Seiler v. City of Norwalk

• Decision Date: 08 February 2011
• Docket Number: No. H–10–008.,H–10–008.
• Citation: 949 N.E.2d 63,192 Ohio App.3d 331
• Parties: SEILER et al., Appellants,v.CITY OF NORWALK, Appellee.
• Court: Ohio Court of Appeals

192 Ohio App.3d 331

949 N.E.2d 63

2011 -Ohio- 548

SEILER et al., Appellants,

v.CITY OF NORWALK, Appellee.

No. H–10–008.

Court of Appeals of Ohio, Sixth District, Huron County.

Decided Feb. 8, 2011.

Leslie O. Murray and John T. Murray, Sandusky, for appellants.Teresa L. Grigsby and Joan C. Szuberla, Toledo, for appellee.COSME, Judge.

[Ohio App.3d 334] {¶ 1} Plaintiff-appellants, Marilyn Seiler, Gary and Cathy McGinn, Bonnie and Richard Barna, Margaret Miller, and Fred Boubek, appeal the judgment of the Huron County Common Pleas Court granting the city of Norwalk's motion for summary judgment and denying appellants' motion for summary judgment. The denial of a motion for summary judgment is not a final, appealable order. [Ohio App.3d 335] State ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 37 O.O.2d 358, 222 N.E.2d 312. To the extent that appellants' arguments urge reversal of the denial of their motion for summary judgment, those arguments will not be addressed.

{¶ 2} Appellants brought this action against the city of Norwalk (“the city”), asserting claims for negligence, trespass, and nuisance, as well as a claim for a writ of mandamus compelling the city to initiate appropriation proceedings regarding the taking of appellants' properties, which are all adjacent to Norwalk Creek, near Elm Street, in Norwalk, Ohio.

{¶ 3} Appellants complain that their properties flooded on June 22, 2006, following a storm event and have flooded frequently thereafter as a result of the city's improper management of the municipal water system.

{¶ 4} Upon consideration of the assignments of error, we conclude that the city is a political subdivision subject to sovereign immunity. However, the alleged harm occurred in connection with a proprietary function, the operation of a municipal water system. The defense of immunity claimed by the city under R.C. 2744.03(A)(3) and (5) does not apply in this case. Because genuine issues of material fact exist on the tort claims, neither the city nor appellants are entitled to summary judgment as a matter of law.

{¶ 5} We find that the trial court further erred in holding that the defense of immunity also extended to appellants' writ of mandamus. The trial court must determine whether the city appropriated appellants' properties as a result of its operation of the gated spillway.¹

{¶ 6} For the foregoing reasons, we reverse.

I. BACKGROUND

{¶ 7} The city's water system includes three reservoirs, the upper, lower, and Memorial reservoirs. The reservoirs are earthen dams built in line with Norwalk Creek and were constructed to supply drinking water for the city and cooling water for the city's power plant. The lower reservoir was built about 1900 as an “on-stream” reservoir. The upper reservoir was built downstream of the lower before 1913. Its spillway diverted Norwalk Creek into the next tributary to the southwest, essentially converting the lower reservoir into an off-channel storage reservoir. The Memorial reservoir was built in 1952.² The reservoirs are located east of the city and lie within the Norwalk Creek watershed.

[Ohio App.3d 336] {¶ 8} The upper and lower reservoirs do not discharge water directly to Norwalk Creek. Runoff can leave the reservoirs through Memorial reservoir via the ungated spillway, the gated spillway, or the emergency spillway. The ungated spillway is a 200–foot long concrete broad-crested weir on the west end of the reservoir that was installed when the reservoir was constructed. The gated spillway, added in 1963, consists of two 12–foot wide by 7–foot high tainter gates (also called radial gates) on the west end of the reservoir, approximately 270 feet south of the ungated spillway. The emergency spillway is a 243.4–foot long low grassy embankment on the southwest corner of the reservoir. It was installed in 1971 and enlarged in 2002 to its current size. ³ It is designed so that if the water in the reservoir gets too high, it will overtop the emergency spillway so that the reservoir does not fail. The emergency spillway has never been overtopped.

{¶ 9} Norwalk Creek has a naturally occurring floodplain along its length. The regulatory floodplain, however, was not designated until February 1979, when hydrologic and hydraulic studies and models were used to determine base flood elevations (100–year water-surface elevations). Appellants' properties are located within the regulatory floodplain, below the 100–year base flood elevation and the 10–year base flood elevation.

