[Cite as Essman v. Portsmouth, 2010-Ohio-4837.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
LARRY ESSMAN, et al., :
Plaintiffs-Appellees, : Case No. 09CA3325
vs. :
CITY OF PORTSMOUTH, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Lawrence E. Barbiere and Robert S. Hiller, 5300
Socialville-Foster Road, Suite 200, Mason, Ohio
45040
COUNSEL FOR APPELLEES: D. Joe Griffith, 144 East Main Street, P.O. Box 667,
Lancaster, Ohio 43130
_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 9-29-10
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment
finding that the City of Portsmouth, defendant below and appellant herein, is not entitled
to statutory immunity under R.C. Chapter 2744.
{¶ 2} Appellant raises the following assignment of error for review:
“THE TRIAL COURT ERRED IN DETERMINING
PORTSMOUTH WAS NOT ENTITLED TO
GOVERNMENTAL IMMUNITY PURSUANT TO CHAPTER
2744 OF THE REVISED CODE.”
SCIOTO, 09CA3325 2
{¶ 3} This case involves the city’s liability for flooding damage that appellees, a
group of homeowners, suffered when the city’s sewer system backed up onto their
properties. Appellees’ properties are connected to the Lawson Run trunk line, which is
a combination storm water and sewage system. Lawson Run is the main trunk line
and empties into a diversion chamber at the city’s Waste Water Treatment Plant. The
water is pumped from the diversion chamber into the treatment plant, where the water
is treated before release into the Ohio River. The city can control the amount of water
that flows into the diversion chamber by raising or lowering the “weir gates.”
{¶ 4} The Ohio EPA regulates the city’s treatment plant and restricts any
discharge of untreated wastewater, known as a combined sewer overflow (CSO), into
the Ohio River. The EPA authorizes a CSO “only during wet weather periods when the
flow in the sewer system exceeds the capacity of the sewer system.” The EPA
requires the city to “[p]rovide for the maximum use of the collection system for storage
of wet weather flow prior to allowing overflows. [The city] shall maximize the in-line
storage capacity.” The EPA further prohibits the city from bypassing or diverting
wastewater from the treatment plant unless: “1. Bypass was unavoidable to prevent
loss of life, personal injury, or severe property damage; 2. There were no feasible
alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of
untreated wastes, or maintenance during normal periods of downtime. * * * *” The EPA
requires the city to “take all reasonable steps to minimize or prevent any discharge in
violation of this permit which has a reasonable likelihood of adversely affecting human
health or the environment.” In accordance with the EPA permit, the city attempts to
operate the treatment plant so as to prevent untreated wastewater from flowing into the
SCIOTO, 09CA3325 3
Ohio River. During wet weather events, the city uses the Lawson Run sewer system
as storage for the wastewater. This practice allegedly causes sewage to flood
appellees’ properties.
{¶ 5} On July 25, 2006, appellees re-filed a December 29, 2004 complaint
against appellant based upon repeated sewage intrusions that they have experienced
in their homes. They alleged that their homes have flooded with raw sewage on
“multiple occasions the past several years.” Appellees claimed that the flooding
resulted from appellant’s “over-burdened and poorly maintained sewer line facilities.”
Appellees’ causes of action asserted that: (1) appellant negligently failed to maintain,
repair, and upgrade its sewage line facilities, despite knowledge of the flooding
problems; (2) appellant negligently operated the sewer system “by purposely causing
an obstruction to be placed in the line through the closing of a gate which caused the
system to back up, altering the hydraulic grade of the system and ultimately causing”
appellees’ properties to become flooded with sewage; (3) appellant’s failure to properly
maintain and/or repair the sewage lines constitutes a qualified nuisance; (4) appellant’s
negligence caused some appellees to be exposed to “dangerous and noxious
chemicals and fumes”; (5) appellant’s negligence caused some appellees to suffer
property damage; and (6) appellant’s negligence caused some appellees to suffer loss
of consortium. Appellees additionally alleged that the flooding of raw sewage on their
premises constituted a taking of their properties and requested the court to order
appellant to institute appropriation proceedings. Appellees sought monetary damages,
equitable relief to compel appellant to “repair/maintain/upgrade its sewage facilities and
storm water drain runoff systems in order to prevent future harm,” costs and attorneys
SCIOTO, 09CA3325 4
fees, and, in the alternative, an order of mandamus to compel appellant to appropriate
appellees’ properties and to pay them the fair market value of their respective
properties.
{¶ 6} Appellant denied liability and further asserted that it is entitled to statutory
immunity under R.C. Chapter 2744.
{¶ 7} Subsequently, appellant requested summary judgment and argued, inter
alia, that it is statutorily immune from liability. Appellant asserted that appellees failed
to establish that its activities regarding the sewer system are anything other than
governmental. Appellant additionally contended that even if liability could be imposed
under an R.C. 2744.02(B) exception to immunity, its decision regarding the operation of
the sewer system involved the exercise of judgment and discretion, thus re-instating its
immunity under R.C. 2744.03(A)(5).
{¶ 8} Appellees memorandum contra to appellant’s summary judgment motion
asserted that appellant has known since the early 1970s that sewage backflow flooding
has existed in appellees’ neighborhood, yet appellant “has not instituted a routine
maintenance plan and the system continues to suffer from lack of maintenance which
has exposed [appellees] to constant and persistent flooding.” Appellees argued that
appellant is not entitled to statutory immunity for its failure to maintain the sewers and to
ensure that the sewer system is adequate to meet the city’s needs. To support their
claim that appellant negligently maintained the sewer system, appellees relied upon the
affidavit of their expert, Vincent Ricca, who opined:
“[T]he flooding via sanitary backflow for the event dates in
[appellees’] complaint experienced by the [appellees] at their respective
properties in Portsmouth, Ohio was caused by the negligent lack of sewer
SCIOTO, 09CA3325 5
system maintenance, which allowed storm water to enter the sanitary
sewers causing the sewer system to become overloaded and
overcharged, causing the sewer system to work improperly, causing
sewage backflows into the properties of [appellees]. The inflows of storm
water overloaded both the downstream and upstream sewer systems
which produced a surcharging of the lines, causing sewage flooding into
the residences of [appellees]. It is my opinion, based upon a reasonable
degree of engineering certainty that had the City of Portsmouth conducted
proper sewer maintenance on the sewer system in the area of [appellees’]
properties, the flooding events would not have occurred at the times
mentioned in [appellees’] complaint. It is further my opinion, based upon
a reasonable degree of engineering certainty, that the city of Portsmouth
was negligent in allowing additional development in an area where the
sewer system was already overloaded without first taking steps to
upgrade the sewer system to accept the additional sewage and storm
water surcharge and was negligent by failing to have a maintenance plan.”
{¶ 9} In his deposition, Ricca stated that the city’s sewer system is not
functioning properly and that to resolve the problem, the city needs to eliminate the old
system. He believed that the city’s failure to properly operate the Lawson Run trunk
sewer caused the flooding. He explained that when the city expected to have a
discharge into the Ohio River, the city closed the gate and held the storage back so that
it could treat the storm and sewage water before releasing it into the river. In his
opinion, he does not believe that the city should allow the system to become
overloaded in an effort to prevent a CSO. He stated that to resolve the problem, the
city should either open the weir gate (which would allow a CSO to occur) or build a new
sewer. He opined that if the city would allow the wastewater to flow into the Ohio River
untreated, the chance of appellees’ properties flooding is “greatly reduced.” Ricca
could not, however, state within a reasonable degree of certainty whether the raising of
the weir gate caused appellees’ flooding or whether the flooding was due to an overload
of the system from significant rain events. Ricca further opined that appellant was
SCIOTO, 09CA3325 6
negligent for allowing additional development to “hook[] into a system that already was
giving them problems for many years.” He stated, in essence, that appellant’s sewer
system is inadequate to handle the flow of water in the system. Ricca also stated that
appellant did not appear to have any defined procedure regarding the opening or
closing of the weir gates during wet weather periods and apparently left the decision to
the plant operator’s judgment.
