Georgantonis v. Reading

[Cite as Georgantonis v. Reading, 2020-Ohio-3961.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

KYRIAKOS GEORGANTONIS, : APPEAL NO. C-190615
TRIAL NO. A-1805317
DIAMANTO GEORGANTONIS, :

ELENI GEORGANTONIS, : O P I N I O N.

PANAGIOTIS GEORGANTONIS,
:
and
:
YIANNI GEORGANTONIS,
:
Plaintiffs-Appellants,
:
vs.
:
CITY OF READING, OHIO,
:
Defendant-Appellee,
:
and
:
HUBBELL, INC.,

HUBBELL LENOIR CITY, INC., :

SHELL OIL COMPANY, :

STRONGWELL CORPORATION, :

LONE STAR INDUSTRIES, INC., :

RICHARDS ELECTRIC SUPPLY CO., :
INC.,
:
and
:
JOHN OR JANE DOES,

Defendants. :
 OHIO FIRST DISTRICT COURT OF APPEALS

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 5, 2020

Flagel & Papakirk LLC, James Papakirk and Gregory E. Hull, for Plaintiffs-
Appellants,

Schroeder, Maundrel, Barbiere & Powers, Lawrence E. Barbiere and Katherine L.
Barbiere, for Defendant-Appellee.

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MYERS, Presiding Judge.

{¶1} Kyriakos Georgantonis, Diamanto Georgantonis, Eleni Georgantonis,

Panagiotis Georgantonis, and Yianni Georgantonis (“the plaintiffs”) appeal the

decision of the trial court granting a Civ.R. 12(C) motion for judgment on the

pleadings in a personal-injury case in favor of defendant-appellee, the city of

Reading, Ohio, based on governmental immunity.

I. Factual and Procedural Background
{¶2} On October 4, 2016, Kyriakos Georgantonis, an employee of the

Pastrimas Painting Company, was painting the side of a building on West Benson

Street in Reading, Ohio. Georgantonis was working from the platform of a scissor lift

raised to a height of approximately 20 feet, which he had moved into place on the

sidewalk in front of the building.

{¶3} When Georgantonis parked the scissor lift, one of the tires of the

scissor lift was positioned on top of the cover of an electric service box that had been

installed by the city. As Georgantonis was working, the cover of the service box

fractured, causing the scissor lift to topple over and crash onto the sidewalk and

causing Georgantonis to fall to the sidewalk and sustain injuries.

{¶4} The plaintiffs filed a complaint and an amended complaint, alleging

negligence claims against the city, and products-liability claims against companies

involved in the manufacturing and/or supply of the service box.

{¶5} The city moved for judgment on the pleadings. The city argued that it

was entitled to immunity on the plaintiffs’ claims because their allegations of

negligence concerned the maintenance and repair of a public sidewalk, which is a

governmental function. The plaintiffs opposed the city’s motion, arguing that the

installation, inspection and maintenance of the service box were proprietary

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functions. The plaintiffs also filed a motion for partial summary judgment against

the city, challenging the city’s claim of immunity and seeking judgment as to liability.

{¶6} The trial court determined that the city was entitled to immunity

because the maintenance of the city’s sidewalk was a governmental function, and

that even if the amended complaint alleged injury in connection with the city’s

street-light system, the provision of street lights is a governmental function. The

court granted judgment on the pleadings in favor of the city and overruled the

plaintiffs’ motion for partial summary judgment. The plaintiffs now appeal.

{¶7} In a single assignment of error, the plaintiffs argue that the trial court

erred in granting judgment on the pleadings in favor of the city and in denying

partial summary judgment in their favor on the issue of governmental immunity

II. Motion for Judgment on the Pleadings
{¶8} Dismissal on a Civ.R. 12(C) motion for judgment on the pleadings is

proper when a court construes as true the material allegations in the complaint,

along with all reasonable inferences to be drawn therefrom, and finds, beyond doubt

that the plaintiff can prove no set of facts that would entitle the plaintiff to relief.

