Ezerski v. Mendenhall

934 N.E.2d 951, 188 Ohio App. 3d 126
CourtOhio Court of Appeals
DecidedApril 30, 2010
DocketNo. 23528
StatusPublished
Cited by3 cases

This text of 934 N.E.2d 951 (Ezerski v. Mendenhall) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ezerski v. Mendenhall, 934 N.E.2d 951, 188 Ohio App. 3d 126 (Ohio Ct. App. 2010).

Opinion

Brogan, Judge.

{¶ 1} Daniel and Therese Ezerski, plaintiffs-appellants, have appealed a trial court’s order entering summary judgment in favor of the city of Vandalia, defendant-appellee, after the court concluded that the city has political-subdivision immunity. The Ezerskis argue that Vandalia can be held liable for the damage to their home under a statutory exception to immunity. The Ezerskis also contend that Vandalia cannot re-establish its immunity using a statutory defense. We will reverse and remand.

[128]*128I

{¶ 2} In February 2007, someone removed a manhole cover near Daniel and Therese Ezerski’s home in Vandalia and cast a large tree limb into the sewer line. The limb caught and accumulated debris and obstructed sewage flow, causing the sewer line to back up — right into the Ezerskis’ basement. In speaking with the previous owners of the home, Gary and Karen Mendenhall, the Ezerskis learned that the same thing had happened before. In 2000, the same sewer line had backed up into the home after someone had removed the same manhole cover and had cast in a pipe fitting. City workers located and removed the obstruction after both backups. Since 2000, manhole covers near the Ezerskis’ home have been removed regularly, and, each time, city workers have retrieved and replaced them.

{¶ 3} In September 2007, the Ezerskis filed suit against the Mendenhalls and the city of Vandalia to recover damages caused by the sewage flood in their basement. (The Ezerskis settled the claims against the Mendenhalls.) Against Vandalia, the Ezerskis seek punitive damages and damages for its negligence in operating and maintaining the sewer system attached to their home. Specifically, they allege that Vandalia was negligent by fading to secure the manhole covers to prevent obstructions from being cast into the sewer line. Vandalia filed a motion for summary judgment based on its affirmative defense of political-subdivision immunity. The trial court concluded that Vandalia is immune from the Ezerskis’ claims and sustained the motion. In a single assignment of error, the Ezerskis allege that the trial court erred by entering summary judgment in favor of Vandalia on their negligence claim.

II

{¶ 4} Our de novo review follows Civ.R. 56. Under the rule, “[sjummary judgment may not be granted unless the entire record demonstrates that there is no genuine issue of material fact and that the moving party is, on that record, entitled to judgment as a matter of law.” Hubbell v. Xenia, 175 Ohio App.3d 99, 2008-Ohio-490, 885 N.E.2d 290, ¶ 15, citing Civ.R. 56. “The burden of showing that no genuine issue of material fact exists is on the moving party.” Id., citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. Summary judgment may not be granted unless, construing the evidence most strongly in the nonmoving party’s favor, reasonable minds must conclude adverse to the nonmoving party. Civ.R. 56(C).

{¶ 5} Vandalia maintains that it cannot be held liable according to the Political Subdivision and Tort Liability Act, codified in R.C. Chapter 2744. The general rule in R.C. 2744.02(A)(1) is that a political subdivision may not be held liable in damages for injury or loss caused by an act or omission in connection with a [129]*129governmental or proprietary function. But the general rule is subject to the five exceptions carved out in R.C. 2744.02(B). In these five circumstances, a political subdivision will be responsible for its tortious conduct. Still, although one of these circumstances exists, the political subdivision can re-establish its immunity using the defenses in R.C. 2744.03. Here, the Ezerskis do not dispute that Vandalia is a political subdivision, but they contend that Vandalia can be held responsible for its negligence under an exception. And they contend that Vandalia cannot re-establish its immunity using a defense.

{¶ 6} The Ezerskis contend that the city’s general immunity is subject to the exception in division (B)(2) of section 2744.02. This exception renders a political subdivision 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.” (Emphasis added.) R.C. 2744.02(B)(2). Among the meanings of “proprietary function” is “[t]he maintenance, destruction, operation, and upkeep of a sewer system.” R.C. 2744.01(G)(2)(d). And among the meanings of “governmental function” is “[t]he provision or nonprovision, planning or design, construction, or reconstruction of * * * a sewer system.” R.C. 2744.01(C)(2)(1). The dispute here is whether the alleged negligent acts (the failure to secure the manhole covers) occurred with respect to a “proprietary function,” like the Ezerskis argue, or a “governmental function,” like Vandalia argues.

{¶ 7} The specific question is, does the failure to secure the manhole covers here concern the design of the sewer system or its upkeep? Vandalia argues (and the trial court concluded as a matter of law) that the failure concerns design. The city points to evidence that the sewer system’s manhole covers were not designed to be secured and concludes that whether it was negligent not to secure them concerns whether to change the design. The Ezerskis argue that the failure to secure the covers is a breach of the city’s duty to maintain the sewer system, the duty to ensure the proper operation of its sewer system. The Ezerskis allege that Vandalia knew that vandals were removing manhole covers and knew that vandals had removed a cover and had cast in an object that obstructed the flow, causing a backup. This duty, say the Ezerskis, required Vandalia to secure the covers to prevent the sewer lines from becoming obstructed.

{¶ 8} The root problem with Vandalia’s (and the trial court’s) analysis is that the implicit question it seeks to answer is, what type of function (governmental or proprietary) the alleged negligent act (not securing the manhole covers) is. But under the statutory exception, the real question is, with respect to what type function did the alleged negligent act occur. The Ezerskis are correct that when a city takes on the responsibility to maintain the sewers, it “is required to exercise reasonable diligence and care to keep the same in repair and free from [130]*130conditions which will cause damage to private property.” Doud v. Cincinnati (1949), 152 Ohio St. 132, 39 O.O. 441, 87 N.E.2d 243, at paragraph two of the syllabus; see also Portsmouth v. Mitchell Mfg. Co. (1925), 113 Ohio St. 250, 255, 148 N.E. 846. The city’s duty to maintain its sewer system requires it to take reasonable steps to prevent obstructions that could cause a backup. See Yetts v. Toronto (Sept. 1, 1999), Jefferson App. No. 98-JE-6, 1999 WL 689964 (a sewer backup caused by an obstruction is a maintenance issue); Steiner v. Lebanon (1973), 40 Ohio App.2d 219, 220-221, 69 O.O.2d 207, 318 N.E.2d 853 (same). In a factually similar case, in which a sewer-line obstruction caused a backup resulting in damage to a home, the plaintiff contended that the city was negligent in failing to prevent the obstruction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Reinhold v. Univ. Hts.
2014 Ohio 1837 (Ohio Court of Appeals, 2014)
Craycraft v. Simmons
2011 Ohio 3273 (Ohio Court of Appeals, 2011)
City of Trotwood v. South Central Construction, L.L.C.
192 Ohio App. 3d 69 (Ohio Court of Appeals, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
934 N.E.2d 951, 188 Ohio App. 3d 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ezerski-v-mendenhall-ohioctapp-2010.