{¶ 10} William E. Norris prepared the city’s Combined Sewer System Long Term
Control Plan. He agrees with Ricca’s analysis that the city’s sewer system is not large
enough to handle the flow of the storm waters. Norris stated: “It’s a self-evident
situation, that if the basements are flooding, there’s a sewer problem.” Norris further
explained: “[T]he city monitors the level of the water in that trunk sewer. And when it
approaches a point where [flooding] may become a risk, and I’m sure they have a fixed
policy for this, then they open the gates to relieve the sewer.” Appellees’ counsel
asked: “But in order to properly operate the system, there would need to be some kind
of policy in place as to how–what the water level of Lawson Run is?” Norris answered,
“Right.” Norris did not, however, determine how the city monitors the water level in
Lawson Run.
{¶ 11} Michael D. Shaw, a former city utilities director agreed with Ricca and
Norris that the current sewer system is overburdened and incapable of handling all of
the flow.
{¶ 12} David Vance, acting chief operator of the waste water treatment plant,
stated that if a plant operator completely raises the weir gates to the maximum height,
then water will probably back up into Lawson Run and “will probably start blowing
SCIOTO, 09CA3325 7
manhole lids off.” He stated that the city did not have a set policy regarding the
lowering or raising of gates, but left the decision to the individual operator’s discretion.
Vance further explained that the city’s general policy is to hold the water from bypassing
the treatment plant for as long as possible.
{¶ 13} On April 5, 2007, appellees filed an amended complaint and alleged that
appellant was negligent in the operation of the sewer system “by purposely causing an
obstruction to be placed in the line through the closing of a gate which caused the
system to back up, altering the hydraulic grade of the system and ultimately causing the
property of [appellees] to become flooded with raw sewage.” Appellant later filed a
supplement to its summary judgment motion that addressed appellees’ negligent
operation claim and asserted that no genuine issues of material fact remained
regarding that claim. Appellant argued that it operates the sewer system to comply
with EPA directives that require it to avoid polluting the Ohio River. Appellant argued
that the “EPA permit requires the maximum use of the Lawson’s Run collection sewer
system for storage of wet weather flow prior to allowing a CSO.” The permit states that
appellant “shall maximize the in-line storage capacity.” Appellant asserted that
allowing a CSO would violate the requirements of the EPA permit and result in
unnecessary pollution of the Ohio River. Appellant contended that its decision whether
to permit a CSO or to maximize the in-line storage capacity constitutes a discretionary
function for which it is entitled to sovereign immunity.
{¶ 14} Appellant submitted the affidavit of Richard Duncan, Director of
Wastewater at the City of Portsmouth Wastewater Treatment Plant, to support its
arguments. Duncan stated that under the EPA permit, the city is not allowed to
SCIOTO, 09CA3325 8
discharge any wastewater into the Ohio River or the Scioto River unless it abides by the
rules set forth in the permit. He stated that the EPA permit requires the city to
maximize the amount of wastewater, including storm water and sewage, from the
Lawson’s Run sewer system held in the diversion chamber so that the wastewater can
be treated prior to discharge in the Ohio River. Duncan explained that to prevent a
CSO, appellant must use portions of the Lawson Run sewer system as storage. By
placing the weir gates in the up position, the city maximizes the use of the diversion
chamber and allows the Lawson Run sewer to hold excess untreated wastewater.
Duncan averred that this practice not only complies with the EPA permit, but also
benefits the environment by reducing pollution to the Ohio River.
{¶ 15} In their memorandum contra, appellees alleged that the city’s claim that
the EPA permit requires it to keep the gates closed and to use the sewer system as a
holding tank is simply false. Appellees argued “[Appellant] in effect is saying to this
court that the Ohio EPA is requiring [appellee] to flood the homes of it’s [sic] residents
with sewage. This assertion is assinine. The Ohio EPA permit plainly states that
[appellee] is permitted to release effluent during wet weather periods when the flow
exceeds capacity. The Ohio EPA is not requiring [appellee] to flood the homes of it’s
[sic] residents with sewage.”
{¶ 16} On July 18, 2008, the trial court denied appellant’s summary judgment
request and determined that some evidence existed that appellant failed to develop “a
coherent maintenance plan for the sewers and [its] lack of maintenance to the sewers
may have caused the pled damages.” The court observed that a political subdivision is
not immune if it fails to maintain its sewer systems. The court found that appellant
SCIOTO, 09CA3325 9
“has mischaracterized [appellees’] complaint as being a claim against [appellee] for
failed design of the sewer system. [Appellees’] claim against [appellant] rests on the
notion that, due to failed maintenance the sewer system has become, in essence, a
combination sewer system by taking in excess rainfall through tree roots, cracks, and
decaying mortar joints in the sewage lines. This allegation is clearly one sounding in
negligent maintenance, not negligent design, and is supported by [appellees’] expert
witness.” The court, however, did not address appellees’ claim that appellant
negligently operated the sewer system.
{¶ 17} Appellant appealed the trial court’s decision that denied it statutory
immunity. Upon appeal, we determined that because the trial court’s decision did not
determine appellant’s liability with respect to appellees’ negligent operation claim, the
trial court’s judgment did not constitute a final, appealable order. See Essman v.
Portsmouth, Scioto App. No. 08CA3244, 2009-Ohio-3367. Thus, we remanded the
matter. On remand, the trial court determined that appellant is not entitled to immunity
regarding appellees’ claim that appellant negligently operated the sewer system so as
to cause appellees’ properties to flood. This appeal followed.
I.
{¶ 18} In its sole assignment of error, appellant asserts that the trial court wrongly
determined that it is not entitled to statutory immunity under R.C. Chapter 2744 and,
thus, improperly overruled its summary judgment request. Appellant contends that (1)
its design, planning, construction, or re-construction of the city’s sewer system is a
governmental function for which it is entitled to immunity; and (2) even if an exception to
immunity exists, R.C. 2744.03(A)(5) (the discretionary defense) re-instates its immunity
SCIOTO, 09CA3325 10
because its decision to avoid a CSO by using the sewer system as additional storage
during significant rain events amounts to a discretionary decision thus entitled to
immunity.
{¶ 19} Appellees strenuously dispute appellant’s assertion that their complaint
alleges negligent design or construction of the sewer. Rather, appellees maintain that
appellant is not immune from liability because their complaint alleges that appellant
negligently operated the sewer system. Appellees assert that appellant was negligent
in operating the system because (1) it failed to monitor the water level in the system so
as to prevent sewage intrusions on their properties, and (2) it did not have a wastewater
treatment plant policy regarding the raising or lowering of the weir gates to control the
water level in the sewer system. Appellees also argue that appellant is not entitled to
invoke the discretionary defense for its failure to properly operate the sewer system.
A
SUMMARY JUDGMENT STANDARD
{¶ 20} Appellate courts review trial court summary judgment decisions de novo.
Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.
Accordingly, appellate courts must independently review the record to determine if
summary judgment is appropriate. In other words, appellate courts need not defer to
trial court summary judgment decisions. See Brown v. Scioto Cty. Bd. of Commrs.
(1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153; Morehead v. Conley (1991), 75
Ohio App.3d 409, 411-412, 599 N.E.2d 786. Thus, to determine whether a trial court
properly awarded summary judgment, an appellate court must review the Civ.R. 56
summary judgment standard as well as the applicable law. Civ.R. 56(C) provides:
SCIOTO, 09CA3325 11
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case, 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.
{¶ 21} Accordingly, trial courts may not grant 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) it
appears from the evidence that reasonable minds can come to but one conclusion, and
after viewing the evidence most strongly in favor of the nonmoving party, that
conclusion is adverse to the party against whom the motion for summary judgment is
made. See, e.g., Vahila v. Hall (1997), 77 Ohio St.3d 421, 429-430, 674 N.E.2d 1164.
B
R.C. CHAPTER 2744
{¶ 22} R.C. Chapter 2744 establishes a three-step analysis to determine whether
a political subdivision is immune from liability. See, e.g., Cramer v. Auglaize Acres,
113 Ohio St.3d 266, 270, 2007-Ohio-1946, 865 N.E.2d 9, at ¶14. First, R.C.
2744.02(A)(1) sets forth the general rule that a political subdivision is immune from tort
liability for acts or omissions connected with governmental or proprietary functions.
See, e.g., Cramer; Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790
N.E.2d 781, at ¶7; Harp v. Cleveland Hts. (2000), 87 Ohio St.3d 506, 509, 721 N.E.2d
SCIOTO, 09CA3325 12
1020. The statute states: “Except as provided in division (B) of this section, a political
subdivision is not liable in damages 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 in connection with a governmental or proprietary
function.”
