[Cite as E. Ohio Gas Co. v. Cleveland, 2026-Ohio-2322.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
EAST OHIO GAS COMPANY DBA ENBRIDGE GAS OHIO, :
Plaintiff-Appellee, : No. 115647 v. :
CITY OF CLEVELAND, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED RELEASED AND JOURNALIZED: June 18, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-25-110503
Appearances:
Law Offices of Stephen J. Pruneski, LLC, and Stephen J. Pruneski, for appellee.
Mark D. Griffin, Cleveland Director of Law, and Jerome A. Payne, Jr., Assistant Director of Law, for appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant the City of Cleveland (“the City”) appeals from
the judgment of the trial court denying its motion for partial summary judgment on
the basis of political-subdivision immunity in a negligence action brought by plaintiff-appellee, East Ohio Gas Company dba Enbridge Gas Ohio (“East Ohio
Gas”). After a thorough review of the record and applicable law, we affirm and
remand the case for further proceedings.
I. Facts and Procedural History
On January 20, 2025, East Ohio Gas filed a complaint against the
City, alleging that on 15 separate occasions occurring between February 21, 2023,
and October 3, 2024, city employees negligently struck and damaged East Ohio
Gas’s underground natural gas lines at various locations in and around the area. The
complaint sought recovery of the repair costs incurred by East Ohio Gas as a result
of the alleged damage to its underground gas facilities.
Attached to the complaint was a summary of the 15 incidents,
identifying the location of each occurrence, the date of damage, the repair costs
attributable to each incident, and the legal basis upon which East Ohio Gas asserted
liability against the City. The 11 claims that became the subject of the City’s motion
for partial summary judgment, and that are at issue in this appeal, were as follows:
Claim 1, 3881 East 42nd Street, March 7, 2024; Claim 2, 10814 Clifton Blvd., June
21, 2024; Claim 3, 10 Severance Circle, March 6, 2024; Claim 4, 11178 Heritage
Drive, October 3, 2024; Claim 5, 166 Birch Avenue, January 30, 2024; Claim 6, 6571
Cross-Creek Trail, February 1, 2024; Claim 7, 9617 Brecksville Road, November 2,
2023; Claim 8, 3680 Bainbridge Road, October 19, 2023; Claim 9, 20718
Gardenview Drive, June 21, 2023; Claim 10, 4231 West 20th Street, November 10,
2023; and Claim 11, 1340 East 82nd Street, February 21, 2023. On August 1, 2025, the City filed a motion for partial summary
judgment seeking dismissal of 11 of the 15 claims asserted by East Ohio Gas. The
City asserted that it was entitled to statutory immunity under R.C. 2744.02 and to
discretionary-function immunity under R.C. 2744.03(A)(5). In support of its
motion, the City submitted affidavits from its water department unit leaders
together with photographs and field notes describing the work performed at each of
the 11 locations identified in the complaint.
The City’s submissions, organized by claim and corresponding
appendix, set forth the field circumstances asserted to support its claim of
immunity. As to Claim 1, the City asserted that the crew identified marked gas mains
and attempted to access a leaking water main located between two gas lines; the City
further stated that the gas main was struck during concrete removal because of its
unusual depth and close proximity to the pavement and that the field conditions
were such that the damage could not have been avoided.
As to Claim 2, the City’s submissions reflected that its crew arrived
after tree-removal contractors had exposed a stump whose roots were intertwined
with a buried gas-connection box. According to the affidavit, as the stump was
gradually lifted, deeply embedded roots caused the connection box to shift, resulting
in a leak, and the entanglement was not reasonably discoverable until the stump was
lifted.
As to Claim 3, the unit leader’s affidavit stated that the Ohio Utilities
Protection Service (“OUPS”) markings had been observed before work commenced and that, while conducting a test-rod procedure outside the marked tolerance zones
to locate a water-main leak, the rod made unintended contact with a buried plastic
gas main.
As to Claim 4, the City’s affiant averred that the crew relied on visible
gas markings present in the area and that the gas service line was struck more than
three feet outside the 18-inch caution zone, as documented through measurements
and photographs.
On August 8, 2025, East Ohio Gas filed a motion to modify the case-
management schedule, which the trial court granted, setting discovery and expert
deadlines, a final pretrial date of December 10, 2025, and trial for January 20, 2026.
