Kantorowski v. Seven Hills

2024 Ohio 5810

• Court: Ohio Court of Appeals
• Decided: December 12, 2024
• Docket: 113745
• Status: Published

Opinion

[Cite as Kantorowski v. Seven Hills, 2024-Ohio-5810.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF OHIO

CHERYL KANTOROWSKI, :

Plaintiff-Appellant, : No. 113745

v. :

THE CITY OF SEVEN HILLS, OHIO, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 12, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-961301

Appearances:

Eques Law Group, Lindsey A. Wrubel, and Madeline M. Anich, for appellant.

Mazanec, Raskin & Ryder Co., L.P.A., Frank H. Scialdone, and Edmond Z. Jaber, for appellee.

SEAN C. GALLAGHER, J.:

Plaintiff-appellant Cheryl Kantorowski appeals the decision of the

trial court that granted the motion for summary judgment of defendant-appellee the

City of Seven Hills, Ohio (“the city”), upon finding the city is entitled to immunity

pursuant to R.C. Ch. 2744. Upon review, we affirm. On March 28, 2022, Kantorowski filed a complaint that raised a

negligence claim against the city for its alleged failure to maintain its sewer system;

specifically, the Waxberry detention basin. Her claim arose from a flood event that

occurred on March 29, 2020, which caused up to four feet of water to fill the finished

basement of her home on Waxberry Drive in Seven Hills, Ohio. Kantorowski alleged

that the flood event was caused by the backup of the Waxberry detention basin,

which is located near her home, and that she incurred damages as a direct and

proximate result of the city’s alleged negligent maintenance and operation of the

Waxberry detention basin.

In its answer, the city conceded that there is a Seven Hills detention

basin near Kantorowski’s home, but it denied other allegations in the complaint.

Among its affirmative defenses, the city asserted that it is entitled to political-

subdivision immunity. On August 16, 2023, the city filed a motion for summary

judgment in which it argued that the city is entitled to immunity pursuant to R.C.

Ch. 2744. The city’s motion was opposed by Kantorowski.

The record reflects that Kantorowski testified in her deposition that

at 3:00 a.m. on March 29, 2020, it was pouring rain outside; she observed water

flowing down the steps to her walkout patio and into her basement through the

sliding glass doors; that there was about four feet of water in her basement; that she

looked out front and saw a “river” between her house and her neighbor Karen

Polick’s home; and that the water was running from the backyard to the front.

Kantorowski’s lower patio outside her basement is surrounded by retaining walls and had pooled with water. At the time of the flood, Kantorowski was unaware that

there was a detention basin in the vicinity of her home. She was aware that there

was a steep hill behind her home and that there had been prior incidents of water

entering her basement through the sliding doors, albeit not as severe.

Karen Polick testified in her deposition that she woke up at 8:00 a.m.

that day and could see a debris path and a flow line from water that came into her

yard. At the time she awoke, the water had subsided. She observed some water in

the swale or spillway that is between her home and Kantorowski’s home. When she

walked up to the basin around 12:30 p.m., she observed the water was “level with

the ground and seeping over” the sides of the basin, but she did not see water

actually flowing out of the basin. Although Polick had not observed the city working

either on the detention basin or in the spillway or swale area prior to the March 2020

flood event, she indicated that there were a couple times the city had raked debris

away from the opening of the sewer in the basin, and she recalled four or five times

that the city had “looked” at the basin over the past 12 years. She also testified that

both her husband and her other neighbor had called the city about maintenance.

She indicated that after the flood, the city came out and did a “massive cleaning.”

Michael Vano, a foreman employed by the city, testified in his

deposition that a detention basin, such as the Waxberry detention basin, acts to slow

down the flow of water and has an outlet pipe. He testified that the city performs

visual inspections of its basins at least a half dozen times a year, though the city did

not keep any written records of the inspections. He indicated that the city had previously conducted cleanings around the front of the Waxberry detention basin’s

head wall. Additionally, Vano testified that generally, the city has “pre-rain events”

where if the forecast looks like it is going to get severe, “we’ll go out and check all

those areas, make sure [the basins] are clear.” With respect to the rain event that

occurred in March 2020, Vano testified that there was a lot of overland flooding and

street flooding. When he viewed the Waxberry detention basin following the rain

event, he observed that there was a ring close to the top of the basin, which was

indicative of the water receding. He also observed that Kantorowski’s home is at the

base of a hillside and that nothing had been done to prevent runoff water from going

down the stairs and into the walk-out basement. He indicated that “[w]henever you

have water flowing over land, it’s going to carry. It’s going to carry debris . . .,

whether it’s coming down a hillside or through a creek channel.”

