Georgantonis v. Reading , 2020 Ohio 3961 ( 2020 )

[Cite as Georgantonis v. Reading, 2020-Ohio-3961.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
KYRIAKOS GEORGANTONIS, : APPEAL NO. C-190615
TRIAL NO. A-1805317
DIAMANTO GEORGANTONIS, :
ELENI GEORGANTONIS, : O P I N I O N.
PANAGIOTIS GEORGANTONIS,
:
and
:
YIANNI GEORGANTONIS,
:
Plaintiffs-Appellants,
:
vs.
:
CITY OF READING, OHIO,
:
Defendant-Appellee,
:
and
:
HUBBELL, INC.,
HUBBELL LENOIR CITY, INC., :
SHELL OIL COMPANY, :
STRONGWELL CORPORATION, :
LONE STAR INDUSTRIES, INC., :
RICHARDS ELECTRIC SUPPLY CO., :
INC.,
:
and
:
JOHN OR JANE DOES,
Defendants. :
OHIO FIRST DISTRICT COURT OF APPEALS
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 5, 2020
Flagel & Papakirk LLC, James Papakirk and Gregory E. Hull, for Plaintiffs-
Appellants,
Schroeder, Maundrel, Barbiere & Powers, Lawrence E. Barbiere and Katherine L.
Barbiere, for Defendant-Appellee.
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OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Kyriakos Georgantonis, Diamanto Georgantonis, Eleni Georgantonis,
Panagiotis Georgantonis, and Yianni Georgantonis (“the plaintiffs”) appeal the
decision of the trial court granting a Civ.R. 12(C) motion for judgment on the
pleadings in a personal-injury case in favor of defendant-appellee, the city of
Reading, Ohio, based on governmental immunity.
I. Factual and Procedural Background
{¶2} On October 4, 2016, Kyriakos Georgantonis, an employee of the
Pastrimas Painting Company, was painting the side of a building on West Benson
Street in Reading, Ohio. Georgantonis was working from the platform of a scissor lift
raised to a height of approximately 20 feet, which he had moved into place on the
sidewalk in front of the building.
{¶3} When Georgantonis parked the scissor lift, one of the tires of the
scissor lift was positioned on top of the cover of an electric service box that had been
installed by the city. As Georgantonis was working, the cover of the service box
fractured, causing the scissor lift to topple over and crash onto the sidewalk and
causing Georgantonis to fall to the sidewalk and sustain injuries.
{¶4} The plaintiffs filed a complaint and an amended complaint, alleging
negligence claims against the city, and products-liability claims against companies
involved in the manufacturing and/or supply of the service box.
{¶5} The city moved for judgment on the pleadings. The city argued that it
was entitled to immunity on the plaintiffs’ claims because their allegations of
negligence concerned the maintenance and repair of a public sidewalk, which is a
governmental function. The plaintiffs opposed the city’s motion, arguing that the
installation, inspection and maintenance of the service box were proprietary
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OHIO FIRST DISTRICT COURT OF APPEALS
functions. The plaintiffs also filed a motion for partial summary judgment against
the city, challenging the city’s claim of immunity and seeking judgment as to liability.
{¶6} The trial court determined that the city was entitled to immunity
because the maintenance of the city’s sidewalk was a governmental function, and
that even if the amended complaint alleged injury in connection with the city’s
street-light system, the provision of street lights is a governmental function. The
court granted judgment on the pleadings in favor of the city and overruled the
plaintiffs’ motion for partial summary judgment. The plaintiffs now appeal.
{¶7} In a single assignment of error, the plaintiffs argue that the trial court
erred in granting judgment on the pleadings in favor of the city and in denying
partial summary judgment in their favor on the issue of governmental immunity
II. Motion for Judgment on the Pleadings
{¶8} Dismissal on a Civ.R. 12(C) motion for judgment on the pleadings is
proper when a court construes as true the material allegations in the complaint,
along with all reasonable inferences to be drawn therefrom, and finds, beyond doubt
that the plaintiff can prove no set of facts that would entitle the plaintiff to relief.
Retirement Corp. of Am. v. Henning, 1st Dist. Hamilton No. C-180643, 2019-Ohio-
4589, ¶ 15. We review a trial court’s ruling on a Civ.R. 12(C) motion for judgment on
the pleadings de novo. Steele v. Cincinnati, 1st Dist. Hamilton No. C-180593, 2019-
Ohio-4853, ¶ 14.
