Knab v. Washington Cty. Bd. of Commrs. ( 2024 )

[Cite as Knab v. Washington Cty. Bd. of Commrs., 2024-Ohio-1569.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
KEVIN KNAB, et al., :
Plaintiffs-Appellants, : Case
No. 23CA2
v. :
WASHINGTON COUNTY BOARD : DECISION & JUDGMENT
ENTRY
OF COMMISSIONERS,
Defendant-Appellee. :
________________________________________________________________
APPEARANCES:
Laura K. Silwani, Marietta, Ohio, for appellants.
Scyld D. Anderson and Sarah A. Lodge, Columbus, Ohio, for
appellee.
________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:4-18-24
ABELE, J.
{¶1} This is an appeal from a Washington County Common
Pleas Court summary judgment in favor of the Washington County
Board of Commissioners, defendant below and appellee herein.
{¶2} Kevin and Kristeva Knab, plaintiffs below and
appellants herein, assign the following error for review:
“THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO THE DEFENDANT/APPELLEES [SIC] AS
THERE WAS A MATERIAL ISSUE IN DISPUTE THAT
SHOULD HAVE BEEN DECIDED BY THE TRIER OF
FACT AT A FULL TRIAL.”
WASHINGTON, 23CA2 3
On October 1, 2020, appellee learned that sewage had backed up
into some homes located on Seneca Street. Appellee requested
the City of Marietta’s assistance to help resolve the issue.
Upon arrival, city employees used a “spoon” to dislodge a clog,
and the sewer began to flow normally.
{¶4} On that same date, appellants discovered that sewage
backed up into their home. Subsequently, they filed a complaint
against appellee to recover damages they incurred as a result of
the backup. They alleged that on October 1, 2020, appellee
“forced pressure through the sewer lines that service
[appellants’] home” and this forced pressure caused a sewer
backup into their home. They also generally alleged that
“waste, water, and other material from the county sewer” entered
their home.
{¶5} Appellants claimed that appellee (1) negligently
operated the sewer system by their failure to keep the “sewer
system in repair and free from conditions that would cause
damage to private property,” and (2) negligently maintained the
sewer system. Appellants asserted that, as a direct and
proximate result of appellee’s negligent operation and
maintenance of the sewer system, appellee caused an “enormous
quantity and volume of unsanitary wastewater to back up into and
upon [appellants’] real and personal property.”
WASHINGTON, 23CA2 4
{¶6} Appellants further alleged that the sewer backup
constituted a trespass, “an unlawful taking of [their] property
without just compensation,” and a nuisance.
{¶7} Appellee answered and filed a partial motion for
judgment on the pleadings. Appellee argued that appellants did
not properly institute their takings claim because appellants
must file a mandamus action to compel appellee to institute
appropriation proceedings. The trial court agreed and granted
appellee’s motion for judgment on the pleadings regarding
appellants’ takings claim.
{¶8} On October 26, 2022, appellee filed a summary judgment
motion and alleged that appellants’ claim that “sewage was
pressure-forced into [appellant’s] home” “is untrue.” Appellee
asserted that city employees fixed the clog “with a spoon, and
after it was removed, the line began to drain on its own.”
Appellee contended that neither it nor the city employees did
anything “wrong.” Appellee argued that the sewage entered
appellants’ home due to the lack of a backflow prevention device
and an uncapped wye pipe.
{¶9} Appellee agreed that it has a duty to maintain its
sewers and defined its duty as a duty to promptly remove the
obstruction once it received notice that the sewer needed to be
cleared. To support its definition of this duty, appellee
WASHINGTON, 23CA2 5
referred to Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250,
148 N.E. 846, (1925). In that case, the Ohio Supreme Court
held:
When a municipal corporation assumes the control
and management of a storm sewer which has been
constructed in a public street under its supervision, it
is bound to use reasonable diligence and care to see
that such storm sewer is not clogged with refuse, and is
liable for negligence in the performance of such duty to
a property owner injured thereby, after reasonable
notice of the clogged condition of such sewer.
Id. at paragraph two of the syllabus.
{¶10} Appellee further relied upon our prior decision in
Williams v. Glouster, 4th Dist. Athens No. 10CA58, 2012-Ohio-
1283. In that case, we determined that a village was not
statutorily immune from liability for its failure to properly
maintain its sewer system. In doing so, we rejected the
village’s argument that the plaintiff’s “flooding problem
stemmed from negligent design rather than negligent
maintenance.” Id. at ¶ 28. We also determined that genuine
issues of material fact remained regarding the village’s
negligence. The evidence demonstrated that for a two-year
period, the village did not routinely maintain a storm drainage
system but, instead, only cleaned the system when the plaintiff
complained about the clogged drain. Additionally, when the
village employees did clean the drain, they left refuse, sand,
WASHINGTON, 23CA2 6
and other materials in a pile right beside the drain. On the
date of the plaintiff’s injury she called the village ten times
to report the clogged drain, but the issue was not resolved. We
stated that if the village had “provided regular maintenance to
the drain, it likely would not have been clogged beyond
correction when [the village] tried to clean it out * * * just a
few days prior to [the plaintiff’s] injury.” Id. We thus
concluded that genuine issues of material fact remained
regarding the village’s negligence.
{¶11} Appellee also asserted that Williams stands for the
further proposition that questions of fact remain regarding a
negligent maintenance claim when evidence shows that a homeowner
made repeated complaints regarding a clogged drain and the
governmental entity did not take adequate steps to resolve those
complaints. Appellee then used this proposition to contend that
the sewer near appellants’ home did not have a known,
“persistent problem requiring regular attention.” Appellee
noted that appellants alleged that “one minor instance” had
occurred in 2018, but further pointed out that appellants did
not report this incident. Appellee thus asserted that the
record does not contain any “evidence of a persistent, known
problem requiring regular attention that would justify holding
that [appellee] has to regularly inspect and clean that
WASHINGTON, 23CA2 7
particular stretch of sewer in order to prospectively prevent
clogs.”