An investigation performed after the flood by the Cuyahoga Soil &

Water Conservation District revealed problems with the Waxberry detention basin,

including erosion issues, a large amount of accumulated sediment, accumulated

debris at the outlet structure, invasive plants, and other issues. Additionally,

Kantorowski referenced her expert report, which purportedly found the detention

basin had not been maintained, was overgrown, had lost some capacity, and had

other issues.1 However, there is no evidence of any determination or expert opinion

that the basin had overflowed during the March 29, 2020 storm, or that the water

1 Kantorowski’s expert report does not appear to have been attached to her opposition brief, authenticated, or made part of the record. infiltrating Kantorowski’s basement was from the detention basin. The city

provided a rebuttal report from Hydrosphere Engineering suggesting otherwise.

The Hydrosphere Engineering report indicated that the March 29,

2020 rainfall event was not great enough to cause the Waxberry detention basin to

overtop. Further, the report found that while the storm event was severe, the

detention basin had sufficient capacity to store runoff volumes from severe rainfall

events without overtopping and that there were no confirmed reports that the

detention basin overflowed during the March 29, 2020 rainfall event. The

Hydrosphere report also determined that runoff volume bypassing the basin and

flowing toward Kantorowski’s property contributed to the basement flooding that

occurred. Other deposition testimony and evidence were presented that this court

has thoroughly reviewed.

On February 29, 2024, the trial court granted the city’s motion for

summary judgment upon finding the city is entitled to political-subdivision

immunity. Kantorowski timely filed an appeal.

Under her sole assignment of error, Kantorowski claims the trial

court erred by granting summary judgment on her claim that the city negligently

failed to maintain the Waxberry detention basin.

Appellate review of summary judgment is de novo, governed by the

standard set forth in Civ.R. 56. Argabrite v. Neer, 2016-Ohio-8374, ¶ 14. Summary

judgment is appropriate only when “[1] no genuine issue of material fact remains to

be litigated, [2] the moving party is entitled to judgment as a matter of law, and, [3] viewing the evidence most strongly in favor of the nonmoving party, reasonable

minds can reach a conclusion only in favor of the moving party.” Id., citing M.H. v.

Cuyahoga Falls, 2012-Ohio-5336, ¶ 12.

The city is a political subdivision that pursuant to R.C. 2744.02(A)(1)

generally “is not liable in damages in a civil action for injury, death, or loss to person

or property allegedly caused by an act or omission of the political subdivision or an

employee of the political subdivision in connection with a governmental or

proprietary function.” R.C. 2744.02(B) lists several exceptions to the general grant

of immunity, and if an exception applies, R.C. 2744.03 provides defenses to liability

that may be asserted to restore immunity. The determination of whether a political

subdivision is immune from liability pursuant to R.C. Ch. 2744 is usually pivotal to

the ultimate outcome of a lawsuit. Coleman v. Portage Cty. Engineer, 2012-Ohio-

3881, ¶ 14, citing Summerville v. Forest Park, 2010-Ohio-6280, ¶ 39.

Kantorowski claims the R.C. 2744.02(B)(2) exception to the general

grant of immunity applies to this case. R.C. 2744.02(B)(2) states: “Except as

otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, 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.” R.C. 2744.01(G)(2)(d) defines a “proprietary

function” to include “[t]he maintenance, destruction, operation, and upkeep of a

sewer system[.]” Kantorowski argues that the city negligently failed to maintain the

Waxberry detention basin and that this led to the flooding of her property. She argues there was evidence that the basin was not properly maintained, had eroded

and accumulated heavy sediment over time, a debris line was observed, and that

water could be seen flowing like a river alongside her home. Despite the city’s

evidence showing otherwise, she asserts that the flood to her home was likely to have

been caused by a failure of the Waxberry detention basin and that a logical

conclusion is that heavy rain caused the Waxberry detention basin and drainage

easement to overflow causing the flooding of her home.

