Goebel v. Minster

[Cite as Goebel v. Minster, 2020-Ohio-5467.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY

EDWARD GOEBEL, ET AL.,

PLAINTIFFS-APPELLEES, CASE NO. 2-20-14

v.

VILLAGE OF MINSTER,

DEFENDANT-APPELLANT,
-and- OPINION

HELMS & SONS EXCAVATING, INC.

DEFENDANT-APPELLEE.

Appeal from Auglaize County Common Pleas Court
Trial Court No. 2020 CV 0052

Judgment Affirmed

Date of Decision: November 30, 2020

APPEARANCES:

Jane M. Lynch and Jared A. Wagner for Appellant

Sean R. Alto and Jeffrey T. Kenney for Appellee
Case No. 2-20-14

SHAW, P.J.

{¶1} Defendant-appellant, Village of Minster (“Minster”), brings this appeal

from the June 3, 2020 judgment of the Auglaize County Common Pleas Court

denying, in part, its Civ.R. 12(B)(6) motion to dismiss the complaint of Edward and

Lisa Goebel, et al (collectively, “appellees”). On appeal, Minster argues that it was

entitled to sovereign immunity and that the trial court erred by finding that the

appellees had pled facts sufficient that, if believed, would defeat a claim of

sovereign immunity.

Background

{¶2} In early 2019, Minster began soliciting bids from area contractors for a

project known as “Northeast Sanitary Sewer/Second Street Sewer Project.”1 (Doc.

No. 1). “The project was essentially the reconstruction of Second Street and the

sewer systems in that area.” (Id.) Helms & Sons Excavating, Inc. (“Helms”)

submitted the lowest bid, and the bids were discussed at a Minster Council meeting

on April 2, 2019. At that meeting, the Minster Council expressed concerns about

Helms “and the ability to do the work called for in the project based upon negative

feedback from other municipalities.” (Id.) Nevertheless, Minster entered into a

contract with Helms for the reconstruction of Second Street. Minster also hired

1
As this appeal is the review of the denial of a Civ.R. 12(B)(6) motion to dismiss, we cite the factual
allegations contained in the complaint because, for the purposes of this appeal only, we must accept them as
true.

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“CTL Engineering” to oversee the progress of the project and the quality of work

performed by Helms.

{¶3} Pursuant to the contract, the work to be performed by Helms “included

the installation of storm sewer modifications, water main, sanitary sewer, service

laterals, sidewalks, curb and gutter, and installation of a sanitary sewer down a

portion of Garfield and Second Streets.” (Id.) Helms began its work on or about

April 22, 2019. During the initial construction phase, Helms discovered what was

described as an abandoned sewer line on Second Street and Helms reported the

discovery to Minster. Thereafter, Minster specifically instructed Helms to remove

the abandoned sewer line.

{¶4} During the removal—or “destruction” as appellees alleged—of the

sewer system, Helms created a “trench box” on Second Street to stop water from

the canal from interfering with work. Appellees alleged that Helms negligently

constructed the trench box.

{¶5} On May 17, 2019, it rained, causing water in the canal to rise. “The

rising water and sediment in the canal entered the pipe that was blocked by the

trench box.” (Id.) According to the complaint,

This negligent construction caused water to flood the trench box
and the lift station, which in turn caused the lift station pumps to
stop working. Once the pumps at the lift station stopped working,
sewage from the lift station flooded into the [appellees’] homes
causing substantial damage to the [appellees’] real and personal

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property, as well as the loss of use of their homes for a substantial
period of time.

(Id.)

{¶6} Appellees are a group of individual landowners in Minster who were

impacted by the sewage. On April 15, 2020, appellees filed a complaint against

Minster and Helms alleging negligence in the destruction of a sewer system

pursuant to R.C. 2744.01(G)(2)(d), and breach of contract to a third-party

beneficiary. The appellees sought damages in an amount in excess of $25,000.

{¶7} Helms filed an answer on May 1, 2020, denying negligence, and

asserting that appellees were not third-party beneficiaries and had no privity of

contract in this matter. Further, Helms’ answer stated that Helms

located a server line, which was not on the plans and, pursuant to
the Contract, properly reported it to [Minster] and otherwise
accepted instructions from [Minster] and Choice One
Engineering. Such instructions included an instruction to remove
said server line because it was dead and abandoned and no longer
in use, which turned out to be incorrect.

