Knab v. Washington Cty. Bd. of Commrs.

2024 Ohio 1569, 242 N.E.3d 117

• Court: Ohio Court of Appeals
• Decided: April 18, 2024
• Docket: 23CA2
• Status: Published

Opinion

[Cite as Knab v. Washington Cty. Bd. of Commrs., 2024-Ohio-1569.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

KEVIN KNAB, et al., :

Plaintiffs-Appellants, : Case No. 23CA2

v. :

WASHINGTON COUNTY BOARD : DECISION & JUDGMENT ENTRY OF COMMISSIONERS,

Defendant-Appellee. :

________________________________________________________________

APPEARANCES:

Laura K. Silwani, Marietta, Ohio, for appellants.

Scyld D. Anderson and Sarah A. Lodge, Columbus, Ohio, for appellee. ________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:4-18-24 ABELE, J.

{¶1} This is an appeal from a Washington County Common

Pleas Court summary judgment in favor of the Washington County

Board of Commissioners, defendant below and appellee herein.

{¶2} Kevin and Kristeva Knab, plaintiffs below and

appellants herein, assign the following error for review:

“THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT/APPELLEES [SIC] AS THERE WAS A MATERIAL ISSUE IN DISPUTE THAT SHOULD HAVE BEEN DECIDED BY THE TRIER OF FACT AT A FULL TRIAL.” WASHINGTON, 23CA2 3

On October 1, 2020, appellee learned that sewage had backed up

into some homes located on Seneca Street. Appellee requested

the City of Marietta’s assistance to help resolve the issue.

Upon arrival, city employees used a “spoon” to dislodge a clog,

and the sewer began to flow normally.

{¶4} On that same date, appellants discovered that sewage

backed up into their home. Subsequently, they filed a complaint

against appellee to recover damages they incurred as a result of

the backup. They alleged that on October 1, 2020, appellee

“forced pressure through the sewer lines that service

[appellants’] home” and this forced pressure caused a sewer

backup into their home. They also generally alleged that

“waste, water, and other material from the county sewer” entered

their home.

{¶5} Appellants claimed that appellee (1) negligently

operated the sewer system by their failure to keep the “sewer

system in repair and free from conditions that would cause

damage to private property,” and (2) negligently maintained the

sewer system. Appellants asserted that, as a direct and

proximate result of appellee’s negligent operation and

maintenance of the sewer system, appellee caused an “enormous

quantity and volume of unsanitary wastewater to back up into and

upon [appellants’] real and personal property.” WASHINGTON, 23CA2 4

{¶6} Appellants further alleged that the sewer backup

constituted a trespass, “an unlawful taking of [their] property

without just compensation,” and a nuisance.

{¶7} Appellee answered and filed a partial motion for

judgment on the pleadings. Appellee argued that appellants did

not properly institute their takings claim because appellants

must file a mandamus action to compel appellee to institute

appropriation proceedings. The trial court agreed and granted

appellee’s motion for judgment on the pleadings regarding

appellants’ takings claim.

{¶8} On October 26, 2022, appellee filed a summary judgment

motion and alleged that appellants’ claim that “sewage was

pressure-forced into [appellant’s] home” “is untrue.” Appellee

asserted that city employees fixed the clog “with a spoon, and

after it was removed, the line began to drain on its own.”

Appellee contended that neither it nor the city employees did

anything “wrong.” Appellee argued that the sewage entered

appellants’ home due to the lack of a backflow prevention device

and an uncapped wye pipe.

{¶9} Appellee agreed that it has a duty to maintain its

sewers and defined its duty as a duty to promptly remove the

obstruction once it received notice that the sewer needed to be

cleared. To support its definition of this duty, appellee WASHINGTON, 23CA2 5

referred to Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250,

148 N.E. 846, (1925). In that case, the Ohio Supreme Court

held:

When a municipal corporation assumes the control and management of a storm sewer which has been constructed in a public street under its supervision, it is bound to use reasonable diligence and care to see that such storm sewer is not clogged with refuse, and is liable for negligence in the performance of such duty to a property owner injured thereby, after reasonable notice of the clogged condition of such sewer.

Id. at paragraph two of the syllabus.

{¶10} Appellee further relied upon our prior decision in

Williams v. Glouster, 4th Dist. Athens No. 10CA58, 2012-Ohio-

1283. In that case, we determined that a village was not

statutorily immune from liability for its failure to properly

maintain its sewer system. In doing so, we rejected the

village’s argument that the plaintiff’s “flooding problem

stemmed from negligent design rather than negligent

maintenance.” Id. at ¶ 28. We also determined that genuine

issues of material fact remained regarding the village’s

negligence. The evidence demonstrated that for a two-year

period, the village did not routinely maintain a storm drainage

system but, instead, only cleaned the system when the plaintiff

complained about the clogged drain. Additionally, when the

village employees did clean the drain, they left refuse, sand, WASHINGTON, 23CA2 6

and other materials in a pile right beside the drain. On the

date of the plaintiff’s injury she called the village ten times

to report the clogged drain, but the issue was not resolved. We

stated that if the village had “provided regular maintenance to

the drain, it likely would not have been clogged beyond

correction when [the village] tried to clean it out * * * just a

few days prior to [the plaintiff’s] injury.” Id. We thus

concluded that genuine issues of material fact remained

regarding the village’s negligence.

{¶11} Appellee also asserted that Williams stands for the

further proposition that questions of fact remain regarding a

negligent maintenance claim when evidence shows that a homeowner

made repeated complaints regarding a clogged drain and the

governmental entity did not take adequate steps to resolve those

complaints. Appellee then used this proposition to contend that

the sewer near appellants’ home did not have a known,

“persistent problem requiring regular attention.” Appellee

noted that appellants alleged that “one minor instance” had

occurred in 2018, but further pointed out that appellants did

not report this incident. Appellee thus asserted that the

record does not contain any “evidence of a persistent, known

problem requiring regular attention that would justify holding

that [appellee] has to regularly inspect and clean that WASHINGTON, 23CA2 7

particular stretch of sewer in order to prospectively prevent

clogs.”

