Everett v. Parma Hts.

[Cite as Everett v. Parma Hts., 2013-Ohio-5314.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99611
RENEE EVERETT, ET AL.
PLAINTIFFS-APPELLANTS
vs.
CITY OF PARMA HEIGHTS, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-754706
BEFORE: E.A. Gallagher, J., Stewart, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: December 5, 2013
ATTORNEYS FOR APPELLANTS
Neal R. Nandi
Matthew F. Browarek
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
Robert F. Cathcart
John T. McLandrich
Frank H. Scialdone
Mazanec, Raskin & Ryder Co., L.P.A.
100 Franklin’s Row
34305 Solon Road
Cleveland, OH 44139
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Dale F. Pelsozy
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
Michael D. Pokorny
Director of Law
City of Parma Heights
6281 Pearl Road
Parma Heights, OH 44130
EILEEN A. GALLAGHER, J.:
{¶1} Plaintiffs-appellants David and Renee Everett (the Everetts) appeal the
judgment of the trial court granting summary judgment in favor of the city of Parma
Heights (“City”) and Cuyahoga County. The Everetts argue that the trial court erred in
determining that no genuine issue of material fact remained to be litigated for trial.
Finding no merit to the instant appeal, we affirm the decision of the trial court.
{¶2} The Everetts have resided at 10109 Eureka Parkway in the City since July
1, 1991. Since that time, the Everetts allege that they had five incidents where their
home flooded, filling their entire basement with between four to fourteen inches of
raw-sewage material. The first incident of flooding occurred in 1993, and they were
flooded again in 1994, 1995, 2003 and 2007. The Everetts informed the City after each
flooding incident and, in 2008, they repaired their private sewer lateral and installed a
backflow preventer. The Everetts admit that they have not experienced a flooding of
their basement since the repair and reconfiguration in 2008.
{¶3} The City owns the sewers within its borders and maintains the storm
sewers. Cuyahoga County maintains the sanitary sewers within Parma Heights pursuant
to a contract with the City entered into in 2001. Cuyahoga County reported that they
have monitored and maintained each sanitary sewer on a regular basis and have
effectuated the necessary repairs, as needed, throughout the existence of their contract
with Parma Heights.
{¶4} The Everetts filed the instant action against both the City and Cuyahoga
County alleging negligence, trespass/nuisance, illegal taking, and breach of a third-party
complaint. Both the City and the County filed motions for summary judgment claiming
that they were entitled to governmental immunity and, more specifically, that the
problems arising on the Everetts’ property resulted from the improper construction of the
lateral and the improper tie-in to the manhole in the street, none of which were the
responsiblity of either the City or the County.
{¶5} The Everetts submitted the expert report of Peter Zwick, P.E. In his
report, Zwick opined that the Everetts’ sanitary sewer backups have been caused by the
following: (1) inflow and infiltration during rain events causing a surcharge into the
City’s sanitary system, (2) improper configuration of the Everetts’ lateral connection to a
City sanitary manhole and (3) inadequate slope of the Everetts’ sanitary lateral to the City
sewer. The City and the County responded with expert testimony of their own arguing
that neither agency was negligent.
{¶6} After reviewing the submitted evidence, the trial court found that there
were no genuine issues as to any material fact, that reasonable minds could only find in
favor of the City and the County and that the defendants were entitled to judgment as a
matter of law.
{¶7} The Everetts appeal, raising the following assigned errors:
The trial court erred to the prejudice of Appellant-Plaintiff by granting
Appellee-Defendant City of Parma Heights and Appellee-Defendant
County of Cuyahoga’s motions for summary judgment based upon
erroneous finding that plaintiffs have not presented any expert testimony to
show with a reasonable degree of engineering probability that the flooding
condition was caused by the negligence of the City of Parma Heights and/or
Cuyahoga County and that negligence arose out of a proprietary function.
The trial court erred when it granted the City of Parma Heights and County
of Cuyahoga’s motion for summary judgment because the
Plaintiff-Appellants properly brought an action for unlawful taking against
the Defendant-Appellees in this matter, alleging that as a direct result of
defendants’ negligence, as well as defendants-appellees’ failure to control
and maintain the sewer systems, Plaintiff-Appellants’ property has been
flooded with waste water all resulting in a temporary and/or permanent
taking by the Defendant-Appellees.
{¶8} Initially, we note that the Everetts limited their appeal to their claims of
negligence and illegal taking. As such, our review of the evidence shall be limited to
those two claims and we will not review their claims of trespass/nuisance and breach of
third-party contract, which were raised only in the trial court.
{¶9} We review an appeal from summary judgment under a de novo standard.
Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly,
we afford no deference to the trial court’s decision and independently review the record
to determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v.
Cuyahoga Cty Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th
Dist.1997).
{¶10} Civ.R. 56(C) provides that before summary judgment may be granted, a
court must determine 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) it
appears from the evidence that reasonable minds can come to but one conclusion, and
viewing the evidence most strongly in favor of the nonmoving party, that conclusion is
adverse to the nonmoving party. State ex rel. Duganitz v. Ohio Adult Parole Auth., 77
Ohio St.3d 190, 191, 1996-Ohio-326, 672 N.E.2d 654.
{¶11} The moving party carries an initial burden of setting forth specific facts
that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75
Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. If the movant fails to meet
this burden, summary judgment is not appropriate but if the movant does meet this
burden, summary judgment will be appropriate only if the nonmovant fails to establish
the existence of a genuine issue of material fact. Id. at 293.
{¶12} As stated by the trial court in its opinion granting summary judgment, the
legislature has generally shielded political subdivisions from tort liability. Greene Cty.
Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 2000-Ohio-486, 733 N.E.2d 1141.
Chapter 2744 of the Revised Code sets forth a three-tier analysis for determining whether
a political subdivision is immune from liability. The first step sets forth the general rule
that political subdivisions are entitled to broad immunity. R.C. 2744.02(A)(1) provides:
Except as provided in division (B) of this section, a political subdivision is
not 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 an employee of the political subdivision in connection with a
governmental or proprietary function.
{¶13} Under the second tier of the statutory analysis, once immunity is
established, a determination must be made as to whether any of the five exceptions to
immunity listed under R.C. 2744.02(B) apply. If one or more exceptions apply, the
third tier of analysis requires a determination of whether immunity may be reinstated
because a defense applies. Relevant here is the exception in R.C. 2744.02(B)(2), which
declares that as a rule:
[P]olitical 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.
{¶14} Relevant to this case, R.C. 2744.01(C)(2)(l) identifies as a governmental
function “the provision or nonprovision, planning or design, construction, or
reconstruction of a public improvement, including but not limited to, a sewer system,”
making these responsibilities immune from political-subdivision liability. By contrast,
R.C. 2744.02(G)(2)(g) identifies “the maintenance, destruction, operation, and upkeep of
a sewer system” as a proprietary function for which civil liability may attach.
{¶15} In this case, the Everetts assert a claim against the City and the County for
negligent maintenance of the sewer system. However, before R.C. 2744.02(B)(2) will
remove the City or the County’s immunity, the Everetts must first establish the elements
required to sustain a negligence action and second, that the negligence arose out of “a
proprietary function.” Nelson v. Cleveland, 8th Dist. Cuyahoga No. 98548,
2013-Ohio-493. “In order to establish negligence, one must show the existence of a
duty, a breach of that duty, and that the breach was the proximate cause of an injury.”
Nelson at ¶ 22.
{¶16} As stated above, the Everetts’ expert opined that their sanitary sewer
backups were caused by (1) inadequate slope of the Everetts’ sanitary lateral to the City
sewer, (2) improper configuration of the Everetts’ lateral connection to a City sanitary
manhole and (3) inflow and infiltration during rain events causing surcharging in the
City’s sanitary system. In particular, Zwick noted that the Everetts’ lateral, which is the
pipe traveling from their basement to the City-owned sanitary sewer had an inadequate
slope. Further, the lateral itself is connected approximately one foot too low on the
City’s sanitary manhole. Because of this, the City’s sanitary sewer pipe need not even
be full before sewage begins to fill the Everetts’ lateral. Zwick noted that both of these
problems are construction issues and that he was unaware who installed and connected
the lateral to the City’s manhole. It is clear from the testimony of the Everetts’ expert
that even if this lateral were not on private property, this is a construction issue that
would qualify as a “government function,” pursuant to R.C. 2744.01(C)(2)(l) and the City
and County are immune from liability.
{¶17} With regard to the inflow and infiltration problem, Zwick testified that the
“sewer authority” should have passed an ordinance to “eliminate illegal connections” into
the sanitary system. Zwick acknowledged that this would involve legal or legislative
action and would result in work performed on private residents’ property. Zwick also
testified that the City and/or the County should have built a relief sewer or “surge tank”
to handle the surcharging resulting from inflow and infiltration and replaced substandard
pipes. Zwick admitted that both of these options required completely new construction
of sewers. Zwick’s first proposal is a governmental function as defined by R.C.
2744.01(C)(2)(f). Further, his remaining two proposals would require construction of
new sewers, which also fall under the “governmental function” definition of “planning or
design, construction, or reconstruction of a public improvement, including, but not
limited to, a sewer system.”