{¶9} A trial court may grant a motion for judgment on the pleadings on the
basis of an affirmative defense such as immunity where the complaint bears
conclusive evidence that the action is barred by the defense. Id. at ¶ 15. A court may
not grant a motion for judgment on the pleadings unless the pleadings “obviously or
conclusively” establish the affirmative defense. Id.; Cristino v. Bur. of Workers’
Comp., 2012-Ohio-4420, 977 N.E.2d 742, ¶ 21 (1oth Dist).
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OHIO FIRST DISTRICT COURT OF APPEALS
III. Immunity under R.C. Chapter 2744
A. Three-Tiered Analysis
{¶10} R.C. Chapter 2744 establishes a three-tiered analysis for determining
whether a political subdivision, such as the city, is immune from liability. R.K. v.
Little Miami Golf Ctr., 2013-Ohio-4939, 1 N.E.3d 833, ¶ 8 (1st Dist.); Steele at ¶ 17.
First, R.C. 2744.02(A)(1) sets forth a general grant of immunity for political
subdivisions for damages in a civil action resulting from any act or omission of a
political subdivision or employee in connection with a governmental or proprietary
function. Second, R.C. 2744.02(B) sets forth various exceptions that, if applicable,
remove the initial grant of immunity. And third, if an exception applies to remove
immunity, immunity can be reinstated if the political subdivision can show that one
of the defenses contained in R.C. 2744.03 applies.
{¶11} The parties do not dispute that the city was entitled to an initial grant
of immunity under R.C. 2744.02(A)(1). But the plaintiffs contend that the exception
set forth in R.C. 2744.02(B)(2) applies to remove that immunity. R.C. 2744.02(B)(2)
provides that “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.” (Emphasis added.) The
plaintiffs argue that the city was engaging in a proprietary function when it
established a street-light system, and that the city negligently failed to inspect and
maintain components of that system, including the cover of the service box. The city
argues that the operation and maintenance of a street-light system is a governmental
function, and that, regardless, the plaintiffs’ amended complaint alleged negligence
related to sidewalk maintenance, which is specifically delineated as a governmental
function.
1. Governmental Function
{¶12} R.C. 2744.01(C)(1) defines a governmental function:
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OHIO FIRST DISTRICT COURT OF APPEALS
“Governmental function” means a function of a political subdivision
that is specified in division (C)(2) of this section or that satisfies any of
the following:
(a) A function that is imposed upon the state as an obligation of
sovereignty and that is performed by a political subdivision voluntarily
or pursuant to legislative requirement;
(b) A function that is for the common good of all citizens of the state;
(c) A function that promotes or preserves the public peace, health,
safety, or welfare; that involves activities that are not engaged in or not
customarily engaged in by nongovernmental persons; and that is not
specified in division (G)(2) of this section as a proprietary function.
(Emphasis added.) R.C. 2744.01(C)(2) lists specific examples of governmental
functions, including “[t]he regulation of the use of, and the maintenance and repair
of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts,
and public grounds.” (Emphasis added.) See R.C. 2744.01(C)(2)(e).
2. Proprietary Function
{¶13} R.C. 2744.01(G)(1) defines a proprietary function:
“Proprietary function” means a function of a political subdivision that
is specified in division (G)(2) of this section or that satisfies both of the
following:
(a) The function is not one described in division (C)(1)(a) or (b) of this
section and is not one specified in division (C)(2) of this section;
(b) The function is one that promotes or preserves the public peace,
health, safety, or welfare and that involves activities that are
customarily engaged in by nongovernmental persons.
(Emphasis added.) R.C. 2744.02(G)(2) lists specific examples of proprietary
functions, including “[t]he establishment, maintenance, and operation of a utility,
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OHIO FIRST DISTRICT COURT OF APPEALS
including, but not limited to, a light, gas, power, or heat plant, a railroad, a busline
or other transit company, an airport, and a municipal corporation water supply
system.” (Emphasis added.) R.C. 2744.02(G)(2)(c).
B. Sidewalk Maintenance
{¶14} The city claims that the allegations of the amended complaint establish
that any negligence was a result of its engaging in a governmental function, sidewalk
maintenance. Therefore, it claims immunity as a matter of law.
{¶15} In Burns v. City of Upper Arlington, 10th Dist. Franklin No. 06AP-
680, 2007-Ohio-797, the plaintiff was injured as she stepped onto a manhole cover
set in the sidewalk that led into the city’s sewer system. Burns at ¶ 12. The Tenth
District held that the city of Upper Arlington was engaged in a governmental
function because the manhole cover was part of the sidewalk. Id. at ¶ 16. The court
concluded that the city was entitled to immunity because “the conduct about which
[plaintiff] complains was the maintenance of a sidewalk, and not the maintenance of
a sewer.” Id. at ¶ 15. The court stated:
Although the manhole cover * * * was intended to provide access to the
sewer system, it was not, in and of itself, a part of that system. It was,
instead, intended to form part of the walkway for pedestrian traffic to
use, and was therefore part of the sidewalk.