Retirement Corp. of Am. v. Henning, 1st Dist. Hamilton No. C-180643, 2019-Ohio-

4589, ¶ 15. We review a trial court’s ruling on a Civ.R. 12(C) motion for judgment on

the pleadings de novo. Steele v. Cincinnati, 1st Dist. Hamilton No. C-180593, 2019-

Ohio-4853, ¶ 14.

{¶9} A trial court may grant a motion for judgment on the pleadings on the

basis of an affirmative defense such as immunity where the complaint bears

conclusive evidence that the action is barred by the defense. Id. at ¶ 15. A court may

not grant a motion for judgment on the pleadings unless the pleadings “obviously or

conclusively” establish the affirmative defense. Id.; Cristino v. Bur. of Workers’

Comp., 2012-Ohio-4420, 977 N.E.2d 742, ¶ 21 (1oth Dist).

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III. Immunity under R.C. Chapter 2744
A. Three-Tiered Analysis
{¶10} R.C. Chapter 2744 establishes a three-tiered analysis for determining
whether a political subdivision, such as the city, is immune from liability. R.K. v.

Little Miami Golf Ctr., 2013-Ohio-4939, 1 N.E.3d 833, ¶ 8 (1st Dist.); Steele at ¶ 17.

First, R.C. 2744.02(A)(1) sets forth a general grant of immunity for political

subdivisions for damages in a civil action resulting from any act or omission of a

political subdivision or employee in connection with a governmental or proprietary

function. Second, R.C. 2744.02(B) sets forth various exceptions that, if applicable,

remove the initial grant of immunity. And third, if an exception applies to remove

immunity, immunity can be reinstated if the political subdivision can show that one

of the defenses contained in R.C. 2744.03 applies.

{¶11} The parties do not dispute that the city was entitled to an initial grant
of immunity under R.C. 2744.02(A)(1). But the plaintiffs contend that the exception

set forth in R.C. 2744.02(B)(2) applies to remove that immunity. R.C. 2744.02(B)(2)

provides that “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.” (Emphasis added.) The

plaintiffs argue that the city was engaging in a proprietary function when it

established a street-light system, and that the city negligently failed to inspect and

maintain components of that system, including the cover of the service box. The city

argues that the operation and maintenance of a street-light system is a governmental

function, and that, regardless, the plaintiffs’ amended complaint alleged negligence

related to sidewalk maintenance, which is specifically delineated as a governmental

function.

1. Governmental Function
{¶12} R.C. 2744.01(C)(1) defines a governmental function:

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“Governmental function” means a function of a political subdivision

that is specified in division (C)(2) of this section or that satisfies any of

the following:

(a) A function that is imposed upon the state as an obligation of

sovereignty and that is performed by a political subdivision voluntarily

or pursuant to legislative requirement;

(b) A function that is for the common good of all citizens of the state;

(c) A function that promotes or preserves the public peace, health,

safety, or welfare; that involves activities that are not engaged in or not

customarily engaged in by nongovernmental persons; and that is not

specified in division (G)(2) of this section as a proprietary function.

(Emphasis added.) R.C. 2744.01(C)(2) lists specific examples of governmental

functions, including “[t]he regulation of the use of, and the maintenance and repair

of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts,

and public grounds.” (Emphasis added.) See R.C. 2744.01(C)(2)(e).

2. Proprietary Function
{¶13} R.C. 2744.01(G)(1) defines a proprietary function:
“Proprietary function” means a function of a political subdivision that

is specified in division (G)(2) of this section or that satisfies both of the

following:

(a) The function is not one described in division (C)(1)(a) or (b) of this

section and is not one specified in division (C)(2) of this section;

(b) The function is one that promotes or preserves the public peace,

health, safety, or welfare and that involves activities that are

customarily engaged in by nongovernmental persons.

