Coleman v. Portage Cnty. Eng'r

• Decision Date: 29 August 2012
• Docket Number: No. 2011–0199.,2011–0199.
• Citation: 2012 -Ohio- 3881,975 N.E.2d 952,133 Ohio St.3d 28
• Parties: COLEMAN et al., Appellees, v. PORTAGE COUNTY ENGINEER, Appellant.
• Court: Ohio Supreme Court

133 Ohio St.3d 28

975 N.E.2d 952

2012 -Ohio- 3881

COLEMAN et al., Appellees,

v.PORTAGE COUNTY ENGINEER, Appellant.

No. 2011–0199.

Supreme Court of Ohio.

Submitted May 22, 2012.

Decided Aug. 29, 2012.

AW–GM Legal Services Plan and Darrell D. Maddock, for appellees.

Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, and Frank H. Scialdone, Cleveland; and Victor Vigluicci, Portage County Prosecuting Attorney, and Leigh S. Prugh, Assistant Prosecuting Attorney, for appellant.

Roetzel & Andress, L.P.A., and Stephen W. Funk, Akron, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.

Isaac, Brant, Ledman & Teetor, L.L.P., Mark Landes, and Scyld D. Anderson, Columbus, urging reversal for amicus curiae the County Commissioners Association of Ohio, the County Engineers Association of Ohio, the County Sanitary Engineers Association, the County Risk Sharing Authority, Metropolitan Sewer District of Greater Cincinnati, the Ohio Municipal League, the Ohio Township Association, the Coalition of Large Urban Townships, and the Association of Ohio Metropolitan Wastewater Agencies.

O'CONNOR, C.J.

[Ohio St.3d 29]{¶ 1} In this appeal, we address whether “upgrading” a storm-sewer system is a governmental or proprietary function of a political subdivision within the meaning of R.C. 2744.01 and whether failure to “upgrade” subjects that political subdivision to liability under R.C. 2744.02(B)(2). For the reasons that follow, we hold that because upgrading involves construction and design, such upgrading is a governmental, not a proprietary, function. Therefore, we reverse the judgment of the court of appeals that holds otherwise.

Background

{¶ 2} Appellees, Barbara Coleman and Robert Coleman, own real property in Rootstown, Ohio. They sued appellant, the Portage County Engineer, complaining that their property was flooded in 1982, 1989, 2003, 2005, and 2009 and the water caused damage to their real and personal property.¹ The Colemans averred, “on information and belief,” that

the flooding is a result of the defendant collecting drainage water from drainage ditches along State Route 44 in Rootstown, and discharging same through a piping system that runs across the adjacent Rootstown Public School System. The piping system is unable to accommodate all the drainage water, and accordingly the water overflows from the culverts in front of and behind the plaintiff's [sic] residence.

They further alleged that their property will continue to be flooded,

due to the fact that the defendant has neglected or failed to construct a drainage plan or water drainage system to properly discharge the water and prevent it from collecting on the plaintiff's [sic] property and causing significant damages. The defendant also has failed to maintain the piping [Ohio St.3d 30]system that runs through the adjacent Rootstown Public School property to the storm sewer next to the Property.

Whether Portage County has improperly maintained the storm sewers or failed to appropriately upgrade them has not been investigated. At oral argument, the parties agreed that the cause of the storm-sewer backup is unclear.

{¶ 3} The first count of the Colemans' complaint alleges that Portage County “breached the duty of due care owed to the plaintiffs in designing, constructing and maintaining the water piping system that collects and discharges water on the plaintiff's property.” The Colemans also asserted that “[d]efendant has been notified on numerous occasions that they [sic] created a nuisance causing flooding upon plaintiff's [sic] property, and defendant has refused, continues to refuse, and has been unwilling to abate the nuisance and resolve the repetitive flooding on the plaintiff's [sic] property.”

{¶ 4} The second count pleaded that “the defendants [sic] be directed to make modifications to the water piping system that is necessary to protect the plaintiff [sic] from further flooding” and that “the court enjoin defendant, and require the defendant to install adequate pipes and culverts, in order to prevent future and continued damage from flooding to plaintiffs' property by defendant.”

{¶ 5} The Portage County Engineer moved to dismiss the complaint, arguing that the Colemans had “failed to show that the [county engineer] is not immune from their claims” and “have failed to show that they have pled sufficient facts to show negligent maintenance of the pipeline.” The county engineer asserted that even assuming that the drainage system was improperly designed, constructed, or installed, he is entitled to immunity under R.C. Chapter 2744, which addresses political-subdivision liability for torts. The trial court agreed, holding, “The Portage County Engineer is immune from litigation based upon claims for negligent planning, design, and construction of the water pipelines referred to the in the Plaintiffs' pleadings.”

