Smith v. City of Euclid, 107771

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtMARY EILEEN KILBANE, A.J.
Citation2019 Ohio 3099
PartiesFRANK M. SMITH, Plaintiff-Appellee, v. CITY OF EUCLID, Defendant-Appellant.
Docket NumberNo. 107771,107771
Decision Date01 August 2019

2019 Ohio 3099

FRANK M. SMITH, Plaintiff-Appellee,
CITY OF EUCLID, Defendant-Appellant.

No. 107771


August 1, 2019



Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No.


Henderson & Schmidlin & McGarry Co., L.P.A., Timothy L. McGarry, and Brendan Mewhinney, for appellee.

Walter & Haverfield, L.L.P., R. Todd Hunt, Benjamin G. Chojnacki, and Sara J. Fagnilli, for appellant.


{¶ 1} Defendant-appellant, the city of Euclid ("the City"), appeals the trial court's decision denying its motion for summary judgment. For the reasons set forth below, we affirm.

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{¶ 2} In October 2017, plaintiff-appellee, Frank Smith ("Smith") brought a breach of easement and negligence-nuisance action against the City for damage to his residential property located at 21731 Edgecliff Drive ("property") in Euclid, Ohio. Smith's property abuts Lake Erie. The prior owner of the property granted an easement to the City on Smith's property to allow the City to maintain an overflow sanitary relief sewer. The sewer line runs through the west side of the property and through a concrete sewer out into Lake Erie.

{¶ 3} In 2012, a sinkhole developed on the property behind the retaining wall. The City's investigation of this sinkhole revealed an approximate 2" by 4" opening in the top of the sewer pipe just before it connects with the manhole. The City repaired the opening in the pipe in 2012 by covering the pipe's hole with cement and surrounding the outside of the pipe with brick. The City's former Service Department Superintendent, Scott Reese ("Reese"), additionally determined that the wood retaining wall on the property needed to be repaired and the sinkhole should be filled with a cement-based "flowable fill" material, rather than dirt. Unlike dirt, flowable fill can enter all open cavities of an erosion hole. The flowable fill then hardens, thereby providing stability and preventing soil displacement from behind the retaining wall.

{¶ 4} Then in 2016, a second sinkhole developed on the hillside behind the retaining wall on the property. Smith alleges that the City's 2012 repair of the manhole located on his property subsequently caused the second sinkhole, which damaged his property, breakwall, boathouse, landscaping, and steps.

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{¶ 5} Smith alleges that the City, as the owner of the easement, has breached its contractual duty to make the repairs necessary to prevent the easement from damaging his property. Smith further alleges that the City is not immune from liability under R.C. 2744.01(G)(2)(d) for the damages because the damage was caused by the negligent performance of the City's employees for "proprietary functions," including the "maintenance, destruction, operation, and upkeep of a sewer system." The City responded, arguing immunity under R.C. Chapter 2744.

{¶ 6} After the conclusion of discovery, the City moved for summary judgment, contending that its operation and upkeep of the sewer system did not cause damage to the property. The City argued that Smith's breach of easement claim is "an attempt to repackage his negligence claim as a breach of contract." The City further argued that even if it did damage the property, it is immune from liability under R.C. Chapter 2744.1 Smith opposed the City's motion for summary judgment. In his opposition, Smith argued that as the owner of the easement, the City was contractually responsible to Smith for making repairs of the use if, using Smith's allegation, the "easement" damages his property. According to Smith, the City's failure to properly make repairs in 2012 caused the leak in the sewer, which caused the sinkhole and damage to the property. Smith further argued that City is not immune from liability because the City failed to maintain the sewer, which is a proprietary function.

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{¶ 7} The City responded to Smith's opposition, arguing that the supplies, materials, personnel, and resources selected by the City did not cause damage to the property. Moreover, even if it had caused damage, the City established that it was immune from liability for such discretionary acts under R.C. 2744.03(A)(5). The next day, the trial court issued its decision, denying the City's motion for summary judgment. The court stated:

Th[is] court has reviewed [the City's] motion, [Smith's] brief in opposition, and [the City's] reply brief. In viewing the facts and construing the evidence in the light most favorable to [Smith] as the non-moving party, the court finds that there are genuine issues of material fact concerning whether [the City] was negligent in performing a proprietary function of maintaining and operating its storm sewer system under R.C. 2744.02(B)(2) and whether such negligence proximately caused damages to plaintiff. Riscatti v. Prime Properties Ltd. Partnership, 2012-Ohio-2921. As such, [the City] is not entitled to judgment as a matter of law and summary judgment is not proper under Civ.R. 56(C). The court further finds that the discovery rule applies to this claim. Cohen v. City of Bedford Heights, 2015-ohio-1308. Genuine issues of material fact exist as to whether [Smith] knew or by the exercise of reasonable diligence should have known that he was injured by the conduct of [the City].

The court further finds that there are genuine issues of material fact concerning whether [the City] had a duty under the easement to maintain the storm sewer and to prevent damage to the servient estate. Market Enterprises v. Summerville, 2002-ohio-3692. See also, 36 Ohio Jurisprudence 3d (1982) 464, Easements and Licenses, Section 60.

{¶ 8} It is from this order that the City appeals, raising the following single assignment of error for review:

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Assignment of Error

The trial court erred by denying summary judgment to the [City] which denied the City's defense of statutory immunity pursuant to R.C. Chapter 2744.

{¶ 9} The City views Smith's breach of easement claim as part of his negligence-nuisance claim and argues its motion for summary judgment conclusively established that the sewer system itself was not the cause of the alleged damage to the property. As a result, it contends that the sole issue this court "must examine is whether the City is immune from liability pursuant to R.C. Chapter 2744 of the Ohio Revised Code for its discretionary decision to use flowable fill in repairing the First Erosion Hole in 2012."

{¶ 10} We review an appeal from summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the appropriate test as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary

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