(Emphasis added.) R.C. 2744.02(G)(2) lists specific examples of proprietary

functions, including “[t]he establishment, maintenance, and operation of a utility,

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 OHIO FIRST DISTRICT COURT OF APPEALS

including, but not limited to, a light, gas, power, or heat plant, a railroad, a busline

or other transit company, an airport, and a municipal corporation water supply

system.” (Emphasis added.) R.C. 2744.02(G)(2)(c).

B. Sidewalk Maintenance
{¶14} The city claims that the allegations of the amended complaint establish
that any negligence was a result of its engaging in a governmental function, sidewalk

maintenance. Therefore, it claims immunity as a matter of law.

{¶15} In Burns v. City of Upper Arlington, 10th Dist. Franklin No. 06AP-
680, 2007-Ohio-797, the plaintiff was injured as she stepped onto a manhole cover

set in the sidewalk that led into the city’s sewer system. Burns at ¶ 12. The Tenth

District held that the city of Upper Arlington was engaged in a governmental

function because the manhole cover was part of the sidewalk. Id. at ¶ 16. The court

concluded that the city was entitled to immunity because “the conduct about which

[plaintiff] complains was the maintenance of a sidewalk, and not the maintenance of

a sewer.” Id. at ¶ 15. The court stated:

Although the manhole cover * * * was intended to provide access to the

sewer system, it was not, in and of itself, a part of that system. It was,

instead, intended to form part of the walkway for pedestrian traffic to

use, and was therefore part of the sidewalk.

Id.

{¶16} In Evans v. Cincinnati, 1st Dist. Hamilton No. C-120726, 2013-Ohio-

2063, the plaintiff tripped on a broken-off signpost located on a city sidewalk. Id. at

¶ 1. The plaintiff asserted that sign maintenance was a proprietary function because

signs on streets are customarily maintained by private persons. Id. at ¶ 11. This

court rejected the plaintiff’s argument, pointing out that R.C. 2744.01(G)(1)(a)

explicitly provides that to be proprietary, an activity must not be listed as

governmental, and sidewalk maintenance is specifically listed as governmental in

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 OHIO FIRST DISTRICT COURT OF APPEALS

R.C. 2744.01(C)(1)(e). Id. at ¶ 12. We found that, as in Burns, the conduct about

which the plaintiff complained—the city’s “failure to keep the sidewalk free of

obstructions like jagged signposts or manhole covers—falls within the ambit of the

city’s responsibilities in connection with sidewalks.” Id. at ¶ 12. We held that the city

was, therefore, entitled to immunity. Id. at ¶ 13. See Needham v. Columbus, 10th

Dist. Franklin No. 13AP-270, 2014-Ohio-1457 (holding that the city’s actions in

failing to remove from the sidewalk a bracket that had become detached from a trash

receptacle or to replace the trash receptacle were part of the city’s governmental

functions to maintain and repair sidewalks).

{¶17} Here, the allegations in the plaintiffs’ amended complaint related to a
defect in the sidewalk surface, rather than a defect in the street-light system

contained within the service box below the sidewalk. The plaintiffs alleged that the

cover of the service box was flush with the surface of the sidewalk, that the cover was

designed for use in “paved pedestrian areas, such as sidewalks,” and that, when the

scissor lift was parked on the sidewalk, one of its tires was parked on the cover of the

service box when the cover fractured, causing the scissor lift to topple onto the

sidewalk. As in Evans and Burns, the conduct about which the plaintiffs complain

implicates the city’s responsibilities in connection with sidewalks. See Evans at ¶ 10;

Burns at ¶ 15.