On August 21, 2025, East Ohio Gas filed its memorandum in opposition to the City’s
motion for partial summary judgment. In support of its opposition, East Ohio Gas
submitted the affidavit of Joe Dent (“Dent”), its senior claims agent, together with
documentary evidence consisting of OUPS records, locator reports prepared by
Benchmark, photographs of the excavation sites, public records maintained by the
City, and business records of East Ohio Gas. Dent averred in his affidavit that his
investigation of the claims included a review of the documentation and information
provided by the crews who repaired the gas lines, the information available from
OUPS regarding requests for the location of underground utilities, and the review of
photographs and reports made by the locator, Benchmark, who marks the lines and
investigates damages caused by third parties. With respect to Claim 1 (3881 East 42nd Street), East Ohio Gas
asserted that the City never contacted OUPS before excavating, in violation of Ohio
law. With respect to Claim 2 (10814 Clifton Blvd.), East Ohio Gas asserted that the
City had previously executed a settlement agreement and issued a check to East Ohio
Gas for the damage at issue, rendering the claim resolved. As to Claim
3 (10 Severance Circle), East Ohio Gas asserted that the City’s submitted
documentation referenced a different incident and did not address the damage
described in Claim 3, and that Dent’s affidavit, together with additional documents,
established the City’s liability for that claim. As to Claim 4 (11178 Heritage Drive),
East Ohio Gas asserted that the City’s own public records admitted that its
employees struck and damaged an accurately marked line. With respect to Claim 5
(166 Birch Avenue, January 30, 2024), the City’s submissions, through the affidavit
of its unit leader, asserted that upon arrival the unit leader reviewed the OUPS
markings, located shut-off valves, established safety precautions, and dropped test
holes to locate the water-main leak before the crew began excavation. The unit
leader further asserted that when the gas line was inadvertently struck, he
documented the excavation area and the markings with photographs, notified the
gas company, and that the point of contact with the gas line was outside the OUPS
18-inch tolerance zone from the nearest marking.
Mr. Dent’s affidavit, by contrast, asserted that Benchmark had
accurately located the gas line prior to excavation and that the City’s employees
negligently struck and damaged the gas line. The parties submitted competing evidentiary materials with respect to each of the remaining claims. As to Claims 6,
7, 8, 9, 10, and 11, the City’s submissions included affidavits from its water
department unit leaders and contemporaneous documentation supporting the
City’s position that its employees followed established excavation procedures and
exercised reasonable care under the circumstances. East Ohio Gas, through Dent’s
affidavit and the documentation authenticated by him, asserted that the City’s
employees struck and damaged accurately marked gas lines and, with respect to
certain claims, that the City failed to comply with statutory excavation requirements.
As to Claim 9 (20718 Gardenview Drive, June 21, 2023) and Claim 10
(4231 West 20th Street, November 10, 2023), East Ohio Gas asserted that the City
excavated prior to the expiration of the 48-hour OUPS waiting period. East Ohio
Gas further asserted that, although the City contended an emergency ticket had been
called in with respect to Claim 10, no such emergency ticket had in fact been
requested through OUPS. As to Claim 11 (1340 East 82nd Street, February 21,
2023), East Ohio Gas asserted that the City’s crew struck a marked service line and
dug outside the area covered by the OUPS ticket.
The City did not move for summary judgment on the four remaining
claims set forth in Counts 12 through 15 of the complaint, although those claims
involved factual circumstances similar to those underlying the 11 claims at issue in
the motion. East Ohio Gas observed in its opposition that the City had, on numerous
prior occasions, paid claims arising from similar incidents without asserting
governmental immunity as a defense. The City’s motion, East Ohio Gas’s opposition, and the parties’ respective evidentiary materials placed before the trial
court two competing factual narratives. The City’s position was that its employees,
in each of the 11 incidents, performed water-system repair work in accordance with
accepted excavation practices, reviewed OUPS markings where available, and, in
some instances, encountered field conditions — such as unusually deep gas lines,
inaccurate markings, or buried connections concealed by tree roots — that made
damage unavoidable despite the exercise of due care. East Ohio Gas’s position,
supported by Mr. Dent’s affidavit and the documentary exhibits, was that the City’s
employees struck accurately marked lines, failed to contact OUPS in advance of
excavation on certain occasions, excavated before expiration of the statutory 48-
hour waiting period on other occasions, and dug outside the area covered by the
OUPS ticket in at least one instance.