{¶12} To support its motion, appellee submitted an affidavit
from Joseph White, the Superintendent of the Washington County
wastewater department. White stated: “Based upon the deposition
testimony, it is clear that the removal of the clog by the City
of Marietta did not cause sewage to enter [appellants’]
residence.” He additionally averred that the sewage appeared to
enter appellants’ home “through an uncapped wye” and this wye
“should have been capped.” White further attested that, if
appellants had a backflow prevention device, “it is very likely
that [their] residence would not have experienced a sewer
intrusion on October 1, 2020.” White also stated that
appellants’ home is the lowest lying house on the sewer line
and, thus, is “a prime candidate for a backflow prevention
device.”
{¶13} Appellee also referenced the various depositions that
had been conducted. In his deposition, Kevin Knab agreed that
he had received a July 23, 2018 letter from appellee and in this
letter, appellee advised appellants and other residents to
“investigate and install a sanitary sewer backup solution.”
Knab stated that appellants investigated installing a sanitary
sewer backup solution, but decided not to install one due to the
WASHINGTON, 23CA2 8
costs involved. Knab also stated that in July 2018, appellants’
home had a minor sewage intrusion, but appellants did not report
it to appellee. He presumed that someone reported a sewer
problem, but he did not know any details. With respect to the
October 1, 2020 incident, Knab said that the individuals who
performed the cleanup “stated that there was so much pressure
that sewage was being pumped up through that vent pipe.” Knab
agreed that this vent pipe did not have a cap on it.
{¶14} Tim Wittekind, a former employee of the City of
Marietta, stated that he and his co-worker used a “spoon” to
dislodge the clog. He explained that this “spoon is basically a
12-foot handle with a pointed shovel end mounted on the end of
it.” Wittekind explained that the spoon “is used to help locate
a trough area down inside of a manhole so you can kind of get a
general idea of where the line is running through.” Wittekind
related that they were able to dislodge the obstruction with the
spoon.
{¶15} City of Marietta employee Michael Miser stated that
Shawn Dalrymple, the person who had been in charge of appellee’s
wastewater department, called him to ask if Miser could bring a
“vac truck” for a sewer line that was backed up. Dalrymple
stated that “it had been backed up for some time.” Miser asked
Wittekind and Jeffrey Schultheis to respond. Miser also asked
WASHINGTON, 23CA2 9
Dalrymple for the location, and Dalrymple told him that “it was
on Seneca Street, where we had been before.” Miser clarified
that Dalrymple’s quote was “where we had been before.” Miser
stated that he “vaguely remember[s] personally being on Seneca
Street in the past to clean a plugged sewer, but [he does] not
remember the date or the address.” Miser explained that he also
reviewed the “sewer complaints back to 2011 and could not find a
complaint sheet” for the Seneca Street address.
{¶16} City of Marietta employee Jeffrey Schultheis stated
that he believes that sewage entered appellants’ home as a
result of the sewer backup. He also thinks that the clog had
existed “for a week or so.” He indicated that the type of clog
they discovered on October 1, 2020, does not “happen overnight.”
Schultheis further explained that he has been with the city
since 2019, and he had not been to the Seneca Street location in
the past.
{¶17} On November 23, 2022, appellants filed a memorandum in
opposition to appellee’s motion. They asserted that genuine
issues of material fact remain regarding “whether [appellee]
negligently maintained the sewer line * * * near [appellants’]
home, therefore causing nuisance and trespass into [appellants’]
home resulting in severe property damage [sic].” Appellants
argued that appellee had “not provided a maintenance schedule
WASHINGTON, 23CA2 10
for that portion of the [Seneca Street] sewer and have not shown
any regular maintenance of the sewer.” They claimed that
appellee failed to conduct routine maintenance and inspection
and that the clog had “built up” due to appellee’s failure to
maintain the sewer. Appellants pointed to the Miser and
Schultheis deposition testimony that indicated that the sewer
“had been ‘backed up for some time,’ perhaps a week or longer.”
{¶18} Appellants stated that they will show at trial that
the sewer issue “can be identified with regular inspection and
remedied with routine maintenance as needed.” They argued that
appellee’s failure to conduct routine maintenance, inspection,
and cleaning of the sewer caused the backup and that appellee
failed to comply with its duty of routine maintenance.
Appellants contended that “[t]he material question of fact that
a jury needs to decide in this case is whether that initial clog
was permitted to grow and lodge in the sewer main due to the
negligent inspection and maintenance of the sewer.”
{¶19} Appellants also faulted Dalrymple for failing to
appear for his deposition. They argued that he likely would
have had the information regarding appellee’s “maintenance
schedule, or lack thereof, the history of that area as there
were issues previously, and the relevant information from
October 1, 2020.”
WASHINGTON, 23CA2 11
{¶20} Appellants further argued that any issues that
surrounded their decision not to install a backflow device and
to ensure that the wye was capped relate to comparative
negligence and establishes that genuine issues of material fact
remain. They also contended that the reason for the sewage
backup into their homes has not been definitively established.
{¶21} To support their arguments, appellants submitted a
report from a sewer inspector, Brian S. Burnside, and an
affidavit from a neighbor, David M. Bright. Burnside stated
that on July 2, 2022, he inspected appellants’ home and the main
sewer line. He explained that when he viewed the sewer line,
“the main line [was] exhibiting a problem. The effluent [was]
not flowing into the manhole basin[;] it is ‘bubbling in’
suggesting that the main line currently has a problem and is
under a state of back up now.” Burnside recommended that “the
main line be cleaned and inspected and any deficiencies be
corrected.”
{¶22} With regard to whether a backflow device would have
prevented a sewer backup into appellants’ home, Burnside stated
that “backflow devices can be useful for a property owner to
limit their risk[;] however, they are not fool proof and are not
designed to compensate for main line deficiencies.” He would,
however, “recommend a sewer backflow device as it may have
WASHINGTON, 23CA2 12
prevented a sewer back up.” Burnside further stated that the
“volume of effluent in this case is indicative of a main line
back up which can only be fixed by the utility service
provider.”