(Doc. No. 12).2

{¶8} On May 8, 2020, Minster filed a Civ.R. 12(B)(6) motion to dismiss the

complaint filed by appellees arguing that the factual allegations from the complaint

demonstrated that the alleged negligence that caused damages occurred within the

context of a construction project involving the repair and maintenance of a roadway

2
As this is outside of the complaint, we do not rely on it for anything in this appeal; rather, we use it to
provide context to the action.

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and sewer system, both of which were governmental rather than proprietary

functions. Thus Minster claimed that it was entitled to sovereign immunity pursuant

to R.C. 2744.02, which precluded recovery from Minster in this matter. Further,

Minster argued that even if there was an exception to immunity that existed in this

case, Minster claimed that under R.C. 2744.03(A)(5), immunity should be reinstated

because there were no allegations that the “trench box” was constructed or installed

with malice, bad faith, wantonness, or recklessly. (Doc. No. 14). Finally, Minster

argued that appellees had no grounds to attempt to enforce the contract between

Minster and Helms in the breach of contract claim.

{¶9} On May 26, 2020, appellees filed a memorandum contra to Minster’s

motion to dismiss arguing that pursuant to their allegations and supporting Ohio

case authority, Minster was engaged in a proprietary function for which an

exception to immunity applied, namely the destruction of a sewer system “which is

explicitly identified as a proprietary function under R.C. § 2744.02(G)(2)(d).” [sic]

(Doc. No. 20). Appellees also asserted that Minster was not entitled to reinstatement

of immunity pursuant to R.C. 2744.03(A)(5) merely by “baldly” claiming that the

actions in this matter did not amount to, at least, recklessness. Finally, appellees

argued that they had adequately stated a claim for breach of contract as a third-party

beneficiary based on the plain language of the contract at issue.

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{¶10} On June 2, 2020, Minster filed a reply memorandum reiterating

previous points and arguing, inter alia, that the “removal” of a “single abandoned

sewer line during the course of [the] project involving the reconstruction of a public

street and the adjacent sewer system” did not transform a governmental function

into a proprietary function. (Doc. No. 24).

{¶11} On June 3, 2020, the trial court filed an entry denying Minster’s

motion to dismiss with regard to the negligence claim, but granting Minster’s

motion to dismiss with regard to the breach of contract claim. The trial court

reasoned as follows.

[T]he court finds that the Complaint filed herein sets forth
sufficient allegations that [Minster] directed and controlled
[Helms] with respect to the destruction of a sewer line which
apparently was not on the mapped portion of the sewer system
but was found during the construction project that included both
sanitary and storm sewers. There are sufficient allegations that
[Minster] exercised discretion in dealing with the unexpected
location of the additional sewer line that falls within a proprietary
function as it chose to directly exercise the discretion in the
performance of the contract as to this unexpected sewer line.

The specifics in this case demonstrate that [Minster’s] action in
exercising its proprietary function was not a part of the contract
and the “overarching” project. Instead, this was a new,
unexpected matter that was decided and acted upon by [Minster]
and its officials. The general rule of connecting all laterals and
not blocking pre-existing tile was ignored. If Helms * * * would
have simply failed to connect existing pipes on its own accord,
[Minster’s] role in the overarching project would have been
governmental only, and Helms * * * negligence in the manner it
dealt with the unexpected pipe would have been solely its
problem.

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As it stands based upon the face of the allegations, both the
contractor [Helms] and [Minster] played a role in exercising
discretion on this sewer line and each might be found negligent
upon sufficient proof.

(Doc. No. 25). The trial court concluded that there were sufficient allegations made

to negate immunity.

{¶12} Next, the trial court analyzed whether the allegations, if proven, would

establish that Minster’s actions were reckless and the trial court found that the

complaint alleged sufficient facts to warrant, if believed, a conscious disregard or

indifference to an obvious risk of harm to property of others.

{¶13} However, the trial court did find that the appellees’ breach of contract

claim was unsupported “as there was no manifestation of any intention to grant

[third-party beneficiary] status to the [appellees] or the general public” in the

contract between Minster and Helms. (Doc. No. 25). Thus the trial court granted

Minster’s motion to dismiss the appellees’ breach of contract claim only.

{¶14} Following the denial of its motion to dismiss based on sovereign

immunity, Minster filed the instant appeal, seeking review of its immunity claim

pursuant to R.C. 2744.02(C). Minster asserts the following assignments of error for

our review.