Id.
{¶16} In Evans v. Cincinnati, 1st Dist. Hamilton No. C-120726, 2013-Ohio-
2063, the plaintiff tripped on a broken-off signpost located on a city sidewalk. Id. at
¶ 1. The plaintiff asserted that sign maintenance was a proprietary function because
signs on streets are customarily maintained by private persons. Id. at ¶ 11. This
court rejected the plaintiff’s argument, pointing out that R.C. 2744.01(G)(1)(a)
explicitly provides that to be proprietary, an activity must not be listed as
governmental, and sidewalk maintenance is specifically listed as governmental in
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OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 2744.01(C)(1)(e). Id. at ¶ 12. We found that, as in Burns, the conduct about
which the plaintiff complained—the city’s “failure to keep the sidewalk free of
obstructions like jagged signposts or manhole covers—falls within the ambit of the
city’s responsibilities in connection with sidewalks.” Id. at ¶ 12. We held that the city
was, therefore, entitled to immunity. Id. at ¶ 13. See Needham v. Columbus, 10th
Dist. Franklin No. 13AP-270, 2014-Ohio-1457 (holding that the city’s actions in
failing to remove from the sidewalk a bracket that had become detached from a trash
receptacle or to replace the trash receptacle were part of the city’s governmental
functions to maintain and repair sidewalks).
{¶17} Here, the allegations in the plaintiffs’ amended complaint related to a
defect in the sidewalk surface, rather than a defect in the street-light system
contained within the service box below the sidewalk. The plaintiffs alleged that the
cover of the service box was flush with the surface of the sidewalk, that the cover was
designed for use in “paved pedestrian areas, such as sidewalks,” and that, when the
scissor lift was parked on the sidewalk, one of its tires was parked on the cover of the
service box when the cover fractured, causing the scissor lift to topple onto the
sidewalk. As in Evans and Burns, the conduct about which the plaintiffs complain
implicates the city’s responsibilities in connection with sidewalks. See Evans at ¶ 10;
Burns at ¶ 15.
{¶18} The plaintiffs direct us to Scott v. Columbus Dept. of Pub. Util., 192
Ohio App.3d 465, 2011-Ohio-677, 949 N.E.2d 552 (10th Dist.), where the Tenth
District reversed the trial court’s Civ.R. 12(B)(6) dismissal of a plaintiff’s complaint
against the city on immunity grounds. The Scott plaintiff alleged that he stepped on
an improperly attached manhole cover in a sidewalk, causing his leg to drop into the
manhole. The Tenth District held that it was not beyond doubt that the plaintiff
could prove a set of facts, consistent with his complaint, establishing the city’s
liability with respect to the maintenance of the city sewer system, a specifically
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OHIO FIRST DISTRICT COURT OF APPEALS
designated proprietary function. Id. at ¶ 11 and 18. The court found the case to be
distinguishable from Burns because the plaintiff alleged negligence with respect to
the city’s maintenance of the underlying support for the manhole cover, as opposed
to Burns which involved negligence relating to the manhole cover itself. Id. at ¶ 16;
see Fedarko v. Cleveland, 2014-Ohio-2531, 12 N.E.3d 1254 (8th Dist.) (distinguished
Burns because the Fedarko plaintiff stepped onto a manhole cover and fell into the
manhole whereas the plaintiff in Burns tripped on a manhole in a sidewalk and fell
onto the sidewalk). Here, however, the plaintiffs made no allegation that the city
negligently maintained the underlying support for the service box cover or the street
light components within the service box. Rather, the plaintiffs alleged that the cover
itself fractured, causing Georgantonis to fall onto the sidewalk.
{¶19} The plaintiffs cite two cases, Martin v. Gahanna, 10th Dist. Franklin
No. 06AP-1175, 2007-Ohio-2651, and Parker v. Distel Const., Inc., 4th Dist. Jackson
No. 10CA18, 2011-Ohio-4727, for the proposition that several courts “have rejected
the argument that the alignment of a cover within a sidewalk was somehow part of
the sidewalk.” However, neither of the cited cases involved a sidewalk or involved
the alignment of a cover, and each case involved a plaintiff who fell through an
uncovered entry and encountered the underground system below. In Martin, the
plaintiff stepped into an uncovered sewer drain located in the street, and in Parker,
the plaintiff fell into an uncovered pit located at the side of a city water meter. In
Martin, the court held that the need to inspect and replace missing components for
the safe operation of the storm-water system related to the maintenance and upkeep
of a sewer system, which is specifically designated a proprietary function. Martin at
¶ 17. In Parker, the court held that the lid of the water-meter pit was a safety feature
of the underground system that protected the public from falling into holes that led
underground and that therefore the lid was part of the maintenance of the water-
supply system, again, a specifically designated proprietary function. Parker at ¶ 23.