{¶23} Bright stated that he worked from home between March
2020 to July 2022. He saw work being done on the sewer line on
October 1, 2020. Up until July 7, 2022, Bright had not observed
any routine maintenance, inspection, or cleaning of the sewer
line. Bright further stated that one manhole cover on Seneca
Street has been “paved over” and, thus, it “would not be able to
be cleaned or inspected without tearing up the road and cutting
around the edge.”
{¶24} Appellee, however, asserted that appellants’ arguments
are based upon a misunderstanding of Ohio law and they failed to
produce any evidence to create a genuine issue of material fact.
Appellee alleged that it does not have “a duty to continuously
scan its sewer mains to prevent the occurrence of clogs.”
Instead, appellee contended that it had a duty to remove a clog
after receiving notice. Appellee argued that when it became
aware of the clog on October 1, 2020, it promptly responded by
requesting the city employees to respond to the area. Appellee
also disputed appellants’ claim that it has a duty to keep a
maintenance log or prepare a formal maintenance schedule.
WASHINGTON, 23CA2 13
Appellee further alleged that even if the clog had been present
for a week before the backup, “it is patently unreasonable to
expect the County to perform preventative sewer main cleaning,
or even video inspection, on a weekly basis.” Appellee asserted
that it does not have “a duty to prophylactically clean, or even
inspect, a sewer main that is otherwise in good condition.”
Appellee additionally contended that it is undisputed that the
sewage entered appellants’ home through the uncapped wye and
that appellants’ negligence thus predominated.
{¶25} Appellee also argued that Bright’s affidavit did not
create a genuine issue of material fact because “[e]ven if he
kept vigil 24 hours a day, 7 days a week, 365 days a year and
saw nothing more than the clog being removed on the day of the
incident, there was still no breach of duty.” Appellee
reiterated that its duty “is to remove clogs promptly after
receiving notice of them, not to prevent clogs that might have
taken as much as a week [to] form.”
{¶26} Appellee further asserted that (1) Burnside did not
offer proper expert testimony by expressing a probability that
appellee’s conduct proximately caused appellants’ damage, and
(2) Burnside’s letter does not satisfy Civ.R. 56(C)’s
strictures. Appellee argued that “the only competent opinion
testimony” (i.e., White’s affidavit) shows that if appellants
WASHINGTON, 23CA2 14
“had installed a backflow prevention device, it is highly
unlikely that sewage would have entered [their] home.”
{¶27} With respect to Dalrymple’s failure to appear for his
deposition, appellee contended that appellants could have
subpoenaed Dalrymple, but did not. And appellee argued that it
did not have an obligation to ask the court to issue a show-
cause order to Dalrymple. Appellee thus claimed that no genuine
issues of material fact remained as to whether it breached its
duty to maintain the sewer.
{¶28} On January 25, 2023, the trial court granted appellee
summary judgment. The court stated that the issue is whether
appellee breached a duty by failing to properly maintain the
sewer. The court agreed with appellee’s argument that “the
requirement of proper maintenance is met by promptly removing
clogs when they appear.” The court applied the rule stated in
Williams v. Glouster, supra, and stated that an owner of a sewer
must use reasonable diligence and will be “liable for negligence
in the performance of such duty to a property owner injured
thereby, after reasonable notice of the clogged condition of the
sewer.” Id. at ¶ 23. The court found that the record did not
contain any evidence to show that appellee “had reasonable
notice of a clogged condition of the sewer and then failed to
use reasonable diligence in correcting the problem.” Rather,
WASHINGTON, 23CA2 15
the court found that the evidence showed that appellee “did
promptly clear the clog when notified.”
{¶29} The court further determined that the record did not
contain any evidence of other homeowners’ complaints regarding
slow drainage or any other complaints that should have placed
appellee on notice that the sewer needed maintenance or that an
increased maintenance schedule was needed.
{¶30} The court additionally found that nothing in the
record indicated a dilapidated sewer. The court explained:
“There was no evidence that the obstruction or any possible
dilapidation was an ordinary result of the use of the sewer,
which ought to be anticipated and could be guarded against by
occasional examination and cleansing.” The court found “as a
matter of law” that appellee “was not negligent and did not
breach any duty of care owed to” appellants. This appeal
followed.
A
{¶31} In their sole assignment of error, appellants assert
that the trial court erred by concluding that no genuine issues
of material fact remained to be litigated at trial. Appellants
claim that genuine issues of material fact remain regarding
whether appellee breached its duty to properly maintain the
WASHINGTON, 23CA2 16
sewer line because a fact finder could have determined that
appellee breached its duty to maintain the sewer line.
{¶32} To illustrate that genuine issues of material fact
remain, appellants point to Bright’s affidavit, in which he
stated that he “never observed maintenance, inspection, or
preventative work done on the sewer.” Appellants further refer
to Burnside’s letter that stated at the time of his July 2022
inspection, the sewer exhibited an issue.
{¶33} Appellants additionally observe that appellee did not
produce any evidence to demonstrate that it complied with its
duty of routine maintenance and inspection. Moreover,
appellants note that the city employees who responded to the
call “stated that this clog said [sic] had been occurring for
some time and didn’t happen overnight.” They also contend that
the evidence demonstrates that the sewer became clogged
“approximately every two years.” Appellants thus assert that if
appellee had complied with its duty of “regular inspection and
maintenance,” then the clog would not have formed. They contend
that appellee’s “[l]ack of regular, routine maintenance,
inspection, or other preventative work would arise to the level
of negligence and allow [appellants] to succeed on their
claims.”
WASHINGTON, 23CA2 17
{¶34} Appellants additionally fault the trial court for
considering only “whether the county responded to the inciden[t]
in an appropriate time frame.” They claim that “[e]ven under
this standard, a reasonable fact finder could have ruled in
[appellants’] favor at trial as there was no evidence on the
record that the county responded promptly.”