On September 12, 2025, the trial court issued a journal entry denying
the City’s motion for partial summary judgment, finding that genuine issues of
material fact remained as to each of the 11 claims at issue. The City filed a timely
notice of appeal pursuant to R.C. 2744.02(C), which provides that an order denying
a political subdivision the benefit of an alleged immunity from liability is a final,
appealable order.
The City advances three assignments of error for our review;
1. The trial court erred in denying summary judgment on four claims despite East Ohio Gas’ failure to oppose City of Cleveland’s statutory- immunity arguments or present any Civ.R. 56 evidence, thereby waiving any challenge to immunity on those claims; 2. The trial court erred as a matter of law in failing to grant summary judgment to the City of Cleveland on the basis of governmental immunity.
3. The trial court erred when it failed to reinstate immunity as a matter of law.
II. Summary Judgment and Political-Subdivision Immunity
In its first assignment of error, the City argued that the trial court
erred in denying summary judgment as to Claims 1, 2, 3, and 4 because East Ohio
Gas failed to oppose the City’s statutory immunity arguments or present any
Civ.R. 56 evidence directed to those claims, thereby waiving any challenge to
immunity.
A. Standard of Review
An appellate court reviews a ruling on a motion for summary
judgment de novo. Argabrite v. Neer, 2016-Ohio-8374, ¶ 14. Under a de novo
standard, this court independently reviews the record and affords no deference to
the trial court’s decision. Goldfarb v. Cuyahoga Cty. Dept. of Pub. Works, 2025-
Ohio-3283, ¶ 16 (8th Dist.).
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, which conclusion is adverse
to the nonmoving party, who is entitled to have the evidence construed most
strongly in its favor. Civ.R. 56(C). The moving party bears the initial burden of
identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once that burden is satisfied, the nonmoving party must set forth specific facts, by affidavit or
as otherwise provided in Civ.R. 56, showing that a genuine issue remains for trial.
Civ.R. 56(E).
Under R.C. 2744.02(C), an order denying a political subdivision the
benefit of an alleged immunity is a final, appealable order. The scope of this court’s
review on such an interlocutory appeal is limited to the trial court’s immunity
determination. Johnson v. Greater Cleveland Regional Transit Auth., 2021-Ohio-
938, ¶ 51 (8th Dist.). See Cook v. Metro. Sewer Dist. of Greater Cincinnati, 2022-
Ohio-3245, ¶ 19 (1st Dist.).
B. Law and Analysis
The City moved for partial summary judgment on 11 of the 15 claims
asserted by East Ohio Gas, asserting statutory immunity under R.C. Ch. 2744 as to
each. As to Claim 1 (3881 East 42nd Street, March 7, 2024), Claim 2 (10814 Clifton
Blvd., June 21, 2024), Claim 3 (10 Severance Circle, March 6, 2024), and Claim 4
(11178 Heritage Drive, October 3, 2024), the City supported its motion with
affidavits from the responsible unit leaders, together with field notes and
photographs documenting the conditions encountered at each site. The City argued
that, on this record, no Civ.R. 56(C) evidence demonstrated negligent conduct by
any city employee at any of these four locations and that the City was therefore
entitled to immunity as a matter of law.
The City contended on appeal that East Ohio Gas, in its memorandum
in opposition, did not address the City’s immunity arguments as they pertained to Claims 1, 2, 3, and 4 and did not direct any Civ.R. 56 evidence specifically to those
four incidents. The City argued that this silence amounted to waiver and required
entry of judgment in its favor on these claims.
It is well established that arguments not raised in the trial court
generally cannot be raised for the first time on appeal. First Rehab. Funding, LLC
v. Milton, 2025-Ohio-2677, ¶ 23 (8th Dist.). This court has likewise recognized that
a party’s “failure to raise an issue before the trial court waives that issue for appellate
purposes.” Miller v. Cardinal Care Mgmt., 2019-Ohio-2826, ¶ 23 (8th Dist.). These
principles, however, address the preservation of issues for appellate review; they do
not displace the burden-shifting framework that governs the merits of a motion for
summary judgment under Civ.R. 56.
A nonmoving party’s failure to respond to a particular argument in a
summary judgment motion does not automatically entitle the movant to judgment.
Civ.R. 56(C) requires the trial court to determine, on the record before it, whether
the moving party has demonstrated the absence of a genuine issue of material fact
and entitlement to judgment as a matter of law. The movant retains the initial
burden under Dresher regardless of the scope of the response. Dresher, 75 Ohio
St.3d at 293. Only after the movant satisfies that initial burden does the reciprocal
burden shift to the nonmoving party to identify specific facts demonstrating a
genuine issue for trial. Civ.R. 56(E).
