Goebel v. Minster

[Cite as Goebel v. Minster, 2022-Ohio-883.]

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

EDWARD GOEBEL, ET AL.,

PLAINTIFFS-APPELLANTS,

v. CASE NO. 2-21-19

VILLAGE OF MINSTER,

DEFENDANT-APPELLEE,
-and-
OPINION
HELMS & SONS EXCAVATING, INC.,

DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court
Trial Court No. 2020-CV-52

Judgment Affirmed

Date of Decision: March 21, 2022

APPEARANCES:

Jonathon N. Bond, Sean Alto and Jeffrey Kenney
for Appellants Goebel

James D. Utrecht for Appellant Helms & Sons Excavating, Inc.

Jared A. Wagner for Appellee, Village of Minster
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SHAW, J.

{¶1} Plaintiffs-appellants, Edward and Lisa Goebel, et al. (collectively,

“landowners”), and defendants-appellants, Helms & Sons Excavating, Inc.

(“Helms”), bring this appeal from the September 8, 2021 judgment of the Auglaize

County Common Pleas Court granting summary judgment in favor of defendant-

appellee, Village of Minster (“Minster”), on the grounds of sovereign immunity.

On appeal, landowners and Helms both contend that Minster was not entitled to

sovereign immunity.

Background

{¶2} In early 2019, Minster solicited bids from contractors for the “Northeast

Sanitary Sewer Improvements” project, which called for the “reconstruction of

Second Street, including the installation of storm sewer modifications, water main,

sanitary sewer, service laterals, sidewalks, and curb and gutter. Also installation of

sanitary sewer down a portion of Garfield and Third Street.” (Harrod Depo. Ex. H).

{¶3} The project had been contemplated as early as 2015-2016 because

Minster was “having some storm water problems backed up into some people’s

homes along South Lincoln Street in the village” and because the village was

“anticipating two new subdivisions coming in * * * on the northeast quarter of

[Minster].” (Harrod Depo. at 9). Helms reviewed the blueprints for the project,

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which had been produced by Choice One Engineering, submitted the lowest bid,

and was awarded the contract.

{¶4} After Helms commenced work on the project, problems began to arise.

First, soil conditions were poorer than expected in certain areas. Second, it was

discovered that the blueprints for the proposed work were not entirely accurate.1

Upon digging a trench, Helms discovered that the old sewer line was too close to

the storm line to fit the new construction between them, which was what the project

originally called for. Helms and a representative from Minster discussed the issue

and determined that instead of running the new sanitary line between the old lines

as the project originally called for, the new sanitary line would be placed over the

old line, replacing the old line as the new line was placed. With this change agreed

upon, work continued.

{¶5} The next problem occurred on May 16, 2019, as Helms proceeded to

the removal of a buried, circular concrete structure also known as a “manhole” or a

“wet well.”2 The project called for the removal of the manhole, which, at the time

of excavation, was sealed and not in use. The manhole had been put in place

sometime around 1994 when Minster’s older “lift station” was renovated. During

1
Shane Helms, the founder, owner, and president of Helms, testified that when dealing with old sanitary
lines that are over twenty feet deep, “the best [blue]prints in the world, if you get them 60 percent correct,
you’re doing really good.” (S. Helms Depo. at 12).
2
According to testimony, the structure was a “wet well” when in use, but since there was no pump inside of
it, the structure was a “manhole.” We will refer to the structure as a “manhole,” but any other references to
“structure” or “wet well” in testimony excerpts are regarding the same manhole.

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the renovation, the manhole had a pump inside of it and it redirected water flow.

Once renovation on the lift station was complete, the pump inside the manhole was

removed. However, the manhole itself was sealed and left in the ground.

{¶6} Helms began excavating the manhole by removing the top of the

structure. With the top of the manhole removed, Helms found two pipes, or “lines,”

leading into the manhole. Some testimony indicated that the second line, or pipe,

going into the manhole was unexpected while other testimony intimated that the

parties were aware of its presence before the top of the manhole was removed.3

Regardless, upon uncovering the second line in the manhole, Helms asked Minster’s

representative if the second line was “live,” i.e. pressurized, and what should be

done with the line.

