State ex rel. Deem v. Vill. of Pomeroy

• Decision Date: 19 March 2018
• Docket Number: No. 17CA3,17CA3
• Citation: 2018 Ohio 1120,109 N.E.3d 30
• Parties: STATE EX REL. David L. DEEM, et al., Relators–Plaintiffs/Appellees, v. VILLAGE OF POMEROY, et al., Respondents–Defendants/Appellants.
• Court: Ohio Court of Appeals

109 N.E.3d 30

2018 Ohio 1120

STATE EX REL. David L. DEEM, et al., Relators–Plaintiffs/Appellees,

v.VILLAGE OF POMEROY, et al., Respondents–Defendants/Appellants.

No. 17CA3

Court of Appeals of Ohio, Fourth District, Meigs County.

RELEASED March 19, 2018

Lawrence E. Barbiere and Katherine L. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Mason, Ohio, for respondents-defendants/appellants.

Michael M. Hollingsworth, Michael M. Hollingsworth, Attorney at Law Co., LPA, Athens, Ohio, for relators-plaintiffs/appellees.

DECISION AND JUDGMENT ENTRY

Hoover, P.J.

{¶ 1} Defendants–Appellants, the Village of Pomeroy ("the Village"), its mayor and members of the Pomeroy Village Council, in their official capacity, and Shannon Spaun, in his official and individual capacity, (collectively "Appellants"), appeal the judgment of the Meigs County Court of Common Pleas determining that they were not immune from negligence claims asserted by plaintiffs-appellees, David and Jamie Deem (collectively "Appellees").

{¶ 2} On appeal, Appellants argue that the trial court erred in (1) determining that the Village, its mayor and members of the Pomeroy Village Counsel, and Spaun, in his official capacity, were not entitled to immunity under R.C. 2944.02 and 2944.03; and (2) Spaun, in his individual capacity, was not entitled to immunity under R.C. 2944.03.

{¶ 3} Upon review of the record, we conclude that the trial court did not err in determining that the Village, its mayor and members of the Pomeroy Village Counsel, and Spaun, in his official capacity, were not entitled to immunity under R.C. 2944.02 and 2944.03; but it did err in failing to properly consider whether Spaun was entitled to individual immunity under R.C. 2944.03.

{¶ 4} Accordingly, we affirm in part, reverse in part, and remand the judgment of the trial court.

I. Facts and Procedural History

{¶ 5} In 1994, Appellees moved into a 100–year–old home in Pomeroy, Ohio. The home has three bedrooms and one and one-half baths. There is a covered deck in the backyard, which Appellees later converted into additional living space ("the addition"). Next to Appellees' home is the Meigs County Historical Society & Museum. It consists of two buildings, the newer of which is commonly referred to as "the museum annex." Appellees' home and the historical society sit at the foot of a steep wooded hill.

{¶ 6} Between October 24, 2011 and November 23, 2011, the hill behind Appellees' home slid twice, causing severe damage to their property. Appellees claim that the slides were caused by a leaking water pipe that the Village negligently failed to repair. In October 2013, Appellees filed a complaint against Appellants, Hylant Administrative Services, LLC, The Ohio Plan, Inc., and Laurie O'Malley, individually and as an employee of Hylant Administrative Services, LLC, and The Ohio Plan, Inc.¹ alleging (1) negligence against the Village and its employees; (2) spoliation; (3) bad faith denial of their insurance claim; (4) intentional infliction of emotional distress; (5) conspiracy; and (6) deprivation of constitutional rights under 42 U.S.C. § 1983. They also petitioned for a writ of mandamus directing the Village to commence appropriation proceedings to address the taking of their property.²

{¶ 7} In their complaint, Appellees alleged that the water department's employees negligently failed to discover and fix a leaking water pipe at the top of the hill behind the museum annex between October 20, 2011 and October 24, 2011, despite the fact that their employees had information that would place an ordinary water department worker on notice that there was a leak. Specifically, they alleged that the employees negligently failed to find and repair a broken valve on the water pipe leading up the hill prior to the first hill slide.

{¶ 8} Appellees further alleged that when the employees were trying to locate and fix the water leak, they negligently broke the water pipe with a backhoe. The broken water line allegedly caused large amounts of water and mud to flow toward Appellees' home, eventually causing damaging mudslides.

{¶ 9} Finally, Appellees alleged that despite warnings from engineers and others that the hill must be repaired and stabilized immediately, the Village failed to take any action after the first hill slide which caused the hill to further deteriorate and slide a second time on November 23, 2011. Appellees also alleged that the Village failed to take necessary measures to remedy the hill after the second slide thereby causing additional damage to their property.