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OHIO FIRST DISTRICT COURT OF APPEALS
Unlike Martin and Parker, the plaintiffs here did not allege that an injury occurred
anywhere other than on a sidewalk or that the injury occurred after a fall through an
uncovered entry into an underground sewer or storm water system. See Parker at ¶
17 and 23 (distinguishing Burns because the plaintiff in Parker had, like the
plaintiffs in both Martin and Scott, fallen through a hole and encountered the
underground system).
{¶20} Here, the plaintiffs complain that Georgantonis was injured when the
cover of the service box, which functioned as part of the sidewalk, failed. The
allegations relate to the city’s maintenance of the sidewalk, which is an enumerated
governmental function under R.C. 2744.01(C)(2)(e). Therefore, the city is entitled to
immunity.
C. Street Lighting
{¶21} Even if the plaintiffs’ allegations could be read to relate to the
operation and maintenance of the city’s street-lighting system, we hold that street
lighting is a governmental function under R.C. 2744.01(C)(1)(b) and (c).
1. Utility
{¶22} The plaintiffs argue that street lighting is a proprietary function under
R.C. 2744.02(G)(2)(c) because it is a “utility.” They acknowledge that the statute
lists certain types of utilities (such as light or power plants), but they contend that
the statute’s use of the term “utility” without a modifier, suggests that “utility” is not
limited to utility plants or public utilities. A “utility” is defined as a “business
enterprise that performs an essential public service and this is subject to
governmental regulation.” Black’s Law Dictionary (11th Ed.2019). They assert that
their amended complaint alleged that the city’s street-lighting system is a utility
within the meaning of the statute. However, while the factual allegations of a
complaint must be taken as true, unsupported legal conclusions are insufficient to
withstand a Civ.R. 12(C) motion. Johnson-Newberry v. Cuyahoga Cty. Child &
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OHIO FIRST DISTRICT COURT OF APPEALS
Family Servs., 2019-Ohio-3655, 144 N.E.3d 1058, ¶ 14 (8th Dist.); Maternal
Grandmother v. Hamilton Cty. Dept. of Job & Family Servs., 1st Dist. Hamilton No.
180662, 2020-Ohio-1580, ¶ 21. The mere assertion that the street-lighting system is
a utility, without more, is insufficient to establish that it is a utility for purposes of
R.C. 2744.01(G)(2)(c). We find that by establishing a lighting system, the city is not
engaged in establishing, operating or maintaining a utility. Rather, we agree with
the Eighth District which held that street lighting is not specifically designated as a
proprietary function in R.C. 2744.01(G)(2). Ugri v. Cleveland, 8th Dist. Cuyahoga
No. 65737, 1994 WL 476377, *3 (Sept. 1, 1994).
2. Not Customarily Engaged in by Nongovernmental Persons
{¶23} Next, the plaintiffs argue that street lighting is a proprietary function
under R.C. 2744.01(G)(1). Under that provision, a function must satisfy both of the
following to be a proprietary function:
(a) The function is not one described in division (C)(1)(a) or (b) of this
section and is not one specified in division (C)(2) of this section; [and]
(b) The function is one that promotes or preserves the public peace,
health, safety, or welfare and that involves activities that are
customarily engaged in by nongovernmental persons.
(Emphasis added.) R.C. 2744.01(G)(1).
{¶24} The plaintiffs argue that providing street lighting is customarily
engaged in by private entities. The city argues on the other hand that street lighting
is not a proprietary function under R.C. 2744.01(G)(1) because it satisfies neither the
first or second prong of the statute’s conjunctive test.
{¶25} R.C. 2744.01(C)(1)(a) describes “[a] function that is imposed upon the
state as an obligation of sovereignty and that is performed by a political subdivision
voluntarily or pursuant to legislative requirement.” Neither party suggests that the
provision of street lighting is a function described in R.C. 2744.01(C)(1)(a). R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2744.01(C)(1)(b) describes “[a] function that is for the common good of all citizens of
the state.” The plaintiffs argue that the street-lighting system is not a function for
the common good of all state citizens because it is limited geographically to certain
streets and benefits only visitors to the nearby streets.