Assignment of Error No. 1
Whether the factual allegations in the Complaint demonstrate
that Minster’s alleged negligence occurred within the context of a
reconstruction project involving the repair and maintenance of a

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roadway and the reconstruction of adjacent sewer and water
lines, both of which are governmental rather than proprietary
functions, and for which there are no applicable exceptions to
immunity.

Assignment of Error No. 2
Whether the removal of a single abandoned sewer line constitutes
the destruction of a sewer system within the meaning of R.C.
2744.01(G)(2)(d).

Assignment of Error No. 3
Whether the Village of Minster is entitled to immunity under R.C.
2744.03(A)(5) on the grounds that the damages [appellees]
claimed to have sustained are the result of the alleged negligent
construction and installation of a trench box and there are no
allegations that the trench box was constructed or installed with
malice, bad faith, wantonness, or recklessly.

{¶15} As the assignments of error all address the trial court’s denial of

Minster’s Civ.R. 12(B)(6) motion to dismiss, we will address them together.

First, Second, and Third Assignments of Error

{¶16} In its assignments of error, Minster contends that the trial court erred

by denying its motion to dismiss the negligence claims brought by the appellees.

More specifically, Minster argues that the actions alleged in this matter were

governmental rather than proprietary, for which there was no exception to

immunity, that the actions regarding the previously unknown sewer line did not

constitute the “destruction” of a sewer line within the meaning of proprietary

functions under R.C. 2744.01(G)(2)(d), and that even if there was an exception to

immunity, it should have been reinstated in this matter under R.C. 2744.03(A)(5)

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because there were no allegations in the complaint that the acts were undertaken in

bad faith, with malice, wantonly, or recklessly.

Standard of Review

{¶17} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon

which relief can be granted tests only the legal sufficiency of the complaint. State

ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992).

For a court to dismiss on this basis, “it must appear beyond doubt from the complaint

that the plaintiff can prove no set of facts entitling him to recovery.” (Emphasis

added.) O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242

(1975), syllabus. In ruling on a Civ.R. 12(B)(6) motion, the court must accept the

factual allegations contained in the complaint as true and draw all reasonable

inferences from these facts in favor of the plaintiff. Mitchell v. Lawson Milk Co.,

40 Ohio St.3d 190, 192 (1988). If there is a set of facts consistent with the complaint

that would allow for recovery, the court must not grant the motion to dismiss. York

v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145 (1991). When reviewing a

judgment rendered on a Civ.R. 12(B)(6) motion to dismiss, our standard of review

is de novo, but we still accept the factual allegations in the complaint as true and

draw all reasonable inferences in favor of the plaintiff. Ada Exempted Village

School Dist. Bd. of Education v. Ada Wind, LLC, 3d Dist. Hardin No. 6-19-13, 2020-

Ohio-4017, ¶ 19, citing Foreman v. Ohio Dept. of Rehab. & Corr., 10th Dist.

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Franklin No. 14AP-15, 2014-Ohio-2793, ¶ 9, citing Perrysburg Twp. v. Rossford,

103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5.

Sovereign Immunity Framework

{¶18} Ohio’s Political Subdivision Tort Liability Act, which governs

political subdivision liability and immunity, is codified in Chapter 2744 of the

Revised Code. Pursuant to the Act, courts engage in a three-tiered analysis to

determine whether a political subdivision is immune from liability for damages in a

civil action. Plank v. City of Bellefontaine, 3d Dist. Logan No. 8-17-18, 2017-Ohio-

8623, ¶ 11; Molnar v. City of Green, 9th Dist. Summit No. 29072, 2019-Ohio-3083,

¶ 11. The first tier of the analysis establishes generally that “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.” R.C. 2744.02(A)(1).

In the second tier of the analysis, we consider the potential applicability of any of

the five exceptions to immunity listed in R.C. 2744.02(B)(1)-(5), which would lift

the immunity from the political subdivision. Plank at ¶ 11, citing Jones v. Delaware

City School Dist. Bd. of Edn., 5th Dist. Delaware No. 2013 CAE 01 0009, 2013–

Ohio–3907, ¶ 19. If any of the exceptions in R.C. 2744.02(B)(1)-(5) are applicable

to remove immunity from the political subdivision, then we move to the third tier

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of the analysis and consider whether immunity can be restored based on the defenses

enumerated in R.C. 2744.03. Id.; Molnar, supra, at ¶ 11.