{¶12} To support its motion, appellee submitted an affidavit

from Joseph White, the Superintendent of the Washington County

wastewater department. White stated: “Based upon the deposition

testimony, it is clear that the removal of the clog by the City

of Marietta did not cause sewage to enter [appellants’]

residence.” He additionally averred that the sewage appeared to

enter appellants’ home “through an uncapped wye” and this wye

“should have been capped.” White further attested that, if

appellants had a backflow prevention device, “it is very likely

that [their] residence would not have experienced a sewer

intrusion on October 1, 2020.” White also stated that

appellants’ home is the lowest lying house on the sewer line

and, thus, is “a prime candidate for a backflow prevention

device.”

{¶13} Appellee also referenced the various depositions that

had been conducted. In his deposition, Kevin Knab agreed that

he had received a July 23, 2018 letter from appellee and in this

letter, appellee advised appellants and other residents to

“investigate and install a sanitary sewer backup solution.”

Knab stated that appellants investigated installing a sanitary

sewer backup solution, but decided not to install one due to the WASHINGTON, 23CA2 8

costs involved. Knab also stated that in July 2018, appellants’

home had a minor sewage intrusion, but appellants did not report

it to appellee. He presumed that someone reported a sewer

problem, but he did not know any details. With respect to the

October 1, 2020 incident, Knab said that the individuals who

performed the cleanup “stated that there was so much pressure

that sewage was being pumped up through that vent pipe.” Knab

agreed that this vent pipe did not have a cap on it.

{¶14} Tim Wittekind, a former employee of the City of

Marietta, stated that he and his co-worker used a “spoon” to

dislodge the clog. He explained that this “spoon is basically a

12-foot handle with a pointed shovel end mounted on the end of

it.” Wittekind explained that the spoon “is used to help locate

a trough area down inside of a manhole so you can kind of get a

general idea of where the line is running through.” Wittekind

related that they were able to dislodge the obstruction with the

spoon.

{¶15} City of Marietta employee Michael Miser stated that

Shawn Dalrymple, the person who had been in charge of appellee’s

wastewater department, called him to ask if Miser could bring a

“vac truck” for a sewer line that was backed up. Dalrymple

stated that “it had been backed up for some time.” Miser asked

Wittekind and Jeffrey Schultheis to respond. Miser also asked WASHINGTON, 23CA2 9

Dalrymple for the location, and Dalrymple told him that “it was

on Seneca Street, where we had been before.” Miser clarified

that Dalrymple’s quote was “where we had been before.” Miser

stated that he “vaguely remember[s] personally being on Seneca

Street in the past to clean a plugged sewer, but [he does] not

remember the date or the address.” Miser explained that he also

reviewed the “sewer complaints back to 2011 and could not find a

complaint sheet” for the Seneca Street address.

{¶16} City of Marietta employee Jeffrey Schultheis stated

that he believes that sewage entered appellants’ home as a

result of the sewer backup. He also thinks that the clog had

existed “for a week or so.” He indicated that the type of clog

they discovered on October 1, 2020, does not “happen overnight.”

Schultheis further explained that he has been with the city

since 2019, and he had not been to the Seneca Street location in

the past.

{¶17} On November 23, 2022, appellants filed a memorandum in

opposition to appellee’s motion. They asserted that genuine

issues of material fact remain regarding “whether [appellee]

negligently maintained the sewer line * * * near [appellants’]

home, therefore causing nuisance and trespass into [appellants’]

home resulting in severe property damage [sic].” Appellants

argued that appellee had “not provided a maintenance schedule WASHINGTON, 23CA2 10

for that portion of the [Seneca Street] sewer and have not shown

any regular maintenance of the sewer.” They claimed that

appellee failed to conduct routine maintenance and inspection

and that the clog had “built up” due to appellee’s failure to

maintain the sewer. Appellants pointed to the Miser and

Schultheis deposition testimony that indicated that the sewer

“had been ‘backed up for some time,’ perhaps a week or longer.”

{¶18} Appellants stated that they will show at trial that

the sewer issue “can be identified with regular inspection and

remedied with routine maintenance as needed.” They argued that

appellee’s failure to conduct routine maintenance, inspection,

and cleaning of the sewer caused the backup and that appellee

failed to comply with its duty of routine maintenance.

Appellants contended that “[t]he material question of fact that

a jury needs to decide in this case is whether that initial clog

was permitted to grow and lodge in the sewer main due to the

negligent inspection and maintenance of the sewer.”

{¶19} Appellants also faulted Dalrymple for failing to

appear for his deposition. They argued that he likely would

have had the information regarding appellee’s “maintenance

schedule, or lack thereof, the history of that area as there

were issues previously, and the relevant information from

October 1, 2020.” WASHINGTON, 23CA2 11

{¶20} Appellants further argued that any issues that

surrounded their decision not to install a backflow device and

to ensure that the wye was capped relate to comparative

negligence and establishes that genuine issues of material fact

remain. They also contended that the reason for the sewage

backup into their homes has not been definitively established.

{¶21} To support their arguments, appellants submitted a

report from a sewer inspector, Brian S. Burnside, and an

affidavit from a neighbor, David M. Bright. Burnside stated

that on July 2, 2022, he inspected appellants’ home and the main

sewer line. He explained that when he viewed the sewer line,

“the main line [was] exhibiting a problem. The effluent [was]

not flowing into the manhole basin[;] it is ‘bubbling in’

suggesting that the main line currently has a problem and is

under a state of back up now.” Burnside recommended that “the

main line be cleaned and inspected and any deficiencies be

corrected.”