{¶35} Appellee, however, asserts that no genuine issues of
material fact remain because the record fails to contain any
evidence “of a persistent, known problem requiring regular
attention that would justify holding that [appellee] had to
regularly inspect and clean that particular stretch of sewer in
order to prospectively prevent clogs.” Appellee argues that it
did not have a duty to “keep a formal ‘maintenance schedule,’
written or otherwise.” Appellee further claims that it also
does not have “a duty to prophylactically clean a sewer main
that is otherwise in good condition.”
B
{¶36} Appellate courts conduct a de novo review of trial
court summary judgment decisions. E.g., State ex rel. Novak,
L.L.P. v. Ambrose, 156 Ohio St.3d 425, 2019-Ohio-1329, 128
N.E.3d 209, ¶ 8; Pelletier v. Campbell, 153 Ohio St.3d 611,
2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13; Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
WASHINGTON, 23CA2 18
Accordingly, an appellate court need not defer to a trial
court’s decision, but instead must independently review the
record to determine if summary judgment is appropriate.
Grafton, 77 Ohio St.3d at 105.
Civ.R. 56(C) provides in relevant part:
* * * * Summary judgment shall be rendered forthwith
if the pleadings, depositions, answers to
interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of
fact, if any, timely filed in the action, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be
rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation,
that reasonable minds can come to but one conclusion and
that conclusion is adverse to the party against whom the
motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed
most strongly in the party’s favor.
{¶37} Therefore, pursuant to Civ.R. 56, a trial court may
not award summary judgment unless the evidence demonstrates
that: (1) no genuine issue as to any material fact remains to be
litigated; (2) the moving party is entitled to judgment as a
matter of law; and (3) after viewing the evidence most strongly
in favor of the nonmoving party, reasonable minds can come to
but one conclusion, and that conclusion is adverse to the
nonmoving party. E.g., State ex rel. Whittaker v. Lucas Cty.
Prosecutor’s Office, 164 Ohio St.3d 151, 2021-Ohio-1241, 172
WASHINGTON, 23CA2 19
N.E.3d 143, ¶ 8; Pelletier at ¶ 13; Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶38} Under Civ.R. 56, the moving party bears the initial
burden to inform the trial court of the basis for the motion and
to identify those portions of the record that demonstrate the
absence of a material fact. E.g., Dresher v. Burt, 75 Ohio
St.3d 280, 293, 662 N.E.2d 264 (1996). The moving party cannot
discharge its initial burden with a conclusory assertion that
the nonmoving party has no evidence to prove its case. E.g.,
Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 147, 677
N.E.2d 308 (1997); Dresher, supra. Rather, the moving party
must specifically refer to the “pleadings, depositions, answers
to interrogatories, written admissions, affidavits, transcripts
of evidence in the pending case, and written stipulations of
fact, if any,” which affirmatively demonstrate that the
nonmoving party has no evidence to support the nonmoving party’s
claims. Civ.R. 56(C); Dresher, supra.
[U]nless a movant meets its initial burden of
establishing that the nonmovant has either a complete
lack of evidence or has an insufficient showing of
evidence to establish the existence of an essential
element of its case upon which the nonmovant will have
the burden of proof at trial, a trial court shall not
grant a summary judgment.
Pennsylvania Lumbermens Ins. Corp. v. Landmark Elec., Inc., 110
Ohio App.3d 732, 742, 675 N.E.2d 65 (2nd Dist.1996).
WASHINGTON, 23CA2 20
{¶39} Once the moving party satisfies its burden, the
nonmoving party bears a corresponding duty to set forth specific
facts to show that a genuine issue exists. Civ.R. 56(E);
Dresher, supra. More specifically, Civ.R. 56(E) states:
* * * * When a motion for summary judgment is made
and supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of the
party’s pleadings, but the party’s response, by
affidavit or as otherwise provided in this rule, must
set forth specific facts showing that there is a genuine
issue for trial. If the party does not so respond,
summary judgment, if appropriate, shall be entered
against the party.
{¶40} Consequently, “‘[m]ere speculation and unsupported
conclusory assertions are not sufficient’” to meet the
nonmovant’s reciprocal burden to set forth specific facts to
show that a genuine issue exists. Bank of New York Mellon v.
Bobo, 4th Dist., 2015-Ohio-4601, 50 N.E.3d 229, ¶ 13, quoting
Loveday v. Essential Heating Cooling & Refrig., Inc., 4th Dist.
Gallia No. 08CA4, 2008-Ohio-4756, ¶ 9. Thus, “‘resting on mere
allegations against a motion for summary judgment * * * is
insufficient’” to defeat a properly supported summary judgment
motion. Jackson v. Alert Fire & Safety Equip., Inc., 58 Ohio
St.3d 48, 52, 567 N.E.2d 1027, 1032 (1991), quoting King v. K.R.
Wilson Co., 8 Ohio St.3d 9, 10–11, 455 N.E.2d 1282, 1283 (1983).
{¶41} Additionally, when trial courts consider summary
judgment motions, Civ.R. 56(C) specifies that the court may
WASHINGTON, 23CA2 21
examine only “the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, [that are]
timely filed in the action.” Id.; Whitt v. Wolfinger, 2015-
Ohio-2726, 39 N.E.3d 809, 813–14, ¶ 12 (4th Dist.); Davis v.
Eachus, 4th Dist. Pike No. 04CA725, 2004-Ohio-5720, ¶ 36; Wall
v. Firelands Radiology, Inc., 106 Ohio App.3d 313, 334, 666
N.E.2d 235 (6th Dist.1995). “‘Documents which are not sworn,
certified, or authenticated by way of affidavit have no
evidentiary value and shall not be considered by the trial
court.’” State ex rel. Shumway v. Ohio State Teachers
Retirement Bd., 114 Ohio App.3d 280, 287, 683 N.E.2d 70 (1996),
quoting Mitchell v. Ross, 14 Ohio App.3d 75, 470 N.E.2d 245 (8th
Dist.1984). A party may, however, introduce evidentiary
material that does not fall within one of the categories of
evidence listed in Civ.R. 56(C) when that material is
incorporated by reference in a properly framed affidavit.