Analysis

{¶19} It is undisputed in this case that Minster is a political subdivision.

Therefore, pursuant to the first tier of immunity analysis in R.C. 2744.02(A)(1),

Minster would generally have sovereign immunity as a political subdivision.

{¶20} Turning to the second tier of the immunity analysis, which concerns

potential exceptions to the general grant of immunity, appellees asserted, and the

trial court found, that an exception to immunity applied in this situation under R.C.

2744.02(B)(2). It reads as follows.

(B) Subject to sections 2744.03 and 2744.05 of the Revised Code,
a political subdivision is liable in damages in a civil action for
injury, death, or loss to person or property allegedly caused by an
act or omission of the political subdivision or of any of its
employees in connection with a governmental or proprietary
function, as follows:

***

(2) 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.

R.C. 2744.02(B)(2).

{¶21} Pursuant to the definitions of “proprietary functions” in R.C.

2744.01(G)(2)(d), which the appellees cite in their complaint, “proprietary

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function[s]” specifically include “[t]he maintenance, destruction, operation, and

upkeep of a sewer system[.]” Appellees alleged in their complaint that “Minster

instructed Helms to remove the abandoned sewer line, which constitutes destruction

of a sewer system pursuant to R.C. § 2744.01(G)(2)(d).” (Emphasis added.)

Facially, then, the complaint would appear to assert a negligence claim that relates

to a proprietary function under the stated definitions, which falls under a statutory

exception to immunity under R.C. 2744.02(B)(2) as cited above.

{¶22} However, Minster contends that its actions in this matter were not

proprietary as the trial court found, but rather governmental under R.C.

2744.01(C)(2)(e) and (l). These statutory provisions read as follows.

[C](2) A “governmental function” includes, but is not limited to,
the following:

***

(e) The regulation of the use of, and the maintenance and repair
of, roads, highways, streets, avenues, alleys, sidewalks, bridges,
aqueducts, viaducts, and public grounds;

***

(l) The provision or nonprovision, planning or design,
construction, or reconstruction of a public improvement,
including, but not limited to, a sewer system[.]

R.C. 2744.01(C)(2)(e)/(l).

{¶23} Minster contends that pursuant to R.C. 2744.01(G)(1)(a), a function

cannot be proprietary if it has first been expressly defined as being governmental

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under R.C. 2744.01(C)(2). Minster argues that the contract in this case between

Minster and Helms clearly intended for the reconstruction of streets and adjacent

sewer and water lines, as well as the installation of a sanitary sewer down a portion

of Garfield and Second Streets. Minster contends that the additional sewer line was

only discovered during the course and scope of the “reconstruction” project.

Minster thus argues that the actual project fell under the “governmental function”

definition above, and thus the trial court never should have even proceeded to the

“proprietary function” definitions regarding the destruction of a sewer system.

{¶24} Contrary to Minster’s arguments, when considering the allegations in

the complaint in the light most favorable to the appellees, the “destruction” of a

sewer line could fall under a proprietary function as defined above in R.C.

2744.01(G)(2)(d). The legislature specifically listed the “destruction” of a sewer

system under a proprietary function, while making the construction or

reconstruction a governmental function. Minster makes the argument that the

destruction of a single “line” is not the same as the destruction of a sewer itself.

However, when applying the appropriate standard and inferences in this case, we

cannot simply presume that the phrase “abandoned sewer line” is essentially one

pipe.

{¶25} Here, the allegations were that once the old sewer lines were

discovered, Helms went to Minster and asked what should be done. Minster then

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specifically instructed Helms to remove or destroy the old sewer lines. As the trial

court reasoned, “this was a new, unexpected matter that was decided and acted upon

by [Minster] and its officials.” (Doc. No. 25). There is no indication that the

original project involved the destruction of a sewer or any sewer lines. The

allegations that were pled, then, when accepting them as true and drawing all

reasonable inferences in favor of the appellees, fall into an immunity exception for

a proprietary function.

{¶26} Moreover, as appellees argue in their brief, there is some case

authority, albeit not exactly on point, that suggests that the actions here dealing with

a sewer line could be proprietary rather than governmental, which would fall under

the exception listed above in R.C. 2744.02(B)(2). See Lancione v. City of Dublin,

10th Dist. Franklin No. 92AP-244, 1992 WL 249828, *2 (“decisions regarding

sewer lines to be tapped into an existing sewer constitute an operation or

management of an existing sewer system.”); Sparks v. Erie Cty. Bd. of Cty.

