Smith v. Euclid , 2019 Ohio 3099 ( 2019 )

[Cite as Smith v. Euclid, 2019-Ohio-3099.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
FRANK M. SMITH, :
Plaintiff-Appellee, :
No. 107771
v. :
CITY OF EUCLID, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 1, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-17-887357
Appearances:
Henderson & Schmidlin & McGarry Co., L.P.A., Timothy
L. McGarry, and Brendan Mewhinney, for appellee.
Walter & Haverfield, L.L.P., R. Todd Hunt, Benjamin G.
Chojnacki, and Sara J. Fagnilli, for appellant.
MARY EILEEN KILBANE, A.J.:
Defendant-appellant, the city of Euclid (“the City”), appeals the trial
court’s decision denying its motion for summary judgment. For the reasons set forth
below, we affirm.
In October 2017, plaintiff-appellee, Frank Smith (“Smith”) brought a
breach of easement and negligence−nuisance action against the City for damage to
his residential property located at 21731 Edgecliff Drive (“property”) in Euclid, Ohio.
Smith’s property abuts Lake Erie. The prior owner of the property granted an
easement to the City on Smith’s property to allow the City to maintain an overflow
sanitary relief sewer. The sewer line runs through the west side of the property and
through a concrete sewer out into Lake Erie.
In 2012, a sinkhole developed on the property behind the retaining
wall. The City’s investigation of this sinkhole revealed an approximate 2” by 4”
opening in the top of the sewer pipe just before it connects with the manhole. The
City repaired the opening in the pipe in 2012 by covering the pipe’s hole with cement
and surrounding the outside of the pipe with brick. The City’s former Service
Department Superintendent, Scott Reese (“Reese”), additionally determined that
the wood retaining wall on the property needed to be repaired and the sinkhole
should be filled with a cement-based “flowable fill” material, rather than dirt. Unlike
dirt, flowable fill can enter all open cavities of an erosion hole. The flowable fill then
hardens, thereby providing stability and preventing soil displacement from behind
the retaining wall.
Then in 2016, a second sinkhole developed on the hillside behind the
retaining wall on the property. Smith alleges that the City’s 2012 repair of the
manhole located on his property subsequently caused the second sinkhole, which
damaged his property, breakwall, boathouse, landscaping, and steps.
Smith alleges that the City, as the owner of the easement, has
breached its contractual duty to make the repairs necessary to prevent the easement
from damaging his property. Smith further alleges that the City is not immune from
liability under R.C. 2744.01(G)(2)(d) for the damages because the damage was
caused by the negligent performance of the City’s employees for “proprietary
functions,” including the “maintenance, destruction, operation, and upkeep of a
sewer system.” The City responded, arguing immunity under R.C. Chapter 2744.
After the conclusion of discovery, the City moved for summary
judgment, contending that its operation and upkeep of the sewer system did not
cause damage to the property. The City argued that Smith’s breach of easement
claim is “an attempt to repackage his negligence claim as a breach of contract.” The
City further argued that even if it did damage the property, it is immune from
liability under R.C. Chapter 2744.1 Smith opposed the City’s motion for summary
judgment. In his opposition, Smith argued that as the owner of the easement, the
City was contractually responsible to Smith for making repairs of the use if, using
Smith’s allegation, the “easement” damages his property. According to Smith, the
City’s failure to properly make repairs in 2012 caused the leak in the sewer, which
caused the sinkhole and damage to the property. Smith further argued that City is
not immune from liability because the City failed to maintain the sewer, which is a
proprietary function.
1 The City also argued that Smith’s claims were barred by the applicable statute of
limitations, but this argument cannot be raised in the interlocutory appeal of the denial
of political subdivision immunity.