{¶7} Minster’s representative believed that the line was abandoned—it was

capped inside the manhole. All individuals who testified on the issue indicated that

they believed the line was abandoned based on Minster’s representations. Acting

under the belief that the line was not pressurized and that it was, in fact, abandoned,

Minster instructed Helms to continue its excavation by cutting the second line in the

manhole back several feet, and capping it.4

3
While this fact may be disputed, it is not material to the outcome of this case.
4
All testimony indicated that while Minster instructed Helms in what to do, it did not control how Helms
conducted its work.

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{¶8} As soon as Helms excavated into the line in question, sewage and water

“erupted” from the line, surprising everyone on site. (Nichols Depo. at 72).

“Sewage was blowing everywhere and you c[ouldn’t] stop it. [The line] should

have been dead.” (Snyder Depo. at 44).

{¶9} A GIS technician for Minster was on site daily during the project and

he was present when the sewage was shooting out of the second line into the

manhole and the trench. A separate Minster employee was dispatched to the “lift

station” to find the valve that stopped the water flow through the line that was

previously thought to be abandoned. Within thirty minutes the line was shut down.

After the line was shut down, it was cut back and capped by Helms.

{¶10} Meanwhile, Minster hired a company with a vacuum truck to come in

and clean out the excavated trench and manhole that had been filled with sewage,

concrete, and rubble due to the eruption from the pipe. Notably, the eruption from

the pipe “removed earth and stone material[,] * * * [and] undermined the storm

sewer * * * by taking all the earth away from it and then the stone from around the

bottom of it and the side of it to where it was exposed[.] * * * [Helms] c[ould] see

that line now.” (Nichols Depo. at 72).

{¶11} Throughout the evening of May 16, 2019, the individual with the

vacuum truck and some Helms employees removed debris from the trench/manhole

area. Helms employees on site indicated that the individual using the vacuum truck

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could not do the job alone. Helms’ employees assisted the individual with the

vacuum truck because it “was just the right thing to do to stay and make sure it got

cleaned out.” (Musgrave Depo. at 49). When they were finished, “[t]he wet well

and all the gravel was cleaned up and [the system] was flowing like it should be.”

(Langenkamp Depo. at 65). Stated differently, they “cleaned everything up,

everything was running perfectly fine. The SCADA reports all showed that the [lift

station] pumps were running at normal at that point * * * prior to any of the house

basement issues.” (Meyer Depo. at 26-27).

{¶12} It was sprinkling rain around 11:30 p.m. when the Helms employees

finished at the site for the night. The forecast called for rain but Helms’ employees

were not overly concerned about it because “there was no talk of 5 inches of rain in

like three hours.” (Musgrave Depo. at 42). Before they left the site, Helms

employees had cleared the area so there was an open flowing trench and they sealed

the area off so people could not get in. A trench box and steel plates were employed

to protect the trench itself.

{¶13} Through all of these issues, including the severed line that was thought

to be abandoned and the filling of the trench/manhole, there was no indication that

any of the landowners’ homes were flooded.

{¶14} During the early morning hours of May 17, 2019, in the hours after the

trench had been cleared, five or more inches of rain fell in the Minster area. The

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Superintendent of Minster’s wastewater treatment plant said that all four pumps

were running at the lift station, which he had never seen before. The rain caused

the water in the Miami and Erie canal to rise to the top of the banks, which then

backed water into the storm sewer because the storm sewer emptied into the canal.

Testimony indicated that the storm sewer line was in poor condition, rotted and

rusted, which was part of the reason it was being replaced. The storm sewer was

also partially exposed when Helms was excavating. The overloaded storm line

“collapsed,” causing water to flow into the open manhole. Minster’s lift station

could not handle all of the water going into the sewer system, leading to flooding in

the landowners’ homes.