{¶22} With regard to whether a backflow device would have

prevented a sewer backup into appellants’ home, Burnside stated

that “backflow devices can be useful for a property owner to

limit their risk[;] however, they are not fool proof and are not

designed to compensate for main line deficiencies.” He would,

however, “recommend a sewer backflow device as it may have WASHINGTON, 23CA2 12

prevented a sewer back up.” Burnside further stated that the

“volume of effluent in this case is indicative of a main line

back up which can only be fixed by the utility service

provider.”

{¶23} Bright stated that he worked from home between March

2020 to July 2022. He saw work being done on the sewer line on

October 1, 2020. Up until July 7, 2022, Bright had not observed

any routine maintenance, inspection, or cleaning of the sewer

line. Bright further stated that one manhole cover on Seneca

Street has been “paved over” and, thus, it “would not be able to

be cleaned or inspected without tearing up the road and cutting

around the edge.”

{¶24} Appellee, however, asserted that appellants’ arguments

are based upon a misunderstanding of Ohio law and they failed to

produce any evidence to create a genuine issue of material fact.

Appellee alleged that it does not have “a duty to continuously

scan its sewer mains to prevent the occurrence of clogs.”

Instead, appellee contended that it had a duty to remove a clog

after receiving notice. Appellee argued that when it became

aware of the clog on October 1, 2020, it promptly responded by

requesting the city employees to respond to the area. Appellee

also disputed appellants’ claim that it has a duty to keep a

maintenance log or prepare a formal maintenance schedule. WASHINGTON, 23CA2 13

Appellee further alleged that even if the clog had been present

for a week before the backup, “it is patently unreasonable to

expect the County to perform preventative sewer main cleaning,

or even video inspection, on a weekly basis.” Appellee asserted

that it does not have “a duty to prophylactically clean, or even

inspect, a sewer main that is otherwise in good condition.”

Appellee additionally contended that it is undisputed that the

sewage entered appellants’ home through the uncapped wye and

that appellants’ negligence thus predominated.

{¶25} Appellee also argued that Bright’s affidavit did not

create a genuine issue of material fact because “[e]ven if he

kept vigil 24 hours a day, 7 days a week, 365 days a year and

saw nothing more than the clog being removed on the day of the

incident, there was still no breach of duty.” Appellee

reiterated that its duty “is to remove clogs promptly after

receiving notice of them, not to prevent clogs that might have

taken as much as a week [to] form.”

{¶26} Appellee further asserted that (1) Burnside did not

offer proper expert testimony by expressing a probability that

appellee’s conduct proximately caused appellants’ damage, and

(2) Burnside’s letter does not satisfy Civ.R. 56(C)’s

strictures. Appellee argued that “the only competent opinion

testimony” (i.e., White’s affidavit) shows that if appellants WASHINGTON, 23CA2 14

“had installed a backflow prevention device, it is highly

unlikely that sewage would have entered [their] home.”

{¶27} With respect to Dalrymple’s failure to appear for his

deposition, appellee contended that appellants could have

subpoenaed Dalrymple, but did not. And appellee argued that it

did not have an obligation to ask the court to issue a show-

cause order to Dalrymple. Appellee thus claimed that no genuine

issues of material fact remained as to whether it breached its

duty to maintain the sewer.

{¶28} On January 25, 2023, the trial court granted appellee

summary judgment. The court stated that the issue is whether

appellee breached a duty by failing to properly maintain the

sewer. The court agreed with appellee’s argument that “the

requirement of proper maintenance is met by promptly removing

clogs when they appear.” The court applied the rule stated in

Williams v. Glouster, supra, and stated that an owner of a sewer

must use reasonable diligence and will be “liable for negligence

in the performance of such duty to a property owner injured

thereby, after reasonable notice of the clogged condition of the

sewer.” Id. at ¶ 23. The court found that the record did not

contain any evidence to show that appellee “had reasonable

notice of a clogged condition of the sewer and then failed to

use reasonable diligence in correcting the problem.” Rather, WASHINGTON, 23CA2 15

the court found that the evidence showed that appellee “did

promptly clear the clog when notified.”

{¶29} The court further determined that the record did not

contain any evidence of other homeowners’ complaints regarding

slow drainage or any other complaints that should have placed

appellee on notice that the sewer needed maintenance or that an

increased maintenance schedule was needed.

{¶30} The court additionally found that nothing in the

record indicated a dilapidated sewer. The court explained:

“There was no evidence that the obstruction or any possible

dilapidation was an ordinary result of the use of the sewer,

which ought to be anticipated and could be guarded against by

occasional examination and cleansing.” The court found “as a

matter of law” that appellee “was not negligent and did not

breach any duty of care owed to” appellants. This appeal

followed.

A

{¶31} In their sole assignment of error, appellants assert

that the trial court erred by concluding that no genuine issues

of material fact remained to be litigated at trial. Appellants

claim that genuine issues of material fact remain regarding

whether appellee breached its duty to properly maintain the WASHINGTON, 23CA2 16

sewer line because a fact finder could have determined that

appellee breached its duty to maintain the sewer line.

{¶32} To illustrate that genuine issues of material fact

remain, appellants point to Bright’s affidavit, in which he

stated that he “never observed maintenance, inspection, or

preventative work done on the sewer.” Appellants further refer

to Burnside’s letter that stated at the time of his July 2022

inspection, the sewer exhibited an issue.

