Martin v. Payne , 2021 Ohio 1557 ( 2021 )

[Cite as Martin v. Payne, 2021-Ohio-1557.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
ALLAN W. MARTIN, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 11-20-05
v.
VILLAGE OF PAYNE, OPINION
DEFENDANT-APPELLEE.
Appeal from Paulding County Common Pleas Court
Trial Court No. CI 19 040
Judgment Affirmed
Date of Decision: May 3, 2021
APPEARANCES:
Ian A. Weber for Appellants
Byron S. Choka for Appellee
Case No. 11-20-05
SHAW, J.
{¶1} Plaintiffs-appellants, Allan Martin and Jennifer Martin (“the Martins”),
bring this appeal from the November 18, 2020, judgment of the Paulding County
Common Pleas Court granting the summary judgment motion filed by defendant-
appellee, Village of Payne (“Payne”), on grounds of sovereign immunity. On
appeal, the Martins argue that the trial court erred by granting summary judgment
in favor of Payne because a genuine issue of material fact existed as to whether
Payne was negligent with respect to performing the proprietary function of
maintaining its sewer system.
Background
{¶2} In 2009 the Martins purchased a residence at 107 N. Maple Street in
Payne, Ohio. The residence was on property that had been occupied, at least in part,
by a school at some point in the late 1800’s. The current residence was built
“sometime in the 1920’s.”1 (Doc. No. 11, Ex. 11).
{¶3} Prior to purchasing the home, the Martins did not have a professional
inspection conducted; however, they did walk through the home and its basement.
Allan Martin did not recall having any conversations with the previous owner about
water issues in the basement. Nevertheless, the previous owner of the home had
installed an “underdrain system under the concrete floor and around the interior
1
This is according to a statement that Jennifer Martin made to the Poggemeyer Design Group.
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perimeter of the basement. The system was also installed under the concrete floor
along the interior wall running down the middle of the basement in an east-west
direction.” (Doc. No. 11, Ex. 11).
{¶4} Within two weeks of moving into the residence, the Martins noticed
that their sump pump was running every Tuesday and Thursday morning from 12
a.m. to 4 a.m. like “clock work.” (Martin Depo. at 27). They also noticed that a
“catch basin” adjacent to their property was filling up with “rust-color[ed] water”
even when there was no precipitation. (Id. at 28-29). The Martins reported the issue
to Payne. The Martins were told that there was not an issue caused by Payne
because there was no village water or sewer connection running from the specified
catch basin to the Martins’ basement.
{¶5} Winston Gross, the water plant operator, suggested that to alleviate the
water problem the Martins should dig around the property, find any drainage pipes,
and cut them off. Gross was familiar with the Martins’ property because he had
been there before due to complaints made by the previous owner. The previous
owner complained that the yard would be full of water when it rained. Gross
recalled the previous owner having four sump pumps in the basement that were
draining into the yard. Gross ran a dye test for the previous owner and found that
the yard was draining into the sump pumps and the sump pumps were pumping
water into the yard, establishing that the water was pumping in circles. Gross stated
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that he advised the previous owner to drain the pumps into the street but that never
happened.
{¶6} After Payne declared that the village was not the source of the Martins’
water issue, the Martins had an excavating company excavate around their home on
the north and east sides between the catch basin and the residence. They did not
excavate on the south and west sides of the residence at the time because they did
not have the money and because the north and east sides were where the “catch
basin” was located. (Martin Depo. at 38). The excavator found some field tiles in
the area and “capped them off;” unfortunately that did not alleviate the problem.
{¶7} Around April of 2010, the Martins had a plumbing service run a camera
through an “EverDry system” that had been installed in the basement by the
previous owner. The plumbing service discovered some problems with the EverDry
system such as a “swirl” in the system. As a result of what was learned, Allan
Martin was advised by the plumbing service to put a hole in the basement floor with
a sledgehammer.2 When Allan struck the floor, the floor collapsed, creating a hole
roughly three or four feet by six feet. After digging out chunks of cement that had
broken, the plumbing company located tile underneath the basement floor “running
eastwardly. The material, the stone, the dirt was all ate out from underneath the
2
It is not clear from the record what the initial intention was behind putting a hole in the basement floor.