Thompson v. Hayes, 10th Dist. Franklin No. 05AP–476, 2006-Ohio-
6000, ¶ 103.
{¶42} “If a party submits evidence that does not fall within
Civ.R. 56(C)’s parameters, the opposing party may file a motion
to strike the improperly-submitted evidence.” Whitt at ¶ 13.
The determination of a motion to strike is within a court’s
WASHINGTON, 23CA2 22
broad discretion. Id., citing State ex rel. Dawson v. Bloom–
Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009,
959 N.E.2d 524, ¶ 23. Consequently, appellate courts will not
disturb trial court rulings regarding motions to strike unless
the court abused its discretion. Id., citing State ex rel. Mora
v. Wilkinson, 105 Ohio St.3d 272, 2005-Ohio-1509, 824 N.E.2d
1000, ¶ 10. A decision constitutes an abuse of discretion when
it is unreasonable, arbitrary, or unconscionable. Id., citing
State ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-
5350, 957 N.E.2d 19, ¶ 11. Moreover, when applying the abuse-
of-discretion standard, a reviewing court may not substitute its
judgment for that of the trial court. Id., citing Berk v.
Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).
{¶43} In the case sub judice, appellee argued in its reply
memorandum that Burnside’s letter, attached to appellants’
opposition memorandum, is not proper Civ.R. 56 evidence.
Apparently, the trial court did not specifically rule upon the
propriety of the evidentiary material appellants included with
their opposition memorandum. Nevertheless, when a trial court
fails to rule upon a pretrial motion, courts generally presume
that the court overruled it. State ex rel. Cassels v. Dayton
City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 223, 631
N.E.2d 150, 155 (1994), citing Newman v. Al Castrucci Ford
WASHINGTON, 23CA2 23
Sales, Inc., 54 Ohio App.3d 166, 561 N.E.2d 1001 (1988).
Moreover, appellee did not file a motion to strike.
Consequently, under these circumstances we presume that the
trial court overruled appellee’s objection to the evidentiary
material. Moreover, appellee did not cross-appeal or argue that
the trial court abused its discretion by considering the
material. Thus, we believe that we may properly consider the
evidence.
{¶44} In the case at bar, as we explain, we agree with the
trial court’s conclusion that no genuine issues of material fact
remain to be litigated at trial.
C
{¶45} A negligence action requires a plaintiff to establish
“(1) a duty requiring the defendant to conform to a certain
standard of conduct, (2) breach of that duty, (3) a causal
connection between the breach and injury, and (4) damages.”
Cromer v. Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d
257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 23; accord Texler v. D.O.
Summers Cleaners, 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998);
Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 472
N.E.2d 707 (1984). If a defendant demonstrates that the
plaintiff will be unable to prove any one of the foregoing
elements, the defendant is entitled to judgment as a matter of
WASHINGTON, 23CA2 24
law. Feichtner v. Cleveland, 95 Ohio App.3d 388, 394, 642
N.E.2d 657 (8th Dist.1994); Keister v. Park Centre Lanes, 3 Ohio
App.3d 19, 443 N.E.2d 532 (5th Dist.1981).
{¶46} “‘Duty, as used in Ohio tort law, refers to the
relationship between the plaintiff and the defendant from which
arises an obligation on the part of the defendant to exercise
due care toward the plaintiff.’” Wallace v. Ohio Dept. of
Commerce, 96 Ohio St.3d 266, 773 N.E.2d 1018, ¶ 23, quoting
Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98,
543 N.E.2d 1188 (1989). Whether a duty exists in a negligence
action is generally a question of law for a court to decide.
Snay v. Burr, 167 Ohio St.3d 123, 2021-Ohio-4113, 189 N.E.3d
758, ¶ 14; Wallace at ¶ 22; Mussivand v. David, 45 Ohio St.3d
314, 318, 544 N.E.2d 265 (1989).
{¶47} In the case sub judice, both parties agree that
appellee owed appellants a duty of reasonable care. They do not
agree, however, upon the scope of that duty of reasonable care.
Appellee contends that its duty was to promptly remove the clog
once it became aware of it. Appellants, however, contend that
not only did appellee have a duty to promptly remove the clog
once it became aware of it, but it also had a duty of routine
maintenance and inspection. Appellants thus claim that genuine
WASHINGTON, 23CA2 25
issues of material fact remain as to whether appellee breached
its duties.
{¶48} The oft-cited rule regarding a political subdivision’s
duty with respect to a sewer system is that the political
subdivision has a duty to “use reasonable diligence and care to
keep [its] sewer or drain in good repair.” Portsmouth v.
Mitchell Mfg. Co., 113 Ohio St. 250, 255, 148 N.E. 846 (1925).
With respect to clogged sewers, Mitchell Mfg. further stated a
political subdivision “is bound to use reasonable diligence and
care to see that such storm sewer is not clogged with refuse,
and is liable for negligence in the performance of such duty to
a property owner injured thereby, after reasonable notice of the
clogged condition of such sewer.” Id. at syllabus.
{¶49} In Mitchell Mfg., the court determined that the city
had not used reasonable care and diligence to keep its sewer in
good repair. In that case, heavy rainfall caused water to seep
into the plaintiff’s building. Subsequently, the storm sewer
located in front of the plaintiff’s building “was found for the
greater part to be full of dirt and silt.” Id. at 252.
