State ex rel. Slacas v. KCI Technologies, Inc.

[Cite as State ex rel. Slacas v. KCI Technologies, Inc., 2022-Ohio-4573.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO ex rel. CASE NO. 2022-P-0012
KATHLEEN SLACAS, et al.,
Plaintiffs-Appellees, Civil Appeal from the
Court of Common Pleas
- vs -
KCI TECHNOLOGIES, INC., et al., Trial Court No. 2014 CV 00572
Defendants,
PORTAGE COUNTY ENGINEER, et al.,
Defendants-Appellants.
OPINION
Decided: December 19, 2022
Judgment: Affirmed in part, reversed in part, and remanded
Thomas J. Connick, Schneider, Smeltz, Spieth, Bell, LLP, 1375 East Ninth Street, Suite
900, Cleveland, OH 44114 and Edward A. Proctor, Kim and Associates, 4100 Embassy
Parkway, Suite 200, Akron, OH 44333 (For Plaintiffs-Appellees).
Victor V. Vigluicci, Portage County Prosecutor, and David J. Garnier, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 and John D. Pinzone and
Frank H. Scialdone, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin’s Row, 34305
Solon Road, Cleveland, OH 44139 (For Defendants-Appellants).
MATT LYNCH, J.
{¶1} Defendants-appellants, the Portage County Engineer; County of Portage,
Ohio; and the Portage County Board of Commissioners (the “Portage County
defendants”) appeal the decision of the Portage County Court of Common Pleas denying
them the benefit of political subdivision immunity under R.C. Chapter 2744 with regard to
certain tort claims. For the following reasons, we affirm in part and reverse in part the
decision of the court below and remand for further proceedings consistent with this
Opinion.
{¶2} On July 16, 2014, plaintiffs-appellees, Jessica L. Ayers and other
representative plaintiffs, filed a Class Action Complaint against KCI Technologies, Inc.;
MS Consultants, Inc.; Oscar Brugmann Sand & Gravel, Inc.; Todd Brugmann; the Portage
County Engineer; County of Portage, Ohio; Romano & Sons Nursery; Pasquale Romano;
and Michael Marozzi. The plaintiffs are or have been at relevant times residents or
property owners in the Aurora East Subdivision, Shalersville Township, Portage County.
With respect to the Portage County defendants, the Complaint alleged as follows:
Plaintiffs, on behalf of themselves and Class of similarly situated
persons defined below, bring this suit to seek redress for negligence,
continuing nuisance, continuing trespass, Unconstitutional Taking
under both the Ohio and Federal Constitutions, Writ of Mandamus
for Inverse Condemnation, and injunctive and declaratory relief. * *
* Plaintiffs have * * * been and continue to be damaged by the
negligence, reckless, willful and wanton actions of the Portage
County Engineer’s negligent failure to properly operate, maintain
and/or upkeep the Aurora East Storm Drainage Sewer System,
Aurora East roadways, and the drainage from the aforementioned
swamp area that the county has negligently maintained and alleged
unreasonable amounts of water to be diverted directly into the Aurora
East Subdivision. [Sic] Additionally, the Portage County engineer
has acted with wanton, willful and reckless disregard for the rights of
the Aurora East residents and property owners. Alternatively,
Plaintiffs are entitled to fair and just compensation for the County of
Portage, Ohio’s unconstitutional taking of their properties under both
the Ohio and Federal Constitution.
{¶3} In the course of the subsequent litigation, the plaintiffs dismissed KCI
Technologies, MS Consultants, Todd Brugmann, Romano & Sons Nursery, and Michael
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Marozzi as defendants. The Portage County Board of Commissioners was subsequently
added as a defendant.
