[Cite as Phillips v. Independence, 2025-Ohio-5511.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JEFFREY PHILLIPS, :
Plaintiff-Appellant, : No. 114685 v. :
CITY OF INDEPENDENCE, :
Defendant-Appellee. :
_____________
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 11, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-986133
Appearances:
Michael Shaut & Associates, LPA, and Michael Shaut, for appellant.
Taft, Stettinius & Hollister LLP, Gregory J. O’Brien, City of Independence Law Director, and Jack Miab, for appellee.
WILLIAM A. KLATT, J.:
Plaintiff-appellant Jeffrey Phillips (“Phillips”) appeals from the trial
court’s December 13, 2024 judgment entry granting defendant-appellee City of
Independence’s (“the city” or “Independence”) motion for summary judgment based on political-subdivision immunity under R.C. Ch. 2744. For the following
reasons, we affirm.
Factual and Procedural History
This case stems from a motor vehicle accident that occurred on
October 5, 2021. That morning, Phillips was driving down Brecksville Road in
Independence, Ohio, when his vehicle left the road, hit the shoulder of the road, and
hit a mailbox and temporary fencing that had been installed on the west side of
Brecksville Road. Phillips’s vehicle drove through the temporary fence and partially
into a steep embankment. A steel rod from the temporary fencing penetrated
Phillips’s windshield, striking Phillips in the head and causing him to lose
consciousness and suffer severe head and brain trauma.
On September 27, 2023, Phillips filed a complaint against
Independence, alleging one count of deliberate indifference and one count of
negligence related to the conditions surrounding the accident.
On November 27, 2023, the city filed an answer and motion to
dismiss.
On January 24, 2024, Phillips filed a motion for leave to file an
amended complaint. On February 2, 2024, Phillips filed a motion for leave to file a
second amended complaint instanter with the city’s consent; the trial court granted
this motion. The second amended complaint added Elizabeth Hrovat (“Hrovat”),
State Farm Insurance Company (“State Farm”), Gauis S. Vaduva (“Vaduva”), and
Rachel Veronica (“Veronica”) as new-party defendants. The second amended complaint alleged that the accident occurred on the property of Hrovat, Vaduva, and
Veronica and the fence at issue was also located on their property. None of the
additional defendants are a party to the instant appeal.
On October 1, 2024, the city filed a motion for summary judgment,
arguing that summary judgment was appropriate because the city was entitled to
the statutory immunity reserved for political subdivisions in Ohio pursuant to
R.C. 2744.02.
On October 29, 2024, Phillips filed a brief in opposition to the city’s
motion for summary judgment. On November 5, 2024, the city filed a reply brief in
support of its motion for summary judgment.
On December 13, 2024, the court granted the city’s motion for
summary judgment.
Phillips appealed. He now raises four assignments of error for our
review:
I. The trial court erred by failing to address an integral question regarding the ownership of the original fence which caused the Appellant’s substantial injuries.
II. The trial court erred in its grant of summary judgment against Appellant’s claims against when the manifest weight of the evidence demonstrated an applicable exception to Appellee’s claim of political immunity under R.C. 2744.02(b)(2).
III. The trial court erred in its grant of summary judgment against Appellant’s claims when the manifest weight of the evidence demonstrated an applicable exception to political immunity under R.C. 2744.02(b)(4).
IV. The trial court erred in its grant of summary judgment against Appellant’s claims given uncontroverted expert evidence that the failure to maintain the roadway was the actual cause of the Appellant’s leaving the roadway which led to his injuries, which is an exception to political immunity under R.C. 2744.02(b)(3).[1]
Law and Analysis
R.C. Ch. 2744 sets forth a comprehensive statutory scheme for the tort
liability of political subdivisions and their employees. It establishes a three-step
analysis for determining whether a political subdivision is immune from liability,
starting with a broad rule that a political subdivision is generally not liable in
damages. Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow,
2013-Ohio-2410, ¶ 11, citing Greene Cty. Agricultural Soc. v. Liming, 2000-Ohio-
486, ¶ 25, and R.C. 2744.02(A)(1).
The three-tier analysis provides:
Under the first tier of analysis, if a defendant is determined to be a political subdivision, it is immune from liability for its governmental and proprietary functions in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision . . . .” [R.C. 2744.02(A)(1).]
Under the second tier, the immunity conferred under R.C. 2744.02(A)(1) “‘is not absolute, but is . . . subject to the five exceptions to immunity listed in . . . R.C. 2744.02(B).’” Hortman [v. Miamisburg, 2006-Ohio-4251,] ¶ 14, quoting Cater [v. Cleveland, 1998-Ohio-421.]