{¶15} A Minster employee was called at approximately 3:30 a.m. on May

17, 2019, and notified that an inch or two of water was in a landowner’s basement.

He indicated he had seen flooding in basements before but never on Second Street.

The Minster employee went to the construction site and found the manhole

completely full of water.

{¶16} One of Helms’ employees was back at the trench by 7:00 a.m. on May

17, 2019. To help remedy the flooding/water backup situation, a metal plate was

placed in front of the canal to block the flow of additional water into Minster’s storm

sewer. Once the plate was in place, the pumps at the lift station were able to remove

the excess water and the flooding receded in approximately 45 minutes.

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Landowners would claim that sewage and water flooded their homes causing

substantial damage to both real and personal property.

{¶17} On April 15, 2020, landowners 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.

{¶18} 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.

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

the complaint filed by appellees arguing that Minster was entitled to sovereign

immunity. Further, Minster argued that landowners had no grounds to attempt to

enforce the contract between Minster and Helms. The landowners opposed

Minster’s motion.

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

motion to dismiss the negligence claim on sovereign immunity grounds at such an

early stage of the litigation; however, Minster’s motion to dismiss with regard to the

breach of contract claim was granted.

{¶21} Minster appealed the denial of its motion to dismiss the negligence

claim on sovereign immunity grounds to this Court in Goebel v. Minster, 3d Dist.

Auglaize No. 2-20-14, 2020-Ohio-5467. Ultimately we affirmed the trial court’s

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denial of Minster’s motion to dismiss, noting that at this very early stage of the

proceeding we were unable to find beyond doubt that landowners could prove no

set of facts entitling them to recovery; however, we noted that immunity could still

be established later in a summary judgment proceeding if the undisputed facts

warranted such a finding. Goebel at ¶ 32.

{¶22} With the case returned to the trial court, on December 18, 2020,

Minster filed an answer to landowners’ complaint asserting, inter alia, the defense

of sovereign immunity. Minster also filed a cross-claim against Helms asserting,

inter alia, a claim for breach of contract.

{¶23} On December 28, 2020, Helms filed an answer to Minster’s cross-

claim and filed its own cross-claim against Minster. Minster subsequently filed an

answer to Helms’ cross-claim.5

{¶24} Discovery proceeded with interrogatories being served and answered

and numerous depositions being taken and filed with the trial court.

{¶25} On July 12, 2021, Minster filed a motion for summary judgment

asserting sovereign immunity. Minster argued that it was entitled to immunity, that

the parties had not established an exception to immunity, and that even if the parties

5
On May 25, 2021, Frankenmuth Mutual Insurance Company moved to consolidate trial court case 2021 CV
0047 with the instant case, arguing that Frankenmuth had filed a subrogation complaint against Helms
regarding water loss from the reconstruction project and that the cases should be consolidated. The cases
were consolidated by entry dated May 27, 2021. Frankenmuth’s complaint and subsequent filings by the
parties related to Frankenmuth’s case against Helms were filed in the record; however, Frankenmuth’s case
against Helms has little relevance to the matter sub judice, so we will not further address that action.

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did establish an exception, Minster would be able to reinstate its immunity under

R.C. 2744.03(A)(5) as there was no evidence that its employees acted in bad faith,

wantonly, maliciously, or recklessly.

{¶26} On August 9, 2021, Helms filed a memorandum in opposition to

Minster’s summary judgment motion claiming that Minster was negligent in

maintaining its sewer system in several respects unrelated to the construction

project such that it constituted negligence in the performance of a proprietary

function. Further, Helms argued that Minster specifically directed it to excavate the

“abandoned” line.

{¶27} On August 20, 2021, landowners filed their memorandum in

opposition to Minster’s summary judgment motion arguing that Minster negligently

performed a proprietary function and did not have statutory immunity, that

Minster’s negligence contributed to the flooding of the landowners’ homes, and that

Minster was not entitled to have immunity reinstated.