{¶4} On November 1, 2018, the trial court certified the following class: “All
persons who own or owned real property in the East Aurora Subdivision at any time since
1998 and whose property suffered excessive flooding and/or whose property was unduly
taken or otherwise adversely affected due to any actions on the part of Defendants
causing alterations of surface water through the Subdivision.” Class certification was
affirmed on appeal by this court in Ayers v. KCI Technologies, Inc., 2019-Ohio-3614, 131
N.E.3d 1015 (11th Dist.).
{¶5} On June 24, 2021, the Portage County defendants filed a Motion for
Summary Judgment, inter alia, on the grounds that they were entitled to political
subdivision immunity with respect to plaintiffs’ claims for negligence, trespass, and
nuisance. The plaintiffs filed a Brief in Opposition on September 15, 2021. And, on
September 30, 2021, the Portage County Defendants filed a Reply in Support of
Summary Judgment.
{¶6} On January 12, 2022, the trial court issued an Order and Journal Entry
denying the Motion for Summary Judgment. The Entry did not directly address the issue
of political subdivision immunity. Rather, it stated:
A review of the briefs submitted by the parties reveals a number of
genuine issues of material fact relating to alleged actions and/or
inactions of the Defendants, whether the damages allegedly suffered
by the Plaintiffs were proximately caused by said actions and/or
inactions, and whether the claims of the Plaintiffs, if any, fall within
the applicable statutes of limitations set forth in the Ohio Revised
Code. * * * As there are genuine issues of material fact and that
alternate conclusions may be made from the evidence presented in
the Defendant Portage County Engineer, Portage County, Ohio, and
the Portage County Board of Commissioners’ Motion for Summary
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Judgment, Plaintiffs’ Brief in Opposition, and Defendant Portage
County’s Reply Brief in support of its Motion, Defendants Portage
County’s Motion for Summary Judgment must be denied.1
{¶7} On February 10, 2022, the Portage County defendants filed a Notice of
Appeal. On appeal, they raise the following assignment of error: “The lower court denied
the benefit of immunity to defendants/appellants under Chapter 2744 of the Ohio Revised
Code.”
{¶8} “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, 109 N.E.3d 1210, ¶ 12.
{¶9} “The review of a summary judgment denying political-subdivision immunity
is de novo and is governed by the summary-judgment standard set forth in Civ.R. 56.” Id.
at ¶ 13. “Summary judgment may be granted when ‘(1) [n]o 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 such evidence most strongly in favor of the party against
whom the motion for summary judgment is made, that conclusion is adverse to that
party.’” (Citations omitted.) Id.
{¶10} Pursuant to Ohio’s Political Subdivision Tort Liability Act, “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
1. This language is from an Order and Journal Entry Nunc Pro Tunc issued on April 15, 2022, which
included the Portage County Board of Commissioners as defendants.
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function.” R.C. 2744.02(A)(1). “[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.” R.C. 2744.02(B)(2).
See Pelletier at ¶ 15 (describing the “familiar, three-tiered analysis” for determining
whether a political subdivision is immune from tort liability pursuant to R.C. Chapter 2744).
{¶11} “The provision or nonprovision, planning or design, construction, or
reconstruction of a public improvement, including, but not limited to, a sewer system” is a
governmental function. R.C. 2744.01(C)(2)(l). “The maintenance, destruction, operation,
and upkeep of a sewer system” is a proprietary function. R.C. 2744.01(G)(2)(d).
Consistent with these definitions, Ohio “courts of appeals have developed a body of law
holding that subdivisions are immune from claims that flow from the design and
construction of a sewer system.” Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28,
2012-Ohio-3881, 975 N.E.2d 952, ¶ 19, citing Spitzer v. Mid Continent Constr. Co., Inc.,
8th Dist. Cuyahoga No. 89177, 2007-Ohio-6067, ¶ 20 (“Ohio courts have found that
municipalities are immune from suit when flooding to private property was a result of an
improperly designed sewer that was inadequate to handle increased storm runoff”).