{¶33} Appellants additionally observe that appellee did not

produce any evidence to demonstrate that it complied with its

duty of routine maintenance and inspection. Moreover,

appellants note that the city employees who responded to the

call “stated that this clog said [sic] had been occurring for

some time and didn’t happen overnight.” They also contend that

the evidence demonstrates that the sewer became clogged

“approximately every two years.” Appellants thus assert that if

appellee had complied with its duty of “regular inspection and

maintenance,” then the clog would not have formed. They contend

that appellee’s “[l]ack of regular, routine maintenance,

inspection, or other preventative work would arise to the level

of negligence and allow [appellants] to succeed on their

claims.” WASHINGTON, 23CA2 17

{¶34} Appellants additionally fault the trial court for

considering only “whether the county responded to the inciden[t]

in an appropriate time frame.” They claim that “[e]ven under

this standard, a reasonable fact finder could have ruled in

[appellants’] favor at trial as there was no evidence on the

record that the county responded promptly.”

{¶35} Appellee, however, asserts that no genuine issues of

material fact remain because the record fails to contain any

evidence “of a persistent, known problem requiring regular

attention that would justify holding that [appellee] had to

regularly inspect and clean that particular stretch of sewer in

order to prospectively prevent clogs.” Appellee argues that it

did not have a duty to “keep a formal ‘maintenance schedule,’

written or otherwise.” Appellee further claims that it also

does not have “a duty to prophylactically clean a sewer main

that is otherwise in good condition.”

B

{¶36} Appellate courts conduct a de novo review of trial

court summary judgment decisions. E.g., State ex rel. Novak,

L.L.P. v. Ambrose, 156 Ohio St.3d 425, 2019-Ohio-1329, 128

N.E.3d 209, ¶ 8; Pelletier v. Campbell, 153 Ohio St.3d 611,

2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13; Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). WASHINGTON, 23CA2 18

Accordingly, an appellate court need not defer to a trial

court’s decision, but instead must independently review the

record to determine if summary judgment is appropriate.

Grafton, 77 Ohio St.3d at 105.

Civ.R. 56(C) provides in relevant part:

* * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.

{¶37} Therefore, pursuant to Civ.R. 56, a trial court may

not award summary judgment unless the evidence demonstrates

that: (1) no genuine issue as to any material fact remains to be

litigated; (2) the moving party is entitled to judgment as a

matter of law; and (3) after viewing the evidence most strongly

in favor of the nonmoving party, reasonable minds can come to

but one conclusion, and that conclusion is adverse to the

nonmoving party. E.g., State ex rel. Whittaker v. Lucas Cty.

Prosecutor’s Office, 164 Ohio St.3d 151, 2021-Ohio-1241, 172 WASHINGTON, 23CA2 19

N.E.3d 143, ¶ 8; Pelletier at ¶ 13; Temple v. Wean United, Inc.,

50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶38} Under Civ.R. 56, the moving party bears the initial

burden to inform the trial court of the basis for the motion and

to identify those portions of the record that demonstrate the

absence of a material fact. E.g., Dresher v. Burt, 75 Ohio

St.3d 280, 293, 662 N.E.2d 264 (1996). The moving party cannot

discharge its initial burden with a conclusory assertion that

the nonmoving party has no evidence to prove its case. E.g.,

Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 147, 677

N.E.2d 308 (1997); Dresher, supra. Rather, the moving party

must specifically refer to the “pleadings, depositions, answers

to interrogatories, written admissions, affidavits, transcripts

of evidence in the pending case, and written stipulations of

fact, if any,” which affirmatively demonstrate that the

nonmoving party has no evidence to support the nonmoving party’s

claims. Civ.R. 56(C); Dresher, supra.

[U]nless a movant meets its initial burden of establishing that the nonmovant has either a complete lack of evidence or has an insufficient showing of evidence to establish the existence of an essential element of its case upon which the nonmovant will have the burden of proof at trial, a trial court shall not grant a summary judgment.

Pennsylvania Lumbermens Ins. Corp. v. Landmark Elec., Inc., 110

Ohio App.3d 732, 742, 675 N.E.2d 65 (2nd Dist.1996). WASHINGTON, 23CA2 20

{¶39} Once the moving party satisfies its burden, the

nonmoving party bears a corresponding duty to set forth specific

facts to show that a genuine issue exists. Civ.R. 56(E);

Dresher, supra. More specifically, Civ.R. 56(E) states:

* * * * When a motion for summary judgment is made and supported as provided in this rule, an adverse 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. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.

{¶40} Consequently, “‘[m]ere speculation and unsupported

conclusory assertions are not sufficient’” to meet the

nonmovant’s reciprocal burden to set forth specific facts to

show that a genuine issue exists. Bank of New York Mellon v.

Bobo, 4th Dist., 2015-Ohio-4601, 50 N.E.3d 229, ¶ 13, quoting

Loveday v. Essential Heating Cooling & Refrig., Inc., 4th Dist.

Gallia No. 08CA4, 2008-Ohio-4756, ¶ 9. Thus, “‘resting on mere

allegations against a motion for summary judgment * * * is

insufficient’” to defeat a properly supported summary judgment

motion. Jackson v. Alert Fire & Safety Equip., Inc., 58 Ohio

St.3d 48, 52, 567 N.E.2d 1027, 1032 (1991), quoting King v. K.R.

Wilson Co., 8 Ohio St.3d 9, 10–11, 455 N.E.2d 1282, 1283 (1983).

{¶41} Additionally, when trial courts consider summary

judgment motions, Civ.R. 56(C) specifies that the court may WASHINGTON, 23CA2 21

examine only “the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, [that are]

timely filed in the action.” Id.; Whitt v. Wolfinger, 2015-

Ohio-2726, 39 N.E.3d 809, 813–14, ¶ 12 (4th Dist.); Davis v.

Eachus, 4th Dist. Pike No. 04CA725, 2004-Ohio-5720, ¶ 36; Wall

v. Firelands Radiology, Inc., 106 Ohio App.3d 313, 334, 666

N.E.2d 235 (6th Dist.1995). “‘Documents which are not sworn,

certified, or authenticated by way of affidavit have no

evidentiary value and shall not be considered by the trial

court.’” State ex rel. Shumway v. Ohio State Teachers

Retirement Bd., 114 Ohio App.3d 280, 287, 683 N.E.2d 70 (1996),

quoting Mitchell v. Ross, 14 Ohio App.3d 75, 470 N.E.2d 245 (8th

Dist.1984). A party may, however, introduce evidentiary

material that does not fall within one of the categories of

evidence listed in Civ.R. 56(C) when that material is

incorporated by reference in a properly framed affidavit.

