Coleman v. Portage Cty. Engineer, supra and Essman v. City of Portsmouth, supra.
{¶17} We cannot agree with the application of the holdings of these cases to the case at bar because they are distinguishable. In Guenther, supra, the plaintiff claimed that the township's failure to maintain drainage tiles caused his basement to flood. "[T]he evidence shows that the drainage system had become inadequate, the reconstruction of the ditch that the tiles empty into was inadequate, and the remedy was reconstruction." Guenther supra, at ¶ 1. Further, the Guenther court held that "the two pipes and ditch are not a "sewer system" that exposes the township to liability for negligent maintenance." Guenther at ¶ 15, so the utility of the balance of the opinion is questionable. However, the holding in the Guenther court's dicta further distinguishes it from the case at bar. That court focused on the solution to the plaintiff's claim that his property was flooding as a result of the defendant's failure to take appropriate action. The court concluded that the relevant evidence established that the solution would require reconstruction or redesign, and "[b]ecause reconstruction or redesign of what we have assumed for analysis is a "sewer system" is a governmental function, the negligent-proprietary-function exception does not apply here. The *** township is immune from Guenther's tort claim." Guenther supra, at ¶ 21.
{¶18} Likewise, the court in Essman addressed an allegation that the defendant city failed to act to accommodate an increase in population and a concomitant increase in the flow in the sewer system, resulting in a backup in Essman's property. The Court noted that "[t]he structural components of the sewer system continued to be maintained, operated, and kept in the same state. The only change in the system was the amount of water that flowed through the system." Essman, supra at ¶ 46. The plaintiff complained of a problem with a design that was inadequate for the demand placed upon the sewer system. The Essman court held that the Essmans were seeking to compel the city to upgrade, redesign or reconstruct the sewer system, functions that fall under the protection of sovereign immunity. Id.
{¶19} In Coleman the Supreme Court of Ohio concluded that "the question is whether failure to keep a storm-sewer system functional is a "design, construction, or reconstruction * * * [of] a sewer system" and therefore a governmental function that is immunized from tort lawsuits under R.C. 2744.01(C)(2)(l ), or sewer "maintenance, * * * operation, and upkeep" under R.C. 2744.01(G)(2)(d), a proprietary function for which political-subdivision tort liability is allowed. Coleman, supra at ¶ 18.
{¶20} Appellant herein is not arguing that the appellee failed to keep the sewer functional, that the sewer should be redesigned, or that the current design was inadequate, but instead that the sewer was destroyed or removed in a negligent fashion, leading to damage to his property. Because the Guenther, Essman and Coleman holdings do not address an allegation of destruction of a sewer or the facts and allegations of appellant's complaint, we cannot rely upon them in our review.
{¶21} The appellant claims damages as a result of the actions taken by the appellee to resolve defects identified by appellee. Unlike the cases cited by the trial court, the change in the sewer system that allegedly caused the damage claimed by appellant is the direct result of the action of appellee. The cases cited by the trial court focused upon claims that the political subdivision failed to act to remediate a problem that arose out of a defective design or facts that supported a need to redesign or reconstruct the sewer system. Appellant alleged that appellee eliminated, removed or destroyed the detention pond without consideration of the impact of the change and that this action caused damage to appellant's property. (First Amended Complaint, November 22, 2107, ¶¶ 2, 3, 71, 74, 76, 80, 82). Appellant's claim differs because he focuses upon the positive action of the appellee in making modifications to the pond when it excavated the headwall and removed the control pipe.
{¶22} The proper analysis of the case at bar requires review of the evidence to determine whether appellee was engaged in a governmental or proprietary function as defined in R.C. 2744.01 when it excavated the headwall of the pond and whether that evidence is sufficient to support the grant of summary judgment.
{¶23} We first review the appellee's argument that a problem existed regarding the functioning of the pond that required a governmental solution involving a reconstruction or redesign of the pond, and not removal, destruction or maintenance. The proper characterization is crucial because redesign/reconstruction of the sewer is a governmental action protected by sovereign immunity. (R.C. 2744.01(C)(2)(l)). Removal, destruction or maintenance of the sewers is a proprietary action and is not shielded by sovereign immunity. (R.C. 2744.01(G)(1)(d)).