{¶18} The plaintiffs direct us to Scott v. Columbus Dept. of Pub. Util., 192
Ohio App.3d 465, 2011-Ohio-677, 949 N.E.2d 552 (10th Dist.), where the Tenth

District reversed the trial court’s Civ.R. 12(B)(6) dismissal of a plaintiff’s complaint

against the city on immunity grounds. The Scott plaintiff alleged that he stepped on

an improperly attached manhole cover in a sidewalk, causing his leg to drop into the

manhole. The Tenth District held that it was not beyond doubt that the plaintiff

could prove a set of facts, consistent with his complaint, establishing the city’s

liability with respect to the maintenance of the city sewer system, a specifically

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 OHIO FIRST DISTRICT COURT OF APPEALS

designated proprietary function. Id. at ¶ 11 and 18. The court found the case to be

distinguishable from Burns because the plaintiff alleged negligence with respect to

the city’s maintenance of the underlying support for the manhole cover, as opposed

to Burns which involved negligence relating to the manhole cover itself. Id. at ¶ 16;

see Fedarko v. Cleveland, 2014-Ohio-2531, 12 N.E.3d 1254 (8th Dist.) (distinguished

Burns because the Fedarko plaintiff stepped onto a manhole cover and fell into the

manhole whereas the plaintiff in Burns tripped on a manhole in a sidewalk and fell

onto the sidewalk). Here, however, the plaintiffs made no allegation that the city

negligently maintained the underlying support for the service box cover or the street

light components within the service box. Rather, the plaintiffs alleged that the cover

itself fractured, causing Georgantonis to fall onto the sidewalk.

{¶19} The plaintiffs cite two cases, Martin v. Gahanna, 10th Dist. Franklin
No. 06AP-1175, 2007-Ohio-2651, and Parker v. Distel Const., Inc., 4th Dist. Jackson

No. 10CA18, 2011-Ohio-4727, for the proposition that several courts “have rejected

the argument that the alignment of a cover within a sidewalk was somehow part of

the sidewalk.” However, neither of the cited cases involved a sidewalk or involved

the alignment of a cover, and each case involved a plaintiff who fell through an

uncovered entry and encountered the underground system below. In Martin, the

plaintiff stepped into an uncovered sewer drain located in the street, and in Parker,

the plaintiff fell into an uncovered pit located at the side of a city water meter. In

Martin, the court held that the need to inspect and replace missing components for

the safe operation of the storm-water system related to the maintenance and upkeep

of a sewer system, which is specifically designated a proprietary function. Martin at

¶ 17. In Parker, the court held that the lid of the water-meter pit was a safety feature

of the underground system that protected the public from falling into holes that led

underground and that therefore the lid was part of the maintenance of the water-

supply system, again, a specifically designated proprietary function. Parker at ¶ 23.

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 OHIO FIRST DISTRICT COURT OF APPEALS

Unlike Martin and Parker, the plaintiffs here did not allege that an injury occurred

anywhere other than on a sidewalk or that the injury occurred after a fall through an

uncovered entry into an underground sewer or storm water system. See Parker at ¶

17 and 23 (distinguishing Burns because the plaintiff in Parker had, like the

plaintiffs in both Martin and Scott, fallen through a hole and encountered the

underground system).

{¶20} Here, the plaintiffs complain that Georgantonis was injured when the
cover of the service box, which functioned as part of the sidewalk, failed. The

allegations relate to the city’s maintenance of the sidewalk, which is an enumerated

governmental function under R.C. 2744.01(C)(2)(e). Therefore, the city is entitled to

immunity.

C. Street Lighting
{¶21} Even if the plaintiffs’ allegations could be read to relate to the
operation and maintenance of the city’s street-lighting system, we hold that street

lighting is a governmental function under R.C. 2744.01(C)(1)(b) and (c).