The third tier of political subdivision immunity analysis comes into operation if it is determined that one of the exceptions to immunity under R.C. 2744.02(B)(1) through (5) applies. Under the third tier, immunity can be reinstated if the political subdivision can demonstrate that one of the defenses under R.C. 2744.03 applies.
1 In Phillips’s statement of his assignments of error in his opening brief, he presents
his assignments of error in this order. In the body of his brief, he presents them in a different order. For clarity, we will refer to the assignments of error as they are numbered here. Berner v. New Leaf Residential Servs., 2024-Ohio-1788, ¶ 14-16.
Thus, in the first tier of the analysis, the court applies the general rule
provided in R.C. 2744.02(A)(1) that a political subdivision is immune. Goldfarb v.
Cuyahoga Cty., 2025-Ohio-3283, ¶ 20. “The second tier of the analysis places the
burden on the plaintiff to overcome this statutory immunity by showing that one of
the five exceptions contained in R.C. 2744.02(B) applies.” Id., citing Powell v.
Cleveland, 2022-Ohio-4286, ¶ 10 (8th Dist.).
“‘Whether a party is entitled to immunity is a question of law properly
determined by the court prior to trial pursuant to a motion for summary judgment.’”
McConnell v. Dudley, 2019-Ohio-4740, ¶ 17, quoting Pelletier v. Campbell, 2018-
Ohio-2121, ¶ 12, citing Conley v. Shearer, 1992-Ohio-133.
We review summary judgment rulings de novo, applying the same
standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105
(1996). We give no deference to the trial court’s decision and independently review
the record to determine whether summary judgment is appropriate. Pursuant to
Civ.R. 56(C), the party seeking summary judgment must prove that (1) there is no
genuine issue of material fact; (2) they are entitled to judgment as a matter of law;
and (3) viewing the evidence in favor of the nonmoving party, reasonable minds can
come to but one conclusion and that conclusion is adverse to the nonmoving party.
See also Dresher v. Burt, 75 Ohio St.3d 280 (1996).
In the context of summary judgment, “a ‘material’ fact is one that
might affect the outcome of the case under the applicable substantive law.” Plough v. Nationwide Children’s Hosp., 2024-Ohio-5620, ¶ 30 (10th Dist.). Moreover,
““‘[m]ere speculation and unsupported conclusory assertions are not sufficient”’ to
meet the nonmovant’s reciprocal burden under Civ.R. 56(E) to withstand summary
judgment.” Brockler v. Turner, 2025-Ohio-2367, ¶ 8 (8th Dist.), quoting
Wilmington Trust N.A. v. Boydston, 2017-Ohio-5816, ¶ 31 (8th Dist.), quoting
Loveday v. Essential Heating Cooling & Refrigeration, Inc., 2008-Ohio-4756, ¶ 9
(4th Dist.).
We will address the assignments of error out of order for ease of
discussion.
II. Exception to Immunity – R.C. 2744.02(B)(2)
In Phillips’s second assignment of error, he argues that the trial court
erred in granting summary judgment to Independence because the manifest weight
of the evidence demonstrated that the R.C. 2744.02(B)(2) exception to political-
subdivision immunity applied.
R.C. 2744.02(B)(2) provides that except as otherwise provided,
“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.” Thus, for R.C. 2744.02(B)(2) to
remove a political subdivision’s immunity, “a plaintiff must first establish the
elements required to sustain a negligence action and second, that the negligence
arose out of a ‘proprietary function.’” Puffenberger v. Cleveland, 2013-Ohio-4479, ¶ 8 (8th Dist.), citing Nelson v. Cleveland, 2013-Ohio-493, ¶ 17 (8th Dist.), quoting
Williams v. Glouster, 2012-Ohio-1283, ¶ 17 (4th Dist.).
The activities of political subdivisions are generally categorized as
either “proprietary functions” or “governmental functions” and the “mutually
exclusive definitions of ‘governmental function’ and ‘proprietary function’ are set
out in R.C. 2744.01.” Doe v. Cleveland Metro. School Dist., 2012-Ohio-2497, ¶ 26
(8th Dist.), quoting Greene Cty. Agricultural Soc., 2000-Ohio-486, at ¶ 27.
R.C. 2744.01(G)(1) defines a proprietary function as
a function of a political subdivision that is specified in (G)(2) of this section or that satisfies both of the following:
(a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section;
(b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.