{¶ 23} Second, R.C. 2744.02(B) lists five exceptions to the general immunity
granted to political subdivisions under R.C. 2744.02(A)(1). See, e.g., Cramer; Ryll v.
Columbus Fireworks Display Co., 95 Ohio St.3d 467, 470, 2002-Ohio-2584, 769 N.E.2d
372, at ¶25. As relevant in the case sub judice, 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.
{¶ 24} Finally, if liability exists under R.C. 2744.02(B), R.C. 2744.03(A) sets forth
several defenses that re-instate a political subdivision’s immunity. See Cramer;
Colbert at ¶9. In the case at bar, appellant also claims that R.C. 2744.03(A)(5) applies:
The political subdivision is immune from liability if the injury, death, or loss
to person or property resulted from the exercise of judgment or discretion in
determining whether to acquire, or how to use, equipment, supplies, materials,
personnel, facilities, and other resources unless the judgment or discretion was
exercised with malicious purpose, in bad faith, or in a wanton or reckless
manner.
Whether a political subdivision is entitled to statutory immunity under R.C. Chapter
2744 presents a question of law. See, e.g., Conley v. Shearer (1992), 64 Ohio St.3d
284, 292, 595 N.E.2d 862; Murray v. Chillicothe, Ross App. No. 05CA2819,
2005-Ohio-5864, at ¶11.
{¶ 25} In the case sub judice, the parties do not dispute that appellant is entitled
SCIOTO, 09CA3325 13
to the general grant of immunity under R.C. 2744.02(A)(1). Instead, the dispute
focuses on whether the R.C. 2744.02(B)(2) exception to immunity applies, and, if so,
whether R.C. 2744.03(A)(5) re-instates immunity.
C
R.C. 2744.02(B)(2)
{¶ 26} Appellees assert that R.C. 2744.02(B)(2) excepts appellant from the
general grant of immunity. Appellees argue that their property damage resulted from
appellant’s negligent performance of a proprietary function. Appellees contend that
appellant was negligent in the “maintenance, * * * operation, and upkeep” of the sewer
system, which R.C. 2744.01(G)(2)(d) defines as a proprietary function.
{¶ 27} The city counters that appellees have failed to set forth any facts to show
that it was negligent in the maintenance, operation, or upkeep of the sewer system.
The city argues that a true analysis of the facts shows that appellees actually seek to
hold appellant liable for the design of the sewer system, which R.C. 2744.01(C)(2)(l)
defines as a governmental function. Thus, because appellees’ true complaints rest
upon a governmental function (i.e., its design of the sewer system), R.C. 2744.02(B)(2)
does not apply and the city is entitled to the R.C. 2744.02(A)(1) general grant of
immunity.
{¶ 28} R.C. 2744.02(B)(2) subjects a political subdivision to liability for “the
negligent performance of acts by their employees with respect to proprietary functions
of the political subdivisions.” Thus, before this provision removes a political
subdivision’s immunity, a plaintiff must demonstrate that the political subdivision’s
SCIOTO, 09CA3325 14
employees negligently performed a proprietary function. Accordingly, before R.C.
2744.02(B)(2) will remove a political subdivision’s immunity, the plaintiff must establish:
(1) the elements required to sustain a negligence action–duty, breach, proximate cause,
and damages; and (2) that the negligence arose out of a “proprietary function.” See,
generally, Gabel v. Miami E. School Bd. 169 Ohio App.3d 609, 2006-Ohio-5963, 864
N.E.2d 102, at ¶¶39-40. A “proprietary function” includes “[t]he maintenance,
destruction, operation, and upkeep of a sewer system.” R.C. 2744.01(G)(2)(d).
{¶ 29} Under R.C. 2744.02(B)(2), a political subdivision cannot be held liable for
the negligent performance of acts by their employees with respect to a governmental
function. A “governmental function” includes “[t]he provision or nonprovision, planning
or design, construction or reconstruction of * * * a sewer system.” R.C.
2744.01(C)(2)(l).
{¶ 30} In the case at bar, the initial inquiry is whether appellees’ allegations are
based upon appellant’s negligent performance of the maintenance, operation, or
upkeep of the sewer system, or whether they are based upon appellant’s planning or
design, construction or reconstruction of the sewer system.
{¶ 31} Ohio courts have long recognized that a city can be liable for the negligent
maintenance of its sewers. See Portsmouth v. Mitchell Mfg. Co. (1925), 113 Ohio St.
250, 255, 148 N.E. 846; Kiep v. Hamilton (May 19, 1997), Butler App. No. CA96-08-158
(“[I]f a city accepts the responsibility to maintain a sewer and is then negligent in its
inspection and/or maintenance of the sewer, the city may be liable for damages
proximately caused by its negligence.”). In Mitchell Mfg. Co., the Ohio Supreme Court
held:
SCIOTO, 09CA3325 15
“The weight of authority holds that the construction and institution
of a sewer system is a governmental matter, and that there is no liability
for mere failure to construct sewers. However, the weight of authority is
equally decisive in holding that the operation and upkeep of sewers is not
a governmental function, but is a ministerial or proprietary function of the
city.
The obligation to repair is purely ministerial. When, therefore, a
municipal corporation assumes the control and management of the sewer
or drain which has been constructed in a public street under its
supervision, it is bound to use reasonable diligence and care to keep such
sewer or drain in good repair, and is liable in damages to any property
owner injured by its negligence in this respect.”
(Citations omitted).
The court announced a similar rule in Doud v. Cincinnati (1949), 152 Ohio St. 132, 137,
87 N.E.2d 243:
“A municipality is not obliged to construct or maintain sewers, but
when it does construct or maintain them it becomes its duty to keep them
in repair and free from conditions which will cause damage to private
property * * *. The municipality becomes liable for damages caused by its
negligence in this regard in the same manner and to the same extent as a
private person under the same circumstances.”
{¶ 32} Determining whether an allegation of negligence relates to the
maintenance, operation, or upkeep of a sewer system or, instead, the design,
construction, or reconstruction of a sewer system is not always a simple inquiry.
However, some general rules have been established. For example, it appears to be
well-established that “decisions regarding sewer lines to be tapped into an existing
sewer constitute an operation or management of an existing sewer system” and not a
design, construction, or reconstruction issue. See Lancione v. Dublin (Sept. 29, 1992),
Franklin App. No. 92AP-244, citing Ball v. Reynoldsburg (1963), 175 Ohio St. 128, 192
N.E.2d 51; see, also, Sparks v. Erie County Bd. of County Com'rs (Jan. 16, 1998), Erie
App. No. E-97-007. Furthermore, when remedying the sewer problem would involve
SCIOTO, 09CA3325 16
little discretion but, instead, would be a matter of routine maintenance, inspection,
repair, removal of obstructions, or general repair of deterioration, then the complaint is
properly characterized as a maintenance, operation, or upkeep issue. See Martin v.
Gahanna, Franklin App. No. 06AP-1175, 2007-Ohio-2651, at ¶17 (stating that “the need
to inspect and replace missing components necessary for the safe operation of the
storm water system clearly falls within the definition of maintenance or upkeep of a
sewer system”); Zimmerman v. Summit County (Jan. 15, 1997), Summit App. No.
17610. When remedying a problem would require a city to, in essence, redesign or
reconstruct the sewer system, then the complaint presents a design or construction
issue. See Zimmerman. For example, in Zimmerman the plaintiff alleged that the
political subdivision negligently maintained and operated the sewer system. The court
disagreed with the plaintiff’s characterization of the issue as negligent maintenance and
operation after it looked to what the political subdivision would be required to do to
remedy the problem. The court observed that remedying the problem would require
the city to essentially redesign the system. Thus, the plaintiff’s true allegation
constituted a claim of negligent design. The court explained:
“Plaintiffs’ claimed injuries and losses, however, were not caused
by defendant's maintenance and operation of its sewer system. Unlike
other cases in which Ohio courts have recognized that actions taken with
respect to sewer systems were proprietary in nature, plaintiffs’ claimed
injuries and losses did not arise from defendant's failure to repair damage
to the system, to inspect it, to remove obstructions, or to remedy general
deterioration. See Doud v. Cincinnati (1949), 152 Ohio St. 132 (city
allegedly failed to detect deterioration of sewer system) and Nice v.