Thompson v. Hayes, 10th Dist. Franklin No. 05AP–476, 2006-Ohio-

6000, ¶ 103.

{¶42} “If a party submits evidence that does not fall within

Civ.R. 56(C)’s parameters, the opposing party may file a motion

to strike the improperly-submitted evidence.” Whitt at ¶ 13.

The determination of a motion to strike is within a court’s WASHINGTON, 23CA2 22

broad discretion. Id., citing State ex rel. Dawson v. Bloom–

Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009,

959 N.E.2d 524, ¶ 23. Consequently, appellate courts will not

disturb trial court rulings regarding motions to strike unless

the court abused its discretion. Id., citing State ex rel. Mora

v. Wilkinson, 105 Ohio St.3d 272, 2005-Ohio-1509, 824 N.E.2d

1000, ¶ 10. A decision constitutes an abuse of discretion when

it is unreasonable, arbitrary, or unconscionable. Id., citing

State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-

5350, 957 N.E.2d 19, ¶ 11. Moreover, when applying the abuse-

of-discretion standard, a reviewing court may not substitute its

judgment for that of the trial court. Id., citing Berk v.

Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

{¶43} In the case sub judice, appellee argued in its reply

memorandum that Burnside’s letter, attached to appellants’

opposition memorandum, is not proper Civ.R. 56 evidence.

Apparently, the trial court did not specifically rule upon the

propriety of the evidentiary material appellants included with

their opposition memorandum. Nevertheless, when a trial court

fails to rule upon a pretrial motion, courts generally presume

that the court overruled it. State ex rel. Cassels v. Dayton

City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 223, 631

N.E.2d 150, 155 (1994), citing Newman v. Al Castrucci Ford WASHINGTON, 23CA2 23

Sales, Inc., 54 Ohio App.3d 166, 561 N.E.2d 1001 (1988).

Moreover, appellee did not file a motion to strike.

Consequently, under these circumstances we presume that the

trial court overruled appellee’s objection to the evidentiary

material. Moreover, appellee did not cross-appeal or argue that

the trial court abused its discretion by considering the

material. Thus, we believe that we may properly consider the

evidence.

{¶44} In the case at bar, as we explain, we agree with the

trial court’s conclusion that no genuine issues of material fact

remain to be litigated at trial.

C

{¶45} A negligence action requires a plaintiff to establish

“(1) a duty requiring the defendant to conform to a certain

standard of conduct, (2) breach of that duty, (3) a causal

connection between the breach and injury, and (4) damages.”

Cromer v. Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d

257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 23; accord Texler v. D.O.

Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998);

Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 472

N.E.2d 707 (1984). If a defendant demonstrates that the

plaintiff will be unable to prove any one of the foregoing

elements, the defendant is entitled to judgment as a matter of WASHINGTON, 23CA2 24

law. Feichtner v. Cleveland, 95 Ohio App.3d 388, 394, 642

N.E.2d 657 (8th Dist.1994); Keister v. Park Centre Lanes, 3 Ohio

App.3d 19, 443 N.E.2d 532 (5th Dist.1981).

{¶46} “‘Duty, as used in Ohio tort law, refers to the

relationship between the plaintiff and the defendant from which

arises an obligation on the part of the defendant to exercise

due care toward the plaintiff.’” Wallace v. Ohio Dept. of

Commerce, 96 Ohio St.3d 266, 773 N.E.2d 1018, ¶ 23, quoting

Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98,

543 N.E.2d 1188 (1989). Whether a duty exists in a negligence

action is generally a question of law for a court to decide.

Snay v. Burr, 167 Ohio St.3d 123, 2021-Ohio-4113, 189 N.E.3d

758, ¶ 14; Wallace at ¶ 22; Mussivand v. David, 45 Ohio St.3d

314, 318, 544 N.E.2d 265 (1989).

{¶47} In the case sub judice, both parties agree that

appellee owed appellants a duty of reasonable care. They do not

agree, however, upon the scope of that duty of reasonable care.

Appellee contends that its duty was to promptly remove the clog

once it became aware of it. Appellants, however, contend that

not only did appellee have a duty to promptly remove the clog

once it became aware of it, but it also had a duty of routine

maintenance and inspection. Appellants thus claim that genuine WASHINGTON, 23CA2 25

issues of material fact remain as to whether appellee breached

its duties.

{¶48} The oft-cited rule regarding a political subdivision’s

duty with respect to a sewer system is that the political

subdivision has a duty to “use reasonable diligence and care to

keep [its] sewer or drain in good repair.” Portsmouth v.

Mitchell Mfg. Co., 113 Ohio St. 250, 255, 148 N.E. 846 (1925).

With respect to clogged sewers, Mitchell Mfg. further stated a

political subdivision “is bound to use reasonable diligence and

care to see that such storm sewer is not clogged with refuse,

and is liable for negligence in the performance of such duty to

a property owner injured thereby, after reasonable notice of the

clogged condition of such sewer.” Id. at syllabus.

{¶49} In Mitchell Mfg., the court determined that the city

had not used reasonable care and diligence to keep its sewer in

good repair. In that case, heavy rainfall caused water to seep

into the plaintiff’s building. Subsequently, the storm sewer

located in front of the plaintiff’s building “was found for the

greater part to be full of dirt and silt.” Id. at 252.