{¶12} On appeal, the Portage County defendants assert that they are “entitled to
R.C. Chapter 2744 immunity on the state law tort claims for negligence, trespass,
nuisance, and the state taking claim for direct monetary damages.” Brief of Appellants at
11. They characterize the plaintiffs’ claims of liability as being essentially based on the
County’s failure to upgrade the sewer system in the East Aurora Subdivision. Relying on
Coleman, the Portage County defendants maintain that the failure to upgrade a sewer
system constitutes the construction or design of a system and, thus, is a governmental
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function. Coleman at ¶ 1 (“because upgrading involves construction and design, such
upgrading is a governmental, not a proprietary, function”).
{¶13} To the contrary, the plaintiffs assert that “[t]he repeated flooding in the
Subdivision that is the subject of this case was caused by design, construction, and lack
of maintenance issues as described in [their] expert reports.” Brief of Appellees at 8.
The causes of flooding, as identified by the expert report, are summarized as follows:
[1.2] Portage County and the Portage County Engineer failed to
obtain easements, and design and construct the berms, swales,
inlets, and pipe connections from the adjoining upland drainage
areas to the existing Subdivision storm drainage system. As such,
flooding occurs because drainage from adjoining upland property to
the east and west occurs as sheet flow in an undirected and
uncontrolled manner into the Subdivision. Problem areas include
Greenwich, Field, and Nolte Streets.
[2.] Portage County and the Portage County Engineer failed to obtain
easements, and design and construct the berm, ditch and pipe
needed to re-route the swamp ditch to a storm drainage pipe at the
west end of Invernest Street. The swamp ditch carries a large
drainage flow rate in wet weather that currently discharges into the
Subdivision storm drainage system at Hadley Street, overloads the
Subdivision storm drainage system, and floods the Subdivision.
[3.] Portage County and the Portage County Engineer failed to
maintain the Subdivision drainage system causing flooding. This
maintenance involved the cleaning of the Bartlett Road trash rack,
repair of the driveway culverts, and clearing of ditches and catch
basin gratings. Michael Marozzi, the Portage County Engineer,
admitted in his deposition that his department only performs storm
drainage system maintenance after complaints are lodged which
typically is after flooding has occurred.
[4.] Portage County, the Portage County Engineer and Romano have
failed to maintain the 8-inch drainage pipe from the Romano property
to the catch basin at the west end of Greenwich Street. This lack of
2. The alleged causes of flooding have been identified numerically for ease of discussion.
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maintenance is a cause of flooding in the Subdivision on the north
side of Greenwich Street.
[5.] Portage County and the Portage County Engineer built a berm
along the Romano property line at the end of Greenwich Street that
makes flooding worse in the Subdivision on the north side of
Greenwich Street.
[6.] Portage County and the Portage County Engineer have allowed
filling of an overflow “saddle” along the swamp ditch near the west
end of Invernest Street. The filling occurred in about 2010 and has
increased the drainage flow rates being discharged in wet weather
into the Subdivision storm drainage system at Hadley Street and
increased flooding in the Subdivision.
[7.] Portage County and the Portage County Engineer paved the
roads in the Subdivision in about 1999 and raised the roads 2 to 3-
inches. Some homes in the Subdivision have slab elevations that
are now below the road levels. Flooding has increased for these
homes because the roads were raised.
Expert Report of Karen E. Ridgway, P.E. at 5-6.
{¶14} The majority of the causes identified by the plaintiffs clearly pertain to the
provision or nonprovision, planning or design, construction, or reconstruction of the sewer
system for the East Aurora Subdivision. Accordingly, they are classified as a
governmental function for which the Portage County defendants are entitled to tort
immunity apart from their takings claims.