Marysville (1992), 82 Ohio App.3d 109 (city failed to detect and repair
damage to sewer system). Instead, they resulted from defendant’s
original design and construction of the sewer system. As evidenced by
Jeffrey Lintern’s affidavit, defendant’s decision to pump sewage and rain
water into the stream was a response to the sewer system’s inability as
SCIOTO, 09CA3325 17
designed and constructed to handle the volume of materials that currently
pass through it. This was not a problem that defendant could remedy
through routine maintenance. It would require extensive redesigning and
reconstructing of the system to meet current demands.”
{¶ 33} Another rule courts have developed is that when a sewer system operates
as it was designed to do, a claim of negligent operation will fail. See Gabel, supra;
Alden v. Summit Cty. (1996), 112 Ohio App.3d 460, 463-464, 679 N.E.2d 36. In
Gable, the evidence showed that the wastewater treatment facility operated exactly as
planned and intended. The court observed that the facility was specifically designed to
discharge treated wastewater onto the plaintiffs’ property at the site of a stormwater
easement, and that is precisely what happened. The court thus concluded that the
plaintiffs could not establish that the political subdivision negligently operated the
facility.
{¶ 34} In Alden, the court likewise held that the plaintiffs failed to set forth
evidence to show that the county negligently maintained or operated the sewer system
when the system operated as intended and as planned. In Alden, the plaintiffs
experienced sewage intrusions onto their property when the sewer system became
overloaded following heavy rains. The sewer system was equipped with a bar screen
that allowed overflowing water from the sewer to escape from the system through a
bypass door. The bypass door emptied the overflowing water into a watercourse
(known as “Mud Brook”) that ran through the plaintiffs’ property. Unfortunately, the
overflowing water caused sewage intrusions on the plaintiffs’ property. The plaintiffs
sued the county and alleged, inter alia, negligent maintenance and repair of the sewer
system. The county argued that it was entitled to statutory immunity because the
SCIOTO, 09CA3325 18
system was originally designed with the bar screen and that the system operated as
designed. Nevertheless, the plaintiffs asserted that the county’s twenty-six year failure
to remedy the problem constituted negligence.
{¶ 35} To support its summary judgment request, the county presented the
affidavit of an expert who stated that the sewer system was designed to include a bar
screen and bypass line in order to prevent the main sewer line from clogging by
releasing excess rainwater and sewage, which, in turn, would prevent backups into
residential basements and out of manhole covers. The county’s expert testified that
the overflows occur due to severe rain storms and that these overflows occur even
though the county routinely inspects and cleans the sewer system. Although the
plaintiffs asserted that the county had negligently maintained the sewer system, the
court determined that none of the plaintiffs’ evidence rebutted the county’s evidence
that the sewer system was designed to include the bar screen and the bypass to
provide access for overflows and that the system operated as intended. The court
stated:
“The fact that the county designed the sewer system with the bar
screen and bypass as part of the system, with the intent to allow water
and sewage to escape onto land, supports the determination that this
decision was exercised as part of the county's governmental function. It
is apparent that the sewer system needs this type of mechanism to
accommodate the overflow. The decision to have the bar screen and
bypass and place it near Mud Brook was committed to the governmental,
and thus discretionary, function of the county.”
Id. at 464. The court thus concluded that although the plaintiffs attempted to couch
their complaint in terms of negligent maintenance or operation, their actual complaint
related to the original design of the system for which the city had immunity.
SCIOTO, 09CA3325 19
{¶ 36} In Duvall v. Akron (Nov. 6, 1991), Summit App. No. 15110, the court
examined the plaintiff’s allegations that the city negligently failed to keep the sewer in
repair to prevent sewer backups and determined that his true complaint was that the
city failed to update the sewer system despite a repeated history of sewage intrusions.
In Duvall, the plaintiff filed a complaint against the city after repeated sewage intrusions
into his home. He alleged that the city negligently failed to keep the sewer in repair
and to prevent sewage backups. The trial court determined that the city was entitled to
statutory immunity. On appeal, the court determined that the plaintiff failed to set forth
any facts to support his negligent maintenance theory. The court instead concluded
that the plaintiff’s true complaint was that the city failed to update the sewer system
despite the repeated history of sewage intrusions. The court found that the plaintiff’s
claim that the city negligently failed to update the sewer system did not constitute
negligence in the performance of a proprietary function, i.e., maintenance, operation, or
upkeep. Rather, the court determined that the decision to update an existing sewer
system constituted a discretionary, governmental function. The court explained:
“In responding to the motion for summary judgment, Duvall asserts
that the sewer line was altered from its original course, that the system is
inadequate to properly control the volume of use, that additional pumps
are needed, and that no action has been taken to alleviate the backups
despite regular inspections. Further, Duvall asserts that despite the
flooding, the city has failed to update the system. Duvall may be correct
in asserting that the system altered fifty-one years ago is inadequate to
meet the current residential demands and that pumps or a general update
of the system are indicated. Nevertheless, these remedies lie within the
discretionary governmental functions of Akron. Akron was immune from
liability when it exercised its judgment fifty-one years ago and planned
sewer construction calling for the sewer tie-in to be altered. Akron
remains immune from liability when it exercises its judgment in
determining whether to acquire equipment, such as pumps, and in
determining how to allocate its limited financial resources, with regard to
SCIOTO, 09CA3325 20
updating the sewer system.”
{¶ 37} Although Duvall and Alden rejected claims that the political subdivision’s
failure to update an inadequate system constituted negligent maintenance, operation,
or upkeep, other courts have concluded that “the failure to upgrade sewers that are
inadequate to service upstream property owners despite sufficient notice of the
inadequacy can best be described as a failure to maintain or upkeep the sewer.” H.
Hafner & Sons, Inc. v. Cincinnati Metro. Sewer Dist. (1997), 118 Ohio App.3d 792, 797,
694 N.E.2d 111, appeal not allowed, 79 Ohio St.3d 1460, 681 N.E.2d 442; see, also,
Moore v. Streetsboro, Portage App. No. 2008-P-0017, 2009-Ohio-6511. In Hafner, the
court held that the political subdivision is liable under R.C. 2744.02(B)(2) when it had
eleven years’ notice that the sewer overflowed onto the plaintiff’s property and when the
political subdivision did not take action to solve the problem. In Hafner, a combination
storm and sanitary sewer erupted and deposited sewage on the plaintiff’s property. To
prevent damage to the water treatment plant, the political subdivision controlled the
water that flowed into the treatment plant by closing a sluice gate. When the political
subdivision closed the sluice gate, the sewer backed up through manholes located on
the plaintiff’s property. This event happened on an annual basis. The political
subdivision knew of the sewage backup since 1983, but did nothing to alleviate the
problem. In seeking to hold the political subdivision liable, the plaintiff asserted that
the property damage resulted from the political subdivision’s operation of the sewer
system. The political subdivision argued that the damage resulted, instead, from its
design of the sewer system. Both parties agreed, however, that the political
subdivision’s decision to close the sluice gate caused the plaintiff’s damage.
SCIOTO, 09CA3325 21
{¶ 38} The trial court awarded summary judgment in the political subdivision’s
favor, but the court of appeals reversed that judgment. The appellate court determined
that whether the closing of the gate involved the exercise of judgment and discretion
and whether the political subdivision closed the gate in good faith amounted to
questions of fact. The court further determined that “the dispositive act” was the
political subdivision’s “failure to maintain the sewer servicing upstream property
owners–or more specifically, [the political subdivision’s] failure to upgrade the sewer
from its original design to adequately accept the flow of sanitary effluents, despite
eleven years of notice that the sewer periodically, and eventually annually, backed up
and deposited raw sewage and human waste on [the plaintiff’s] property.” Id. at 796.
The court held that “the failure to upgrade sewers that are inadequate to service
upstream property owners despite sufficient notice of the inadequacy can best be
described as a failure to maintain or upkeep the sewer.” Id. at 797.
{¶ 39} We find Hafner distinguishable from the case at bar. In Hafner, the court
did not expressly consider whether the city’s decision not to upgrade the system was
entitled to discretionary immunity under R.C. 2744.03(A)(5). Moreover, in Hafner,
unlike in the case at bar, the political subdivision did not have a competing concern of
preventing pollution to navigable waters. In the case at bar, appellant has competing
concerns: avoiding a CSO and preventing sewage intrusions onto its residents’
properties. Furthermore, to the extent our holding conflicts with Hafner, we disagree
with its holding. In particular, we believe that Hafner improperly interpreted R.C.
