This writer dissents from the majority, which concluded that the judgment granting summary judgment in favor of appellee should be reversed and remanded. It is evident that appellants submitted no affidavits or other evidential material relating to the issue of immunity in response to appellee's motion for summary judgment.
Further, appellants argued that the unreasonable use of water is always negligence; thus, precluding the need to plead or prove negligence. Appellants' argument on appeal pertains only to the applicability of the doctrine of sovereign immunity that was asserted by appellee in its summary judgment motion. It is noted that appellants did not set forth any other claims that were argued by appellee in its summary judgment motion. In Nelson v. Conneaut Twp. Park Dist. Bd. of Park Commrs., 11th Dist. App. No. 2001-A-0016, 2002 WL 5356, 2001-Ohio-7060, ¶ 22, this court noted that the Supreme Court of Ohio had stated that, in order for local governments to continue to function effectively, some forms of municipal sovereign immunity must necessarily exist. Unless statutory immunity is provided, sovereign immunity is not available to a municipality in an action for damages alleged to be caused by the tortious conduct of the municipality. Strohofer v. Cincinnati (1983),6 Ohio St.3d 118, syllabus.
It is also this writer's position that negligence is not an element of the tort of unreasonable use of ground water pursuant to R.C.1521.17(B). Neither the Supreme Court of Ohio decision that created the tort of unreasonable use of ground water, nor its progeny refer to negligence as an element of that tort. See Cline v. Am. Aggregates Corp. (1984),15 Ohio St.3d 384, syllabus.
Therefore, it is my view that appellee was entitled to summary judgment since appellants have not proven that appellee engaged in any negligent conduct to establish an exception to immunity under R.C. 2744.02(B)(2). Appellants merely chose to rely on allegations of unreasonable use in their complaint. Appellants' complaint did not allege that appellee's employees performed negligently in the pumping of groundwater. Furthermore, appellee's actions were discretionary decisions made by high-ranking officials engaged in policy making, which are immune under R.C. 2744.03(A)(3). Lastly, appellee's actions were immune under R.C.2744.03(A)(5) as exercises of judgment in determining whether to acquire and how to use equipment, supplies, materials, personnel, facilities, and other resources, and appellants have not demonstrated malicious purpose, bad faith, or willful and wanton conduct in appellee's exercise of those functions.
This writer also adds that in the Village of Brady Lake v. Kent (Nov. 3, 1995), 11th Dist. No. 94-P-0047, 1995 WL 803615, the plaintiffs' water wells at their individual residences went dry as the result of the defendant's pumping of ground water at its municipal well field. At the time the plaintiffs first discovered the problem, a cause of action for this type of injury could not be maintained under Ohio law. However, after the problem had been remedied, the Supreme Court recognized such a cause of action in Cline, supra. Eight years after Cline, the plaintiffs in the village of Brady Lake filed an action seeking damages for the loss of the well water, but the trial court dismissed the action because it was barred by the statute of limitations. This court agreed with the trial court and stated that:
"* * * even though Cline set forth a new common law ruling which is to be applied retrospectively, it did not commence a new period of limitation with respect to injuries which occurred and were completed prior to the announcement of the decision. * * * Therefore, even though [the plaintiffs] were not aware that they had a cause of action until the Cline decision in 1984, their cause of action arose in 1982 when they drilled new wells and their injuries ceased." Id. at 2, citing Carter v. Am. Aggregates Corp. (1992), 82 Ohio App.3d 181.
Thus, pursuant to the 1995 Brady Lake decision, a cause of action accrues when the injury occurs, even if the cause of action has not been recognized under Ohio law at that time. Moreover, if the running of the applicable statute of limitations ends before the cause of action is recognized, the cause of action of the injured party is extinguished and cannot be resurrected even after the cause of action is recognized.
The appellants in Brady Lake also argued that their claims were not time-barred because the acts of appellee, the city of Kent, constituted a continuing tort. We stated that:
"* * * Even if the doctrine of continuing tort applies, a cause of action accrues when a person suffers injury. Unless [the plaintiffs] established that they suffered injury within the limitations period, their claims are barred. * * *
"The continuing injury to which [the plaintiffs] refer is damage to the quality of their water. Although the water quality issue was raised and supported on summary judgment, [the plaintiffs] did not allege these damages in their complaint. In their complaint, [the plaintiffs] allege damages relating only to water quantity, not quality. [The plaintiffs'] complaint alleges that [the defendant's] withdrawal of groundwater `unreasonably restrained and interfered with the daily household and personal use of said water,' necessitated the drilling and installation of deeper wells, and caused the fair market value of their residences to depreciate. While the damages have been alleged in general terms, nothing has been alleged which is broad enough to encompass damages based on the quality of the water.
"Therefore, [the plaintiffs'] damage claim is based on the quantity, not the quality, of their water supply. It is undisputed that [the plaintiffs] no longer suffer from dry wells. Therefore the continuing tort doctrine will not save their claims." Id. at 3.
In the instant matter, it is this writer's view that appellants' contentions do not fit under any exception to immunity which is set forth in R.C. 2744.02(B)(2). It is also my position that immunity was granted to appellee as to its operation of a municipal corporation water supply company, and, pursuant to R.C. 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 or an employee of the political subdivision in connection with a governmental or proprietary function." Thus, it is my opinion that appellants failed to satisfy their burden under Civ.R. 56(E) by setting forth specific facts to show that there was a genuine issue of material fact that remained to be litigated as did the appellants in the Brady Lake decision issued by this court in 1995. It would appear that appellants' ultimate solution to their plight lies with the legislature. For these reasons, I, therefore, dissent from the majority.