McQuown v. Coventry Twp.
| Decision Date | 09 August 2017 |
| Docket Number | No. 28202,28202 |
| Citation | 95 N.E.3d 1007,2017 Ohio 7151 |
| Parties | Terry MCQUOWN, Appellant v. COVENTRY TOWNSHIP, Appellee |
| Court | Ohio Court of Appeals |
JEROME T. LINNEN, JR., Attorney at Law, Akron, for Appellant.
IRVING B. SUGERMAN, Akron, and MATTHEW GRASHOFF, Attorneys at Law, for Appellee.
DECISION AND JOURNAL ENTRY
{¶ 1} Plaintiff–Appellant, Terry McQuown, appeals the judgment of the Summit County Court of Common Pleas granting Defendant–Appellee, Coventry Township's, motion for summary judgment and denying his motion for partial summary judgment as moot. For the reasons set forth in this opinion, we reverse and remand for further proceedings consistent with this opinion.
{¶ 2} Mr. McQuown purchased a residential property located on North House Drive in Coventry Township, Ohio, in 1998. A surface water drainage/sewer pipe maintained and operated by Coventry Township runs parallel along the side of the road in the front of Mr. McQuown's property. This drainage pipe is not at issue in this appeal. However, the water from this drainage pipe empties into an uncovered ditch in the western portion of Mr. McQuown's front yard. In this ditch exists the inlet to a separate underground drain pipe ("the drain pipe")1 that runs perpendicular to the road and ditch and leads downhill to a retention pond located behind Mr. McQuown's property. This drain pipe was evidently installed to drain accumulating ditch water from the front of Mr. McQuown's property through the side of the yard and out the back of the property to the retention pond. The deed for Mr. McQuown's property expressly states that the property is subject to a seven and one half foot drainage easement on the west side of the lot, where the drain pipe is located. However, the deed does not state who has the benefit of the easement. On April 9, 2013, Mr. McQuown was clearing debris from the ditch in his front yard when he lost his balance and fell onto a sharp rusted metal rod positioned directly in front of the inlet of the underground drain pipe. Mr. McQuown impaled his right arm on the metal rod.
{¶ 3} Mr. McQuown and his wife, Patricia, initially filed a lawsuit against Coventry Township pleading causes of action for negligence and loss of consortium. However, the McQuowns voluntarily dismissed that complaint. Mr. McQuown thereafter refiled his complaint in the instant matter against Coventry Township, pleading one count of negligence. Mrs. McQuown is not a party to the present lawsuit. Coventry Township subsequently filed an answer denying the allegations set forth in Mr. McQuown's complaint and raised several affirmative defenses, including immunity and the applicability of the "open and obvious" doctrine. The matter then proceeded through the pretrial process.
{¶ 4} On October 30, 2015, Coventry Township filed a motion for summary judgment arguing that, as a political subdivision, it is entitled to immunity and that no exceptions to political subdivision immunity apply in this matter. Moreover, Coventry Township argued that it is entitled to summary judgment with respect to Mr. McQuown's negligence claim because any danger associated with the metal rod was an open and obvious hazard. Mr. McQuown subsequently filed a brief in opposition to Coventry Township's summary judgment motion, to which Coventry Township filed a reply brief.
{¶ 5} Thereafter, Mr. McQuown filed a motion for partial summary judgment wherein he argues that the open and obvious doctrine is not applicable in this case. Mr. McQuown also argues in his motion for partial summary judgment that there is no genuine issue of material fact that Coventry Township operates a storm water sewer system and that the area of his property where he was injured was part of that system. Coventry Township filed a brief in opposition to Mr. McQuown's motion for partial summary judgment.
{¶ 6} The trial court held a hearing on the parties' respective motions for summary judgment. On March 18, 2016, the trial court granted Coventry Township's motion for summary judgment and denied Mr. McQuown's motion for partial summary judgment as moot. Specifically, the trial court concluded that Coventry Township is immune from liability under R.C. 2744.02 and, in the alternative, that the metal rod constituted an open and obvious hazard, thus obviating any duty of care that Coventry Township may have owed to Mr. McQuown.
{¶ 7} Mr. McQuown filed this timely appeal and raises three assignments of error for our review.
The trial court erred in granting summary judgment in favor of Defendant Coventry Township on McQuown's negligence claim because a question of fact remains as to whether the drainage pipe located on McQuown's property, maintained and used by Defendant Coventry was part of a storm water sewer system constituting a proprietary function under Ohio R.C. § 2744.01(G) for which Coventry has no immunity under Ohio R.C. § 2744.02(B)(2).