2744.01(G)(2)(d) so as to equate “upgrade” with “maintenance, operation, or upkeep.”
{¶ 40} In Washington Cty. Home v. Ohio Dept. of Health, 178 Ohio App.3d 78,
SCIOTO, 09CA3325 22
2008-Ohio-4342, 896 N.E.2d 1011, at 27-29, we set forth the analysis that we apply
when interpreting a statute:
“The interpretation of a statute involves a purely legal question.
Thus, we conduct a de novo review of a trial court’s judgment interpreting
a statute and afford no deference to the trial court’s interpretation of a
statute. See, e.g., Oliver v. Johnson, Jackson App. No. 06CA16,
2007-Ohio-5880, 2007 WL 3227668, at ¶5.
In construing a statute, a court’s paramount concern is the
legislature’s intent in enacting it. See, e.g., State ex rel. Cincinnati
Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d
206, at ¶17; State ex rel. Russell v. Thornton, 111 Ohio St.3d 409,
2006-Ohio-5858, 856 N.E.2d 966, ¶11. ‘“‘The court must look to the
statute itself to determine legislative intent, and if such intent is clearly
expressed therein, the statute may not be restricted, constricted, qualified,
narrowed, enlarged or abridged; significance and effect should, if
possible, be accorded to every word, phrase, sentence and part of an act
* * *.’”’ State ex rel. McGraw v. Gorman (1985), 17 Ohio St.3d 147, 149,
17 OBR 350, 478 N.E.2d 770, quoting Wachendorf v. Shaver (1948), 149
Ohio St. 231, 36 O.O. 554, 78 N.E.2d 370, paragraph five of the syllabus.
To determine legislative intent, a court must ‘“‘read words and phrases in
context and construe them in accordance with rules of grammar and
common usage.’”’ Id., quoting State ex rel. Russell v. Thornton, 111 Ohio
St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶11. ‘“In construing the
terms of a particular statute, words must be given their usual, normal,
and/or customary meanings.”’ Proctor v. Kardassilaris, 115 Ohio St.3d 71,
2007-Ohio-4838, 873 N.E.2d 872, ¶¶ 12.
When the language of a statute is plain and unambiguous and
conveys a clear and definite meaning, there is no need to apply rules of
statutory construction. Id.; see also Cline v. Ohio Bur. of Motor Vehicles
(1991), 61 Ohio St.3d 93, 96, 573 N.E.2d 77; Sears v. Weimer (1944),
143 Ohio St. 312, 28 O.O. 270, 55 N.E.2d 413, paragraph five of the
syllabus. However, when a statute is subject to various interpretations, a
court may invoke rules of statutory construction to arrive at legislative
intent. R.C. 1.49; Cline, supra; Carter v. Youngstown (1946), 146 Ohio
St. 203, 32 O.O. 184, 65 N.E.2d 63, paragraph one of the syllabus.”
{¶ 41} We begin our analysis of the statute by examining the plain meanings of
the terms “maintenance, operation, and upkeep” and “upgrade” to determine whether
the Hafner court properly found the terms to be synonymous. Webster’s Encyclopedic
Dictionary (1989) defines “maintenance” as “a maintaining or being maintained.” Id. at
SCIOTO, 09CA3325 23
601. “Maintain” is defined as “to cause to remain unaltered or unimpaired.” Id.
Webster’s does not define “unaltered or unimpaired,” but it does define “alter” and
“impair.” “Alter” means “to make different, modify, change.” Id. at 27. “Impair”
means “to lessen in quality or strength, damage.” Id. at 485. Merriam-Webster’s
online dictionary defines “maintenance” as “the act of maintaining: the state of being
maintained. http://www.merriam-webster.com/dictionary/maintenance. To "maintain"
means "to keep in an existing state (as of repair, efficiency, of validity): to preserve from
failure or decline." http://www.merriam-webster.com/dictionary/maintain. We find this
latter definition most appropriate to define the term "maintenance" as used in R.C.
2744.01(g)(2)(d). Thus, as used in the statute, "maintenance" means the act of
keeping the sewer in its existing state of repair and to preserve it from failure or decline.
{¶ 42} Webster’s defines “operation” as “the act of operating, or an instance of
this” or “the way in which a thing works.” Webster’s, supra, at 703. To “operate”
means “to be in action, function” or “to put into action, cause to work.” Id.
Merriam-Webster’s online dictionary defines “operation” as “performance of a practical
work or of something involving the practical application of principles or processes” or
“the quality or state of being functional or operative” or “a method or manner of
functioning.” http://www.merriam-webster.com/dictionary/ operation.
{¶ 43} Merriam-Webster’s defines “upkeep” as “the act of maintaining in good
condition: the state of being maintained in good condition.”
http://www.merriam-webster.com/dictionary/ upkeep. Webster’s defines “upkeep” as
“the maintenance of buildings, roads, equipment, etc.” Webster’s, supra, at 1081.
{¶ 44} An “upgrade” is but another word for improvement.
SCIOTO, 09CA3325 24
http://www.merriam-webster.com/dictionary/upgrade. Thus, to “upgrade” is to
“improve.” To improve means “to enhance in value or quality: make better.”
http://www.merriam-webster.com/ dictionary/improve. Because an upgrade to a sewer
system would mean enhancing the system’s value, upgrade is not synonymous with
upkeep. “Upkeep” means “the act of maintaining in good condition.” Upgrading a
sewer system would require more than retaining the system in good condition.
Upgrading involves more than simple maintenance. Rather, upgrading involves a
positive act of improvement. The Ohio General Assembly did not specify the upgrade
of a sewer system as a proprietary function. Thus, we believe that Hafner and Moore,
which hold that a failure to upgrade or update an inadequate sewer system is the
equivalent of a failure to maintain or upkeep, are misguided and do not apply a proper
statutory interpretation analysis. Rather, we believe that a political subdivision’s
decision regarding an upgrade of its sewer system is a governmental function. A
decision to upgrade requires a political subdivision to weigh various considerations,
including the availability of fiscal resources, the use and acquisition of additional
equipment, and the overall design of the system. See Duvall; Alden.
{¶ 45} With the foregoing principles in mind, we now examine appellees’
allegations to determine whether they allege negligence with respect to a proprietary
function or a governmental function. Appellees have alleged that the city failed to
properly maintain, operate, or upkeep the sewer system in the following respects: (1)
appellant allowed additional development without ensuring that the sewer system would
be adequate to serve the existing properties and the additional development; (2)
appellant failed to monitor the water levels in the sewer system so as to prevent
SCIOTO, 09CA3325 25
sewage intrusions onto appellees’ properties; (3) appellant failed to operate the weir
gates so as to prevent sewage intrusions onto appellees’ properties; (4) appellant failed
to define procedures regarding the raising or lowering of the weir gates for the
wastewater treatment plant operators to follow during wet weather periods; and (5)
appellant failed to upgrade the sewer system.
{¶ 46} We believe that when the city allowed additional development without
ensuring that the sewer system would be able to accommodate the increased flow, the
city did not fail to maintain, operate, or upkeep the system. The additional
development did not cause the sewer system to no longer be in good repair. The
sewer system remained the same. Any change that resulted was a change in the
above-ground development and this allegedly caused an increase in the water flow
through the sewers. However, an increase in the amount of water flowing through the
sewer does not fall within any of the definitions of maintenance, operation, or upkeep of
the sewer system. Cf. Ferguson v. Breeding (Aug. 25, 2000), Lawrence App. No.
99CA22 (concluding that a political subdivision is immune from liability when flooding to
private property was a result of an improperly designed sewer that was inadequate to
handle increased storm runoff). The structural components of the sewer system
continued to be maintained, operated, and kept in the same state. The only change in
the system was the amount of water that flowed through the system. Appellees’
allegation is that appellant failed to upgrade its sewers to handle increased flow. As
we determined, however, a city’s decision regarding an upgrade to its sewer system is a
governmental function for which it is entitled to immunity. Moreover, to remedy this
complaint, appellant would be required to perform extensive redesigning or
SCIOTO, 09CA3325 26
reconstructing of the sewer system. Although appellees’ couch this claim in terms of
negligent maintenance, operation, or upkeep, their true complaint is that the city simply
failed to upgrade the sewer system. We, therefore, do not believe that the city’s
decision to allow additional development in the area without a concomitant update to
the sewer system constitutes a failure to maintain, operate, or upkeep the sewer
system. See Duvall; Alden; Zimmerman. For this same reason, the city is entitled to
immunity regarding appellees’ claim that the city negligently failed to maintain, operate,
or upkeep the sewer by failing to upgrade the system.