{¶ 10} Between December 2013 and November 2014, Appellees filed two amended complaints, clarifying the nature of some of their claims and adding Ruth Spaun, in her individual capacity, and former Pomeroy Mayor Mary McAngus as defendants. Both defendants moved to dismiss the claims against them, arguing that the statute of limitations had expired. The trial court agreed; and the claims against them were dismissed. Ohio Plan, Inc., Ohio Risk Management, Inc., Hylant Administrative Services, LLC, and O'Malley were also dismissed from the suit after they successfully moved for summary judgment.

{¶ 11} In August 2016, Appellants moved for summary judgment. As relevant here, they argued that the Village was immune from Appellees' negligence claims because their claims related to a governmental function, as opposed to a proprietary one. Specifically, they argued that Appellees' allegations related to flood control measures, as opposed to the establishment, maintenance, and operation of a municipal corporation water supply system. They further argued that even if Appellees' allegations related to the establishment, maintenance, and operation of a municipal corporation water supply system and therefore subjected the Village to liability, immunity was restored because the Village's handling of the slides involved discretionary decisions under R.C. 2744.03(A)(3) and 2744.03(A)(5). Finally, they argued that Spaun was immune from individual liability because his acts or omissions were neither manifestly outside the scope of his employment or official responsibilities nor done with malicious purpose, in bad faith, or in a wanton or reckless manner, as required under R.C. 2744.03(A)(6).

{¶ 12} In October 2016, Appellees filed a memorandum in opposition to summary judgment, arguing that their claims related to a propriety function, as opposed to a governmental function. Specifically, they argued that their allegations related to the establishment, maintenance, and operation of a municipal corporation water supply system, as opposed to flood control measures. They further argued that the Village's immunity was not restored under R.C. 2744.03(A)(3) and 2744.03(A)(5) because the Village's handling of the situation did not involve discretionary decisions under R.C. 2744.03(A)(3) and 2744.03(A)(5). Finally, they argued Spaun was liable in his individual capacity because his actions were done in bad faith, or in a wanton or reckless manner, as required under R.C. 2744.03(A)(6).

{¶ 13} On February 16, 2017, the trial court denied Appellants' motion for summary judgment, concluding that the Village was not immune from Appellees' negligence claims because their allegations concerned the alleged negligent performance of a proprietary function and did not involve the exercise of discretion, as contemplated by R.C. 2744.03(A)(3) and R.C. 2744.03(A)(5). It did not address whether Spaun was entitled to individual immunity under R.C. 2944.03.

{¶ 14} Appellants timely appealed.

II. Assignment of Error

THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT TO DEFENDANTS/APPELLANTS VILLAGE OF POMEROY, OHIO, JACKIE WELKER, (former) MAYOR, IN HIS OFFICIAL CAPACITY, RUTH SPAUN, PHIL OLINGER, LUKE ORTMAN, ROBERT PAYNE, IN THEIR OFFICIAL CAPACITIES, AND SHANNON SPAUN IN HIS INDIVIDUAL CAPACITY.

III. Law and Analysis

A. Standard of Review

{¶ 15} We review the trial court's decision on a motion for summary judgment de novo. Smith v. McBride , 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Accordingly, we afford no deference to the trial court's decision and independently review the record and the inferences that can be drawn from it to determine whether summary judgment is appropriate. Harter v. Chillicothe Long–Term Care, Inc. , 4th Dist. Ross No. 11CA3277, 2012-Ohio-2464, 2012 WL 1997821, ¶ 12 ; Grimes v. Grimes , 4th Dist. Washington No. 08CA35, 2009-Ohio-3126, 2009 WL 1830761, ¶ 16.

{¶ 16} Summary judgment is appropriate only when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C) ; DIRECTV, Inc. v. Levin , 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 15. In ruling on a motion for summary judgment, the court must construe the record and all inferences therefrom in the nonmoving party's favor. Civ.R. 56(C). The party moving for summary judgment bears the initial burden to demonstrate that no genuine issues of material fact exist and that they are entitled to judgment in their favor as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996). To meet its burden, the moving party must specifically refer to "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action," that affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C) ; Dresher at 293, 662 N.E.2d 264. Moreover, the trial court may consider evidence not expressly mentioned in Civ.R. 56(C) if such evidence is incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E). Discover Bank v. Combs , 4th Dist. Pickaway No. 11CA25, 2012-Ohio-3150,...