Angelo v. City of Warren
| Decision Date | 12 April 2021 |
| Docket Number | NO. 2020-T-0072,2020-T-0072 |
| Citation | 171 N.E.3d 379 |
| Court | Ohio Court of Appeals |
| Parties | Henry J. ANGELO, Plaintiff-Appellee, v. City of WARREN, Ohio, Defendant-Appellant. |
Michael D. Rossi, Guarnieri & Secrest, PLL, 151 East Market Street, P.O. Box 4270, Warren, OH 44482 (For Plaintiff-Appellee).
James A. Climer, Amily A. Imbrogno, and Frank H. Scialdone, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin's Row, 34305 Solon Road, Cleveland, OH 44139 (For Defendant-Appellant).
{¶1} Defendant-appellant, the City of Warren, appeals from the decision of the Trumbull County Court of Common Pleas, denying its motion for summary judgment on the grounds of qualified immunity. For the following reasons, we affirm the decision of the lower court.
{¶2} On June 4, 2019, plaintiff-appellee, Henry J. Angelo, filed a Complaint against Warren. The Complaint alleged that the City of Warren Water Department's employees "negligently managed Plaintiff's account, terminating the service to his home without legally-adequate cause or excuse." He alleged that this resulted in "extensive property damage to his home."
{¶3} Warren filed an Answer on July 31, 2019, in which it alleged immunity as a defense.
{¶4} On March 19, 2020, Warren filed a Motion for Summary Judgment in which it alleged it was immune from Angelo's claim because it was not on notice of any reason it should not have terminated his water service and, as a result, no exception to immunity applied. It alleged that, even if an exception to immunity did apply, immunity was restored under R.C. 2744.03(A)(3) and (5) since "all actions taken by Warren employees were with respect to policy-making or judgment or discretion in determining how to use personnel and other resources, and there is no evidence that any Warren employee acted with malicious purpose, in bad faith, or in a wanton and reckless manner."
{¶5} Pursuant to the deposition testimony, Angelo was a resident of Warren who utilized its water service. Patrick Calvey, Water Service Supervisor, testified that a clerical employee noticed that the water usage at Angelo's residence had been estimated rather than read from the meter from January to November 2017, resulting in the need to check the meter and a work order being issued. A service representative, Greg Edwards, placed a blue tag on Angelo's door on November 15, 2017, which stated that the water department had been there and instructed the resident to call for an appointment within 72 hours to "check the meter."
{¶6} Angelo testified that he saw the blue tag on his door on November 15 at around 5 p.m. He left to visit his son in Maryland the following morning and started a "series of phone calls to the water department" during the drive. He testified as to making six calls which were answered but he was placed on hold "as much as five minutes sometimes." He placed a seventh call to the water distribution department rather than the number on the tag, a woman answered, stated, "I'll get you through to somebody," the call was transferred, and the person who picked up stated, Angelo was placed on hold for a couple of minutes and hung up. He then called a friend who worked for the water department, Michael Thigpen, explained the situation, and Thigpen stated, "I'll take care of it" and "don't worry about it." Thigpen, the Water Distribution Superintendent who oversees construction and water supply, testified that he has known Angelo for approximately 30 years. According to Thigpen, Angelo called him about the tag because he had "a hard time getting through to the billing division" and "was put on hold for a long duration." Thigpen testified that he told Angelo he would look into it, checked with a meter room coordinator, and verified the tag did not come from his division. Thigpen then spoke with Calvey in the water department parking lot, explained the situation, and requested they hold the work order until Angelo returned from vacation. According to Thigpen, Calvey responded that he "would take care of it." Calvey testified that he did not recall any communication with Thigpen regarding Angelo's account.
{¶7} According to Calvey and the written work order, on December 12, 2017, a yellow tag which stated that the customer should call for an appointment within 48 hours and failure to do so would result in termination of service, was left on Angelo's door and the water was shut off on December 19, 2017. Testimony established that the tag procedure was the common practice in this type of situation and that the amount of time it took to terminate water service could vary based upon manpower and workload.