R.C. 2744.01(G)(2) further provides, in relevant part, that a proprietary function
includes but is not limited to the following:
(c) The establishment, maintenance, and operation of a utility, including, but not limited to, a light, gas, power, or heat plant, a railroad, a busline or other transit company, an airport, and a municipal water supply system . . . .
An activity cannot be both a governmental function and a propriety function; the
two are mutually exclusive. Ohio Bell Tel. Co. v. Leon Riley, Inc., 2010-Ohio-5371,
¶ 13 (8th Dist.).
Phillips argues that this case involves a utility and thus constitutes an
R.C. 2744.02(B)(2) exception. He bases this argument on a 1992 easement that granted the city rights to “construct, maintain, repair, operate, patrol and replace a
stream bank protection structure. . . .” Phillips asserts that based on this easement,
the fence and ravine where the accident occurred constitute a stream bank
protection structure that is classified as a utility pursuant to R.C. 2744.01(G)(2)(c).2
In support of this assertion, Phillips points to R.C. 6117.01(A)(3), which defines
“drainage facilities” as including “improvements of or for any channel, ditch, drain,
floodway, or watercourse” in the context of county sewer districts. Phillips also
points to an Ohio Supreme Court case in which the Court cites R.C. 6119.011(M),
stating that “water management facilities” included “facilities for stream flow
improvement, dams, reservoirs, and other impoundments” and “facilities for the
stabilization of stream and river banks.” Northeast Ohio Regional Sewer Dist. v.
Bath Twp., 2015-Ohio-3705, ¶ 18.
While the city does not dispute that the 1992 easement governs the
property on which the accident took place, it argues that the easement does not
support Phillips’s argument because the city never exercised its right thereunder to
construct a stream bank protection structure. Phillips, however, argues that the city
utilized the easement when it constructed a fence on the land governed by the
easement. Even if Phillips is correct that the fence itself is governed by the easement
2 Phillips also argues that this case involves a proprietary function to the extent
that R.C. 2744.01(G)(2)(d), which delineates the “maintenance, destruction, operation, and upkeep of a sewer system” as a proprietary function for purposes of political- subdivision immunity. In the absence of any additional argument as to how this subsection applies to this case, which does not involve a sewer system, we decline to address this argument. and that the city constructed the fence, Phillips points to nothing supporting his
conclusion that the construction of the fence constitutes a proprietary function for
purposes of R.C. 2744.02(B)(2); the construction of the fence was not akin to the
establishment, maintenance, and operation of a utility.
Moreover, Phillips’s negligence claims in this case do not relate to a
stream bank protection structure; they arise out of the condition of the fence itself
and the condition of the road — addressed in our analysis of Phillips’s fourth
assignment of error.
Following a thorough review of the record, we cannot conclude that
Phillips has satisfied his burden to show that the exception to immunity in
R.C. 2744.02(B)(2) applies. Therefore, Phillips’s second assignment of error is
overruled.
III. Exception to Immunity – R.C. 2744.02(B)(4)
In Phillips’s third assignment of error, he argues that the trial court
erred in granting summary judgment to Independence because the manifest weight
of the evidence demonstrated that the R.C. 2744.02(B)(4) exception to political
immunity applied. Specifically, Phillips argues that because the new fence installed
to replace the fence where the accident occurred is of a “contiguous and continuous
nature” that replicates the existing fencing around the Independence City Hall, the
fence is part of Independence’s building and grounds.
R.C. 2744.02(B)(4) provides:
Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.
To satisfy his burden of showing that the R.C. 2744.02(B)(4)
exception applies, Phillips must show not only that the fence was “within or on the
grounds” of city property, but also that his injury was due to “physical defects” of the
fence.
In his brief in opposition to the city’s motion for summary judgment,
Phillips asserted that the fence was inadequate and deficient. Specifically, Phillips
argued that using a steel bar at the top of a chain link fence was contrary to
guidelines governing guardrails and fencing. His assertion that the fence was not
the appropriate type is not in itself an assertion that the fence was defective.
Therefore, Phillips does not present any evidence that the fence itself was marred by
any “physical defects.” As such, he has not satisfied his burden of showing that the
R.C. 2744.02(B)(4) exception to immunity applies. Therefore, Phillips’s third
assignment of error is overruled.
IV. Ownership of the Fence
In Phillips’s first assignment of error, he argues that the trial court
erred by failing to address the ownership of the fence. Specifically, Phillips argues
that all evidence in the record indicates that the fence was owned and negligently
maintained by the city. Even if we agree with Phillips as to ownership of the fence, nowhere
in Phillips’s argument does he explain how the fact of ownership, alone, has any
bearing on the city’s immunity under R.C. 2744.02. In light of our conclusions
related to Phillips’s second and third assignments of error, because Phillips is unable
to show that any exception to immunity related to the fence applies in this case, any
question related to the ownership of the fence has no bearing on the outcome of
Phillips’s appeal. Therefore, our decision regarding Phillips’s second and third
assignments of error renders his first assignment of error moot.