{¶ 47} Next, we believe that the city is entitled to immunity with respect to
appellees’ claim that the city negligently operated the system by failing to monitor the
water levels. It is important to note that this particular sewer system is not designed to
have water monitors. Thus, the city is not improperly maintaining the sewer system in
its current state or failing to keep it in good repair. Furthermore, the city is not failing to
operate the system as it is intended to operate, i.e., without water monitors. The
allegation that the sewer system should have water monitors relates to the original
design of the system or a re-design of the current system. The city, therefore, is
entitled to immunity regarding this claim as it involves a governmental function, i.e., the
original design of the sewer system. See Alden.
{¶ 48} We, however, agree with appellees that the city could be subject to liability
under R.C. 2744.02(B)(2) for its operation of the weir gates. The weir gates are part of
the operation of the sewer system. Appellees allege that the city negligently operated
the gates by positioning them so that the excess wastewater is stored in the sewer
system, which allegedly results in the sewage intrusions on their properties. Appellees
SCIOTO, 09CA3325 27
claim that the city should position the gates to allow the excess wastewater to bypass
the water treatment plant and flow into the Ohio River. It is important to note that
appellees do not claim that the weir gates fail to function as intended, i.e., controlling
the flow of water into the diversion chamber. Instead, appellees complain about the
manner and method of the weir gate’s operation. Appellees basically assert that the
city has made poor decisions regarding the raising or lowering of the gates which, in
turn, allegedly resulted in the sewage intrusions. Although we have reservations about
whether this complaint concerns a proprietary function, for the limited purpose of
deciding this case, we will assume that it is. Thus, we believe for purposes of
argument, that appellees set forth sufficient facts to demonstrate the existence of
genuine issues of material fact regarding whether the city was negligent in its operation
of the sewer system’s weir gates. Some evidence exists that the position of the weir
gates during heavy rain events may contribute to the flooding of appellees’ properties.
Consequently, the city may be subject to liability under R.C. 2744.02(B)(2) regarding
appellees’ claim that it negligently operated the weir gates.
{¶ 49} Appellees further allege that the city negligently operated the system by
failing to set forth a procedure regarding the raising and lowering of the weir gates for
the plant operators to follow during wet weather periods. Appellees assert that the city
left the decision whether to raise or lower the weir gates to the individual operator’s
discretion. Appellees appear to believe that if the city had a defined procedure in
place, then the sewage intrusions would not have occurred. Although the city may not
have specified the exact procedure that the plant operators should have followed when
the water level exceeded the system’s capacity, the evidence shows that the city’s
SCIOTO, 09CA3325 28
general policy was to hold the excess water as long as possible to avoid a CSO. While
we question whether a defined procedure would have altered the city’s policy of
preventing a CSO as long as possible or preventing sewage intrusions onto appellees’
properties, we believe that a sufficient factual question remains regarding the city’s
negligence in this regard to subject it to liability under R.C. 2744.02(B)(2). The city,
therefore, is potentially subject to liability for its alleged negligent failure to define a
procedure for the plant operators to follow during wet weather periods.
{¶ 50} Appellees also allege that appellant negligently maintained the system
because it did not have any type of maintenance plan. However, even if we assume
that the city was negligent due to its failure to have a maintenance plan, appellees’
evidence fails to show how a maintenance plan would have prevented the sewage
intrusions. Moreover, appellees’ evidence does 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.
{¶ 51} Accordingly, based upon the foregoing reasons, we agree with appellees
that appellant may be subject to liability under R.C. 2744.02(B)(2) regarding their claim
that the city negligently operated the weir gates and their claim that the city was
negligent in its operation of the system for failing to have a defined policy regarding the
opening or closing of the weir gates. However, appellees have not produced any
evidence to support a claim of negligent maintenance. Thus, the city is entitled to
summary judgment regarding appellees’ negligent maintenance claim. Because the
remaining claims are based upon appellant’s alleged negligence in the performance of
its governmental functions, the city retains its R.C. 2744.02(A)(1) immunity with respect
SCIOTO, 09CA3325 29
to those claims.
D
R.C. 2744.03(A)(5)
{¶ 52} Although R.C. 2744.02(B)(2) may remove the city’s general grant of
immunity with respect to appellees’ negligent operation claims, R.C. 2744.03(A)(5) may
re-instate the city’s immunity. The statute provides:
{¶ 53} “The political subdivision is immune from liability if the injury, death,
or loss to person or property resulted from the exercise of judgment or discretion
in determining whether to acquire, or how to use, equipment, supplies, materials,
personnel, facilities, and other resources unless the judgment or discretion was
exercised with malicious purpose, in bad faith, or in a wanton or reckless
manner.”
{¶ 54} The R.C. 2744.03(A)(5) defense extends to activities that involve weighing
alternatives or making decisions involving a high degree of official judgment or
discretion. See Enghauser Mfg. Co. v. Eriksson Engineering Ltd.(1983), 6 Ohio St.3d
31, 451 N.E.2d 228, paragraph two of the syllabus. Political subdivisions are immune
from liability for “‘certain acts which go to the essence of governing,’ i.e., conduct
characterized by a high degree of discretion and judgment in making public policy
choices.” Butler v. Jordan (2001), 92 Ohio St.3d 354, 375, 750 N.E.2d 554, quoting
Enghauser Mfg. Co., 6 Ohio St.3d at 35. In other words, “‘immunity attaches only to
the broad type of discretion involving public policy made with the creative exercise of
political judgment.’” McVey v. Cincinnati (1995), 109 Ohio App.3d 159, 163, 671
N.E.2d 1288, quoting Bolding v. Dublin Local Sch. Dist. (June 15, 1995), Franklin App.
SCIOTO, 09CA3325 30
No. 94APE09-1307; see, also, Perkins v. Norwood City Schools (1999), 85 Ohio St.3d
191, 707 N .E.2d 868 (Cook, J., concurring).
{¶ 55} “To qualify for immunity, the subdivision’s function must require it to weigh
multiple considerations, ‘not merely to “rubber stamp” [a proposal] found to be in
compliance with all requisite technical requirements.’” Drew v. Laferty (June 1, 1999),
Vinton App. No. 98CA522, quoting Winwood v. Dayton (1988), 37 Ohio St.3d 282, 284,
525 N.E.2d 808. As we explained in Hall v. Ft. Frye Loc. School Dist. Bd. of Edn.
(1996), 111 Ohio App.3d 690, 699, 676 N.E.2d 1241: “Immunity operates to protect
political subdivisions from liability based upon discretionary judgments concerning the
allocation of scarce resources; it is not intended to protect conduct which requires very
little discretion or independent judgment. The law of immunity is designed to foster
freedom and discretion in the development of public policy while still ensuring that
implementation of political subdivision responsibilities is conducted in a reasonable
manner.” See, also, Hubbell v. Xenia 175 Ohio App.3d 99, 2008-Ohio-490, 885
N.E.2d 290, at ¶18, quoting Addis v. Howell (2000), 137 Ohio App.3d 54, 60, 738
N.E.2d 37 (“‘Some positive exercise of judgment that portrays a considered adoption of
a particular course of conduct in relation to an object to be achieved is required in order
to demonstrate an exercise of discretion for which R.C. 2744.03(A)(5) confers immunity
from liability on a political subdivision.’”).
{¶ 56} In the case at bar, we believe that the city’s operation of the weir gates so
as to regulate the water flow within its sewer system to prevent untreated wastewater
from flowing into the Ohio River constitutes a discretionary decision under R.C.
2744.03(A)(5). The EPA permit prohibits appellant from releasing untreated
SCIOTO, 09CA3325 31
wastewater into the Ohio River unless a bypass is “unavoidable to prevent * * * severe
property damage.” Appellant is entitled to exercise its discretion and judgment to
determine that any potential risk of flooding to appellees’ property did not constitute
“severe property damage” so as to warrant a bypass. Furthermore, the EPA permit
prohibits a bypass unless “[t]here were no feasible alternatives to the bypass, such as
the * * * retention of untreated wastes.” Consequently, the city is entitled to use its
exercise of judgment and discretion to interpret this provision to mean that it should
retain untreated wastewater as long as possible.