{¶28} On September 7, 2021, Minster filed a reply in support of its summary

judgment.

{¶29} On September 8, 2021, the trial court filed a judgment entry granting

Minster’s motion for summary judgment. The trial court determined that “the errors

and omissions [by Minster] * * * were partially governmental and partially

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proprietary functions as defined within R.C. 2744.01(C)(2)((l) and R.C.

2744.01(G)(2)(d)[.]” (Doc. No. 99). The trial court then determined as follows:

2. [Minster] is entitled to the general immunity as set forth in
R.C. 2744.02(A)(2);

3. the performance by [Minster] of a proprietary function is
within the exception to the general grant of immunity in
accordance with R.C. 2744.02(B)(2);

4. The performance by [Minster] of a governmental function is
within the exception to the general grant of immunity in
accordance with R.C. 2744.02(B)(4) if caused by the negligence of
their employees and that occurs within or on the grounds of, and
is due to physical defects within or on the grounds of, buildings
that are used in connection with the performance of a
governmental function;

5. there was no physical defects within or on the grounds of any
building being used in connection with the performance of a
governmental function, and therefore, the exception in R.C.
2744.02(B)(4) is inapplicable;

6. [Minster] may avail itself of the defense of immunity
pursuant to R.C. 2744.03(A)(5)[.] * * *6

7. There is no evidence of malicious purpose, bad faith,
wantonness or recklessness [establishing Minster’s defense to an
immunity exception pursuant to R.C. 2744.03(A)(5)];

8. when construed most strongly in favor of [landowners] and
cross-claimant Helms, the facts do not support any genuine issue
of material fact whether [Minster] is immune in this instance.

6
The trial court quotes the language of R.C. 2744.03(A)(5), which we cite infra at ¶ 50.

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(Doc. No. 99). The trial court thus determined that there were no genuine issues of

material fact, that reasonable minds could come to but one conclusion, and that

conclusion was adverse to the non-moving parties. The trial court granted Minster’s

summary judgment motion, dismissed landowners’ complaint and Helms’ cross-

claim against Minster on the basis of immunity.

{¶30} The landowners brought the instant appeal from the trial court’s

judgment, asserting the following assignment of error for our review.

Landowners’ Assignment of Error
The trial court erred by granting the Village of Minster’s motion
for summary judgment holding that the Village enjoyed statutory
immunity under R.C. 2744 et seq.

{¶31} Helms also appealed the trial court’s judgment and asserted the

following assignments of error for our review.

Helms’ First Assignment of Error
It was error for the trial court to grant summary judgment when
the cause of the sewage overflowing the trench was negligence in
the performance of a proprietary function, to wit: operation
repair and maintenance of a sewer system.

Helms’ Second Assignment of Error
It was error for the trial court to grant summary judgment when
the Village employees were directing and controlling the work of
the excavation contractor, Helms and Sons, Inc.’s direction and
control which places the case in an exception to governmental
immunity.

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{¶32} As all of the assignments of error challenge the trial court’s

determination with regard to Minster’s summary judgment motion, we will address

the assignments of error together.

Landowners’ Assignment of Error and Helms’ Assignments of Error

{¶33} On appeal, the landowners and Helms both argue that the trial court

erred by determining that Minster was entitled to sovereign immunity in this matter.

Standard of Review

{¶34} “Whether a party is entitled to immunity is a question of law properly

determined by the court prior to trial pursuant to a motion for summary judgment.”

Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, ¶ 12, citing Conley v.

Shearer, 64 Ohio St.3d 284, 292 (1992).

{¶35} We review a decision to grant a summary judgment motion on the

basis of sovereign immunity de novo. See Pelletier at ¶ 13; Smith v. McBride, 130

Ohio St.3d 51, 2011-Ohio-4674, ¶ 12. “De novo review is independent and without

deference to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist. Allen

No. 1-12-47, 2013-Ohio-2149, ¶ 25.