{¶15} The first two causes are premised on the Portage County defendants’ failure
to implement certain recommendations contained in a 1974 drainage study performed by
the Mosure-Fok & Syrakis Company (MFS). The MFS study recognized that an effective
storm sewer system would need to be able to intercept drainage from adjoining upland
properties. When the existing drainage system was designed and built between 1993
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and 1999, several of these recommended features were not included. The expert report
states:
Not all elements required for a complete and functioning storm
drainage system in the Subdivision were designed and built by
* * * Portage County and the Portage County Engineer from 1993
through 1999. * * * MFS recognized that the new Subdivision storm
sewers in all road rights-of-way needed to extend to the east and
west to intercept drainage from the adjoining upland property. This
intent was clearly stated and shown in the MFS report but did not
occur in the design and construction of the new Subdivision storm
drainage system.
(Emphasis sic.)
{¶16} In distinguishing the governmental design and construction of a sewer
system from the proprietary maintenance of the system, the Ohio Supreme Court adopted
the following: “A complaint is properly characterized as a maintenance, operation, or
upkeep issue when ‘remedying the sewer problem would involve little discretion but,
instead, would be a matter of routine maintenance, inspection, repair, removal of
obstructions, or general repair of deterioration.’ Essman [v. Portsmouth, 4th Dist. No.
09CA3325, 2010-Ohio-4837] at ¶ 32. But the complaint presents a design or construction
issue if ‘remedying a problem would require a [political subdivision] to, in essence,
redesign or reconstruct the sewer system.’ Essman at ¶ 32-33.” (Citation omitted.)
Coleman, 133 Ohio St.3d 28, 2012-Ohio-3881, 975 N.E.2d 952, at ¶ 30.
{¶17} Here, the remedy for the first two causes of flooding would require the
Portage County defendants to redesign and reconstruct the sewer system in accordance
with the recommendations from the MFS report. Thus, they present design and
construction issues for which the Portage County defendants enjoy immunity.
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{¶18} The third cause of flooding properly states a maintenance issue for which
the Portage County defendants do not have immunity. According to the expert report,
there is a trash rack located at the upstream end of a culvert running underneath Bartlett
Road in the Subdivision. The rack requires “frequent cleaning” to avoid having water
diverted from the culvert over the road. The rack has been reported as blocked during
three identified flooding events. The necessity of keeping the rack free from obstruction
is a non-discretionary act of routine maintenance and, thus, a proprietary function.
{¶19} The fourth and fifth causes of flooding are described in the expert report as
follows:
An 8-inch diameter pipe runs from a hole in a low-lying area on the
[adjoining] Romano property near Greenwich Street * * *. It is not
known who designed or constructed the 8-inch pipe, but it is
obviously not properly sized for the drainage area served. The pipe
appears to drain from a hole in the ground on Romano’s property and
the pipe is plugged with earth at the hole. * * * A berm was
constructed by Portage County and the Portage County Engineer
west of the catch basins at the end of Greenwich Street along the
Romano property line * * *. [This berm] directs storm drainage
overflow * * * into the backyards of the homes on the north side of
Greenwich Street. The berm makes the flooding worse in the
Subdivision.
{¶20} The failure to maintain the 8-inch pipe, i.e., the pipe is plugged with earth
and/or has deteriorated, presents a proprietary issue and, thus, the Portage County
defendants were properly denied immunity as to that precise issue (as distinct from
design issues relating to pipe size or configuration). Pierce v. Gallipolis, 2015-Ohio-2995,
39 N.E.3d 858, ¶ 24 (4th Dist.) (immunity did not apply where the plaintiffs alleged “that
their claimed injuries resulted from appellant’s alleged failure to repair damage to the
sewer line, to inspect it, to remove obstructions, or to remedy general deterioration”). We
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are cognizant that there is an issue as to whether these defendants have any duty to
maintain the pipe inasmuch as there is no evidence that they constructed or designed the
pipe and as the pipe is on private property. Such issues involving the merits of the
plaintiffs’ claims, however, are not properly before this court at this time. Only that part
of the trial court’s order denying the Portage County defendants immunity constitutes the
final order and so may be raised in an interlocutory appeal. R.C. 2744.02(C) (“[a]n order
that denies a political subdivision * * * the benefit of an alleged immunity from liability * *
* is a final order”); Reinhold v. Univ. Hts., 8th Dist. Cuyahoga No. 100270, 2014-Ohio-
1837, ¶ 21 (“[a]n appeal from a denial of summary judgment based on sovereign immunity
is limited to the review of alleged errors in the portion of the trial court’s decision that
denied the political subdivision the benefit of immunity”); Brown v. Cincinnati, 2020-Ohio-
5418, 162 N.E.3d 1274, ¶ 6-7 (1st Dist.) (R.C. 2744.02(C) does not provide for appellate
review of all interlocutory matters).