{¶ 57} Moreover, the city’s operation of the weir gates is based upon its
considered judgment in how to use its facilities, i.e., the sewer system and the
wastewater treatment plant. The city operates the weir gates to avoid a CSO. The
city has weighed the risk of polluting the Ohio River against the possibility that using the
Lawson Run sewer as storage for excess water may overload the system and
determined that the danger of polluting the Ohio River outweighs the danger of
overloading of the sewer system. The city attempts to maximize the storage capacity
to prevent the release of untreated sewage into the Ohio River. To prevent
overloading the system, the city would need to upgrade or expand the system at
considerable financial cost. Consequently, the city exercised its judgment and
discretion in determining not to allocate its limited financial resources to reconstructing
the sewer system. See Smith v. Stormwater Management Division (1996), 111 Ohio
App.3d 502, 676 N.E.2d 609 (concluding that decision to make improvements to an
existing sewer involves the exercise of judgment and discretion).
{¶ 58} We further note the city has not simply ignored appellees’ complaints of
SCIOTO, 09CA3325 32
sewage intrusions. Over the years the city attempted to determine the cause of the
sewage intrusions to see if the backups could be prevented or resolved. The
evidentiary material the parties submitted reveals that the city did not learn, before this
lawsuit was filed, of any correlation between its operation of the weir gates and the
flooding to appellees’ properties. Thus, the instant case is distinguishable from
Holbrook v. Brandenburg, Clark App. No. 2007CA106, 2009-Ohio-2320, appeal not
allowed, 123 Ohio St.3d 1409, 2009-Ohio-5031, 914 N.E.2d 205, in which the court
determined that the township’s decision to ignore years of complaints and requests for
help to stem the flooding constituted the exercise of “judgment or discretion” was a
question of fact.
{¶ 59} Additionally, the city is entitled to discretionary immunity regarding
appellees’ claim that it negligently operated the sewer system by failing to establish a
defined policy regarding the lowering or raising of the weir gates to prevent sewage
intrusions. The city’s implementation of a policy designed to control water flow through
its sewer system to prevent polluting the Ohio River smacks of a discretionary decision.
The undisputed evidence establishes that the city had a general policy of holding
untreated wastewater in the sewer system for as long as possible to prevent a CSO.
The treatment plant operators were aware of this general policy. The treatment plant
operators, as employees of the political subdivision, are entitled to use their individual
judgment and discretion to determine how to use the facility. See Ellston v. Howland
Loc. Sch., 113 Ohio St.3d 314, 2007-Ohio-, 865 N.E.2d 845, at syllabus (stating that a
political subdivision is immune under R.C. 2744.03[A][5] if alleged injury “resulted from
an individual employee’s exercise of judgment or discretion in determining how to use
SCIOTO, 09CA3325 33
equipment or facilities unless that judgment or discretion was exercised with malicious
purpose, in bad faith, or in a wanton or reckless manner”). Thus, the city is entitled to
assert the discretionary immunity defense regarding this negligent operation claim.
{¶ 60} Appellees nonetheless claim that even if the city’s decision regarding the
operation of the sewer system constituted an exercise of judgment and discretion under
R.C. 2744.03(A)(5), the city remains liable because it acted with malice, in bad faith,
wantonly, or recklessly. We initially note that appellees did not include an allegation of
malice, bad faith, or wanton or reckless conduct in their original complaint or any
subsequent amendments. Generally, if a complaint fails to allege that the political
subdivision acted with malice, bad faith, or wanton or reckless conduct, a court
reviewing a summary judgment decision may not consider this issue on appeal. See
Elston at ¶31; see, also, Smith v. Martin 176 Ohio App.3d 567, 2008-Ohio-2978, 892
N.E.2d 971, at ¶32 (refusing to consider arguments that political subdivision acted in
wanton or reckless manner when complaint failed to contain such allegations); Ohio
Bell Tel. Co. v. Digioia-Suburban Excavating, L.L.C., Cuyahoga App. No. 89708,
2008-Ohio-1409 (reversing trial court’s denial of summary judgment based on political
subdivision immunity when the plaintiffs alleged only negligence and not that the city
had acted with malicious purpose, in bad faith or in a wanton or reckless manner);
Knotts v. McElroy, Cuyahoga App. No. 82682, 2003-Ohio-5937 (upholding dismissal of
plaintiff’s complaint on the basis of political subdivision immunity when plaintiff did not
allege that the political subdivision acted with culpability greater than mere negligence).
Although we could reject appellees’ argument on the basis of their failure to allege
malice, bad faith, or wanton or reckless conduct in the original complaint or any
SCIOTO, 09CA3325 34
amendments, we will consider whether genuine issues of material fact remain as to
whether the city maliciously, in bad faith, or wantonly or recklessly operated the sewer
system.
{¶ 61} The term “malice” means the willful and intentional desire to harm another,
usually seriously, through conduct which is unlawful or unjustified. Hicks v. Leffler
(1997), 119 Ohio App.3d 424, 428-429, 695 N.E.2d 777. “Bad faith” implies sinister
motive that has “no reasonable justification.” Id. at 429. “Bad faith” embraces more
than bad judgment or negligence. Id., citing Parker v. Dayton Metro. Hous. Auth. (May
31, 1996), Montgomery App. No. 15556. It imports a “dishonest purpose, moral
obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive
or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or
deceive another.” Id.; Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio
App.3d 448, 454, 602 N.E.2d 363.
{¶ 62} Wanton misconduct has been defined as the failure to exercise any care
whatsoever. See Fabrey v. McDonald Village Police Dept. (1994), 70 Ohio St.3d 351,
356, 639 N.E.2d 31, citing Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 O.O.3d 243, 363
N.E.2d 367, syllabus. The Ohio Supreme Court has held that “‘mere negligence is not
converted into wanton misconduct unless the evidence establishes a disposition to
perversity on the part of the tortfeasor.’” See id., quoting Roszman v. Sammett (1971),
26 Ohio St.2d 94, 96-97, 55 O.O.2d 165, 269 N.E.2d 420. Such perversity requires
that the actor be conscious that his conduct will, in all likelihood, result in an injury.
See id. Moreover, the standard of proof to show wanton misconduct is high. Id.
{¶ 63} “Reckless” refers to conduct that causes an unreasonable risk of harm
SCIOTO, 09CA3325 35
and is “‘substantially greater than that which is necessary to make [an actor's] conduct
negligent.’” Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104-105, 559 N.E.2d 705,
quoting 2 Restatement of the Law 2d, Torts (1965) 587, Section 500. Likewise, an
individual acts recklessly when he or she, bound by a duty, does an act or intentionally
fails to do an act, knowing, or having reason to know of, facts that would lead a
reasonable person to realize not only that there is an unreasonable risk of harm to
another, but also that such risk is substantially greater than that which is necessary for
negligence. See Thompson, 53 Ohio St.3d at 104-105; see, also, Fabrey, 70 Ohio
St.3d at 356.
{¶ 64} The Ohio Supreme Court has offered additional guidance when
distinguishing between negligent conduct and reckless conduct:
“‘g. Negligence and recklessness contrasted. Reckless misconduct
differs from negligence in several important particulars. It differs from
that form of negligence which consists in mere inadvertence,
incompetence, unskillfulness, or a failure to take precautions to enable the
actor adequately to cope with a possible or probable future emergency, in
that reckless misconduct requires a conscious choice of a course of
action, either with knowledge of the serious danger to others involved in it
or with knowledge of facts which would disclose this danger to any
reasonable man. It differs not only from the above-mentioned form of
negligence, but also from that negligence which consists in intentionally
doing an act with knowledge that it contains a risk of harm to others, in
that the actor to be reckless must recognize that his conduct involves a
risk substantially greater in amount than that which is necessary to make
his conduct negligent. The difference between reckless misconduct and
conduct involving only such a quantum of risk as is necessary to make it
negligent is a difference in the degree of the risk, but this difference of
degree is so marked as to amount substantially to a difference in kind.’”
See Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 100, 559 N.E.2d 699, quoting 2
Restatement of the Law 2d, Torts (1965) 587, Section 500, comment g. Moreover, in
the context of R.C. 2744.03(A)(6)(b), recklessness is a perverse disregard of a known
SCIOTO, 09CA3325 36
risk. O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, at
¶73, citations deleted. The O’Toole court further cautioned courts not to view the
actor’s conduct with “20-20 hindsight,” but instead should focus on “the information and
circumstances the actor had before him at the time he chose to act.” See Marchant v.