{¶36} Summary judgment is proper where there is no genuine issue of

material fact, the moving party is entitled to judgment as a matter of law, and

reasonable minds can reach but one conclusion when viewing the evidence in favor

of the non-moving party, and the conclusion is adverse to the non-moving party.

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Civ.R. 56(C); State ex rel. Whittaker v. Lucas County Prosecutor’s Office, 164 Ohio

St.3d 151, 2021-Ohio-1241, ¶ 8. Material facts are those facts “ ‘that might affect

the outcome of the suit under the governing law.’ ” Turner v. Turner, 67 Ohio St.3d

337, 340 (1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S.Ct. 2505 (1986). “Whether a genuine issue exists is answered by the following

inquiry: [d]oes the evidence present ‘a sufficient disagreement to require submission

to a jury’ or is it ‘so one-sided that one party must prevail as a matter of law[?]’ ”

Id. quoting Anderson at 251-252.

{¶37} “The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of material

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing

Dresher v. Burt, 75 Ohio St.3d 280, 282 (1996). “In doing so, the moving party is

not required to produce any affirmative evidence, but must identify those portions

of the record which affirmatively support his argument.” Id., citing Dresher at 292.

“The nonmoving party must then rebut with specific facts showing the existence of

a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings.” Id. citing Dresher at 292.

Sovereign Immunity Framework

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

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

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Revised Code. McConnell v. Dudley, 158 Ohio St.3d 388, 2019-Ohio-4740, ¶ 20.

“Determining whether a political subdivision is immune from tort liability pursuant

to R.C. Chapter 2744 involves a familiar, three-tiered analysis.” Pelletier, 153 Ohio

St.3d 611, 2018-Ohio-2121, ¶ 15.

{¶39} The first tier of the sovereign-immunity analysis generally establishes

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 or an employee of the political subdivision in connection with a

governmental or proprietary function.” R.C. 2744.02(A)(1). However, that

immunity is not absolute. See R.C. 2744.02(B); McConnell at ¶ 21.

{¶40} 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. Id. at ¶ 22.

{¶41} Finally, if any of the exceptions to political subdivision immunity in

R.C. 2744.02(B)(1)-(5) are applicable to remove immunity from the political

subdivision, then we move to the third tier of the analysis and consider whether

immunity can be restored to the political subdivision based on the defenses

enumerated in R.C. 2744.03.

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Analysis

{¶42} There is no dispute in this case that Minster is a political subdivision

generally entitled to immunity under R.C. 2744.02(A)(1).

{¶43} With immunity generally established, and the first tier of the immunity

analysis completed, we turn to the second tier of the analysis to determine whether

any of the exceptions to immunity listed in R.C. 2744.02(B)(1)-(5) are applicable in

this case. Generally, landowners argue that the exception codified in R.C.

2744.02(B)(2) is applicable to strip immunity from Minster, while Helms argues

that the exception in R.C. 2744.02(B)(4) is applicable to strip immunity from

Minster. These provisions read 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.

***

(4) Except as otherwise provided in section 3746.24 of the
Revised Code, political subdivisions are liable for injury, death,
or loss to person or property that is caused by the negligence of

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their employees and that occurs within or on the grounds of, and
is due to physical defects within or on the grounds of, buildings
that are used in connection with the performance of a
governmental function, including, but not limited to, office
buildings and courthouses, but not including jails, places of
juvenile detention, workhouses, or any other detention facility, as
defined in section 2921.01 of the Revised Code.

R.C. 2744.02(B)(2), (4).

{¶44} We will deal with the applicability of each potential exception in turn,

beginning with R.C. 2744.02(B)(2). Importantly, the exception in (B)(2) is limited

to acts of employees with respect to “proprietary functions.” The exception does

not include acts with respect to “governmental functions.” Both “governmental”

and “proprietary” functions are defined in R.C. 2744.01.

(C)(1) “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.