{¶21} As for the pipe not being properly sized and as for the berm diverting
overflow into backyards, these issues would require the Portage County defendants to
redesign or reconstruct those portions of the sewer system. Thus, for the reasons given
above, the defendants have immunity with respect to these issues regarding the tort
claims that stand apart from the takings issues implicated by plaintiffs’ mandamus claim
seeking initiation of appropriations proceedings.
{¶22} The sixth cause of flooding concerns a “saddle” or topographical “low point”
existing next to a ditch which drains water from a swamp area to the west of the
Subdivision. According to plaintiffs’ expert, when the ditch would overflow under high flow
conditions, the saddle would receive some of the overflow thereby decreasing the water
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flow into the Subdivision. At some time between 2010 and 2011, two to three feet of fill
were added to the saddle negating its ability to reduce overflow into the Subdivision. It
appears that the saddle exists on private property and was not part of the system
constructed between 1993 and 1999. The expert report states that the Portage County
defendants have the authority “to demand that upland property owners remove fill and
restore drainage patterns if the fill is increasing the downstream flooding.” The report
continues: “A properly designed and constructed ditch, berm, and storm drainage pipe
from the swamp ditch to the existing storm drainage pipe at the west end of Invernest
Street could mitigate this issue.”
{¶23} The failure to incorporate the saddle and/or swamp ditch into the existing
drainage system constitutes a governmental function for the reasons set forth above in
connection with the first two causes, i.e., the remedy would require the redesign or
reconstruction of the existing system. We construe the failure to have the fill removed
from the saddle to be unrelated to either the construction or the maintenance of the sewer
system. Rather, the plaintiffs are essentially charging the Portage County defendants
with failing to abate a nuisance on private property. It is generally recognized that
“[a]batement of a public nuisance is a governmental function.” O’Farrell v. Harlem Twp.
Bd. of Trustees, 5th Dist. Delaware Nos. 18 CAH 08 0059 and 18 CAH 08 0062, 2019-
Ohio-1675, ¶ 36; Oliver v. Marysville, 3d Dist. Union No. 14-18-01, 2018-Ohio-1986, ¶ 26
(“it is well-settled that abating a nuisance is a governmental function”). Regardless of
whether the sixth cause is considered a failure of design or a failure to abate a nuisance,
the Portage County defendants enjoy immunity.
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{¶24} The seventh cause of flooding claims that, sometime around 1999, the
subdivision roads were improved and the pavement raised two to three inches. This put
the elevation of the roads above that of the floor slabs of certain low-lying homes thereby
increasing their susceptibility to flooding. As with the sixth cause, and for purposes of
non-takings tort claim analysis, the elevation of the roads is not formally part of the
drainage system and the question of whether the repaving is a design or maintenance
issue is inapposite. Relevant to this cause, “the maintenance and repair of * * * roads”
are governmental functions. R.C. 2744.01(C)(2)(e). However, “political subdivisions are
liable for injury, death, or loss to person or property caused by their negligent failure to
keep public roads in repair and other negligent failure to remove obstructions from public
roads.” R.C. 2744.02(B)(3).
