[Cite as Mingle v. Cleveland, 2012-Ohio-4388.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
CHRISTOPHER MINGLE, et al. C.A. No. 26276
Appellees
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CITY OF CLEVELAND COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CV-2011-01-0308
DECISION AND JOURNAL ENTRY
Dated: September 26, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} The City of Cleveland’s Division of Water repaired a pipe that was leaking under
a parking lot in Reminderville, Ohio. When the workers finished repairing the pipe, they
backfilled the hole that they had dug, tamped the fill down, and drove a dump truck over it to
make sure it was safe. When Christopher Mingle later backed his truck over the site, however,
the fill collapsed and one of his truck’s tires sank into the hole. The jolt of the truck sinking into
the hole allegedly caused him personal injury. He sued the City for negligence. The City moved
for summary judgment, arguing that it was immune under Section 2744.02 of the Ohio Revised
Code. The trial court denied its motion, concluding that there was a genuine issue of material
fact regarding whether an exception to immunity applied. The City has appealed, arguing that
the court incorrectly denied its motion for summary judgment. We affirm because there is a
genuine issue of material fact regarding whether the City properly backfilled the hole.
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POLITICAL SUBDIVISION IMMUNITY
{¶2} “Determining whether a political subdivision is immune from liability . . .
involves a three-tiered analysis.” Lambert v. Clancy, 125 Ohio St. 3d 231, 2010–Ohio–1483, ¶
8. “The starting point is the general rule that political subdivisions are immune from tort
liability[.]” Shalkhauser v. Medina, 148 Ohio App. 3d 41, 2002–Ohio–222, ¶ 14. Under Section
2744.02(A)(1), “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 .
. . in connection with a governmental or proprietary function.” “At the second tier, this
comprehensive immunity can be abrogated pursuant to any of the five exceptions set forth at
R.C. 2744.02(B).” Shalkhauser, 2002–Ohio–222, at ¶ 16. “Finally, immunity lost to one of the
R.C. 2744.02(B) exceptions may be reinstated if the political subdivision can establish one of the
statutory defenses to liability.” Id.; see R.C. 2744.03(A).
PUBLIC ROAD
{¶3} The City’s first assignment of error is that the trial court incorrectly denied its
motion for summary judgment because the parking lot where the incident occurred is not a
public road. Under Section 2744.02(B)(3) of the Ohio 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 . . . .”
{¶4} In its decision, the trial court concluded that there was a genuine issue of material
fact regarding whether the City’s workers negligently performed a proprietary function under
Section 2744.02(B)(2) of the Ohio Revised Code. The court did not rely on Section
2744.02(B)(3) when it determined that the City was not entitled to summary judgment.
Accordingly, the City’s first assignment of error is overruled.
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NEGLIGENCE
{¶5} The City’s second assignment of error is that the trial court incorrectly denied its
motion for summary judgment because the record is devoid of evidence that its work was
improper or created a defective condition. It has argued that Mr. Mingle failed to establish that it
owed him a duty, that it breached that duty, or that any alleged breach was the proximate cause
of his injuries.
{¶6} Under Section 2744.02(B)(2) of the Ohio 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.” The
City has not disputed that it was engaged in a proprietary function when it repaired the water
pipe and backfilled the hole it had created. See R.C. 2744.01(G)(2)(c) (providing that the
definition of proprietary function includes “[t]he establishment, maintenance, and operation of .
. . a municipal corporation water supply system.”).
{¶7} Mr. Mingle submitted the deposition of Mark Shepard, a Cleveland water division
unit leader, who described the process his crew uses to backfill holes before leaving a job site.
According to Mr. Shepard, “[t]he trucks come; limestone, gravel, limestone-gravel mix, drop
part of the fill in slowly going in, tap it, raise it – drop it two feet in, tap it again, drop some more
in, tap it again until the hole gets to grade and then sometimes if it’s raining we leave it a little bit
higher.” He also said that, after the hole is filled, someone drives one of the City’s large
construction vehicles over the area to make sure it is safe for traffic.
{¶8} According to Jevon Woods, the unit leader for the crew that completed the repair
at issue in this case, after his crew finished repairing the pipe, “[I] had two tandem loads drop
backfill into the hole and leveled it off. . . . Backfill is made up of limestone and gravel mix. . . .
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After we leveled it off, we tamped it down with a heavy-duty tamper to make sure that it was
compact. . . . I next had the dump truck drive over the repaired hole to make sure it [was] safe
and compact.”
{¶9} Mr. Shepard described a process in which a hole is backfilled in increments:
applying fill, tapping it down, filling some more, tapping the additional fill down, and so on until
the hole is filled. Construing Mr. Woods’s statements in a light most favorable to Mr. Mingle, it
appears that his crew dumped all of the limestone and gravel in at once, not progressing in stages
like Mr. Shepard described. We, therefore, conclude that the trial court correctly concluded that
there is a genuine issue of material fact regarding whether the City improperly backfilled the
hole that allegedly caused Mr. Mingle’s injuries. The City’s second assignment of error is
overruled.
CONCLUSION
{¶10} The trial court correctly concluded that there is a genuine issue of material fact
regarding whether the City negligently backfilled the hole that allegedly caused Mr. Mingle’s
injuries. The judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
BARBARA A. LANGHENRY, Interim Director of Law, and JEROME A. “JAY” PAYNE, JR.,
Assistant Director of Law, for Appellant.
STEVEN A. MAURER and STEVEN S. FANNIN, Attorneys at Law, for Appellees.