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basement, that is why [the plumber] said [the floor] collapsed.” (Martin Depo. at
42-43).
{¶8} Further, the plumbing company discovered a pipe underneath the
basement. A camera was run through the pipe and the plumbing company
determined that it was a drain pipe for the basement that ran to the sewer. The
Martins had not been aware of this pipe previously. The previous owner of the
residence told Allan Martin that he also was not aware of the drain pipe.
{¶9} The Martins took measures to “vent” the drain pipe and to seal it off so
that the pipe would be “cut off” at two points. (Id. at 43). In addition, the Martins
had a concrete company fill the voids both in and under the basement caused by the
drain pipe. According to Allan Martin, around this time the Martins contacted
EverDry to have the company look at their system, but EverDry had a fire and had
purportedly lost records. Allan indicated that EverDry did not come out to the
property or do anything with regard to the system.
{¶10} Fortunately, capping/venting the drain pipe alleviated the issue of the
sump pumps running regularly on Tuesday and Thursday mornings. However,
Allan Martin indicated that water was still coming into the basement and that it got
worse over time, prompting the Martins to add sump pumps so that they had “five
or six sump pumps over the years” running out of the same pit. (Id. at 52).
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{¶11} Around a year after the voids in the basement had been filled by
concrete, some of the concrete patches were “blown out” after a heavy rainstorm.
The concrete company returned and repaired the blowouts, but they wanted to find
the western end of the previously discovered drain pipe, which they did. Since the
pipe was already capped off, the company repaired the floor, noting that the Martins
had significant water pressure problems. Despite these new repairs, the Martins had
water in their basement after heavy rainfalls.
{¶12} In February of 2012, the Martins filed a complaint with the EPA
regarding their water issues. The EPA contacted Payne to investigate the matter and
report back. Payne then hired the Poggemeyer Design Group to investigate the
issues with the Martins’ property. Poggemeyer investigated the Martins’ property
and determined that a six-inch tile under the basement, which had been plugged only
on the eastern end, was still conveying water from the west side of the property into
the under-the-floor drainage system and into the Martins’ sump pit. Poggemeyer
stated that the glazed tile that was found indicated that the original house was
“constructed over a storm tile associated either with the school or some other
drainage.” (Doc. No. 11, Ex. 11).
{¶13} Poggemeyer observed moisture on the inside face of the poured
concrete foundation wall, which showed that moisture was penetrating the
foundation wall from the surrounding ground. Poggemeyer stated that the original
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residence likely did not have a basement because there were dissimilar materials
making up the exterior foundation walls: “The top portion is concrete block, which
appear[s] to be the original foundation wall and beneath the concrete block is a
poured concrete wall. The junction of the concrete block and poured concrete is not
uniform vertically which leads to my opinion that the basement was added at a later
date than the original construction.” (Id.) Poggemeyer learned from the Martins
that a cistern was on the property, likely from when the property contained a school,
but the Martins were unsure where exactly the cistern was located.
{¶14} Poggemeyer suggested certain actions to be taken by the Martins to
alleviate the water problem such as finding the cistern on the property and
determining how the cistern was filled in. Poggemeyer suggested that, if possible,
the Martins should determine if there were any active pipes connected to the cistern
bringing water to the cistern and possibly bringing water under the floor slab.
Poggemeyer also suggested examining the 6” pipe to the west via video to determine
where it went and if it was connected to any lateral tiles or catch basins.3
{¶15} The Martins did not examine the cistern as Poggemeyer suggested
because they spoke with the previous owner and the previous owner stated that the
cistern had been filled with cement, dirt, and stone. The previous owner claimed he
3
The Martins indicated the pipe had only been videoed to the east.
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had “knocked off the lines, cut the lines off, plugged it up.”4 (Martin Depo. at 91).
Regardless of the Martins’ actions, as a result of Poggemeyer’s report, the EPA
determined that Payne had complied with its obligations to the Martins.