{¶8} Angelo testified that when he returned home from Maryland on January 9, 2018, the pipes connected to the radiators for the boiler were split or blown out and water was pouring down the walls in his basement, causing damage throughout the home. He called Thigpen, who stated, According to Calvey, the water was turned on January 10 and the water meter register head was replaced inside the home.
{¶9} Angelo filed a Memorandum Contra to Defendant's Motion for Summary Judgment on July 22, 2020, arguing genuine issues of material fact existed as to immunity.
{¶10} On September 9, 2020, the trial court issued a Judgment Entry denying Warren's Motion for Summary Judgment. It found there was a "question of fact as to whether the immunity exception set forth in R.C. 2744.02(B)(2) applies in the instant case." It further found questions of fact "regarding whether the restoration of immunity outlined in R.C. 2744.03(A)(3) and (5) * * * are applicable under the present set of facts," including "whether any judgment or discretion was exercised and, if so, whether such decision was made with malicious purpose, in bad faith or in a wanton or reckless manner."
{¶11} Warren timely appeals and raises the following assignment of error:
{¶12} "The lower court erroneously denied summary judgment to defendant/appellant City of Warren when it denied it the benefit of immunity under Ohio Revised Code Chapter 2744."
{¶13} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the evidence shows "that there is no genuine issue as to any material fact" 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 that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence * * * construed most strongly in the party's favor."
{¶14} A trial court's decision to grant summary judgment is reviewed by an appellate court under a de novo standard of review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). "A de novo review requires the appellate court to conduct an independent review of the evidence before the trial court without deference to the trial court's decision." Peer v. Sayers , 11th Dist. Trumbull No. 2011-T-0014, 2011-Ohio-5439, 2011 WL 5028693, ¶ 27.
{¶15} "R.C. Chapter 2744 sets forth a three tiered analysis for determining a political subdivision's immunity from liability." Frazier v. Kent , 11th Dist. Portage Nos. 2004-P-0077 and 2004-P-0096, 2005-Ohio-5413, 2005 WL 2542940, ¶ 20 ; Greene Cty. Agricultural Soc. v. Liming , 89 Ohio St.3d 551, 556, 733 N.E.2d 1141 (2000). First, R.C. 2744.02(A)(1) sets forth a general rule that "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function." R.C. 2744.02(B) establishes specific exceptions under which a political subdivision is not immune. "Once general immunity has been established by the political subdivision, the burden lies with the plaintiff to show that one of the recognized exceptions apply." Alcus v. Bainbridge Twp. , 2020-Ohio-543, 152 N.E.3d 340, ¶ 58 (11th Dist.). If one of these exceptions applies, "the political subdivision has the burden of showing that one of the defenses to liability in R.C. 2744.03 applies and, if so, immunity is reinstated." Id. at ¶ 59.
{¶16} Warren argues that Angelo failed to establish any applicable exceptions to immunity under R.C. 2744.02(B)(1)-(5). The exception at issue here is set forth in R.C. 2744.02(B)(2) : "Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions." In pertinent part, proprietary functions include "[t]he establishment, maintenance, and operation of a utility, including, but not limited to, a light, gas, power, or heat plant, a railroad, a busline or other transit company, an airport, and a municipal corporation water supply system." R.C. 2744.01(G)(2)(c). "[B]efore R.C. 2744.02(B)(2) will remove a political subdivision's immunity, the plaintiff must establish: (1) the elements required to sustain a negligence action - duty, breach, proximate cause, and damages; and (2) that the negligence arose out of a proprietary function." Alcus at ¶ 63.
{¶17} As to the negligent performance of acts by an employee in this case, an argument was established by Angelo that he communicated to an agent of the water company that he would be out of town and thus, unavailable to grant access to the water department to check the water meter. Although receiving such communication, when construing the facts in Angelo's favor, it still chose to turn off his water, which arguably resulted in the problems with the boiler and radiator causing damage to his home. Given the evidence...
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