V. Exception to Immunity – R.C. 2744.02(B)(3)
In Phillips’s fourth and final assignment of error, he argues that the
trial court erred in granting summary judgment to Independence in light of
uncontroverted expert evidence that the failure to maintain the roadway was the
actual cause of Phillips’s leaving the roadway leading to injuries, an exception to
political immunity pursuant to R.C. 2744.02(B)(3).
R.C. 2744.02(B)(3) provides:
Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads, except that it is a full defense to that liability, when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge.
Further, R.C. 2744.01(H) defines “public roads” as “public roads, highways, streets,
avenues, alleys, and bridges within a political subdivision.” The statute further
explicitly states, in relevant part, that the definition of public roads “does not include berms, shoulders, rights-of-way, or traffic control devices. . . .” R.C. 2744.01(H). In
the context of R.C. 2744.02(B)(3), “in repair” has been interpreted to include
““‘fixing holes or crumbling pavement,” i.e., repairing potholes, when a road is
deteriorating.’” Nadrowski v. Cleveland, 2022-Ohio-3232, ¶ 14 (8th Dist.), quoting
Todd v. Cleveland, 2013-Ohio-101, ¶ 15 (8th Dist.), quoting Crabtree v. Cook, 2011-
Ohio-5612, ¶ 27 (10th Dist.).
Unlike in his other arguments, in which Phillips asserts that the fence
was the cause of his injuries, Phillips asserts here that the initial cause of his accident
was his car “striking a large pothole and loose pavement on the roadway[,]” after
which his car veered off the road, over the sidewalk, and into the fence.
Phillips’s second amended complaint alleged that his vehicle left the
road, and more specifically alleged that he “hit the shoulder of the road and was
pulled off the road by the uneven surface.” The complaint made no other allegations
regarding the condition of the road. In his brief in opposition to the city’s motion
for summary judgment, Phillips asserted that prior to hitting the fence, his vehicle
hit a “severely deteriorated section of the road.”
Phillips also attached an expert report to his brief in opposition from
David Bentkowski (“Bentkowski”), who identified himself as an attorney, former
mayor of a community near where the accident occurred, and family friend of
Phillips. Bentkowski’s expert report made two references to the “deteriorated” road;
the report also included several photographs of the road and extensive narrative descriptions of these photographs.3 Bentkowski maintained that the city
inappropriately used a crack sealing technique to repair severely damaged asphalt,
and he further made numerous legal conclusions throughout the report, including
that the city’s failure to maintain the road constituted negligence.
Despite these assertions, in Phillips’s deposition testimony, he states
multiple times that he does not remember anything about how the accident
occurred; the last thing he remembers is dropping his son off at daycare shortly
before the accident. Further, the record contains multiple references to the accident
occurring after Phillips fell asleep at the wheel; this includes a statement made by
Phillips himself to his physical therapist.
First, to the extent that Phillips’s argument is that the shoulder of the
road was uneven or deteriorated, this argument cannot satisfy his burden of proving
that the R.C. 2744.02(B)(3) exception to immunity applies, given that the statute
specifically excludes the shoulder of the road. Further, Phillips’s argument that the
R.C. 2744.02(B)(3) exception to immunity applies is undermined not only by his
earlier arguments, but also by the balance of the evidence in the record, including
Phillips’s own statements regarding how the accident occurred. Specifically, there
is no evidence in the record that the accident was caused by a defect in the roadway.
Although Phillips’s expert report states that it was the expert’s belief that Phillips hit
a severely deteriorated section of asphalt and this caused him to lose control of his
vehicle, the expert has no qualifications as an accident reconstructionist and his
3 The photographs included in this court’s record are largely illegible. report contains no scientific analysis of how or why the vehicle left the roadway. The
expert’s unsupported “belief” is not evidence. Because Phillips has failed to point to
any evidence creating a genuine issue of material fact as to the city’s maintenance of
the road, he cannot show that the R.C. 2744.02(B)(3) exception to immunity applies.
For these reasons, Phillips’s fourth 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.
WILLIAM A. KLATT, JUDGE*
MICHELLE J. SHEEHAN, P.J., and EMANUELLA D. GROVES, J., CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of Appeals.)