{¶25} The plaintiffs maintain “that paving and height/depth of roads raises a
question of fact as to whether and when that work was performed constitutes ‘in repair’
for purposes of R.C. 2744.02(B)(3).” Brief of Appellees at 25. The argument is
unconvincing. Repaving the subdivision roads because they have deteriorated on
account of flooding, as claimed by the plaintiffs, constitutes the maintenance and repair
of roads, not the negligent failure to keep roads in repair. Stated otherwise, the plaintiffs’
argument is that the Portage County defendants negligently maintained or repaired the
roads, not that they negligently failed to do so. The distinction is material. It has been
held that “‘in repair’ in its ordinary sense refers to maintaining a road’s condition after
construction or reconstruction, for instance by fixing holes and crumbling pavement.”
Bonace v. Springfield Twp., 179 Ohio App.3d 736, 2008-Ohio-6364, 903 N.E.2d 683, ¶
29 (7th Dist.). “Consequently, ‘in repair’ does not create a duty to change allegedly absurd
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designs such as extreme and unnecessary side slopes that were constructed * * * into a
road.” Id.{¶26} For example, in Keller v. Carroll Cty. Bd. of Commrs., 2022-Ohio-3526,198
N.E.3d 155 (7th Dist.), the appellant claimed that he was injured by loose stone from the
county’s road resurfacing so that an issue of material fact existed as to whether the road
was “in repair” for purposes of R.C. 2744.03(B)(3). Id. at ¶ 11. The court of appeals held
“this exception does not apply here; Blade Road was in good condition and was also
neither disassembled nor deteriorated at the time and location of Appellant’s accident.”
Id. at ¶ 21. Rather, “some amount of loose gravel is a characteristic of a road that has
been recently resurfaced via the chip and seal process,” therefore, “the presence of loose
stone does not reflect that Blade Road was a road in disrepair such that this exception to
immunity applies.” Id. at ¶ 28. In contrast, this court in Lakota v. Ashtabula, 11th Dist.
Ashtabula No. 2015-A-0010, 2015-Ohio-3413, found the city could be liable for injuries
caused by a sinkhole in a public road while the city was in the process of repairing the
road. We held that “the exception to immunity can apply when the city negligently fails to
keep the road in repair during ongoing construction.” Id. at ¶ 33. Stated otherwise, “[a]
repair that causes an additional danger to drivers cannot create a road that is ‘in repair.’”
Id. at ¶ 30. We distinguished the Bonace case in Lakota by noting that “the issue is not
the design of the road but the condition of the road caused by a sinkhole and an
incomplete repair.” Id. at ¶ 28. Similarly, in Volny v. Portage Cty., 2022-Ohio-338, 184
N.E.3d 925 (11th Dist.), this court held that the county could be liable where a motorist
was injured by a hole in an asphalt-filled trench in the road created by the county in the
course of replacing a crossover pipe. Id. at ¶ 43. In Volny, we affirmed that the “in repair”
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exception to the county’s immunity was applicable. We distinguished Bonace because
the issue in Volny was “not the county’s design of the road.” Id. at ¶ 46. Rather, “[t]he
asphalt-filled trench was not a design feature,” but “a temporary condition awaiting final
repair, i.e., paving.” Id. In the present case, the increased elevation of the subdivision
roads is a design feature and, thus, the “in repair” exception to the Portage County
defendants’ immunity does not apply. Note Pelletier, 153 Ohio St.3d 611, 2018-Ohio-
2121, 109 N.E.3d 1210, at ¶ 19 (“the duty to keep roads in repair did not extend to ‘matters
unrelated to actual roadway conditions,’ such as tree limbs overhanging a county road”)
(citation omitted).
