Hill v. Urbana

• Decision Date: 25 June 1997
• Docket Number: No. 95-1924,95-1924
• Citation: 679 N.E.2d 1109,79 Ohio St.3d 130
• Parties: HILL et al., Appellants, v. CITY OF URBANA, Appellee.
• Court: Ohio Supreme Court

Page 130

79 Ohio St.3d 130

679 N.E.2d 1109

HILL et al., Appellants, v. CITY OF URBANA, Appellee.

No. 95-1924.

Supreme Court of Ohio.

Submitted Nov. 13, 1997.

Decided June 25, 1997.

SYLLABUS BY THE COURT

1. Pursuant to R.C. 2744.02(B)(2), a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property caused by an act or omission of the political subdivision or any of its employees in connection with the performance of a proprietary function.

2. The "establishment, maintenance, and operation" of a municipal corporation water supply system encompasses, but is not limited to, the installing of water lines, equipment, and other materials which are a necessary part of the system and such activity is a proprietary function of a political subdivision. (R.C. 2744.01[G][c], construed and applied.)

Appellant, Herbert Hill, worked as a general laborer for R.E. Holland Excavating, Inc. ("Holland"). Holland was hired by appellee, the city of Urbana, to assist appellee in improving its water distribution system. Part of the project required the attaching of a new fourteen-inch water line to an existing twenty-inch line. To complete the attachment, it was necessary to install a valve.

On August 10, 1987, a crew of Holland workers, including appellant, arrived at a designated job site to install the required valve. A hole was dug and appellant, along with a Holland supervisor, descended into the hole to install the valve. The project was under the supervision of Urbana's Water Department Supervisor, Manny Gonsalves.

In order to facilitate completion of the valve installation, Gonsalves ordered that the water supply to the existing line be shut off. Because the existing line was a source of supply to the city's water tower, Gonsalves was anxious to have the job completed so that the water could be turned back on. As appellant was tightening bolts to connect the valve, he heard Gonsalves tell a city employee to "crack" the valve and "bleed" some water back into the pipe. Upon hearing that instruction, appellant hollered to Gonsalves not to turn on the water. Gonsalves nodded his head at appellant and told a city employee to wait. Appellant then continued to tighten the bolts. Within a few minutes, however, Gonsalves once again ordered a city employee "to crack the valve." Appellant then stood up in the pit where he was working, turned around to face Gonsalves, and, gesturing with his wrench, stated "don't turn the damn water on while I am down here at this dead end." Gonsalves again indicated to appellant that he (Gonsalves) would wait. Appellant then knelt back down into the pit to continue tightening the bolts. Apparently, the exchanges between appellant and Gonsalves concerning the admonition not to turn on the water took place on three separate occasions.

Notwithstanding appellant's specific requests and instructions, the water was turned on prior to completion of the valve installation. As a result, the water pressure blew the valve off the pipe, striking appellant in the head and shoulders. The Holland supervisor, who was in the pit with appellant, saw appellant lying in a semi-conscious state face down on the bottom of the pit. The water temporarily rose to the level of the supervisor's shoulders. Appellant's supervisor rescued appellant by rolling him into a lift bucket. Appellant was then lifted out of the hole and taken to a hospital. As a result of the accident, appellant suffered serious and permanent injuries.

On May 10, 1989, appellant filed an action for negligence against Urbana. Additionally, appellant's wife, Carolyn, brought a claim for loss of consortium. On September 8, 1994, the trial court granted summary judgment in favor of Urbana. The trial court held that the "City of Urbana has statutory immunity as to the claims of the Hills [appellants] because of Chapter 2744 of the Ohio Revised Code. The Court finds that the City was engaged in a governmental function at the time of the circumstances of this case." On appeal, the court of appeals affirmed the judgment of the trial court, holding, among other things, that the trial court properly granted summary judgment in favor of Urbana.

The cause is now before this court pursuant to the allowance of a discretionary appeal.

Brannon & Deutsch, and David M. Deutsch, Dayton, for appellants.

Green & Green, Thomas M. Green and Jennifer L. Layton, Dayton, for appellee.

Martin, Browne, Hull & Harper, Robin R. Freeman and Richard F. Heil, Jr., Springfield, urging affirmance for amicus curiae, R.C. Holland Excavating, Inc.

DOUGLAS, Justice.

The question presented by this case is whether the Political Subdivision Tort Liability Act ("Act"), as codified in R.C. Chapter 2744, gives immunity to the city of Urbana, appellee, under the facts of this case. No more than just a reading of the statute is required to answer this question in the negative. Accordingly, we reverse the judgment of the court of appeals and remand to the trial court for further proceedings.

The parties raise several issues for our possible consideration. Implicitly raised is the question of the constitutionality of the doctrine of sovereign immunity as applied to political subdivisions of this state. ¹ Explicitly raised are the questions of whether R.C. Chapter 2744 abrogates the common-law public-duty doctrine and the special-duty exception of governmental immunity. Since we find and hold that even under the statute, appellant Hill's claim is well taken, we need not discuss these implicit and explicit issues.

R.C. 2744.02(A)(1) provides:

"For purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. 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."

R.C. 2744.02(A)(1) is not absolute. By its own terms, R.C. 2744.02(A)(1) is subject to R.C. 2744.02(B), which provides:

"Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is 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 any of its employees in connection with a governmental or proprietary function, as follows * * *." (Emphasis added.)

R.C. 2744.02(B)(1) through (5) then list circumstances where a municipal corporation is responsible for torts committed by an employee of the subdivision. Specifically, R.C. 2744.02(B)(2) states that "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." A "proprietary" function includes "[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 [.]" (Emphasis added.) R.C. 2744.01(G)(2)(c).

Clearly, Urbana was involved in a proprietary function at the time of the accident. See, also, Ranells v. Cleveland (1975), 41 Ohio St.2d 1, 4, 70 O.O.2d 1, 2, 321 N.E.2d 885, 887, fn. 1 (It is clear that a city in the operation of its water department acts in a proprietary capacity.). Further, it is equally apparent that Urbana's conduct in turning on the water was, at the very least, negligent. Appellant had instructed Gonsalves on three separate occasions not to turn on the water until the job was completed. However, the water was turned on prior to the completion of the installation of the valve and, as a result, appellant was seriously injured. Thus, pursuant to the statute, liability attaches to appellee.

The issue has and will be raised that this court is precluded from considering whether Urbana was performing a proprietary function because that specific question was not raised by appellants in the court of appeals. We disagree.

This court has held on numerous occasions that the waiver doctrine is discretionary. See, e.g., In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, syllabus. In fact, we specifically held that "[e]ven where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it." (Emphasis added.) Id.

This case concerns the rights and interests of a worker who has been injured by a negligent tortfeasor. Moreover, this case involves not only a particular worker, but it also ultimately concerns the rights and interests of any citizen of this state who may be injured by the negligence of an employee of a political subdivision. Accordingly, we not only have the authority to consider this issue, but we believe we also have the duty to do so.

Therefore, we hold that (1) pursuant to R.C. 2744.02(B)(2), a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property caused by an act or omission of the political subdivision or any of its employees in connection with the performance of a proprietary function, and (2) the "establishment, maintenance, and operation" of a municipal corporation water supply system encompasses, but is not limited to, the installing of water lines, equipment, and other materials which are a necessary part of the system and such activity is a proprietary function of a political subdivision.

The judgment of the court of appeals is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

RE...