Poggemeyer did not find that there were any issues with Payne’s sewer system that
were causing the Martins’ issues.
{¶16} Over the next several years, the Martins employed two excavators to
dig around their property. The first excavator dug around three sides of the property
but not the fourth due to the Martins’ money issues. The second excavator did the
final side of the property in 2017. The excavators were instructed to dig deeper than
the first excavator because the first excavator did not know the lawn was graded.
More clay tiles were found on the property as a result of excavation. The tiles were
plugged shut; however this did not alleviate the water problem in the basement.
{¶17} In the spring of 2018, the Martins learned that the Ohio Gas Company
had cut into a pipe located on their property while installing a new gas line. The gas
company spoke with the Village Water Superintendent and he told the gas company
to cover the pipe since it was not connected to anything and the pipe was plugged
solid on both sides. Shortly thereafter, the Martins began getting gas and sewer
smells in their basement whenever it rained. Payne was notified and a village
4
The Martins claimed there was another recommendation that was not included in Poggemeyer’s written
report, which was to “grade” the lawn. However, Allan Martin stated that the lawn was already graded so
this recommendation was not followed.
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employee came to the Martins’ residence. The employee thought that the smell was
merely “stagnant water” rather than gas or sewer smells. Nevertheless, Payne
inspected its sewer lines by running a camera down the lines in the area of the
Martins’ residence. The inspector determined that there was no blockage or any
other issues with Payne’s operation of the sewer system that could have been
causing the Martins’ basement issues. The inspection revealed that there was no
major damage to the sewer system, that there were no chunks missing in the pipes,
and that the sewer was intact.
{¶18} The Martins later received a recording of the inspection of the sewer
pipe near their home and they disputed that the system was intact, stating upon their
own review of the video, one of the pipes was damaged. The Martins had nothing
to support this claim other than their own personal viewing of the video that had
been taken, which the inspector for Payne had determined showed a properly
functioning sewer pipe.
{¶19} In November of 2018, the Martins had yet another plumbing service
inspect the sewer lines of their home and the lines were found to be completely
intact. “We did confirm that the sewer line [all the way to the city main] is
completely intact and should not allow any ground water, etc. to leach in and back
feed through the sewer line.” (Doc. No. 11, Ex. 2). Further, the outdoor sump pump
line was found to be working properly by those conducting the test.
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{¶20} Notably, the plumbing company did not explore the inlet pipes to the
Martins’ sump pit and the plumbing company was unable to determine the cause of
the water incursion or the sewer smell in the basement. “Using our camera on these
inlet lines to the sump pit would be able to rule this out as a potential cause.” (Id.)
The plumbing company stated that if the issue of the water incursion could not be
resolved, they had a solution to keep water from getting into the basement, which
included, inter alia, installing an outdoor sump pit with primary and secondary
backups.
{¶21} The Martins did not have the EverDry system inspected again at that
time because it had been done in 2010. Although it was eight years later, Allan
Martin did not believe the EverDry system could have been the problem.
{¶22} Due to the ongoing issues with the Martins’ basement and the
sewer/gas smells, in 2019, Payne conducted “smoke tests” of the sewer lines around
the Martins’ property. For a smoke test, the sewer pipe is plugged at two ends and
then smoke is pumped into a sewer line along with pressure. Generally, in a
successful test, smoke would not be found coming out of unexpected places that are
connected to the sewer lines. However, smoke was found coming out of the
Martins’ sump pit even though it was not connected to a sewer line by Payne.
{¶23} Winston Gross, the water plant operator, emphasized that there was no
connection between Payne’s sewer lines and the Martins’ sump pit. Gross
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speculated that there should have been a solid bottom to the sump pit, but there was
apparently something hooked into the pit and he did not know why, and it was not
done by Payne. He thought that perhaps EverDry had connected something to the
pit, but he did not know. Ultimately as a result of the “smoke test,” the Martins
were told that the problem shown by the test appeared to be with the “traps” in the
Martins’ residence or from a backup through the “clean out pipe” in the Martins’
front yard. Either way, the Martins were told that the problem was on their end, and
not a result of anything done by Payne. Nevertheless, a water analysis was
conducted of the water in the Martins’ basement and it determined that there was
some “fecal coliform” in the non-potable water.