Upon de novo review of the record, the trial court was presented with
a single, consolidated memorandum in opposition addressing the City’s motion as a whole. East Ohio Gas submitted the affidavit of Dent, its senior claims agent,
together with supporting documents, in opposition to the City’s assertion of
immunity on the 11 claims for which summary judgment was sought, including
Claims 1 through 4. Although the City characterized the opposition as silent with
respect to Claims 1 through 4, the record reflects that East Ohio Gas opposed the
City’s immunity arguments on each of the 11 contested claims and supported that
opposition with Civ.R. 56 evidence. The substance and sufficiency of that evidence
as it relates to the negligence exception under R.C. 2744.02(B)(2) is addressed in
connection with the second assignment of error.
The City’s waiver argument, properly understood, is not that East
Ohio Gas failed to file an opposition, but that the opposition did not separately and
specifically rebut the immunity analysis for each of these four locations. That
contention does not establish waiver in the appellate sense, because East Ohio Gas
is the appellee and is not asserting any new argument on appeal. Nor does it,
standing alone, entitle the City to summary judgment. The trial court remained
obligated to examine the entire Civ.R. 56 record and to determine whether the City
had carried its initial burden as to each claim and, if so, whether the evidence
submitted by East Ohio Gas raised a genuine issue of material fact. The trial court
concluded that genuine issues of material fact existed and denied the motion.
Because the record demonstrates that East Ohio Gas filed a timely
opposition supported by Civ.R. 56 evidence directed to the City’s assertion of
immunity on the contested claims, the City’s threshold waiver argument as to Claims 1 through 4 is not well taken. Whether the evidence submitted was sufficient
to create a genuine issue of material fact on the question of negligence under
R.C. 2744.02(B)(2), as to these or any of the other contested claims, is a question
addressed in the second assignment of error.
Therefore, the City’s first assignment of error is overruled.
In its second assignment of error, the City argued that the trial court
erred as a matter of law in failing to grant summary judgment in its favor on the
basis of governmental immunity. The City maintained that East Ohio Gas failed to
produce admissible evidence establishing that any city employee acted negligently
in connection with the seven remaining incidents and that without such evidence
the exception to immunity in R.C. 2744.02(B)(2) could not be invoked.
Ohio law applies a three-tiered analysis to determine whether a
political subdivision is entitled to immunity under R.C. Ch. 2744. Cater v.
Cleveland, 83 Ohio St.3d 24, 28 (1998); Colbert v. Cleveland, 2003-Ohio-3319, ¶ 7-
9. The first tier sets forth the general rule that a political subdivision is immune
from liability for injury or loss to person or property caused by an act or omission of
the political subdivision or its employee in connection with a governmental or
proprietary function. R.C. 2744.02(A)(1). The second tier requires the court to
determine whether one of the five exceptions to immunity enumerated in
R.C. 2744.02(B) applies. If an exception applies, the third tier requires the court to
consider whether any defense in R.C. 2744.03 reinstates immunity. The City conceded, and this court agrees, that the operation,
maintenance, and repair of its municipal water supply system constitutes a
proprietary function. R.C. 2744.01(G)(2)(c). Accordingly, the relevant inquiry on
the second tier is whether the exception in R.C. 2744.02(B)(2) applies. That
subsection 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.
To overcome immunity under R.C. 2744.02(B)(2), East Ohio Gas was
required to come forward with evidence sufficient to establish the essential elements
of negligence: the existence of a duty, a breach of that duty, and an injury
proximately caused by the breach. Riveredge Dentistry Partnership v. Cleveland,
2021-Ohio-3817, ¶ 24 (8th Dist.). Negligence is not presumed from the mere fact
that damage occurred during the course of a defendant’s activity; the plaintiff bears
the burden of proving, by a preponderance of the evidence, that the defendant failed
to exercise the care that a reasonably prudent person would have exercised under
the same or similar circumstances. Id.
The City argued that East Ohio Gas relied principally on alleged
violations of the Ohio Utilities Protection Service Act, R.C. 3781.25 et seq., to
establish liability. This court has previously addressed that precise argument in
litigation between these same parties. In E. Ohio Gas Co. v. Cleveland, 2019-Ohio-
1248 (8th Dist.), this court explained that East Ohio Gas had failed to provide any
authority for the proposition that a violation of an excavator’s OUPS duties constitutes negligence for purposes of the exception to immunity under
R.C. 2744.02(B)(2), and that the City’s liability was governed by R.C. Ch. 2744
rather than the OUPS Act. Id. at ¶ 34. The statutory framework of R.C. Ch. 2744
controls, and a reference to the OUPS Act does not, standing alone, establish a
breach of the standard of care necessary to pierce immunity.