{¶26} In Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 559,
733 N.E.2d 1141 (2000), cited by the plaintiffs, the Supreme Court of Ohio
determined that the conducting of a hog show and investigation into the competition
benefitted only some Ohio citizens. See Ryll v. Columbus Fireworks Display Co.,
Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372, ¶ 24 (fireworks display
benefitted only some citizens of the state); Brown v. Lincoln Hts., 195 Ohio App.3d
149, 2011-Ohio-3551, 958 N.E.2d 1280, ¶ 20 (1st Dist.) (village’s act of sponsoring a
festival was for the particular benefit of the village and its current and past
inhabitants).
{¶27} However, where, as here, the function is related specifically to the
safety of the public, courts have found the function to be for the common good of all
state citizens, as set forth in R.C. 2744.01(C)(1)(b). See Nordonia Landscape
Supplies, LLC v. Akron, 2020-Ohio-2809, ___ N.E.3d ___, ¶ 10 (9th Dist.) (the
removal of ice and snow from public roads is for the good of all state citizens in that
it makes travelling by motor vehicle more convenient and safer); Nihiser v. Hocking
Cty. Bd. of Commrs., 4th Dist. Hocking No. 12CA18, 2013-Ohio-3849, ¶ 17
(designating street numbers and the development of an orderly system to do so
serves the common good of all state citizens); Lyons v. Teamhealth Midwest
Cleveland, 8th Dist. Cuyahoga No. 96336, 2011-Ohio-5501, ¶ 42 (provision of
emergency dispatch services is a function that serves the common good of all state
citizens); Svette v. Caplinger, 4th Dist. Ross No. 06CA2910, 2007-Ohio-664, ¶ 17
(county’s operation of the 9-1-1 service is a function performed for the good of all
state citizens). We hold that the city’s provision of street lighting on a public street
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OHIO FIRST DISTRICT COURT OF APPEALS
serves the common good of all citizens of the state in accordance with R.C.
2744.01(C)(1)(b). The function does not satisfy the first prong of the conjunctive test
in R.C. 2744.01(G)(1)(a), and therefore is not a proprietary function.
{¶28} With respect to the second prong of R.C. 2744.01(G)(1)(b), the
plaintiffs concede that street lighting is a function that promotes or preserves the
public peace, health, safety, or welfare. The plaintiffs contend that street lighting
also satisfies the second provision of R.C. 2744.01(G)(1)(b) because it is an activity
customarily engaged in by nongovernmental persons in private settings such as
amusement parks and shopping centers. However, even if nongovernmental entities
customarily provide lighting within their own properties, they do not customarily
provide street lighting on public streets. See Ugri, 8th Dist. Cuyahoga No. 65737,
1994 WL 476377, at *3-4 (street lighting is not a function customarily engaged in by
nongovernmental persons).
{¶29} The plaintiffs cite two cases, Cleveland v. Pub. Util. Comm. of Ohio, 67
Ohio St.2d 446, 424 N.E.2d 561 (1981), and Ohio Power Co. v. Village of Attica, 19
Ohio App.2d 89, 250 N.E.2d 111 (3d Dist.1969), for the proposition that private
corporations often provide street-lighting services, as nongovernmental actors.
However, both cases involve the provision of street lighting by private companies to
political subdivisions, and neither addressed whether street lighting is an activity
customarily engaged in by nongovernmental persons. See Cleveland at 447-448;
Attica at 91. The fact that a political subdivision contracts with a private entity to
provide a governmental function does not transform the function into a proprietary
one. Lyons at ¶ 46-47; McCloud v. Nimmer, 72 Ohio App.3d 533, 595 N.E.2d 492(8th Dist.1991). We hold that the provision of street lighting on a public street does
not satisfy the second prong set forth in R.C. 2744.01(G)(1)(b) because it does not
involve an activity that is “customarily engaged in by nongovernmental persons.”
Consequently, street lighting is not a proprietary function under R.C. 2744.01(G)(1).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶30} Therefore, we hold that street lighting on a public street is a
governmental function under R.C. 2744.01(C)(1)(b), because it is for the common
good of all citizens of the state, and under R.C. 2744.01(C)(1)(c), because it promotes
or preserves the public peace, health, safety, or welfare and involves activities that
are not engaged in or customarily engaged in by nongovernmental persons.
IV. Conclusion
{¶31} Whether the allegations in the plaintiffs’ amended complaint relate to
sidewalk maintenance or to the operation and maintenance of a street-lighting
system, the functions involved are governmental functions. Because no exception
applies to remove the city’s immunity, the trial court did not err in determining that
the city was entitled to judgment on the pleadings. Given our holding that the city
was immune, we do not reach the plaintiffs’ argument as to the trial court’s denial of
summary judgment in their favor on the issue of liability. We overrule the
assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry this date.
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