Additionally, “substantial evidence” existed “that repeated
notice had been given to the city of the condition of the sewers
prior to the flooding thereof.” Id. The court explained:
WASHINGTON, 23CA2 26
The record shows that the city, after cleaning out
the storm sewer in question, upon numerous occasions
permitted the refuse gathered from the catch-basins to
stand upon the street in piles, and that with each
succeeding rain this refuse was again washed back into
the sewer. This being the case, we have here, not a
mere omission upon the part of the city to perform a
duty, but a positive act upon the part of the city which
has resulted in the accumulation of refuse in the sewer,
and the resultant maintenance of a nuisance in the
street.
Id. at 253.
{¶50} The court further determined that the city’s
“operation and upkeep of sewers is not a governmental function,
but is a ministerial or proprietary function of the city.” Id.
at 255. The court found that the city’s “maintenance and upkeep
of these sewers, so that they would function properly to clear
the streets from excessive rainfall, was a proprietary function,
in the performance of which the city is held to the duty of
reasonable care.” Id. at 253. As previously indicated,
Mitchell Mfg. defined that duty of reasonable care in the
context of a sewer clog as using “reasonable diligence and care
to see that such storm sewer is not clogged with refuse, and is
liable for negligence in the performance of such duty to a
property owner injured thereby, after reasonable notice of the
clogged condition of such sewer.” Id. at syllabus.
{¶51} Thus, Mitchell Mfg. appears to stand for the
proposition that a political subdivision is not “liable for
WASHINGTON, 23CA2 27
negligence in the performance” of its duty to use “reasonable
diligence and care to see that [its] storm sewer is not clogged
with refuse,” unless the political subdivision had “reasonable
notice of the clogged condition of such sewer.” Id. In other
words, a political subdivision does not breach its duty to use
“reasonable diligence and care to see that [its] storm sewer is
not clogged with refuse,” unless the political subdivision had
“reasonable notice of the clogged condition of such sewer” and
then failed to use “reasonable diligence and care to see that
[its] storm sewer is not clogged with refuse.” Id.{¶52} In a later case, the Ohio Supreme Court defined the
duty as a “duty to keep [sewers] in repair and free from
conditions which will cause damage to private property.” Doud
v. Cincinnati, 152 Ohio St. 132, 137, 87 N.E.2d 243 (1949). In
Doud, the plaintiff filed a complaint against the city to
recover damages that the home sustained as a result of the
city’s alleged negligent maintenance of its sewer. The evidence
showed that “there was a gradual deterioration of the sewer over
a period of years, which deterioration an occasional inspection
would have disclosed,” and that the city had not inspected the
sewer for nearly 22 years. Id. at 133. The trial court
determined that if the city had inspected the sewer “at
reasonable intervals,” it would have discovered the
WASHINGTON, 23CA2 28
“deteriorating condition of said sewer and prevented the
resulting damage.” Id. The court thus concluded that the city
“failed to exercise reasonable care in the inspection of said
sewer, and that said failure to inspect said sewer was the
proximate cause of said damage.” Id.{¶53} The city appealed, and the appellate court reversed.
On appeal to the Ohio Supreme Court, the plaintiff argued, in
part, that the city had a duty “to inspect the sewer and
maintain it in a safe condition.” Id. at 137. The Ohio Supreme
Court agreed.
{¶54} The defendant, however, argued that it could not be
liable for damage to the plaintiff’s property when it did not
have any “notice of the defect in the sewer which caused the
damage to plaintiff’s property.” Id. The court stated that a
political subdivision “is not liable for damages growing out of
a dangerous condition which suddenly arises in connection with
the use or operation of its streets, sewers or other structures,
until it has actual or constructive notice of such condition.”
Id. The court also recognized, however, that “where there rests
upon the [political subdivision], as there did in this case, a
duty of inspection of the sewer as an instrumentality under its
supervision and control, the [political subdivision] becomes
chargeable with notice of what reasonable inspection would
WASHINGTON, 23CA2 29
disclose.” Id. The court thus stated that the political
subdivision “was chargeable at all times with notice of defects
which arose in the sewer in question through the slow process of
deterioration.” Id.{¶55} In reaching its decision, the Doud court relied upon
its previous decision in Mitchell Mfg. Co., supra, that
explained a political subdivision’s duty “‘to keep its sewers in
repair’” as including
“the exercise of a reasonable degree of watchfulness in
ascertaining their condition, from time to time, and
preventing them from becoming dilapidated or obstructed.
Where the obstruction or dilapidation is an ordinary
result of the use of the sewer, which ought to be
anticipated and could be guarded against by occasional
examination and cleansing, the omission to make such
examinations and to keep the sewers clear is a neglect
of duty which renders the municipality liable.”
Id. at 138, quoting 38 Am.Jur. 341, Section 636, note 3; see
also Mitchell Mfg. Co., 113 Ohio St. at 255.
{¶56} The court noted that the trial court had found that
the damage to the plaintiff’s house
was due to the gradual deterioration of the sewer in
question; that an inspection of the sewer at reasonable
intervals would have disclosed the deterioration; that
the defendant failed to exercise reasonable care in the
inspection of the sewer; and that such failure was the
proximate cause of the damage.
WASHINGTON, 23CA2 30
Id. The court thus reversed the appellate court’s decision and
affirmed the trial court’s decision that entered judgment in the
plaintiff’s favor.
{¶57} Doud, therefore, indicates that the scope of a
political subdivision’s duty with respect to a sewer condition
depends upon whether the condition arose suddenly or gradually.
If the condition arose suddenly, then the scope of the political
subdivision’s duty is to exercise reasonable care to resolve the
condition once it receives notice of the condition. For sewer
conditions that arise gradually, however, the political
subdivision’s duty is to exercise “a reasonable degree of
watchfulness in ascertaining [the sewers’] condition, from time
to time, and preventing them from becoming dilapidated or
obstructed.” Id., quoting 38 Am.Jur. 341, Section 636, note 3
{¶58} Since these two decisions, numerous Ohio appellate
courts have discussed the scope of a political subdivision’s
duties with respect to a sewer system. E.g., Tangler v.