{¶24} As to the maintenance of the sewer lines, Payne indicated that the lines
were inspected on a monthly basis in addition to whenever a complaint was made.
The lines were “jetted”5 on a rolling basis at least twice a year, the lift station was
monitored on a daily basis, and two overflow locations were inspected by Payne
employees weekly and after each rainfall.
{¶25} On March 22, 2019, the Martins filed a complaint against Payne
alleging that Payne was negligent with regard to the maintenance, inspection, and
upkeep of its sewer system. The Martins alleged that water incursion into their
basement had been occurring for approximately a decade at that point, and that they
5
Winston Gross defined jetting as running jets of water down the lines, which then drags back any debris,
sucking it out of the pipe. Gross stated that jetting the lines would bring back a brick if one was in there.
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suspected it was the result of a “broken, failed, and washed-out section of [a] large
sewer pipe directly outside” of their home. They claimed that the video inspection
of the sewer pipes showed, to their eyes, that the pipe was broken. (Doc. No. 1)
{¶26} In addition to the purportedly broken sewer pipe outside their home,
the Martins alleged that Payne had taken measures over the years that strained the
capacity of the sewer pipes such as “bridging” sewer pipes from another area and
tying them directly into the sewer pipe running past the Martins’ home.
{¶27} The Martins alleged that the gas, sewage smell, and airborne
contaminants caused them to leave their home multiple times, and that the issues
also resulted in exposure-related illnesses.6 The Martins stated that they, and/or
their predecessors in interest, had taken numerous diagnostic, preventative, and
remedial measures to protect the home and basement such as waterproofing,
installing as many as seven sump pumps into the same pit, having concrete injected
into voids developed beneath the basement floor due to water erosion, and
employing numerous professionals to find and fill tile/pipes on their property.
Ultimately the Martins alleged that as a result of Payne’s failure to properly perform
regular inspections, failure to perform regular maintenance, and Payne’s failure to
remedy the problem with the sewer system despite numerous complaints, the
Martins had suffered in excess of $60,000 in damages.
6
The Martins claimed that household members had issues with Hepatitis E and Giardia (ingesting feces) as
a result of the problems.
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{¶28} On April 29, 2019, Payne filed an answer denying negligence and
asserting multiple affirmative defenses including, inter alia, that it was entitled to
sovereign immunity pursuant to R.C. 2744.02, that the Martins’ own negligence
caused the problem, that the Martins were aware of any issues with the property
when they purchased their home, that Payne discharged any duty owed to the
Martins, and that any damages were the result of a superseding or intervening cause.
{¶29} As the case proceeded, discovery was exchanged and three depositions
were taken. Allan Martin—one of the homeowners—was deposed, Winston
Gross—the water plant operator until he retired in June of 2018—was deposed, and
John Hall—the president of the Board of Public Affairs—was deposed. Those
depositions were filed with the trial court.
{¶30} On January 27, 2020, Payne filed a motion for summary judgment
arguing that it was entitled to immunity as a political subdivision in this matter.
Payne argued that despite numerous inspections, including some done by businesses
employed by the Martins, the Martins had not established any defects with Payne’s
sewer system. Further, Payne argued that the undisputed evidence established that
routine inspection and maintenance occurred on the sewer system, thus the Martins
could establish no breach of Payne’s duty to the Martins, or any causation in this
matter.
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{¶31} On March 3, 2020, the Martins filed a response to Payne’s motion for
summary judgment. The Martins contended that despite numerous inspections the
problem with water ingress into their home had not been identified. Additionally,
the Martins argued that the smoke test performed by Payne resulted in smoke
“pouring into their basement,” establishing that there was a leak somewhere.
Moreover, the Martins claimed that there was “obvious” damage to the regularly
inspected sewer line under the street immediately in front of the Martin’s home as
evidenced by video of the 2018 line inspection.
{¶32} Further, the Martins argued that they had “eliminated” any other
possible causes on their own property, thus the problem must be due to Payne and
the “damaged” sewer system that they claimed was shown by the video inspection.