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

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***

(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).

By contrast,

(G)(1) “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.

(2) A “proprietary function” includes, but is not limited to, the
following:

***

(d) The maintenance, destruction, operation, and upkeep of a
sewer system[.]

R.C. 2744.01(G).

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{¶45} In this case, the parties disagree as to whether a “governmental” or

“proprietary” function was being performed. Landowners and Helms maintain that

Minster’s employees were negligent in the maintenance, destruction, operation, and

upkeep of its sewer system in this matter, making its actions proprietary functions.

R.C. 2744.01(G). More specifically, they contend that Minster mistakenly left the

“abandoned” sewer line open, that Minster negligently instructed Helms to

“destroy” the line that was thought to be abandoned without checking it for pressure

first, and that Minster permitted a sloppy cleanup after the pipe erupted, which led

to flooding.

{¶46} By contrast, Minster contends that it was performing a function

specifically defined as “governmental,” namely the “construction, or reconstruction

of a public improvement, including, but not limited to, a sewer system.” R.C.

2744.01(C)(2)(1). Further, Minster argues that pursuant to the plain, unambiguous

language of R.C. 2744.01 itself, an action cannot be proprietary if it has already

been defined as governmental. R.C. 2744.01(G)(1)(a); Bucey v. Carlisle, 1st Dist.

Hamilton No. C-090252, 2010-Ohio-2262, ¶ 14 (“Where a function is specifically

defined as a governmental function, it cannot be a proprietary function.”). The terms

proprietary and governmental have been described as “mutually exclusive.” DSS

Services, LLC v. Eitel’s Towing, LLC, 10th Dist. Franklin No. 18AP-567, 2019-

Ohio-3158, ¶ 15.

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{¶47} In assessing whether Minster was performing a governmental or

proprietary function, we emphasize that under the plain, unambiguous language of

R.C. 2744.01(C)(2)(l), the reconstruction of a sewer system would be a

governmental function. Furthermore, there is case authority that would support the

proposition that Minster was engaged in a governmental function in this case by

reconstructing the sewer.

“Municipal decisions regarding updating or upgrading, rather
than simple maintenance and repair of existing systems have been
held to be a governmental function to which immunity
applies.” Matter v. Athens, 4th Dist. No. 13CA20, 21 N.E.3d 595,
2014-Ohio-4451, ¶ 22, citing Essman v. Portsmouth, 4th Dist. No.
09CA3325, 2010-Ohio-4837, ¶ 46. “[A] political subdivision's
decision regarding an upgrade of its sewer system [or water supply
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.” Essman at ¶ 44. See also Smith v. Stormwater Mgt. Div.,
111 Ohio App.3d 502, 507, 676 N.E.2d 609 (1st Dist.1996). Since
“upgrading involves construction and design, such upgrading is
a governmental, not a proprietary, function.” Coleman v. Portage
Cty. Engineer, 133 Ohio St.3d 28, 2012-Ohio-3881, ¶ 1, 975 N.E.2d
952.

Glover v. City of Columbus, 10th Dist. Franklin No. 17AP-332, 2018-Ohio-4743, ¶

18. Based on both statutory language and case authority, the cutting back and

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capping of the line in question and the resulting cleanup were both part of sewer

reconstruction and thus would be governmental functions.7

{¶48} If landowners’ and Helms were only arguing about actions that

occurred during the sewer reconstruction project, we could end the second tier

analysis here. However, landowners also argue that Minster was negligent by

leaving the “abandoned” line pressurized, which they contend would constitute

negligent operation/maintenance/upkeep even if the other issues did not, making it

a proprietary function.8

{¶49} Importantly, even if we accepted landowners’ arguments and

determined that the negligence alleged by leaving the valve open to the “abandoned”

line was in relation to a proprietary function,9 thus removing the cloak of immunity,

Minster could still restore immunity in this matter through the defenses listed in

R.C. 2744.03(A)(5).