{¶ 6} On the Colemans' appeal from that order, the Eleventh District Court of Appeals affirmed in part and reversed in part. In affirming in part, the court wrote, “[The Colemans] argue that the trial court erred in dismissing their claim in Count I alleging negligent design, planning, and construction of the pipeline based on political-subdivision immunity because, they suggest, this claim alleged the negligent performance of a proprietary function, which is an exception to political subdivision immunity pursuant to R.C. 2744.02(B)(2). However, [the Colemans] fail to cite any authority for the proposition that the design, planning, or construction of a sewer system is a proprietary function, in violation of App. R. 16(A)(7). Moreover, [the Colemans] present no argument that the same constitutes a proprietary function, in violation of the same appellate rule. For this [Ohio St.3d 31]reason alone, [the Colemans'] argument is not well taken.” Coleman v. Portage Cty. Engineer, 191 Ohio App.3d 32, 2010-Ohio-6255, 944 N.E.2d 756, ¶ 18 (11th Dist.).

{¶ 7} The court of appeals also relied on its own precedent, Moore v. Streetsboro, 11th Dist. No. 2008–P–0017, 2009-Ohio-6511, 2009 WL 4756421, ¶ 42, in holding that the county engineer cannot be held liable in tort in this case. Applying R.C. Chapter 2744, which immunizes certain governmental functions, including the decision whether to upgrade inadequate sewers, from tort liability, the court held that upgrading storm sewers is a governmental function. Coleman at ¶ 20. Therefore, the Portage County engineer “is immune from liability for [his] alleged failure to design and construct an adequate storm-sewer system.” Id.

{¶ 8} Nevertheless, the court of appeals agreed with the Colemans that their claim was not barred by political-subdivision immunity to the extent that the county had negligently maintained the sewer system. Id. at ¶ 32. For this holding, the court relied on Moore and R.C. 2744.01(G)(2)(d), which includes as a political subdivision's proprietary function the “maintenance, destruction, operation, and upkeep of a sewer system.”

{¶ 9} We accepted the Portage County Engineer's discretionary appeal, Coleman v. Portage Cty. Engineer, 128 Ohio St.3d 1458, 2011-Ohio-1829, 945 N.E.2d 522, which asserts a single proposition of law: “A political subdivision's failure to upgrade the capacity of an inadequate sewer system is not a proprietary function within the meaning of R.C. 2744.01(G)(2)(d) so as to subject a political subdivision to liability under R.C. 2744.02(B)(2). The upgrade of sewer system capacity is an immune governmental function under R.C. 2744.01(C)(2)(i). (R.C. 2744.01(G)(2)(d) and R.C. 2744.01(C)(2)(i) interpreted and applied).” We agree that upgrading a sewer system is construction and design, not upkeep, and accordingly, we reverse the judgment of the court of appeals.

Analysis

Ohio's Political Subdivision Tort Liability Act

{¶ 10} R.C. Chapter 2744, Ohio's Political Subdivision Tort Liability Act, has been in place for more than 25 years and confers broad immunity on the state's political subdivisions. R.C. 2744.02(A)(1) states:

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 any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.

[Ohio St.3d 32](Emphasis added.)

{¶ 11} But the legislature has imposed exceptions to this general rule. Relevant here is the exception in R.C. 2744.02(B)(2), which declares that as a rule,

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.(Emphasis added.)

{¶ 12} 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. 2744.01(G)(2)(d) identifies “the maintenance, destruction, operation, and upkeep of a sewer system” as a proprietary function for which civil liability may attach.

{¶ 13} We often have interpreted and explained the purpose of this statutory scheme:

“[T]he protections afforded to political subdivisions and employees of political subdivisions by this act are urgently needed in order to ensure the continued orderly operation of local governments and the continued ability of local governments to provide public peace, health, and safety services to their residents.” Am.Sub.H.B. No. 176, Section 8, 141 Ohio Laws, Part I, 1733. We noted in Hubbell [ v. Xenia ], 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, that “ ‘[t]he manifest statutory purpose of R.C. Chapter 2744 is the preservation of the fiscal integrity of political subdivisions.’ ” Id. at ¶ 23, quoting Wilson...