Moreover, they argued that per the deposition of John Hall, the sewer system was
not inspected in its entirety due to a bend in the system. Finally, the Martins claimed
that Payne had lost EPA report records for roughly a year pertaining to inspections,
placing the issue of whether Payne was actually having regular inspections into
dispute.
{¶33} On March 19, 2020, Payne filed a reply in support of its motion for
summary judgment arguing that no defects with Payne’s sewer lines had ever been
discovered, that the Martins had no evidence showing that the basement issues were
related to some defect or damage to the Payne sewer system, and that Allan Martin’s
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lay interpretation that the sewer pipe was damaged was not sufficient to create a
genuine issue of material fact where the only experts in the matter had stated that
the pipe was not damaged.
{¶34} On November 18, 2020, the trial court filed a judgment entry granting
Payne’s motion for summary judgment. In the entry, the trial court recited evidence
presented through deposition testimony and various letters written after inspections
had been made of the Martins’ property. The trial court found that although the
testimony of Allan Martin would cause any homeowner to “empathize” with him,
the Martins had offered “not one professional that would say that the [Martins’]
basement issue was caused by the negligent maintenance of the sewer system by the
Village of Payne. Neither the presence of water, fecal material or smoke is sufficient
evidence to support [the Martins’] claims of negligence against [Payne].” (Doc. No.
16). Thus Payne was granted summary judgment and the Martins now appeal,
asserting the following assignments of error for our review.
Assignment of Error No. 1
Whether the trial court erred in granting the Appellee’s motion
for summary judgment pursuant to Civil Rule 56(C).
Assignment of Error No. 2
Whether the trial court as a matter of law erred in granting the
Appellee’s motion for summary judgment pursuant to Civil Rule
56(C).
{¶35} Appellants’ assignments of error are interrelated and argued together
in their brief, therefore we will address them together.
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First and Second Assignments of Error
{¶36} In their assignments of error, the Martins argue that the trial court erred
by granting summary judgment to Payne. More specifically, the Martins contend
that there was a genuine issue of material fact as to whether Payne was negligent in
maintaining its sewer system.
Standard of Review
{¶37} We review a grant of summary judgment de novo—that is, we will
consider the evidence as if for the first time—using the standard set out in Civ.R.
56. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29. A
court may grant summary judgment only when no genuine issue of material fact
remains to be litigated, the moving party is entitled to judgment as a matter of law,
and, viewing the evidence in the light most favorable to the nonmoving party,
reasonable minds can reach a conclusion only in favor of the moving party. M.H.
v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, ¶ 12, citing Temple v.
Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C).
Sovereign Immunity Framework
{¶38} A claim of sovereign immunity by a political subdivision requires the
three-tiered analysis provided in R.C. Chapter 2744. Baker v. Wayne Cty., 147 Ohio
St.3d 51, 2016-Ohio-1566, ¶ 11, citing Rankin v. Cuyahoga Cty. Dept. of Children
& Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, ¶ 16. Under the first tier of
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the analysis, a political subdivision has immunity for any act or omission of the
political subdivision, or its employees, that was conducted in connection with a
governmental or proprietary function. R.C. 2744.02(A)(1). The second tier of the
analysis examines whether any of the five exceptions to the general grant of
immunity apply that are listed in R.C. 2744.02(B). Rankin at ¶ 18. If an exception
does apply, the third tier of the analysis considers whether sovereign immunity can
be reinstated by one of the statutorily listed defenses, such as the discretionary
defenses set forth in R.C. 2744.03(A)(3) and (5). Rankin at ¶ 27.
Analysis
{¶39} In this case there is no dispute that Payne is a political subdivision that
is generally entitled to immunity pursuant to R.C. 2744.02(A)(1). Thus there is no
factual or legal dispute in this matter with regard to the first tier of the sovereign
immunity analysis.
{¶40} With regard to the second tier of the sovereign immunity analysis, the
parties are in agreement that, by definition, “[t]he maintenance, destruction,
operation, and upkeep of a sewer system” is a proprietary function. R.C.