Carrollton, 2018-Ohio-1343, 110 N.E.3d 165, ¶ 20 (7th Dist.);
Pierce v. Gallipolis, 2015-Ohio-2995, 39 N.E.3d 858 (4th Dist.);
Kendle v. Summit Cnty., 9th Dist. Summit No. 15268, 1992 WL
80074 (Apr. 15, 1992).
{¶59} In Kendle, the court explained the scope of a
political subdivision’s “duty to use due diligence to inspect
WASHINGTON, 23CA2 31
for defects.” Id. at *2. In that case, the plaintiffs
discovered raw sewage in their basement and immediately notified
the county. A maintenance crew responded and discovered the
main sewer line blocked and this sewage blockage caused the
backup into the home. The plaintiffs subsequently filed a
complaint against the county to recover the damages that they
sustained as a result of the county’s alleged negligent
maintenance of the sewer.
{¶60} The county requested summary judgment and in support,
the county relied upon evidence that “roots and undergarments”
had caused the blockage. The county further submitted evidence
to show that its last inspection of the sewer located on the
plaintiffs’ street occurred approximately two years and nine
months before the sewage intruded into the plaintiffs’ home.
The trial court granted the county summary judgment, and the
plaintiffs appealed.
{¶61} On appeal, the plaintiffs alleged that the rules set
forth in Mitchell Mfg. and Doud established the county’s
negligence. They asserted that the county had “a duty to
reasonably inspect its sewers to detect and eliminate
blockages.” Id. at *2. The plaintiffs claimed that the
county’s failure to inspect the sewer for nearly three years was
WASHINGTON, 23CA2 32
“inherently unreasonable and present[ed] a triable issue of
fact.” Id.
{¶62} The appellate court agreed that “the operation of a
sewer system includes a duty to use due diligence to inspect for
defects” and that the county “is chargeable with knowledge of
what a reasonable inspection would have revealed.” Id. The
court did not agree, however, that the plaintiffs had produced
evidence to establish genuine issues of material fact regarding
the county’s negligence.
{¶63} The court distinguished Mitchell Mfg. and noted that,
unlike the plaintiff in Mitchell Mfg., the plaintiffs in Kendle
did not produce evidence that the county had notice regarding
the condition of the sewer. The court distinguished Doud by
explaining that unlike the situation in Doud that involved a
gradual deterioration of the sewer, in Kendle no evidence
existed that the sewer gradually deteriorated. The court also
recognized that the plaintiffs argued that the county should
have inspected the sewer on a more frequent basis. The court
determined, however, that the record did not contain any
evidence “that more recent inspections would have revealed the
blockage that occurred in this case.” Id. at *4. The court
explained:
WASHINGTON, 23CA2 33
The possibility of a sewer becoming clogged, absent any
negligence, is an unfortunate circumstance which we all
must face as incident to the benefits received from a
public sewer system. Accepting the [plaintiffs’]
argument would make every operator of a public sewer
system absolutely liable, absent any fault, for all
damages resulting from a clogged sewer.
Id. The court thus affirmed the trial court’s summary judgment.
{¶64} In Pierce, on the other hand, we determined that
genuine issues of material fact existed regarding the city’s
“compliance with its duty to maintain the sewer lines.” Id. at
¶ 35. In that case, the plaintiffs asserted that the city
negligently maintained its sewer line and thereby caused damage
to their home and personal injury to one of the plaintiffs.
{¶65} The city requested summary judgment and argued, in
part, that no genuine issues of material fact remained regarding
whether it negligently maintained the sewer system. The city
submitted evidence that (1) it had not received notice of any
conditions that suggested the sewer was in a state of disrepair
before the event that caused the plaintiffs’ injuries, and (2)
it conducted routine maintenance of the sewer system. The city
also submitted evidence that “a large amount of fill on top of a
steep slope of [the plaintiffs’] property without compensating
fill at the bottom of the slope, combined with unusually heavy
rainfall * * *, caused the land to slip, which then, broke the
sewer line.” Id. at ¶ 4.
WASHINGTON, 23CA2 34
{¶66} The plaintiffs produced evidence that (1) the city had
not conducted any maintenance on the sewer line located near the
plaintiffs’ property for 20 years, (2) several sewer backups had
occurred in the area, (3) the city initially denied that a sewer
line existed on the plaintiffs’ property, and (4) the city did
not take any corrective action for more than eight months after
the incident. The plaintiffs also submitted expert opinion
testimony that “the lack of maintenance of this sewer line
allowed the line to fall into a state of disrepair” and
ultimately caused the plaintiffs’ injuries. Id. at ¶ 8. The
trial court denied the city’s summary judgment motion and the
city appealed.
{¶67} On appeal, the city argued that the trial court erred
by concluding that genuine issues of material fact remained as
to whether it negligently maintained the sewer system because,
the city claimed, the evidence shows that “it did conduct
routine maintenance of its sewer lines” and “had no prior
knowledge of issues with the sewer line.” Id. at ¶ 30. This
court, however, determined that the plaintiffs had submitted
evidence to refute the city’s allegations and thereby
established that genuine issues of material fact remained. We
thus affirmed the trial court’s decision to overrule the city’s
summary judgment motion. See also Williams v. Glouster, supra.
WASHINGTON, 23CA2 35
{¶68} We believe that the case at bar bears more similarity
to Kendle than to Pierce. Similar to the Kendle plaintiffs, and
unlike the Pierce plaintiffs, appellants did not produce any
evidence that before October 1, 2020, appellee had actual or
constructive notice that the sewer had been clogged or otherwise
contained a defect. Appellants allege that appellee knew the
sewer had been clogged in 2018, but they did not produce any
evidence to support that allegation. Instead, the evidence
indicates that in 2018, appellants’ home experienced a small
sewage intrusion and appellants did not report it to appellee.
Appellants did not produce any admissible evidence to show that
before October 1, 2020, other residents had complained to
appellee about the condition of the sewer.