The City responded to Smith’s opposition, arguing that the supplies,
materials, personnel, and resources selected by the City did not cause damage to the
property. Moreover, even if it had caused damage, the City established that it was
immune from liability for such discretionary acts under R.C. 2744.03(A)(5). The
next day, the trial court issued its decision, denying the City’s motion for summary
judgment. The court stated:
Th[is] court has reviewed [the City’s] motion, [Smith’s] brief in
opposition, and [the City’s] reply brief. In viewing the facts and
construing the evidence in the light most favorable to [Smith] as the
non-moving party, the court finds that there are genuine issues of
material fact concerning whether [the City] was negligent in
performing a proprietary function of maintaining and operating its
storm sewer system under R.C. 2744.02(B)(2) and whether such
negligence proximately caused damages to plaintiff. Riscatti v. Prime
Properties Ltd. Partnership, 2012-Ohio-2921. As such, [the City] is not
entitled to judgment as a matter of law and summary judgment is not
proper under Civ.R. 56(C). The court further finds that the discovery
rule applies to this claim. Cohen v. City of Bedford Heights, 2015-ohio-
1308. Genuine issues of material fact exist as to whether [Smith] knew
or by the exercise of reasonable diligence should have known that he
was injured by the conduct of [the City].
The court further finds that there are genuine issues of material fact
concerning whether [the City] had a duty under the easement to
maintain the storm sewer and to prevent damage to the servient estate.
Market Enterprises v. Summerville, 2002-ohio-3692. See also, 36
Ohio Jurisprudence 3d (1982) 464, Easements and Licenses, Section
60.
It is from this order that the City appeals, raising the following single
assignment of error for review:
Assignment of Error
The trial court erred by denying summary judgment to the [City] which
denied the City’s defense of statutory immunity pursuant to R.C.
Chapter 2744.
The City views Smith’s breach of easement claim as part of his
negligence−nuisance claim and argues its motion for summary judgment
conclusively established that the sewer system itself was not the cause of the alleged
damage to the property. As a result, it contends that the sole issue this court “must
examine is whether the City is immune from liability pursuant to R.C. Chapter 2744
of the Ohio Revised Code for its discretionary decision to use flowable fill in
repairing the First Erosion Hole in 2012.”
We review an appeal from summary judgment under a de novo
standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-
336, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d
581, 585, 706 N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio
St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set
forth the appropriate test as follows:
Pursuant to Civ.R. 56, summary judgment is appropriate when (1)
there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds can
come to but one conclusion and that conclusion is adverse to the
nonmoving party, said party being entitled to have the evidence
construed most strongly in his favor. Horton v. Harwick Chem. Corp.,
73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three
of the syllabus. The party moving for summary judgment bears the
burden of showing that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law. Dresher v. Burt, 75
Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.
Once the moving party satisfies its burden, the nonmoving party “may
not rest upon the mere allegations or denials of the party’s pleadings, but the party’s
response, by affidavit or as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v.
Eckstein, 76 Ohio St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be
resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d
356, 358-359, 1992-Ohio-95, 604 N.E.2d 138.
Breach of Easement
The City contends that Smith’s breach of easement−contract claim is
really a tort claim for damages. Smith, on the other hand, contends that the
“easement at issue is a contract” and the City has no immunity under
R.C. 2744.09(A). Because Smith’s complaint has separately alleged that “[a]s the
owner of the easement, [the City] has a duty to make such repairs as are necessary
to prevent the easement from damaging the [p]roperty” and further alleges that the
City has breached the easement by failing to prevent the easement from damaging
the property, we will analyze this claim of Smith’s complaint as separate from his
negligence−nuisance claim for purposes of this interlocutory appeal.
The breach of an easement claim can be analyzed as a breach of
contract claim. Stefanich v. Am. Elec. Power Co., 5th Dist. Licking No. 07 CA 0045,
2007-Ohio-6108, ¶ 27. “To establish a claim for breach of contract, the plaintiff
must show the existence of a contract, performance by the plaintiff under the terms
of that contract, breach by the defendant, and damage or loss to the plaintiff.” Carey
v. Down River Specialties, Inc., 8th Dist. Cuyahoga No. 103595, 2016-Ohio-4864, ¶
14, citing Powell v. Grant Med. Ctr., 148 Ohio App.3d 1, 2002-Ohio-443, 771 N.E.2d
874 (10th Dist.).
We note, however, that R.C. Chapter 2744 does not apply to contract
claims against a political subdivision.
“R.C. Chapter 2744 generally shields political subdivisions from tort
liability in order to preserve their fiscal integrity.” (Emphasis added.)
Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123,
2013-Ohio-4530, 998 N.E.2d 437, ¶ 15, 998 N.E.2d 437.