2744.01(G)(2)(d). Further, the parties agree that pursuant to R.C. 2744.02(B)(2),
“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[.]” Thus the parties agree that there is an exception to Payne’s
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general immunity in this matter if the Martins could establish that Payne was
negligent with regard to the maintenance, operation, or upkeep of the sewer system.
However, it is important to emphasize that once a political subdivision establishes
general immunity, which is not disputed here, the burden shifts to the plaintiff to
show that one of the exceptions to immunity applies. Slane v. Hilliard, 10th Dist.
Franklin No. 15AP-493, 2016-Ohio-306, ¶ 31.
{¶41} In this case the Martins contend that they have, at the very least,
established that a genuine issue of material fact exists as to whether Payne was
negligent with respect to the maintenance, operation, and upkeep of its sewer
system. In support of their argument, the Martins contend that video they had
obtained from the inspection of the sewer system “clearly shows the clay tile outside
of the [the Martins’] home [was] [] badly damaged.” (Appt.’s Br. at 13). The
Martins argue that with the camera paused, it “is clear that the majority of a section
of sewer tile has been broken, collapsed, and is no longer in place[.]” (Id.) Allan
Martin stated that he could personally see that the sewer pipe was damaged;
however, the Martins did not present any evidence from any professionals who
stated that the sewer pipe was damaged or that the purportedly damaged pipe was
responsible for the Martins’ issues in their basement. Nevertheless, the Martins
argue that their interpretation of the video of the sewer pipe inspection creates a
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genuine issue of material fact as to whether Payne was properly maintaining the
sewer system.
{¶42} The Martins also allege that Payne “lost” records that would show that
Payne had been actively inspecting the sewer lines, calling into doubt the testimony
that the lines were regularly inspected. Finally, the Martins argue that testimony
established that not all portions of the sewer system were regularly inspected, which
showed that Payne was derelict in its maintenance and upkeep duties.
{¶43} By contrast, Payne argues that the only evidence in the record
established that the sewer system was routinely inspected, jetted, and maintained,
that the sewer lines near the Martins’ home had been inspected on a number of
occasions, and that no defects or damages to that sewer system had been discovered.
Payne emphasizes that the Martins did not offer evidence from any professionals,
experts, or contractors that had been employed over the years to show that the issues
in the Martins’ basement were related to some defect or damage in Payne’s sewer
system. Finally, Payne argues that Allan Martin’s lay opinion that Payne’s sewer
operation must be at fault for their issues was not sufficient to defeat summary
judgment.
{¶44} After reviewing the evidence presented, the legal authority, and the
arguments of the parties, the trial court determined that any person would
“empathize” with the issues the Martins had to deal with; however, the trial court
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found that the Martins had not shown that Payne had breached its duty with regard
to a proprietary function or that any purported breach by Payne specifically caused
damage to the Martins.
{¶45} Following our own review of the record, we agree with the trial court
on all accounts. The Martins have had repeated misfortunes with water/sanitation
issues in their basement, but the focus of this action is on the purported negligence
of Payne, and whether the Martins have established a genuine issue of material fact
with respect to Payne’s operation, upkeep, and maintenance of its sewer system.
Payne presented evidence that the sewer lines were regularly inspected, maintained,
and jetted. The Martins’ argument that some inspection or maintenance records
spanning roughly a year may have been lost does not create a genuine issue of
material fact where the only evidence in the record is that the sewer lines were
maintained. The depositions of Winston Gross and John Hall established as much.
{¶46} Further, when looking at the actions of Payne in this matter, the
evidence established that Payne was responsive when the Martins contacted the
village with issues—although the Martins may not have liked the responses they
received from Payne. Payne had employees speak with the Martins and investigate
the issues when Payne was presented with them. When the EPA complaint was
made, Payne hired an outside firm to investigate the matter, and there were no issues
found with Payne’s operation of the sewer system.