{¶18} The City offered the opinions of Christopher Courtney, P.E., who
acknowledged that, although there is an inflow and infiltration problem in the area of the
Everetts’ home, studies show that 70 to 80% of inflow and infiltration to sanitary sewers
were coming from private property. Courtney reported that the City and the County
have adequately maintained and operated the sewers, which function “in all but the most
severe rainfall conditions.” Finally, Courtney opined that the “substandard” connection
of the Everetts’ lateral to the City manhole was not the fault of the City or the County:
At the time of home construction, the builder laid the connection in a
manner that created the flat/backwards sloped connection that reaches the
main line below the flow line of the sewer. When building the home, the
builder should have either raised the basement floor elevation, or serviced
the basement with a sanitary sump pump.
{¶19} The County offered an affidavit from their expert, Charles Althoff, who
related that in 2007 the County televised and inspected the sanitary sewers proximate to
the Everetts’ property. The County’s inspection revealed that the storm and sanitary
sewer lines located within the City were clear and free from obstruction and in good
repair. The County also tested the Everetts’ sewer lateral and discovered that the
Everetts’ sanitary sewer lateral was pitched back towards the home and had a “sag in the
line” where water was “ponding” instead of flowing freely through the line. Althoff
noted that the pitch of the lateral towards the Everetts’ home caused a decrease in the
flow of water from the house, which allowed materials entering the sanitary lateral from
the home to become stuck within the pipe causing blockages and flow problems. The
County’s report also revealed that the Everetts had an illegal connection from one of their
downspouts on their home into the sanitary sewer lateral.
{¶20} The Everetts also support their argument by citing a letter from City
Engineer Daniel Neff. In the letter dated from 1995, Neff recommends to the city’s
mayor that 270 feet of sanitary sewer under Eureka Parkway be replaced due to cracks
and structural failure. The Everetts used this letter to stand for the proposition that the
City was aware since 1995 that the sewer system servicing their home was flawed and
that these flaws caused the Everetts’ flooding in their basement. Although the City and
the County admit that the line has not been replaced, they state that “there is a regular
system of inspection and maintenance of sanitary sewers in Parma Heights” and the
“sanitary sewers in the Eureka Parkway area have been inspected every two to three years
and have been in good repair and clear of any debris or obstructions.” Affidavit of
Charles Althoff, Cuyahoga County Sanitary Engineer.
{¶21} As the trial court noted, the Everetts have not produced any evidence of
the present-day condition of the Eureka Parkway sewer line and, further, they have not
had any problems since they installed a backflow preventer and replaced their sanitary
lateral in 2008.
{¶22} Although the Everetts allege that their negligence claim falls within the
“proprietary function” exception to immunity under R.C. 2744.02(B)(2), they have failed
to meet their burden of establishing the elements required to sustain a negligence action
and that the negligence arose out of a proprietary function. Further, all potential causes
and repair for the sanitary backups listed by their expert fall under the governmental
function definition of political subdivision immunity. R.C. 2744.01(C)(2)(1).
{¶23} Because the Everetts did not present any expert testimony to show within
a reasonable degree of engineering probability that the flooding condition was caused by
the negligence of the City and/or Cuyahoga County and that negligence arose out of a
proprietary function, their negligence claim fails as a matter of law.
{¶24} The Everetts’ first assignment of error is overruled.
{¶25} In their second and final assigned error, the Everetts argue that the trial
court erred in granting summary judgment in favor of the City and the County on their
claim of illegal taking. We disagree.
{¶26} The Everetts’ claims against the City in mandamus requesting that the
court compel the City to initiate appropriation proceedings with respect to their home
also fails. In this claim, the Everetts argue that the City has “taken” their property
because of the sewer flooding issues. However, as noted by the trial court, in Ohio, an
application for the writ of mandamus must be by petition, in the name of the State on the
relation of the person applying, and verified by affidavit. R.C. 2731.04. The Ohio
Supreme Court “has dismissed petitions for writs of mandamus when, inter alia, the
action was not brought in the name of the state on the relation of the person requesting
the writ.” Blankenship v. Blackwell, 103 Ohio St.3d 567, 574, 2004-Ohio-5596, 817
N.E.2d 382.
{¶27} The Everetts failed to comply with R.C. 2731.04 in bringing their
mandamus action against the City and thus, their claim fails as a matter of law.
{¶28} The Everetts’ second assignment of error is overruled.
{¶29} The judgment of the trial court is affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
SEAN C. GALLAGHER, J., CONCURS;
MELODY J. STEWART, A.J., CONCURS
IN JUDGMENT ONLY