Gouge, Richland App. No. 2009-CA-0143, 2010-Ohio-2273, at ¶37, explaining O’Toole.
The determination of whether conduct constitutes recklessness ordinarily rests within
the jury’s province. O’Toole at ¶75. When, however, the actor’s conduct “does not
demonstrate a disposition to perversity,” summary judgment may be appropriate. Id.
{¶ 65} In the case sub judice, appellees do not argue that the city acted
maliciously, in bad faith, or wantonly. Instead, they assert that the city recklessly
operated the sewer system. However, we believe that appellees have failed to set forth
any evidence to show that the city perversely disregarded a known risk when operating
the sewer system. Appellees have not produced any evidence to show that the city
knew that its raising or lowering of the weir gates to prevent a CSO caused appellees’
sewage intrusions. Moreover, even if such evidence existed, it would not be sufficient
to show a perverse disregard. Rather, even if the city knew of a correlation between
the raising or lowering of the weir gates and the sewage intrusions, its disregard of the
sewage intrusions was to prevent untreated wastewater to flow into the Ohio River.
Because this decision was a considered choice between two alternatives and involved
a weighing of the relative risks, the city’s decision cannot be considered perverse.
{¶ 66} Understandably, appellees are very angry and frustrated that the city has
not alleviated the flooding on their properties. However, the statutory immunity
provisions constrain us to conclude that appellees cannot seek relief through a
SCIOTO, 09CA3325 37
negligence action against the city to, in essence, compel it to redesign or reconstruct
the sewer system. Appellees may have established that an exception to immunity
exists, but the city demonstrated that it is nevertheless entitled to invoke the
discretionary defense. The city's operation of the wastewater treatment plant and the
entire sewer system to prevent the spilling of untreated sewage into the Ohio River is a
discretionary decision. Furthermore, appellees have not offered any evidence that the
city exercised its decision with malice, in bad faith, or in a wanton or reckless manner.
If we agreed with appellees that the city is not entitled to discretionary immunity with
respect to its operation of the weir gates, we would, in effect, dictate the city’s policy
regarding the control of its sewage water and requiring the city to allow the untreated
sewage to flow into the Ohio River rather than storing it in the sewer system until it can
be treated. As an appellate court, we do not believe that it is the judiciary's duty or
place to dictate a city’s policy regarding the operation of its sewer system in order to
prevent the pollution of a navigable watercourse. If landowners within the city seek a
system redesign or reconstruction, they must persuade city officials to consider their
views and, if appropriate, devote sufficient resources to achieve that goal.
{¶ 67} Accordingly, based upon the foregoing reasons, we hereby reverse the
trial court’s judgment and instruct the trial court to enter judgment for appellant on the
basis of statutory immunity consistent with the foregoing opinion and decision.
JUDGMENT REVERSED AND CAUSE
REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
1
THIS OPINION.
1
Although the dissent suggests that the principal opinion's interpretation of the
term “maintenance” is incorrect, we believe that the dissent's view extends the meaning
SCIOTO, 09CA3325 38
Kline, J., dissenting, in part, and concurring in judgment only,
in part.
{¶ 68} I respectfully dissent as to the negligent-maintenance
claim and concur in judgment only as to the negligent-operation claim.
Negligent-Maintenance Claim
{¶ 69} I respectfully dissent as to whether the City of Portsmouth
is entitled to immunity on the appellees’ negligent-maintenance
claim. Here, I agree with the First Appellate District’ s reasoning
in Hafner. As such, I find the following definition of “ maintenance”
of that term too far. The dissent, in essence, equates “maintenance” with suitability
and proposes that if the sewers are no longer adequate or suitable, then the city has
failed to maintain them. The dissent argues that “‘maintenance’ means ‘the labor of
keeping the sewer system suitable (1) to perform the tasks of a sewer system and/or (2)
to fulfill the purpose of a sewer system.’” The dissent reaches this conclusion after
employing the following definition of “maintenance:” “the labor of keeping something (as
buildings or equipment) in a state of repair or efficiency[.]” The dissent then looks to the
definition of “efficiency,” which it defines as “suitability for a task or purpose.” The
dissent then suggests that the city’s sewer system is not suitable for the task or the
purpose of sewer system. In our view, however, even if we agree that the sewer
system may arguably no longer meet the needs of its residents, the authorities cited in
the principal opinion conclude that this type of situation should not be equated to a
failure to maintain issue. Rather, a failure to maintain claim in the statutory immunity
context involves a ministerial duty. In the case at bar, the property owners essentially
request the city to redesign the system and a system redesign is not a ministerial
function.
We also recognize that, understandably, the aggrieved landowners involved in
this action may not either appreciate or be concerned with what they may perceive as
subtle nuances involved in this area of the law. Here, the landowners, through no fault
of their own, have suffered for years with the recurring problem. However, our decision
is based upon our understanding of Ohio case law, including Ohio Supreme Court
decisions, decisions from sister Ohio appellate districts and from our appellate district.
We hasten to add that we welcome further scrutiny in this matter and we encourage the
Ohio Supreme Court to further clarify this important area of the law.
SCIOTO, 09CA3325 39
to be more appropriate: “ the labor of keeping something (as
buildings or equipment) in a state of repair or efficiency[.]”
Webster’ s Third New International Dictionary, Unabridged (2002).
Furthermore, “ efficiency” may be defined as “ suitability for
a task or purpose[.]” Id. Thus, in the present case, I believe
“ maintenance” means “ the labor of keeping the sewer system suitable
(1) to perform the tasks of a sewer system and/or (2) to fulfill
the purpose of a sewer system.” Based on these definitions, I
believe that the appellees’ claim implicates a proprietary
function, not a governmental function. Because the city has allowed
further development without upgrading the sewer system, the
appellees’ essentially claim that the city has failed to keep the
sewer system suitable. Accordingly, I believe that the “
failure-to-upgrade” claim involves the maintenance of the sewer
system, and I would find that R.C. 2744.02(B)(2) applies.
{¶ 70} Regarding the third tier of immunity analysis, I would
find that R.C. 2744.03(A)(5) does not apply to the appellees’
negligent-maintenance claim. In Malone v. Chillicothe, Ross App.
No. 05CA2869, 2006-Ohio-3268, we held that, “ [b]ecause the proper
maintenance of a sewer is not a discretionary act, R.C. 2744.03(A)(5)
does not provide * * * an immunity defense.” Id. at ¶¶1. Here,
the city has chosen to implement a sewer system. As such, the city
must perform proper maintenance related to the sewer system – or,
in other words, the city must keep the sewer system suitable. The
SCIOTO, 09CA3325 40
failure to do so is not discretionary in nature. See id. at ¶¶27.
{¶ 71} Accordingly, I respectfully dissent, in part, and would
find that the City of Portsmouth is not entitled to immunity on the
appellees’ negligent-maintenance claim.
Negligent-Operation Claim
{¶ 72} I respectfully concur in judgment only as to the appellees’
negligent-operation claim. Here, I would not rely on cases such
as Enghauser or Butler. The Supreme Court of Ohio decided Enghauser
before the enactment of R.C. Chapter 2744, and Justice Cook’ s
concurring opinion in Butler discusses the common-law history of
political subdivision immunity. Therefore, I believe that, as
cited, Enghauser and Butler are inapplicable to the present case.
Nevertheless, I agree that R.C. 2744.03(A)(5) applies to the
appellees’ negligent-operation claim.
{¶ 73} Accordingly, for the foregoing reasons, I respectfully
dissent, in part, and concur in judgment only, in part.
JUDGMENT ENTRY
It is ordered that the judgment be reversed and cause remanded for further
SCIOTO, 09CA3325 41
proceedings consistent with this opinion. Appellant shall recover of appellees 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
Scioto 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.
*Klatt, J.: Concurs in Judgment & Opinion
Kline, J.: Concurs in Judgment Only with Opinion as to the
negligent-operation claim; Dissents with Dissenting Opinion as to the
negligent-maintenance claim
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.
*Judge William A. Klatt, of the Tenth District Court of Appeals, sitting by assignment of
the Ohio Supreme Court in the Fourth Appellate District.
Essman v. Portsmouth
Combined Opinion