That principle, however, does not resolve the appeal. The question
on de novo review is whether, construing the Civ.R. 56 evidence most strongly in
favor of East Ohio Gas, a genuine issue of material fact existed as to whether city
employees negligently performed acts in connection with the proprietary function
of operating and repairing the City’s water supply system. The record submitted on
summary judgment included, on the City’s side, affidavits from the unit leaders who
supervised the work at each location, together with contemporaneous photographs
and field notes describing the conditions encountered and the steps taken before
and during excavation. On East Ohio Gas’s side, the record included the affidavit of
Joe Dent, a senior claims agent, together with authenticated documents, including
records generated by the City itself, describing the location of damage, the location
of the OUPS markings, and the conditions present at the time of each incident.
The City contended that the Dent affidavit was insufficient to create a
genuine issue of material fact because Dent was not personally present at any of the
seven excavation sites and because his averments were largely conclusory. A
nonmoving party may not defeat summary judgment by resting on conclusory
assertions or legal conclusions; rather, the affidavit must set forth specific facts as required by Civ.R. 56(E). At the same time, however, an affiant is competent to
testify on personal knowledge where the nature of the facts in the affidavit,
combined with the identity of the affiant, creates a reasonable inference of personal
knowledge. Bank One, N.A. v. Lytle, 2004-Ohio-6547, ¶ 13 (9th Dist.).
The Dent affidavit went beyond the bare assertion of negligence the
City characterized it as containing. It identified, for each of the seven incidents, the
location at issue, the existence and color of the OUPS markings as documented in
field records, the location at which the City’s excavation work made contact with the
gas facility relative to those markings, the nature of the damage observed, and the
records relied upon to establish those facts. The affidavit authenticated documents,
including records generated by the City’s own personnel that depicted the
excavation areas, the markings, and the points of contact. Whether the City’s
employees, in light of the markings present and the conditions encountered, used
the care that a reasonably prudent excavator would have used in the same
circumstances is a question that turns on disputed inferences from this
documentary and testimonial record.
For example, with respect to Claim 5 (166 Birch Avenue, January 30,
2024), the City’s unit leader averred that he reviewed the OUPS markings, located
shut-off valves, established safety precautions, and used test holes before excavating
and that the point of contact with the gas line was outside the 18-inch tolerance zone
from the nearest marking. The Dent affidavit and accompanying documents, by
contrast, indicated that the line had been accurately located prior to excavation and that the damage occurred within the area covered by the markings. The record on
this single claim alone presented competing accounts, supported by documentary
evidence, regarding the location of the gas facility relative to the markings, the steps
taken before and during excavation, and whether those steps conformed to the care
that a reasonably prudent excavator would have employed. Comparable disputes
appeared as to each of Claims 6 through 11.
On de novo review, these conflicts are not resolved by accepting the
City’s affidavits as conclusive. Affidavits submitted by a moving party that recite the
affiant’s own conformity with accepted practices do not negate a nonmoving party’s
contrary evidence; rather, they create the very factual dispute that Civ.R. 56(C)
reserves for the trier of fact. The competing affidavits and documentary materials,
when construed most strongly in favor of East Ohio Gas as the nonmoving party,
were sufficient to permit reasonable minds to differ as to whether the City’s
employees breached the standard of care applicable to underground excavation
work and whether any such breach proximately caused damage to East Ohio Gas’s
facilities.
The City further argued that expert testimony was required to
establish the standard of care applicable to underground excavation and that East
Ohio Gas’s failure to produce such testimony was fatal to its claims. The City did
not, however, identify any controlling authority establishing that expert testimony
is a categorical prerequisite to recovery in every case involving damage to an
underground utility line by a municipal excavation crew. The Dent affidavit and the authenticated records described excavation conditions, OUPS markings, tolerance
zones, and the locations at which contact occurred in terms that are tied to the
statutory and industry framework governing excavation work. Whether the City’s
conduct measured up to the applicable standard of care in light of those conditions
is, on this record, a question reserved for the trier of fact rather than one suitable for
resolution as a matter of law.