1. Utility
{¶22} The plaintiffs argue that street lighting is a proprietary function under
R.C. 2744.02(G)(2)(c) because it is a “utility.” They acknowledge that the statute

lists certain types of utilities (such as light or power plants), but they contend that

the statute’s use of the term “utility” without a modifier, suggests that “utility” is not

limited to utility plants or public utilities. A “utility” is defined as a “business

enterprise that performs an essential public service and this is subject to

governmental regulation.” Black’s Law Dictionary (11th Ed.2019). They assert that

their amended complaint alleged that the city’s street-lighting system is a utility

within the meaning of the statute. However, while the factual allegations of a

complaint must be taken as true, unsupported legal conclusions are insufficient to

withstand a Civ.R. 12(C) motion. Johnson-Newberry v. Cuyahoga Cty. Child &

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 OHIO FIRST DISTRICT COURT OF APPEALS

Family Servs., 2019-Ohio-3655, 144 N.E.3d 1058, ¶ 14 (8th Dist.); Maternal

Grandmother v. Hamilton Cty. Dept. of Job & Family Servs., 1st Dist. Hamilton No.

180662, 2020-Ohio-1580, ¶ 21. The mere assertion that the street-lighting system is

a utility, without more, is insufficient to establish that it is a utility for purposes of

R.C. 2744.01(G)(2)(c). We find that by establishing a lighting system, the city is not

engaged in establishing, operating or maintaining a utility. Rather, we agree with

the Eighth District which held that street lighting is not specifically designated as a

proprietary function in R.C. 2744.01(G)(2). Ugri v. Cleveland, 8th Dist. Cuyahoga

No. 65737, 1994 WL 476377, *3 (Sept. 1, 1994).

2. Not Customarily Engaged in by Nongovernmental Persons
{¶23} Next, the plaintiffs argue that street lighting is a proprietary function
under R.C. 2744.01(G)(1). Under that provision, a function must satisfy both of the

following to be a proprietary function:

(a) The function is not one described in division (C)(1)(a) or (b) of this

section and is not one specified in division (C)(2) of this section; [and]

(b) The function is one that promotes or preserves the public peace,

health, safety, or welfare and that involves activities that are

customarily engaged in by nongovernmental persons.

(Emphasis added.) R.C. 2744.01(G)(1).

{¶24} The plaintiffs argue that providing street lighting is customarily
engaged in by private entities. The city argues on the other hand that street lighting

is not a proprietary function under R.C. 2744.01(G)(1) because it satisfies neither the

first or second prong of the statute’s conjunctive test.

{¶25} R.C. 2744.01(C)(1)(a) describes “[a] function that is imposed upon the
state as an obligation of sovereignty and that is performed by a political subdivision

voluntarily or pursuant to legislative requirement.” Neither party suggests that the

provision of street lighting is a function described in R.C. 2744.01(C)(1)(a). R.C.

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 OHIO FIRST DISTRICT COURT OF APPEALS

2744.01(C)(1)(b) describes “[a] function that is for the common good of all citizens of

the state.” The plaintiffs argue that the street-lighting system is not a function for

the common good of all state citizens because it is limited geographically to certain

streets and benefits only visitors to the nearby streets.

{¶26} In Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 559,
733 N.E.2d 1141 (2000), cited by the plaintiffs, the Supreme Court of Ohio

determined that the conducting of a hog show and investigation into the competition

benefitted only some Ohio citizens. See Ryll v. Columbus Fireworks Display Co.,

Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372, ¶ 24 (fireworks display

benefitted only some citizens of the state); Brown v. Lincoln Hts., 195 Ohio App.3d

149, 2011-Ohio-3551, 958 N.E.2d 1280, ¶ 20 (1st Dist.) (village’s act of sponsoring a

festival was for the particular benefit of the village and its current and past

inhabitants).