{¶24} Appellee relies upon the deposition of Jerrod Swinehart, former Engineer for the City of Ontario to support its contention that the pond was not working as designed allowing water to flow over the retaining wall much more often than anticipated by the design of the detention pond. (Jerrod Swinehart Deposition, p. 72, lines 15-21). Appellee's brief limits its arguments to this characterization of the problem, but the record contains two arguably different descriptions of the alleged problem, both provided by appellee. In response to interrogatories served by appellant, appellee stated that the detention pond was not big enough when built causing water to overflow around the dam and eroding the soil around the dam. In response to a letter from appellant's counsel, appellee's Law Director delivered a letter stating "[t]he reason for the removal was because it was a pond built in the middle of a waterway thus rendering it ineffective." (Exhibit 11, Jerrod Swinehart Deposition).
{¶25} The uncertainty regarding the precise problem appellee sought to resolve is matched by the conflicting and ambiguous solutions described in the record. Mr. Flaugher, appellant's neighbor and owner of a portion of the property containing the pond, claims city employees explained that the plan was to raise the level of one of the walls of the pond to increase its capacity. (Flaugher Deposition, p. 56, Lines 1-8). Jerrod Swinehart's testimony was offered to support a completely different solution, excavating the headwall and removing the control pipe. His recollection of the facts preceding the excavation is dubious, creating some doubt regarding what consideration, if any, was given to the excavation before it was completed. He recalls that he "would have" performed calculations prior to making a recommendation to solve the problem he identified but the "City can find no evidence of any studies or calculations being performed." (Swinehart Deposition, Exhibit 11). Jeffrey Wilson, Ontario Service Safety Director, when asked about evidence of calculations performed by the City prior to excavation, agreed that records would be kept but that "[w]e searched through every record that we could find that had anything to do with any of this. We couldn't find anything." (Wilson Deposition p.63, line 25 to p.64, lines 1-2). Mr. Swinehart attempted to supply the missing analyses, but his testimony was equivocal. When asked about his recollection regarding this pond he did not state that he recalled the analysis or computations performed, but, instead, qualified his responses with his contention of what he "would have" done. The decision to breach the embankment "would have been a collaborated decision between the mayor/service director, and myself and street department." (Swinehart Deposition, p. 75, lines 1-4.) The final decision to breach the embankment "would have been my recommendation with the service director." (Swinehart Deposition, p. 76, lines 4-9).
{¶26} When asked about completing calculations regarding water flow, Mr. Swinehart stated that "I think I would have done rudimentary calculations on what theoretically could happen." (Swinehart Deposition, p. 126, lines 20-24). Appellant's counsel questioned Mr. Swinehart about the limitations on his responses:
Q. And when you phrase it as "it would have been," it sounds like you don't have a real specific recollection of what is going on?
A. No, I don't. I don't.
Q. You are just kind of speculating as to what you think would have happened; is that fair?
A. Yes. I do not have a specific recollection on how many times this one was brought up.(Swinehart Deposition, p. 75, lines 20-24; p. 76, lines 1-3).
{¶27} The proper characterization of the actions taken by appellee to remedy the problem it identified is critical to a determination regarding immunity, but none of the evidence contained within the record contains a positive statement by any witness in a deposition or within a document that appellee's actions were part of a plan, redesign or reconstruction that would be protected by Chapter 2744. Jerrod Swinehart stated that he would have made some calculations, but even if we were to accept his statement, that fact alone does not lead inexorably to the conclusion that the actions taken afterward were part of a redesign or reconstruction.
{¶28} In addition to the lack of evidence to support the argument that the adjustment to the pond was part of a planned redesign or reconstruction, the record contains evidence that could lead reasonable minds to conclude that the appellee destroyed the sewer or was completing maintenance when it excavated the wall of the pond.
{¶29} Mr. Swinehart makes comments that could support a conclusion that the sewer, in this case the detention pond, was destroyed. He acknowledges that the pond will not be holding much water any longer (Swinehart Deposition, p. 78-79) and, while reviewing Exhibit 35, he conceded that the detention pond was "effectively taken out in the 2009 time frame." (Swinehart Deposition, p. 96, lines 1-17). Mark Rufener, a civil engineer who had worked under contract with the appellee, agreed that the pond no longer functioned as a detention pond as a result of the excavation. (Rufener Deposition, p. 22). Exhibit 35, attached to the Swinehart and Wilson depositions, appears to be maintenance records regarding detention ponds throughout the city and refers to the pond at this location as "removed." Mr. McCormick contends that Mr. Flaugher told him that he had the pond removed (McCormick deposition, page 51, lines 3-11) but Mr. Flaugher denies he made that statement. This evidence could reasonably support a conclusion that the pond/sewer system was not redesigned, but that it was destroyed.