Additionally, “substantial evidence” existed “that repeated

notice had been given to the city of the condition of the sewers

prior to the flooding thereof.” Id. The court explained: WASHINGTON, 23CA2 26

The record shows that the city, after cleaning out the storm sewer in question, upon numerous occasions permitted the refuse gathered from the catch-basins to stand upon the street in piles, and that with each succeeding rain this refuse was again washed back into the sewer. This being the case, we have here, not a mere omission upon the part of the city to perform a duty, but a positive act upon the part of the city which has resulted in the accumulation of refuse in the sewer, and the resultant maintenance of a nuisance in the street.

Id. at 253.

{¶50} The court further determined that the city’s

“operation and upkeep of sewers is not a governmental function,

but is a ministerial or proprietary function of the city.” Id.

at 255. The court found that the city’s “maintenance and upkeep

of these sewers, so that they would function properly to clear

the streets from excessive rainfall, was a proprietary function,

in the performance of which the city is held to the duty of

reasonable care.” Id. at 253. As previously indicated,

Mitchell Mfg. defined that duty of reasonable care in the

context of a sewer clog as using “reasonable diligence and care

to see that such storm sewer is not clogged with refuse, and is

liable for negligence in the performance of such duty to a

property owner injured thereby, after reasonable notice of the

{¶51} Thus, Mitchell Mfg. appears to stand for the

proposition that a political subdivision is not “liable for WASHINGTON, 23CA2 27

negligence in the performance” of its duty to use “reasonable

diligence and care to see that [its] storm sewer is not clogged

with refuse,” unless the political subdivision had “reasonable

notice of the clogged condition of such sewer.” Id. In other

words, a political subdivision does not breach its duty to use

“reasonable diligence and care to see that [its] storm sewer is

not clogged with refuse,” unless the political subdivision had

“reasonable notice of the clogged condition of such sewer” and

then failed to use “reasonable diligence and care to see that

[its] storm sewer is not clogged with refuse.” Id.

{¶52} In a later case, the Ohio Supreme Court defined the

duty as a “duty to keep [sewers] 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). In

Doud, the plaintiff filed a complaint against the city to

recover damages that the home sustained as a result of the

city’s alleged negligent maintenance of its sewer. The evidence

showed that “there was a gradual deterioration of the sewer over

a period of years, which deterioration an occasional inspection

would have disclosed,” and that the city had not inspected the

sewer for nearly 22 years. Id. at 133. The trial court

determined that if the city had inspected the sewer “at

reasonable intervals,” it would have discovered the WASHINGTON, 23CA2 28

“deteriorating condition of said sewer and prevented the

resulting damage.” Id. The court thus concluded that the city

“failed to exercise reasonable care in the inspection of said

sewer, and that said failure to inspect said sewer was the

proximate cause of said damage.” Id.

{¶53} The city appealed, and the appellate court reversed.

On appeal to the Ohio Supreme Court, the plaintiff argued, in

part, that the city had a duty “to inspect the sewer and

maintain it in a safe condition.” Id. at 137. The Ohio Supreme

Court agreed.

{¶54} The defendant, however, argued that it could not be

liable for damage to the plaintiff’s property when it did not

have any “notice of the defect in the sewer which caused the

damage to plaintiff’s property.” Id. The court stated that a

political subdivision “is not liable for damages growing out of

a dangerous condition which suddenly arises in connection with

the use or operation of its streets, sewers or other structures,

until it has actual or constructive notice of such condition.”

Id. The court also recognized, however, that “where there rests

upon the [political subdivision], as there did in this case, a

duty of inspection of the sewer as an instrumentality under its

supervision and control, the [political subdivision] becomes

chargeable with notice of what reasonable inspection would WASHINGTON, 23CA2 29

disclose.” Id. The court thus stated that the political

subdivision “was chargeable at all times with notice of defects

which arose in the sewer in question through the slow process of

deterioration.” Id.

{¶55} In reaching its decision, the Doud court relied upon

its previous decision in Mitchell Mfg. Co., supra, that

explained a political subdivision’s duty “‘to keep its sewers in

repair’” as including

“the exercise of a reasonable degree of watchfulness in ascertaining their condition, from time to time, and preventing them from becoming dilapidated or obstructed. Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated and could be guarded against by occasional examination and cleansing, the omission to make such examinations and to keep the sewers clear is a neglect of duty which renders the municipality liable.”

Id. at 138, quoting 38 Am.Jur. 341, Section 636, note 3; see

also Mitchell Mfg. Co., 113 Ohio St. at 255.

{¶56} The court noted that the trial court had found that

the damage to the plaintiff’s house

was due to the gradual deterioration of the sewer in question; that an inspection of the sewer at reasonable intervals would have disclosed the deterioration; that the defendant failed to exercise reasonable care in the inspection of the sewer; and that such failure was the proximate cause of the damage. WASHINGTON, 23CA2 30

Id. The court thus reversed the appellate court’s decision and

affirmed the trial court’s decision that entered judgment in the

plaintiff’s favor.

{¶57} Doud, therefore, indicates that the scope of a

political subdivision’s duty with respect to a sewer condition

depends upon whether the condition arose suddenly or gradually.

If the condition arose suddenly, then the scope of the political

subdivision’s duty is to exercise reasonable care to resolve the

condition once it receives notice of the condition. For sewer

conditions that arise gradually, however, the political

subdivision’s duty is to exercise “a reasonable degree of

watchfulness in ascertaining [the sewers’] condition, from time

to time, and preventing them from becoming dilapidated or

obstructed.” Id., quoting 38 Am.Jur. 341, Section 636, note 3

{¶58} Since these two decisions, numerous Ohio appellate

courts have discussed the scope of a political subdivision’s

duties with respect to a sewer system. E.g., Tangler v.

Carrollton, 2018-Ohio-1343, 110 N.E.3d 165, ¶ 20 (7th Dist.);

Pierce v. Gallipolis, 2015-Ohio-2995, 39 N.E.3d 858 (4th Dist.);

Kendle v. Summit Cnty., 9th Dist. Summit No. 15268, 1992 WL

80074 (Apr. 15, 1992).