{¶27} However, where, as here, the function is related specifically to the
safety of the public, courts have found the function to be for the common good of all

state citizens, as set forth in R.C. 2744.01(C)(1)(b). See Nordonia Landscape

Supplies, LLC v. Akron, 2020-Ohio-2809, ___ N.E.3d ___, ¶ 10 (9th Dist.) (the

removal of ice and snow from public roads is for the good of all state citizens in that

it makes travelling by motor vehicle more convenient and safer); Nihiser v. Hocking

Cty. Bd. of Commrs., 4th Dist. Hocking No. 12CA18, 2013-Ohio-3849, ¶ 17

(designating street numbers and the development of an orderly system to do so

serves the common good of all state citizens); Lyons v. Teamhealth Midwest

Cleveland, 8th Dist. Cuyahoga No. 96336, 2011-Ohio-5501, ¶ 42 (provision of

emergency dispatch services is a function that serves the common good of all state

citizens); Svette v. Caplinger, 4th Dist. Ross No. 06CA2910, 2007-Ohio-664, ¶ 17

(county’s operation of the 9-1-1 service is a function performed for the good of all

state citizens). We hold that the city’s provision of street lighting on a public street

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 OHIO FIRST DISTRICT COURT OF APPEALS

serves the common good of all citizens of the state in accordance with R.C.

2744.01(C)(1)(b). The function does not satisfy the first prong of the conjunctive test

in R.C. 2744.01(G)(1)(a), and therefore is not a proprietary function.

{¶28} With respect to the second prong of R.C. 2744.01(G)(1)(b), the
plaintiffs concede that street lighting is a function that promotes or preserves the

public peace, health, safety, or welfare. The plaintiffs contend that street lighting

also satisfies the second provision of R.C. 2744.01(G)(1)(b) because it is an activity

customarily engaged in by nongovernmental persons in private settings such as

amusement parks and shopping centers. However, even if nongovernmental entities

customarily provide lighting within their own properties, they do not customarily

provide street lighting on public streets. See Ugri, 8th Dist. Cuyahoga No. 65737,

1994 WL 476377, at *3-4 (street lighting is not a function customarily engaged in by

nongovernmental persons).

{¶29} The plaintiffs cite two cases, Cleveland v. Pub. Util. Comm. of Ohio, 67
Ohio St.2d 446, 424 N.E.2d 561 (1981), and Ohio Power Co. v. Village of Attica, 19

Ohio App.2d 89, 250 N.E.2d 111 (3d Dist.1969), for the proposition that private

corporations often provide street-lighting services, as nongovernmental actors.

However, both cases involve the provision of street lighting by private companies to

political subdivisions, and neither addressed whether street lighting is an activity

customarily engaged in by nongovernmental persons. See Cleveland at 447-448;

Attica at 91. The fact that a political subdivision contracts with a private entity to

provide a governmental function does not transform the function into a proprietary

one. Lyons at ¶ 46-47; McCloud v. Nimmer, 72 Ohio App.3d 533, 595 N.E.2d 492

(8th Dist.1991). We hold that the provision of street lighting on a public street does

not satisfy the second prong set forth in R.C. 2744.01(G)(1)(b) because it does not

involve an activity that is “customarily engaged in by nongovernmental persons.”

Consequently, street lighting is not a proprietary function under R.C. 2744.01(G)(1).

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{¶30} Therefore, we hold that street lighting on a public street is a
governmental function under R.C. 2744.01(C)(1)(b), because it is for the common

good of all citizens of the state, and under R.C. 2744.01(C)(1)(c), because it promotes

or preserves the public peace, health, safety, or welfare and involves activities that

are not engaged in or customarily engaged in by nongovernmental persons.

IV. Conclusion
{¶31} Whether the allegations in the plaintiffs’ amended complaint relate to
sidewalk maintenance or to the operation and maintenance of a street-lighting

system, the functions involved are governmental functions. Because no exception

applies to remove the city’s immunity, the trial court did not err in determining that

the city was entitled to judgment on the pleadings. Given our holding that the city

was immune, we do not reach the plaintiffs’ argument as to the trial court’s denial of

summary judgment in their favor on the issue of liability. We overrule the

assignment of error and affirm the trial court’s judgment.

Judgment affirmed.

BERGERON and CROUSE, JJ., concur.

Please note:

The court has recorded its own entry this date.

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