R.C. 2744.09(A) specifies that R.C. Chapter 2744 “does not apply to,
and shall not be construed to apply to * * * [c]ivil actions that seek to
recover damages from a political subdivision or any of its employees for
contractual liability.” (Emphasis added.) “R.C. 2744.09(A) has been
consistently interpreted to mean that political subdivisions cannot
claim governmental immunity for breach of contract claims.” See E.
Liverpool v. Buckeye Water Dist., 7th Dist. Columbiana App. Nos. 11
CO 41 and 11 CO 42, 2012-Ohio-2821, ¶ 47, 972 N.E.2d 1090, and cases
cited there; see also Emergency Med. Transport, Inc. v. Massillon, 5th
Dist. Stark No. 2010CA00176, 2011-Ohio-446, ¶ 28, (“Ohio Revised
Code Chapter 2744 grants immunity to political subdivisions and their
employees from tort claims, but has no application to claims for breach
of contract”); Cobb v. Mantua Twp. Bd. of Trustees, 11th Dist. Portage
No. 2003-P-0112, 2004-Ohio-5325, ¶ 33 (“R.C. Chapter 2744 grants
immunity to political subdivisions and their employees from tort
claims. However, R.C. Chapter 2744 does not provide immunity from
claims for breach of contract”).
Today & Tomorrow Heating & Cooling v. Greenfield, 4th Dist. Highland No.
13CA14, 2014-Ohio-239, ¶ 14.
Smith raised R.C. 2744.09(A) in his motion for summary judgment,
arguing that Euclid is not immune from a breach of easement claim. When denying
the City’s motion for summary judgment, the trial court found genuine issues of
material fact concerning whether the City has a duty under the easement to maintain
the storm sewer and prevent damage to Smith’s property. The court’s disposition of
the breach of easement claim was addressed separately from its disposition of the
negligence−nuisance claim. When addressing the negligence−nuisance claim, the
court specifically referenced R.C. 2744.02(B)(2), and the negligence in performing
a proprietary function.
Because the alleged breach of easement claim can be construed as a
breach of contract claim, R.C. 2744.09(A) would preclude immunity from applying
to this cause of action. Thus, we lack jurisdiction, in this interlocutory appeal, to
consider the propriety of the trial court’s denial of the City’s motion for summary
judgment with respect to Smith’s breach of easement cause of action. See Riscatti,
137 Ohio St.3d 123, at ¶ 20 (“Although our prior decisions have interpreted R.C.
2744.02(C) broadly in favor of early appeal, they have always been tethered directly
to the defense of immunity, not to other defenses.) See also Berdysz v. Boyas
Excavating, Inc., 8th Dist. Cuyahoga No. 107109, 2019-Ohio-1639, ¶ 10-15.
As a result, we will address solely the applicability of political
subdivision immunity to the negligence−nuisance cause of action because we have
jurisdiction to review this claim.
Political Subdivision Immunity
A determination of whether a political subdivision is immune from
tort liability under R.C. Chapter 2744 involves a three-tiered analysis. Colbert v.
Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7, citing Greene
Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 2000-Ohio-486, 733 N.E.2d
1141.
The first tier is the general rule that a political subdivision is immune
from liability incurred in performing either a governmental function or
proprietary function. [Greene, 89 Ohio St.3d 551, 556-557, 2000-
Ohio-486, 733 N.E.2d 1141]; R.C. 2744.02(A)(1). However, that
immunity is not absolute. R.C. 2744.02(B); Cater v. Cleveland, 83
Ohio St.3d 24, 28, 1998-Ohio-421, 697 N.E.2d 610.
The second tier of the analysis requires a court to determine whether
any of the five exceptions to immunity listed in R.C. 2744.02(B) apply
to expose the political subdivision to liability. Id. at 28, 697 N.E.2d 610.
***
If any of the exceptions to immunity in R.C. 2744.02(B) do apply and
no defense to that section protects the political subdivision from
liability, then the third tier of the analysis requires a court to determine
whether any of the defenses in R.C. 2744.03 apply, thereby providing
the political subdivision a defense against liability.
Id. at ¶ 7-9.