Because genuine issues of material fact existed as to whether the
City’s employees negligently performed its work in connection with the proprietary
function of maintaining and repairing the municipal water supply system, the
second-tier exception to immunity in R.C. 2744.02(B)(2) was potentially applicable
to each of Claims 5 through 11 and the City was not entitled to judgment as a matter
of law on the immunity issue at the second tier.
The City’s second assignment of error is overruled.
In its third assignment of error, the City argued that even if an
exception to immunity under R.C. 2744.02(B)(2) applied, immunity was
nevertheless reinstated under R.C. 2744.03(A)(5) because the challenged conduct
involved discretionary water system repair decisions and East Ohio Gas did not
allege wanton or reckless conduct.
The third tier of the political-subdivision immunity analysis asks
whether, after an exception to immunity has been established under
R.C. 2744.02(B), immunity is reinstated by any of the defenses set forth in
R.C. 2744.03. Phillips v. Independence, 2025-Ohio-5511, ¶ 11 (8th Dist.). R.C. 2744.03(A)(5) provides, in relevant part, that a political subdivision is immune
from liability if the injury or loss “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 that judgment or
discretion was exercised “with malicious purpose, in bad faith, or in a wanton or
reckless manner.” R.C. 2744.03(A)(5).
The City argued that its employees’ decisions concerning how to
locate, expose, and repair leaking water mains, including the manner in which test
rods were inserted, the means of removing concrete or tree stumps, and the depth
and direction of excavation, were discretionary judgments about the use of
equipment and personnel that fall squarely within R.C. 2744.03(A)(5). The City
further argued that East Ohio Gas did not allege and did not submit any Civ.R. 56(C)
evidence to suggest that any city employee acted with malicious purpose, in bad
faith, or in a wanton or reckless manner.
The City’s argument, however, misapprehends the scope of
R.C. 2744.03(A)(5). The discretionary function defense does not shield every on-
the-ground judgment made by a municipal employee in the course of performing a
proprietary function. If it did, the negligence exception in R.C. 2744.02(B)(2) would
be rendered largely meaningless, because virtually every act of a public employee
performing a utility repair involves some exercise of judgment in choosing tools,
methods, and sequencing of work. The defense instead applies to the kind of
judgment and discretion that involves a weighing of policy considerations, resource allocation, or planning-level decisions and not to routine operational decisions
made in the course of carrying out a proprietary function. Riscatti v. Prime
Properties Ltd. Partnership, 2012-Ohio-2921, ¶ 34 (8th Dist.).
The conduct at issue here, that is, how city water department crews
physically located leaks, set up excavations, used test rods, removed obstructions,
and operated equipment within or near marked tolerance zones, reflects operational
decisions made by field employees in the day-to-day performance of water main
repair work. Such operational decisions concerning the manner in which a
proprietary function is performed do not constitute the type of high-level judgment
or discretion contemplated by R.C. 2744.03(A)(5). See Perkins v. Norwood City
Schools, 85 Ohio St.3d 191, 193 (1999). To hold otherwise would effectively
immunize every negligent act committed by a city employee performing utility
repairs, contrary to the General Assembly’s express decision in R.C. 2744.02(B)(2)
to subject political subdivisions to liability for the negligent performance of
proprietary functions.
Moreover, the City bore the initial burden, as the party moving for
summary judgment on the basis of R.C. 2744.03(A)(5), of demonstrating that the
challenged conduct involved the type of policy making judgment or resource-
allocation decision to which the defense applies. Dresher v. Burt, 75 Ohio St.3d 280,
293 (1996). The City’s submissions, including the affidavits of its unit leaders and
accompanying photographs and field notes, describe how each excavation was
carried out in the field. They do not identify any policy-level decision, resource allocation choice, or weighing of competing public interests that drove the conduct
that allegedly caused damage to East Ohio Gas’s lines. On this record, the City did
not carry its initial burden of establishing the applicability of R.C. 2744.03(A)(5).
Because the conduct East Ohio Gas challenged consisted of
operational decisions made in the performance of a proprietary function rather than
the exercise of the kind of judgment or discretion protected by R.C. 2744.03(A)(5),
the City was not entitled to have immunity reinstated under that provision as a
matter of law. The trial court did not err in declining to do so.
Therefore, the City’s third assignment of error is overruled.
Judgment affirmed, and the case is remanded for further
proceedings.
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 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.
ANITA LASTER MAYS, JUDGE
MICHELLE J. SHEEHAN, A.J., and EILEEN A. GALLAGHER, J., CONCUR