{¶59} In Kendle, the court explained the scope of a

political subdivision’s “duty to use due diligence to inspect WASHINGTON, 23CA2 31

for defects.” Id. at *2. In that case, the plaintiffs

discovered raw sewage in their basement and immediately notified

the county. A maintenance crew responded and discovered the

main sewer line blocked and this sewage blockage caused the

backup into the home. The plaintiffs subsequently filed a

complaint against the county to recover the damages that they

sustained as a result of the county’s alleged negligent

maintenance of the sewer.

{¶60} The county requested summary judgment and in support,

the county relied upon evidence that “roots and undergarments”

had caused the blockage. The county further submitted evidence

to show that its last inspection of the sewer located on the

plaintiffs’ street occurred approximately two years and nine

months before the sewage intruded into the plaintiffs’ home.

The trial court granted the county summary judgment, and the

plaintiffs appealed.

{¶61} On appeal, the plaintiffs alleged that the rules set

forth in Mitchell Mfg. and Doud established the county’s

negligence. They asserted that the county had “a duty to

reasonably inspect its sewers to detect and eliminate

blockages.” Id. at *2. The plaintiffs claimed that the

county’s failure to inspect the sewer for nearly three years was WASHINGTON, 23CA2 32

“inherently unreasonable and present[ed] a triable issue of

fact.” Id.

{¶62} The appellate court agreed that “the operation of a

sewer system includes a duty to use due diligence to inspect for

defects” and that the county “is chargeable with knowledge of

what a reasonable inspection would have revealed.” Id. The

court did not agree, however, that the plaintiffs had produced

evidence to establish genuine issues of material fact regarding

the county’s negligence.

{¶63} The court distinguished Mitchell Mfg. and noted that,

unlike the plaintiff in Mitchell Mfg., the plaintiffs in Kendle

did not produce evidence that the county had notice regarding

the condition of the sewer. The court distinguished Doud by

explaining that unlike the situation in Doud that involved a

gradual deterioration of the sewer, in Kendle no evidence

existed that the sewer gradually deteriorated. The court also

recognized that the plaintiffs argued that the county should

have inspected the sewer on a more frequent basis. The court

determined, however, that the record did not contain any

evidence “that more recent inspections would have revealed the

blockage that occurred in this case.” Id. at *4. The court

explained: WASHINGTON, 23CA2 33

The possibility of a sewer becoming clogged, absent any negligence, is an unfortunate circumstance which we all must face as incident to the benefits received from a public sewer system. Accepting the [plaintiffs’] argument would make every operator of a public sewer system absolutely liable, absent any fault, for all damages resulting from a clogged sewer.

Id. The court thus affirmed the trial court’s summary judgment.

{¶64} In Pierce, on the other hand, we determined that

genuine issues of material fact existed regarding the city’s

“compliance with its duty to maintain the sewer lines.” Id. at

¶ 35. In that case, the plaintiffs asserted that the city

negligently maintained its sewer line and thereby caused damage

to their home and personal injury to one of the plaintiffs.

{¶65} The city requested summary judgment and argued, in

part, that no genuine issues of material fact remained regarding

whether it negligently maintained the sewer system. The city

submitted evidence that (1) it had not received notice of any

conditions that suggested the sewer was in a state of disrepair

before the event that caused the plaintiffs’ injuries, and (2)

it conducted routine maintenance of the sewer system. The city

also submitted evidence that “a large amount of fill on top of a

steep slope of [the plaintiffs’] property without compensating

fill at the bottom of the slope, combined with unusually heavy

rainfall * * *, caused the land to slip, which then, broke the

sewer line.” Id. at ¶ 4. WASHINGTON, 23CA2 34

{¶66} The plaintiffs produced evidence that (1) the city had

not conducted any maintenance on the sewer line located near the

plaintiffs’ property for 20 years, (2) several sewer backups had

occurred in the area, (3) the city initially denied that a sewer

line existed on the plaintiffs’ property, and (4) the city did

not take any corrective action for more than eight months after

the incident. The plaintiffs also submitted expert opinion

testimony that “the lack of maintenance of this sewer line

allowed the line to fall into a state of disrepair” and

ultimately caused the plaintiffs’ injuries. Id. at ¶ 8. The

trial court denied the city’s summary judgment motion and the

city appealed.

{¶67} On appeal, the city argued that the trial court erred

by concluding that genuine issues of material fact remained as

to whether it negligently maintained the sewer system because,

the city claimed, the evidence shows that “it did conduct

routine maintenance of its sewer lines” and “had no prior

knowledge of issues with the sewer line.” Id. at ¶ 30. This

court, however, determined that the plaintiffs had submitted

evidence to refute the city’s allegations and thereby

established that genuine issues of material fact remained. We

thus affirmed the trial court’s decision to overrule the city’s

summary judgment motion. See also Williams v. Glouster, supra. WASHINGTON, 23CA2 35

{¶68} We believe that the case at bar bears more similarity

to Kendle than to Pierce. Similar to the Kendle plaintiffs, and

unlike the Pierce plaintiffs, appellants did not produce any

evidence that before October 1, 2020, appellee had actual or

constructive notice that the sewer had been clogged or otherwise

contained a defect. Appellants allege that appellee knew the

sewer had been clogged in 2018, but they did not produce any

evidence to support that allegation. Instead, the evidence

indicates that in 2018, appellants’ home experienced a small

sewage intrusion and appellants did not report it to appellee.

Appellants did not produce any admissible evidence to show that

before October 1, 2020, other residents had complained to

appellee about the condition of the sewer.