Negligence−Nuisance
Here, the parties do not dispute that the City is a political subdivision,
and thus, qualifies for general immunity under R.C. 2744.02(A). The City argues
that none of the exceptions listed in R.C. 2744.02(B) apply to abrogate immunity
because its repairs to the first erosion hole were repairs to the property itself, not the
sewer system. Smith, on the other hand, argues that the City is subject to liability
under the exception listed in R.C. 2744.02(B)(2) because its employees negligently
performed the following proprietary function: “[t]he maintenance, destruction,
operation, and upkeep of a sewer system[.]” R.C. 2744.01(G)(2)(d).
We note that Ohio courts have long recognized that a city can be liable
for the negligent maintenance of its sewers. Nelson v. Cleveland, 8th Dist. Cuyahoga
No. 98548, 2013-Ohio-493, ¶ 18, citing Portsmouth v. Mitchell Mfg. Co., 113 Ohio
St. 250, 148 N.E. 846 (1925). Indeed, when a municipality does construct or
maintain sewers, “it becomes its duty to keep them in repair and free from
conditions which will cause damage to private property.” Doud v. Cincinnati, 152
Ohio St. 132, 137, 87 N.E.2d 243 (1949). Thus, the municipality becomes liable “in
the same manner and to the same extent as a private person under the same
circumstances.” Id., citing Portsmouth.
Under the three-tiered analysis, the City is subject to liability under
R.C. 2744.02(B)(2) because its maintenance of the sewer is a proprietary function
under R.C. 2744.01(G)(2)(d). Therefore, we must next address the City’s argument
that it has reinstated immunity from liability because the actions it took to repair
the sewer in 2012 fall within the “exercise of judgment” exception in
R.C. 2744.03(A)(5), which provides that a “political subdivision is immune from
liability if the * * * loss to * * * 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.”
The City contends that its attempt to fix the outflow sewer pipe in
2012, including its decision to use flowable fill, is protected from liability as a
reinstatement of immunity because that decision was a use of judgment and
discretion in how to use supplies and resources under R.C. 2744.03(A)(5). The City
relies on Reese’s testimony, who exercised his discretion in determining “whether to
acquire, or how to use, equipment, supplies, materials, personnel, facilities, and
other resources.”
Reese testified that he believed that the 2012 sinkhole was caused by
a leak in the sewer pipe. He made the decision to repair the first erosion hole with a
cement-based “flowable fill” material, rather than dirt. He made this decision
because he believed the flowable fill would replace the soil that eroded away and
better plug the open cavities in the hole, helping with future erosion. According to
Reese, the flowable fill hardens, provides stability, and prevents soil erosion and
slippage from behind the retaining wall. He further concluded that the use of
flowable fill would provide additional stability for the retaining wall and assist with
preventing additional erosion or slippage. Reese inspected the work after it was
completed and determined it was done correctly and in a workmanlike manner.
Smith maintains that the City should have done more than just fill the
sinkhole with “flowable fill.” His experts opined that before pouring “flowable fill”
into the sinkhole, the City should have prepared a proper base beneath the “flowable
fill.” The experts opined that by failing to properly prepare the base of the sinkhole
and pouring “flowable fill” on top of eroded and unstable soils, the City only masked
the problem until the sinkhole became visible again years later.
This court has previously held that “decisions involving the proper
maintenance of the sewer or drainage system [are] a proprietary act, which [are]
mandatory and not discretionary. These decisions do not involve a high degree of
discretion. Rather they involve routine inspection and maintenance.” Nelson at
¶ 30. Here, Reese inspected the sewer, found a hole in the sewer and determined to
use “flowable fill” to repair the sinkhole. Smith’s experts opined the sinkhole on
Smith’s property occurred as a result of the City only masking the problem by using
“flowable fill” without a stable base. As a result, the discretionary acts defense in
2744.03(A)(5) is not available to reinstate immunity to the City for the resulting
damages.
Based on the foregoing, when construing this evidence in a light most
strongly in favor of Smith, genuine issues of material fact exist as to whether the City
exercised ordinary care in maintaining and repairing the sewer and whether the City
is entitled to political subdivision immunity.
Therefore, the sole assignment of error is overruled.
Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent out to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
______
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
ANITA LASTER MAYS, J., and
RAYMOND C. HEADEN, J., CONCUR