{¶30} Maintenance of the sewer is also considered a proprietary act, R.C. 2744.01(G)(2)(d), and the record contains evidence that could reasonably support a conclusion the appellee acted to maintain the sewer. Mr. Swinehart's described the excavation of the pond as an adjustment and he volunteered that similar "adjustments" had been made at other ponds after reviewing exhibits attached to his deposition. (Swinehart Deposition, p. 117, lines 9-16). Mr. Swinehart did not expand upon this issue, so it is difficult to determine with confidence whether this adjustment was a function of a redesign or regular maintenance. The exhibits attached to Mr. Swinehart's deposition do list comments such as "no maintenance," "well cared for," or "overflow needs lowered" with regard to detention and retention ponds, so it would not be unreasonable to conclude that in this context, adjustments are part of routine maintenance and not redesign of the sewer. We also note that the Codified Ordinances relied upon by the appellee to grant it the right to access the pond also expressly limit the appellee's authority to maintaining the pond, providing further support for the argument that the actions were not redesign, but maintenance and adjustment to insure proper operation. (Codified Ordinances of the City of Ontario, Chapter 937, Exhibit 44, Wilson Deposition).
{¶31} The record contains evidence suggesting that the adjustment to the pond was a result of a plan or redesign, but the testimony and exhibits and any inferences drawn therefrom, when construed most strongly in favor of appellant, allow for the alternative conclusion that appellee destroyed the pond and that destruction was a proprietary act not protected by immunity, rendering summary judgment inappropriate.
{¶32} Appellee argued that it was still immune pursuant to the language in R.C. 2744.03(A)(5) which states in relevant part that: "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." The trial court did not rule on this issue and it is not necessary for this court to consider at this juncture. We do note that R.C. 2744.03 (A)(5) is not be interpreted so broadly as to encompass every choice between alternative courses of conduct, and we expect trial court will give this matter the consideration it deserves if appropriate. Bledsoe-Baker v. City of Trotwood, 2nd Dist. Montgomery No. 28052, 2019-Ohio-45, ¶ 37. This court, however, will not consider the application of that section of the Code.
{¶33} The detention pond was designed by the developer of Chamber Mills Subdivision and the design was approved by appellee. Had appellant's complaint arisen from the original design of the pond or the failure of the appellee to upgrade or redesign the pond, it is more likely that the authority cited by the trial court in Guenther, Coleman and Essman would apply making the appellee's actions governmental and immune. The characterization of the appellee's actions in this case is not so clear. The appellant has alleged that the pond was destroyed, eliminated, or removed and there is testimony sufficient to support that contention. We cannot agree that summary judgment was warranted because it appears a material fact is in genuine dispute, and, when construing the allegations in a light most favorable towards the non-movant, reasonable minds could draw different inferences or conclusions from the undisputed facts. Hounshell vs. American States Insurance Company, 67 Ohio St.2d 427, 433, 424 N.E.2d 311 (1981).
{¶34} We hold that summary judgement is inappropriate because the record contains at least one question of material fact regarding whether the pond still functions that must be resolved prior to deciding whether the appellee's acts were proprietary or governmental. Reasonable minds might still conclude that the record supports that the pond was either maintained or destroyed by the appellee, a proprietary action that may not be protected by the language in R.C. 2744.03(A)(5). The Supreme Court of Ohio, interpreting pre-Chapter 2744 law, came to the same conclusion:
The construction of sewers by a city is the exercise of a governmental function, and a board of health in the discharge of its duties acts in the exercise of the police power of the state, but in the maintenance or destruction of a sewer or any part thereof the city is nevertheless liable for the negligence of its board of health whereby a nuisance is created.City of Salem v. Harding, 121 Ohio St. 412, 169 N.E. 457, 7 Ohio Law Abs. 639 (1929)(Emphasis Added), see also Higgins v. City of Canton, 5th Dist. Stark No. 5813, 1982 WL 5439, *2 (June 23, 1982).
{¶35} We find that the appellant's first assignment of error is well taken and grant the same. The judgment of the Richland County Court of Common Pleas is vacated and this case is remanded for further proceedings consistent with the law and this opinion. By: Baldwin, J. Hoffman, P.J. and Delaney, J. concur.