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{¶47} In addition, when the Martins continued to have problems over the
years, Payne ran a camera through the sewer lines to ensure that the sewer lines were
intact. The camera operator determined that there were no damaged areas that
would have caused problems for the Martins. Then, to further respond to the
Martins’ issues, Payne conducted a “smoke test” to check for any issues with the
pipes. Payne has thus presented evidence that it has not ignored the Martins’
problems, that it has maintained and checked the sewer lines, and that Payne has
taken steps to ensure that the problems in the Martins’ home did not reside with the
village’s sewer lines.
{¶48} To contradict Payne’s evidence regarding the maintenance and upkeep
of the sewer system, the Martins point to Allan’s testimony that the sewer pipe looks
damaged to him. However, Allan Martin’s bald claim that he thinks that the camera
footage shows that the sewer pipe near his home was damaged is not enough to
defeat summary judgment. “[A] non-movant’s own self-serving assertions, whether
made in an affidavit, deposition or interrogatory responses, cannot defeat a well-
supported summary judgment when not corroborated by any outside evidence.”
White v. Sears, Roebuck & Co., 10th Dist. Franklin No. 10AP-294, 2011-Ohio-204,
¶ 9; Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-93, 2016-Ohio-
3197, ¶ 22; Boulton v. Vadakin, 4th Dist. Washington No. 07CA26, 2008-Ohio-666,
¶ 20; Mobley v. James, 8th Dist. Cuyahoga No. 108470, 2020-Ohio-380, ¶ 43. The
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Martins had the opportunity to introduce affidavits or depositions into the record
that would support their bald claim that the pipe was damaged and causing their
issues but they did not.
{¶49} Moreover, while there is no evidence in the record establishing
Payne’s negligence with respect to Payne’s operation of its sewer system, the record
does show numerous potential issues with regard to the Martins’ own property. For
example, John Hall testified in his deposition that there was likely a problem with
the Martins’ “clean-out” pipe, which was something that was put in by one of the
property owners, not Payne. Hall testified that this was likely the cause of the smoke
coming from the sump pit during the smoke test.
{¶50} Furthermore, the record establishes that the Martins have not re-
inspected their EverDry system since 2010 despite the worsening problems with
water in their basement. Given that a “swirl” was found in the initial inspection of
the system back in 2010, which was apparently a problem with the system, the
Martins may have wanted to check the system again. In addition, the Martins did
not inspect the cistern on the property despite Poggemeyer’s suggestion to do so
following the EPA investigation in 2012. Rather than inspecting the matter
themselves, the Martins simply accepted the previous owner’s word that the cistern
had been properly filled in and that any connected pipes had been capped.
Moreover, the Martins also did not have the inlet pipes to their sump pit inspected
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by the plumbing company in 2018, which the plumbing company indicated would
help rule-out any issues with the pit or connections to it.
{¶51} All of these issues show that, in addition to producing no evidence that
an issue with Payne’s sewer system caused the Martins problems, the record
contains evidence supporting many causation possibilities for the Martins’
problems. The Martins may feel that they have exhausted their options in this matter
and that their issues must be Payne’s fault, but the record does not establish this fact.
{¶52} In sum, the record establishes a long history of the Martins, and the
previous owner of the residence in question, attempting to remedy the water
conditions in the basement. However, despite Payne filing a well-supported motion
for summary judgment, the Martins have produced no evidence that there is a defect
with Payne’s sewer system that is causing their water issues. As far as the record
establishes, Payne has still yet to be informed by any professionals that there is, in
fact, a defect in Payne’s sewer system. See Tangler v. Village of Carrollton, 7th
Dist. Carroll No. 17 CA 0920, 2018-Ohio-1343, ¶ 25 (reversing denial of sovereign
immunity in summary judgment case where, inter alia, evidence had not established
that village breached its duty with respect to operation of sewer lines). The only
evidence in the record shows that the sewer lines are regularly inspected, jetted, and
maintained. For all of these reasons, the Martins’ first and second assignments of
error are overruled.
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Conclusion
{¶53} For the foregoing reasons the Martins’ assignments of error are
overruled and the judgment of the Paulding County Common Pleas Court is
affirmed.
Judgment Affirmed
ZIMMERMAN and MILLER, J.J., concur.
/jlr
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