{¶50} In fact, to the extent that the trial court evidently determined that the

functions in this matter were partly proprietary, the trial court explicitly determined

7
Moreover, to find that Minster was engaging in a proprietary function rather than a governmental function
regarding the sewer lines, we would have to determine that cutting back and capping a single line amounted
to the “destruction” of a sewer system within the proprietary function definition.
8
In its entry on the matter, the trial court found that Minster was engaged in actions that were “partially
governmental” and “partially proprietary.” (Doc. No. 99). Notably, the trial court did not specify how it
reached this conclusion in parsing out governmental and proprietary functions, or what actions it determined
were governmental versus proprietary.
9
To make this determination, we would have to divorce the fact that even though the line was “open” and it
should not have been, it was not improperly functioning and a problem was only caused when it was cut open
as part of the reconstruction project.

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that Minster’s immunity was restored 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:

***

(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.

{¶51} Landowners argue that R.C. 2744.03(A)(5) should not apply in this

matter because there was no evidence presented as to how there was an exercise of

judgment or discretion regarding the use of equipment. Further, landowners

contend that immunity under R.C. 2744.03(A)(5) “attaches only to the broad type

of discretion involving public policy made with ‘the creative exercise of political

judgment.’ ” McVey v. Cincinnati, 109 Ohio App.3d 159, 163, 671 N.E.2d 1288,

1290 (1st Dist.1995), quoting Bolding v. Dublin Local School Dist., 10th Dist.

Franklin No. 94APE09-1307, 1995 WL 360227. “Immunity does not apply to the

negligence of employees in ‘the details of carrying out the activity even though there

is discretion in making choices.’ ” Id. quoting Id.

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{¶52} We disagree with landowners’ argument and agree with the trial court

that R.C. 2744.03(A)(5) does apply here and would restore immunity. Any injuries

did occur during the exercise of discretion and the use of equipment in this matter.

Further, there is no indication that any of the actions were done with a malicious

purpose, in bad faith, or in a wanton or reckless manner. The lowest of these

standards, reckless, has been defined as “the conscious disregard of or indifference

to a known or obvious risk of harm to another that is unreasonable under the

circumstances and is substantially greater than negligent conduct.” Anderson v.

Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, at paragraph 4 of syllabus. Here,

there is no showing of anything greater than negligence.

{¶53} For these reasons, even if we assumed that this matter involved a

proprietary function invoking an exception to immunity in the second tier of the

sovereign immunity analysis pursuant to R.C. 2744.02(B)(2), Minster’s immunity

would be restored under R.C. 2744.03(A)(5). Thus landowners’ arguments to the

contrary are not well-taken, and their assignment of error is overruled.10

{¶54} Next, we turn to Helms’ claim that the immunity exception under R.C.

2744.02(B)(4) is applicable in this case. The trial court specifically rejected this

assertion in its judgment entry, finding that there were no physical defects within or

10
To the extent that any of Helms’ arguments overlap regarding this immunity exception, those arguments
are rejected as well.

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on the grounds of any building being used in the performance of a governmental

function, thus the exception was inapplicable.

{¶55} We agree with the trial court. There is no evidence that there was a

defect on government grounds or in a government building in this matter to invoke

R.C. 2744.02(B)(4). Even assuming that it was a Minster employee that left the

valve open to the line that was thought to be “abandoned,” this was not a “defect”

to the “building” or “grounds.” Thus Helms’ arguments are not well-taken, and

their assignments of error are overruled.

{¶56} In sum, after a de novo review, we find that Minster was entitled to

summary judgment in this matter on the grounds of sovereign immunity. Therefore,

the assignments of error asserted by the landowners and Helms are overruled.

Conclusion

{¶57} For the foregoing reasons the landowners’ assignment of error and

Helms’ assignments of error are overruled and the judgment of the Auglaize County

Common Pleas Court is affirmed.

Judgment Affirmed

MILLER and WILLAMOWSKI, J.J., concur.

/jlr

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