Commrs., 6th Dist. Erie No. E-97-007, 1998 WL 15929, *6 (“to the extent that

appellee acted negligently with regard to the alleged improper tapping of additional

sewer lines into the existing sewer system, it may be liable for negligence in

performance of that proprietary function.”); City of Salem v. Harding, 121 Ohio St.

412 (1929) (“The construction of sewers by a city is the exercise of a governmental

function, and a board of health in the discharge of its duties acts in the exercise of

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the police power of the state, but in the maintenance or destruction of a sewer or any

part thereof the city is nevertheless liable for the negligence of its board of health

whereby a nuisance is created.”). To counter this authority, Minster cites, inter alia,

this Court’s decision in Wanamaker v. Bucyrus, 3d Dist. Crawford No. 3-12-02,

2012-Ohio-5232, a readily distinguishable case because it was not decided by a

Civ.R. 12(B)(6) motion to dismiss, but rather summary judgment where more was

considered than just the complaint.

{¶27} Based only on the complaint, we agree with the trial court, in our de

novo review, that there are sufficient allegations made to negate immunity in this

matter when applying all due considerations regarding motions to dismiss. Thus we

must proceed to the third tier of the immunity analysis.

{¶28} Minster argues on appeal that even if we determined that appellees

alleged sufficient facts to establish that their injuries were the result of a proprietary

function, Minster’s immunity should be reinstated under R.C. 2744.03(A)(5), which

reads as follows.

(A) In a civil action brought against a political subdivision or an
employee of a political subdivision to recover damages for injury,
death, or loss to person or property allegedly caused by any act or
omission in connection with a governmental or proprietary
function, the following defenses or immunities may be asserted to
establish nonliability:

***

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(5) 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.

{¶29} Minster contends that the construction of the trench box in this case

amounted to the use of a piece of equipment, and that “the decision to utilize and

install a trench box constituted the positive exercise of judgment portraying the

considered adoption of a particular course of conduct in relation to the removal of

the abandoned sewer line.” (Appt.’s Br. at 15). Minster argues that there were no

allegations whatsoever that the construction of the trench box was malicious, in bad

faith, wanton, or reckless, therefore Minster was entitled to the reinstatement of

immunity.3

{¶30} Importantly, Minster’s argument focuses on the construction of the

trench box, rather than Minster’s decision to remove the sewer line itself, seemingly

without further inspection as to whether it was providing some utility, or whether

its removal might cause issues. At the very least we must presume as much, and

make all reasonable inferences that way when construing the Civ.R. 12(B)(6)

motion.

3
As the appellees note in their brief, the bad faith, willful, wanton, or reckless conduct only comes into play
if it was determined that there was a specific exercise of judgment or discretion as defined above.

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{¶31} Regardless, even when considering the trench box, the facts pled could

establish a “conscious disregard” or “indifference” to obvious risks of harm, even if

the actor did not desire harm, which would constitute recklessness. Anderson v.

Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, at paragraph four of the syllabus.

Here, the trial court found that there were sufficient allegations to warrant, “if

believed, a finding that the actions of [Minster] through its agents was a conscious

disregard of or indifference to an obvious risk of harm to the property of others by

not reconnecting that which was found and cut through by the work being done.”

(Doc. No. 25). After conducting a de novo review of the complaint and the

applicable legal authority, we agree with the trial court. Therefore Minster would

be unable to reinstate immunity in this matter under R.C. 2744.03(A)(5) based

solely on what is before us.

{¶32} In sum, at this very early stage of the proceeding, we are unable to find

that it is “beyond doubt from the complaint that the plaintiff[s] can prove no set of

facts entitling [them] to recovery.” O’Brien v. Univ. Community Tenants Union,

Inc., 42 Ohio St.2d 242 (1975), at syllabus. This is not a finding that Minster is

necessarily liable or even that immunity could not be established later in a summary

judgment proceeding if undisputed facts warranted such a finding. But at this stage

of the proceeding, given our standard when analyzing a Civ.R. 12(B)(6) motion, we

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cannot find that the trial court erred by overruling Minster’s motion to dismiss.

Therefore, Minster’s first, second, and third assignments of error are overruled.

Conclusion

{¶33} For the foregoing reasons, Minster’s assignments of error are

overruled and the judgment of the Auglaize County Common Pleas Court is

affirmed.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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