{¶ 10} Appellants maintain that the city's negligence in operating the municipal water system was and continues to be the proximate cause of the flooding of their properties. Appellants insist that the city's current water system is inadequate and in need of repair, but that the city has failed to take any action to maintain and operate it in a manner that does not increase the risk of flooding to downstream property owners.

{¶ 11} The parties' experts disagree on the proximate cause of the flooding of appellants' properties. Robert Haag of Haag Environmental Company submitted a report on behalf of the appellants. Julie Lawson of ARCADIS US, Inc. submitted a report on behalf of the city.

{¶ 12} Haag claims that the natural flow of Norwalk Creek has been altered. Lawson disagrees. The two experts point to different factors in support of their arguments, and both interpret those factors differently. The determinative issue is whether the rate of water flowing through the reservoirs has increased as a result of the operation of the gated spillway during periods of heavy rain. The subsequent issue is whether the increased rate of flow from the reservoirs proximately caused appellants' properties to flood.

[Ohio App.3d 337] {¶ 13} The city questions Haag's expertise, noting that Haag is not an engineer. Haag holds a degree in geology and a master's degree in engineering geology from the University of Michigan and describes himself as a hydrogeologist and an engineering geologist, the former concerning the study of water and the latter concerning the engineering topics that relate to the flow of water. Haag also relies upon his prior work on other projects involving dams and the study of the flow of water—the hydraulic and hydrologic principles that are crucial to the determination of whether the flooding of appellants' properties was proximately caused by the city's negligent operation of the gated spillway.

{¶ 14} Haag's report alludes to defects in the design and construction of the city water system. He asserts that the reservoirs changed the natural flow of Norwalk Creek, that the addition of the Benedict Avenue Bridge (and other bridges and obstructions over Norwalk Creek) obstructed the flow of the creek, causing backwater, and that the city's operation of the gated spillway during heavy rainfall in June 2006 resulted in the flooding of appellants' properties. He questions why the city chose to build in-line dams as opposed to stand-alone dams. In addition, he questions the failure of the city to consider re-routing the reservoir outflow around the city and its failure to consider flood-prevention measures at that time and since.

{¶ 15} In particular, Haag challenges the city's claim that the flow of water through Norwalk Creek is “natural.” He compared the design and construction of the reservoirs with other dams across natural streams that he has experienced first hand, suggesting that the maintenance of the water level within the reservoirs is more complex than the dams he has knowledge of. He also compared the city's reservoirs to bank-side reservoirs, or stand-alone reservoirs, such as those in Findlay and Fostoria. In comparing the two, Haag suggests that the city erred by building the reservoirs. Haag insists that the reservoirs compounded the risk of flooding by combining the effluent of other streams, and runoff from the watershed, thereby altering the natural flow of the creek. He also suggests that the reservoirs store and release water at a different rate from that of a natural stream during a storm event. Haag emphasizes the influence of man-made obstructions, such as the Benedict Avenue Bridge, upon backwater.

{¶ 16} Appellants' claims, however, do not arise out of the alleged faulty design or construction of the reservoirs. Haag insists that the absence of frequent, severe flooding prior to the June 2006 storm event is evidence that the reservoirs have been improperly maintained and operated. According to Haag, appellants did not suffer from severe or repeated flooding prior to June 2006. Haag visited the area, conducted interviews of property owners along Elm Street, and reviewed city documents relating to the operation of the city's water system and historical records. Haag noted that structures currently owned by appellants [Ohio App.3d 338] that were built as early as 1900 remain standing in the floodplain. The McGinn house was built in 1900, the Barna house in 1920, the Seiler house in 1930, and the Doubek and Miller houses in 1943. Haag suggests that if flooding along Elm Street had been repeated and severe since the homes were built, they would no longer be standing. In the Seiler home, a working furnace that was more than 20 years old showed no evidence of being touched by water prior to 1986. The McGinn home had previously flooded only when the reservoir itself was breached in 1969.

{¶ 17} Haag concludes that the increase in flooding and its severity can be attributed to the maintenance and operation of the reservoirs, including the gated spillway and downstream obstructions, which cause backwater. Haag relies in part on the deposition testimony of Richard Brown, retired superintendent of the city's water and wastewater treatment plant. Brown acknowledged that the gated spillway can be used to control the flow of water and thus prevent the reservoirs from overtopping. Haag contends that because of this ability to control the outflow of water...