{¶69} Appellants contend, however, that appellee had

“accepted responsibility for” “a similar issue in 2018.” To

support this assertion, appellants cite to “Schedule 1, used in

the deposition of Kevin Knab (also known as ‘W1’).” Knab’s

deposition does not contain any exhibit identified as “Schedule

1” or “W1.” Thus, we are unable to determine which exhibit

appellants’ argument references. It may reference Exhibit 1,

however, but if so, Exhibit 1 does not support appellants’

assertion that appellee “accepted responsibility for” “a similar

issue in 2018.” Rather, Exhibit 1 is a July 23, 2018 letter WASHINGTON, 23CA2 36

that appellee sent to all Washington County Sewer System

Customers. In this letter, appellee “urge[d] all customers * *

* to investigate and install a sanitary sewer backup solution.”

Nothing in this letter indicates that appellee “accepted

responsibility for” “a similar issue in 2018.” Rather, the

letter states that appellee “will no longer be able to offer

these services after December 31, 2018.” The services described

in the letter are “sanitary sewer backup solutions.” Thus, this

letter does not support appellants’ assertion that in 2018,

appellee was aware of a problem with the sewer located near

appellants’ home. Appellants additionally note that the record

contains some evidence to suggest that county or city employees

had been to the Seneca Drive area in the past “to clean a

plugged sewer.” However, no evidence exists when those

employees had been in that area or whether the “plugged sewer”

was the same one that became clogged on October 1, 2020.

{¶70} Therefore, we agree with the trial court that in the

case sub judice the record does not contain any evidence to

create a genuine issue of material fact as to whether, before

October 1, 2020, appellee had actual or constructive notice of

any clogging, defects, or deterioration with the sewer located

by appellants’ residence. WASHINGTON, 23CA2 37

{¶71} Furthermore, unlike the plaintiffs’ evidence in Pierce

that stated the city did nothing in response to the plaintiffs’

complaint for eight months, in the case sub judice appellants

did not submit any evidence to create a genuine issue of

material fact as to whether appellee exercised reasonable care

to remove the clog once it learned about the issue. Here, the

city employees stated that they responded to the area as soon as

practical upon learning that appellee had requested its

assistance. The evidence shows that the employees responded to

the area on the same date that the clog had been reported to

appellee. Appellants did not produce any evidence to suggest

that appellee delayed requesting the city’s assistance or that

the city employees failed to respond to the call for help in a

timely fashion. Instead, appellants speculate about the absence

of business records to support the city employees’ deposition

testimony. Speculation about the lack of evidence is not

sufficient to create a genuine issue of material fact.

Bowersock v. Addlesburger, 4th Dist. Washington No. 19CA13,

2019-Ohio-5447, ¶ 39 (“[s]peculation is not sufficient to

create a genuine issue of material fact so as to defeat a

properly supported summary judgment motion”). Consequently, the

record in the case at bar does not contain any evidence to

create a genuine issue of material fact as to whether appellee WASHINGTON, 23CA2 38

exercised reasonable care to remove the clog once it learned

about the issue.

{¶72} With regard to appellants’ claim that appellee failed

to comply with it duty to maintain the sewer and to inspect it

at reasonable intervals, we note that the record does not

contain any evidence that appellee engaged in routine

maintenance or inspection of the sewer. As the party moving for

summary judgment, appellee bore the burden to point to evidence

in the record to demonstrate the absence of a material fact

regarding whether it complied with its duty of routine

maintenance and inspection. Construing the record most strongly

in appellants’ favor indicates that a genuine issue of material

fact remains regarding appellants’ claim that appellee breached

its duty to keep the sewers in good repair and free from defects

by engaging in routine maintenance and conducting inspections at

reasonable intervals. However, as in Kendle, no evidence exists

that routine maintenance and inspections at reasonable intervals

would have prevented (1) the clog from forming, or (2) the

sewage intruding into appellants’ home. At best, the evidence

shows that the clog may have existed for one week or so. We do

not believe that routine maintenance and inspections at

reasonable intervals require weekly maintenance and inspection

of all sewer lines under a political subdivision’s control. We WASHINGTON, 23CA2 39

also do not believe that this issue is a jury question because

if it were, inconsistent results could occur.

{¶73} Furthermore, we previously rejected a similar argument

in Essman v. Portsmouth, 4th Dist. Scioto No. 09CA3325, 2010-

Ohio-4837. In that case, the plaintiffs asserted that the city

“negligently maintained the [sewer] system because it did not

have any type of maintenance plan.” Id. at ¶ 50. We

determined, however, that even if “the city was negligent due to

its failure to have a maintenance plan, [the plaintiffs’]

evidence fails to show how a maintenance plan would have

prevented the sewage intrusions.” Id. We additionally observed

that the plaintiffs’ evidence did “not specify what type of

maintenance plan the city should have implemented and how the

failure to implement this particular maintenance plan resulted

in the sewage intrusions.” Id.

{¶74} Likewise, in the case sub judice, the evidence does

not show how a maintenance or inspection plan would have

prevented the clog or the sewage intrusion. Furthermore,

appellants did not specify the maintenance or inspection

schedule that appellee should have implemented and how the

failure to implement either caused the sewage intrusion.

{¶75} In sum, we do not believe that the record contains any

evidence to establish genuine issues of material fact regarding WASHINGTON, 23CA2 40

appellee’s negligence in maintaining or operating the sewer

system. Therefore, any arguments that the parties have raised

regarding appellants’ comparative negligence are moot. Halloran

v. Barnard, 4th Dist. Lawrence No. 16CA9, 2017-Ohio-1069, ¶ 25

(comparative negligence “is not an issue unless the defendant,

as well as the plaintiff, was negligent”). Consequently, we

agree with the trial court’s conclusion in granting appellee

summary judgment.

{¶76} Accordingly, based upon the foregoing reasons, we

overrule appellants’ sole assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED. WASHINGTON, 23CA2 41

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellants the 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 Washington County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.