The city claims that no exception to the city’s immunity under R.C.

2744.02(A)(1) can be established in this case. The city asserts that Kantorowski

failed to present evidence to establish the flooding event on March 29, 2020, was

proximately caused by the overflow of the Waxberry detention basin. The city’s

position is that the detention basin did not overflow and that the water entering

Kantorowski’s basement was the result of a significant rainstorm event, the natural

runoff from the steep hill behind Kantorowski’s property, and the stone patio and

retaining walls that created a pool outside Kantorowski’s walkout basement. The

city points to the lack of any direct observation of the basin overflowing, to a city

employee’s observation of a distinctive ring below the top of the basin after the rain

event that reflected the water level had receded, and to the Hydrosphere

Engineering report, which determined the basin had sufficient capacity to detain the

storm water without overflowing and that the runoff water flowing toward

Kantorowski’s property was part of the natural watershed. The city also claims that

Kantorowski cannot establish that the city was on notice of any maintenance issues with the detention basin at the time of the flooding event and that there was a lack

of evidence demonstrating that it was negligent in maintaining the detention basin.

Additionally, the city claims that it is entitled to discretionary immunity under R.C.

2744.03(A)(5) for any discretionary decisions or acts involving the storm sewer

system.

We find that the city’s maintenance of its sewer system, including the

Waxberry detention basin, is a proprietary function to which the general grant of

immunity applies under R.C. 2744.02(A)(1). However, we are unable to find that

Kantorowski presented sufficient evidence to be able to demonstrate that the R.C.

2744.02(B)(2) exception to immunity applies in this case. “In order to establish

negligence, one must show the existence of a duty, a breach of that duty, and the

breach was the proximate cause of an injury.” Nelson v. Cleveland, 2013-Ohio-493,

¶ 22 (8th Dist.), citing Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77

(1984). Here, even if there were an issue concerning the city’s alleged failure to

maintain the detention basin, Kantorowski failed to present evidence to

demonstrate the flooding of her basement on March 29, 2020, was proximately

caused by an overflow of the detention basin, and the city presented evidence

demonstrating otherwise. In the absence of evidence to demonstrate proximate

cause, Kantorowski cannot succeed on her claim.

Unlike prior cases before this court, this is not a case in which the

question of whether a pond or a retention basin is part of the city’s storm water

system is at issue. In this case, the city concedes that the detention basin is part of its sewer system. This also is not a case in which there is evidence that a city’s alleged

failure to maintain its sewer system caused the plaintiff’s loss or injury. There is no

evidence in the record showing that the basin overflowed on March 29, 2020, nor is

there evidence showing that the upkeep of the basin was the proximate cause of the

flooding event. The facts in the cases that are cited by appellant are readily

distinguishable. Contrary to Kantorowski’s argument, even when viewing the

evidence in a light most favorable to appellant, we are unable to find a causal link

can be shown from the facts in the record before us.

Although we certainly empathize with Kantorowski’s property loss,

there simply is a lack of any evidence demonstrating her loss was proximately caused

by the city’s alleged failure to maintain the detention basin. Therefore, Kantorowski

cannot establish the R.C. 2744.02(B)(2) exception to the general grant of immunity

applies in this case. Finally, this court does not need to engage in an analysis

regarding available defenses provided in R.C. 2744.03 if no exception under R.C.

2744.02(B) can be found to remove the general grant of immunity. See Fink v.

Twentieth Century Homes, Inc., 2013-Ohio-4916, ¶ 20 (8th Dist.), citing Nelson at

¶ 14.2

2 We note, however, that “[d]ecisions involving the proper maintenance of the

[city’s] sewer or drainage system is a proprietary act, which is mandatory and not discretionary” and that generally R.C. 2744.03(A)(5) does not apply to such decisions that involve routine inspection and maintenance. Nelson at ¶ 30. After thoroughly reviewing the record, we find the city is entitled to

summary judgment on its claim of political-subdivision immunity. Appellant’s

assignment of error is overruled.

Judgment 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 issue out of this court directing the

common pleas 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.

______________________ SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., and MICHAEL JOHN RYAN, J., CONCUR