{¶ 8} In his first assignment of error, Mr. McQuown argues that the trial court erred by granting Coventry Township's motion for summary judgment on the basis that it is entitled to political subdivision immunity. We agree.
{¶ 9} We review a trial court's award of summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is only appropriate where (1) no genuine issue of material fact exists; (2) the movant is entitled to judgment as a matter of law; and (3) the evidence can only produce a finding that is contrary to the non-moving party. Civ.R. 56(C). Before making such a contrary finding, however, a court must view the evidence "most strongly in favor" of the non-moving party, id. , and resolve all doubts in its favor, Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358–359, 604 N.E.2d 138 (1992).
{¶ 10} Summary judgment proceedings create a burden-shifting framework. To prevail on a motion for summary judgment, the movant has the initial burden to identify the portions of the record demonstrating the lack of a genuine issue of material fact and the movant's entitlement to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 283, 662 N.E.2d 264 (1996). In satisfying this initial burden, the movant need not offer affirmative evidence, but it must identify those portions of the record that support her argument. Id. Once the movant overcomes the initial burden, the non-moving party is precluded from merely resting upon the allegations contained in the pleadings to establish a genuine issue of material fact. Civ.R. 56(E). Instead, it has the reciprocal burden of responding and setting forth specific facts that demonstrate the existence of a "genuine triable issue." State ex rel. Zimmerman v. Tompkins , 75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996).
{¶ 11} "R.C. Chapter 2744, the Political Subdivision Tort Liability Act, absolved political subdivisions of tort liability, subject to certain exceptions." Moore v. Streetsboro , 11th Dist. Portage No. 2008-P-0017, 2009-Ohio-6511, 2009 WL 4756421, ¶ 41, citing Franks v. Lopez , 69 Ohio St.3d 345, 347, 632 N.E.2d 502 (1994). "In order to determine whether a political subdivision is immune from liability, we engage in a three-tiered analysis." Elton v. Sparkes , 2016-Ohio-1067, 61 N.E.3d 583, ¶ 10, quoting Moss v. Lorain Cty. Bd. of Mental Retardation , 9th Dist. Lorain No. 13CA010335, 2014-Ohio-969, 2014 WL 1345429, ¶ 10. "The first tier sets forth the premise that, ‘[e]xcept as provided in division (B) of [ R.C. 2744.02 ], 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.’ " Elton at ¶ 10, quoting Moss at ¶ 10, quoting R.C. 2744.02(A)(1). Coventry Township qualifies as a political subdivision pursuant to R.C. 2744.01(F).
{¶ 12} In the second tier of the immunity analysis, "we determine whether one of the five exceptions to immunity outlined in R.C. 2744.02(B) applies to hold the political subdivision liable for damages." Elton at ¶ 10, quoting Moss at ¶ 10. An exception to immunity contained in R.C. 2744.02(B)(2) provides 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." Accordingly, "[p]ursuant 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." Hill v. Urbana , 79 Ohio St.3d 130, 679 N.E.2d 1109 (1997), paragraph one of the syllabus. A proprietary function is defined, in relevant part, as a function that "promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons." R.C. 2744.01(G)(1)(b). R.C. 2744.01(G)(2)(d) states that a "proprietary function" includes, but is not limited to, "[t]he maintenance, destruction, operation, and upkeep of a sewer system[.]" As the Second District Court of Appeals has noted "[t]here is no definition of ‘sewer system’ in the immunity statute." Guenther v. Springfield Twp. Trustees , 2012-Ohio-203, 970 N.E.2d 1058, ¶ 14. Accordingly, the term "sewer system" "should be construed more narrowly than broadly." Id. ; Anderson v. Warren Local School Dist. Bd. of Ed. , 2017-Ohio-436, 75 N.E.3d 239, ¶ 54.
{¶ 13} With respect to the third tier of the immunity analysis, "immunity may be restored, and the political subdivision will not be liable, if one of the defenses enumerated in R.C. 2744.03(A) applies." Elton at ¶ 10, q...
To continue reading
Request your trial
-
Schlegel v. Summit Cnty.
...2744. Anderson v. Warren Loc. School Dist. Bd. of Edn. , 4th Dist., 2017-Ohio-436, 75 N.E.3d 239, ¶ 49. Accord McQuown v. Coventry Twp. , 9th Dist., 2017-Ohio-7151, 95 N.E.3d 1007, ¶ 12, quoting Guenther at ¶ 14. Because a "sewer system" pertains to an exception to the general grant of immu......
- State v. Gordon