{¶69} Appellants contend, however, that appellee had
“accepted responsibility for” “a similar issue in 2018.” To
support this assertion, appellants cite to “Schedule 1, used in
the deposition of Kevin Knab (also known as ‘W1’).” Knab’s
deposition does not contain any exhibit identified as “Schedule
1” or “W1.” Thus, we are unable to determine which exhibit
appellants’ argument references. It may reference Exhibit 1,
however, but if so, Exhibit 1 does not support appellants’
assertion that appellee “accepted responsibility for” “a similar
issue in 2018.” Rather, Exhibit 1 is a July 23, 2018 letter
WASHINGTON, 23CA2 36
that appellee sent to all Washington County Sewer System
Customers. In this letter, appellee “urge[d] all customers * *
* to investigate and install a sanitary sewer backup solution.”
Nothing in this letter indicates that appellee “accepted
responsibility for” “a similar issue in 2018.” Rather, the
letter states that appellee “will no longer be able to offer
these services after December 31, 2018.” The services described
in the letter are “sanitary sewer backup solutions.” Thus, this
letter does not support appellants’ assertion that in 2018,
appellee was aware of a problem with the sewer located near
appellants’ home. Appellants additionally note that the record
contains some evidence to suggest that county or city employees
had been to the Seneca Drive area in the past “to clean a
plugged sewer.” However, no evidence exists when those
employees had been in that area or whether the “plugged sewer”
was the same one that became clogged on October 1, 2020.
{¶70} Therefore, we agree with the trial court that in the
case sub judice the record does not contain any evidence to
create a genuine issue of material fact as to whether, before
October 1, 2020, appellee had actual or constructive notice of
any clogging, defects, or deterioration with the sewer located
by appellants’ residence.
WASHINGTON, 23CA2 37
{¶71} Furthermore, unlike the plaintiffs’ evidence in Pierce
that stated the city did nothing in response to the plaintiffs’
complaint for eight months, in the case sub judice appellants
did not submit any evidence to create a genuine issue of
material fact as to whether appellee exercised reasonable care
to remove the clog once it learned about the issue. Here, the
city employees stated that they responded to the area as soon as
practical upon learning that appellee had requested its
assistance. The evidence shows that the employees responded to
the area on the same date that the clog had been reported to
appellee. Appellants did not produce any evidence to suggest
that appellee delayed requesting the city’s assistance or that
the city employees failed to respond to the call for help in a
timely fashion. Instead, appellants speculate about the absence
of business records to support the city employees’ deposition
testimony. Speculation about the lack of evidence is not
sufficient to create a genuine issue of material fact.
Bowersock v. Addlesburger, 4th Dist. Washington No. 19CA13,
2019-Ohio-5447, ¶ 39 (“[s]peculation is not sufficient to
create a genuine issue of material fact so as to defeat a
properly supported summary judgment motion”). Consequently, the
record in the case at bar does not contain any evidence to
create a genuine issue of material fact as to whether appellee
WASHINGTON, 23CA2 38
exercised reasonable care to remove the clog once it learned
about the issue.
{¶72} With regard to appellants’ claim that appellee failed
to comply with it duty to maintain the sewer and to inspect it
at reasonable intervals, we note that the record does not
contain any evidence that appellee engaged in routine
maintenance or inspection of the sewer. As the party moving for
summary judgment, appellee bore the burden to point to evidence
in the record to demonstrate the absence of a material fact
regarding whether it complied with its duty of routine
maintenance and inspection. Construing the record most strongly
in appellants’ favor indicates that a genuine issue of material
fact remains regarding appellants’ claim that appellee breached
its duty to keep the sewers in good repair and free from defects
by engaging in routine maintenance and conducting inspections at
reasonable intervals. However, as in Kendle, no evidence exists
that routine maintenance and inspections at reasonable intervals
would have prevented (1) the clog from forming, or (2) the
sewage intruding into appellants’ home. At best, the evidence
shows that the clog may have existed for one week or so. We do
not believe that routine maintenance and inspections at
reasonable intervals require weekly maintenance and inspection
of all sewer lines under a political subdivision’s control. We
WASHINGTON, 23CA2 39
also do not believe that this issue is a jury question because
if it were, inconsistent results could occur.
{¶73} Furthermore, we previously rejected a similar argument
in Essman v. Portsmouth, 4th Dist. Scioto No. 09CA3325, 2010-
Ohio-4837. In that case, the plaintiffs asserted that the city
“negligently maintained the [sewer] system because it did not
have any type of maintenance plan.” Id. at ¶ 50. We
determined, however, that even if “the city was negligent due to
its failure to have a maintenance plan, [the plaintiffs’]
evidence fails to show how a maintenance plan would have
prevented the sewage intrusions.” Id. We additionally observed
that the plaintiffs’ evidence did “not specify what type of
maintenance plan the city should have implemented and how the
failure to implement this particular maintenance plan resulted
in the sewage intrusions.” Id.
{¶74} Likewise, in the case sub judice, the evidence does
not show how a maintenance or inspection plan would have
prevented the clog or the sewage intrusion. Furthermore,
appellants did not specify the maintenance or inspection
schedule that appellee should have implemented and how the
failure to implement either caused the sewage intrusion.
{¶75} In sum, we do not believe that the record contains any
evidence to establish genuine issues of material fact regarding
WASHINGTON, 23CA2 40
appellee’s negligence in maintaining or operating the sewer
system. Therefore, any arguments that the parties have raised
regarding appellants’ comparative negligence are moot. Halloran
v. Barnard, 4th Dist. Lawrence No. 16CA9, 2017-Ohio-1069, ¶ 25
(comparative negligence “is not an issue unless the defendant,
as well as the plaintiff, was negligent”). Consequently, we
agree with the trial court’s conclusion in granting appellee
summary judgment.
{¶76} Accordingly, based upon the foregoing reasons, we
overrule appellants’ sole assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
WASHINGTON, 23CA2 41
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
appellee recover of appellants the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Washington County Common Pleas Court to
carry this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.