{¶27} Thus, it is established that the Portage County defendants are entitled to
immunity except to the extent that they may be liable for failing to maintain, i.e., keep free
of obstruction and deterioration, the trash rack at the Bartlett Road culvert and the pipe
connecting to the Greenwich Street drainage intercept. Bernard v. Cincinnati, 2019-Ohio-
1517, 135 N.E.3d 485, ¶ 32 (1st Dist.) (“[a] comprehensive and integrated review of the
record demonstrates * * * that a total sewer system overhaul, and not regular, routine
maintenance, is the only possible answer (if any) to the [plaintiffs’] unfortunate
predicament”); Jochum v. Jackson Twp., 5th Dist. Stark No. 2013CA00013, 2013-Ohio-
3592, ¶ 22 (township was “immune from liability with respect to appellant’s claims alleging
trespass, nuisance and negligence” where the “appellant, in his complaint, alleged that
[the township] failed to maintain the pipeline by replacing individual pipes ‘to a size
appropriate to manage the increased water flow’”).
{¶28} The final issue, then, is whether there are any statutory defenses that would
restore the Portage County defendants’ immunity with respect to these maintenance
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issues. Pelletier at ¶ 15. A “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.” R.C.
2744.03(A)(5). It is fairly established, however, that the performance of routine
maintenance, such as the Portage County defendants are potentially liable for failing to
perform, does not involve the exercise of judgment or discretion. Accordingly, they are
not entitled to discretionary immunity. Economus v. Independence, 2020-Ohio-266, 151
N.E.3d 1046, ¶ 21 (8th Dist.) (“Ohio courts have held that the decision to provide
maintenance and repair to a sewer system does not involve the exercise of discretion that
would reinstate immunity under R.C. 2744.03(A)(5)”) (cases cited); Coleman, 133 Ohio
St.3d 28, 2012-Ohio-3881, 975 N.E.2d 952, at ¶ 19; Perkins v. Norwood City Schools, 85
Ohio St.3d 191, 193, 707 N.E.2d 868 (1999).
{¶29} Our holding applies to the plaintiffs’ tort claims for negligence, trespass, and
nuisance. On appeal, the Portage County defendants argue that political subdivision
immunity applies to the plaintiffs’ claim against Portage County for inverse condemnation
pursuant to Article I, Section 19, of the Ohio Constitution (Count V). In briefing and at
oral argument, they concede that immunity does not apply to takings claims, but assert
that it does to Count V because the plaintiffs are “seeking direct monetary damages for
inverse condemnation.” Reply Brief of Appellants at 10. The Portage County defendants
cite no authority in support of this proposition. Moreover, they did not raise this argument
before the trial court, but, instead, only argued in their Motion for Summary Judgment that
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immunity applied to the plaintiffs’ negligence, trespass, and nuisance claims. Given
plaintiffs’ failure to raise it in the trial court, we decline to address it for the first time on
appeal.3
{¶30} To the extent indicated above, the sole assignment of error is with merit.
{¶31} For the foregoing reasons, the Order and Journal Entry of the Portage
County Court of Common Pleas, denying the Portage County defendants the benefit of
political subdivision immunity, is affirmed in part and reversed in part. Apart from and
without regard to the inverse condemnation claims, the Portage County defendants are
entitled to immunity with respect to plaintiffs’ claims for negligence, trespass, and
nuisance except to the extent that these claims are based on their alleged failure to
maintain, i.e., keep free of obstruction and deterioration, the trash rack at the Bartlett
Road culvert and the pipe connecting to the Greenwich Street drainage intercept. This
matter is remanded for further proceedings consistent with this Opinion. Costs to be
taxed between the parties equally.
JOHN J. EKLUND, P.J.,
FREDERICK D. NELSON, J., Ret., Tenth Appellate District, sitting by assignment,
concur.
3. In footnote 2 on page 3 of the Brief of Appellees, it is stated that the unconstitutional takings claims as
well as a claim for inverse condemnation under Ohio law “are not part of the present appeal.” In footnote
4 on page 11, it is stated that “inverse condemnation and similar direct actions to obtain compensation for
an alleged taking of private property are not recognized in Ohio” and so “Count V must be dismissed as a
matter of law.” It is only in the Reply Brief of Appellees that it is directly asserted that political subdivision
immunity applies to inverse condemnation claims.
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