Typically, a political subdivision enjoys governmental immunity for acts related to governmental or proprietary functions; however, ORC § 2744.02(B) provides five exceptions to an immunity defense. If one of these exceptions apply, then the political subdivision can raise a statutory defense provided in ORC § 2744.03. The Second District Court of Appeals recently decided two cases involving political subdivision immunity relating to proprietary functions. The Second District held that a material question of fact existed in each case as to whether the damage/injury resulted from the exercise of discretion.
In Ezerski v. Mendenhall, 188 Ohio App.3d 126, 2010-Ohio-1904, the Plaintiff homeowners sued the City of Vandalia for damages resulting from a backup in the sewer line that caused the Plaintiff’s basement to flood with sewage. A resident apparently lifted a manhole cover and stuck a large tree limb in the sewer; as debris accumulated on the tree limb the sewer line backed up. Importantly, a similar situation occurred for the previous homeowners, involving the same manhole cover, whereby a pipe fitting was thrown into the sewer and caused a backup. The City of Vandalia raised governmental immunity as a defense, and was granted summary judgment. On appeal, the Second District reversed.
The Second District first analyzed whether the allegations involved a governmental function or a proprietary function. Under the statutory scheme, the “planning or design, construction, or reconstruction of ... a sewer system” is a governmental function, while the “maintenance, destruction, operation, and upkeep of a sewer system” is a proprietary function. The City of Vandalia attempted to argue that securing of manhole covers involves the design of the sewer system. The Second District disagreed, finding that the City had an obligation to maintain its sewer system, which included taking reasonable steps to prevent obstructions; since the City was aware that residents were throwing debris in the manhole cover, it became a question of fact as to whether securing the manhole cover involved maintenance.
The Second District also dispelled with the City’s attempt to re-establish its immunity pursuant to ORC § 2744.03. Specifically, the City of Vandalia argued that under ORC § 2744.03(A)(5) it was entitled to immunity because the decision not to secure the manhole cover constituted the exercise of discretion. However, the Second District found no evidence to support that any act of discretion was involved, and thus held that the City of Vandalia would not be shielded from liability.
Likewise, the Second District decided the case of Thompson v. Germantown Cemetery, 188 Ohio App.3d 132, 2010-Ohio-1920, which involved burial plots owned by Plaintiff that were sold to others. Wilma Thompson had purchased two burial plots in 1984; she buried her first husband in one plot and intended the second plot for herself. She then purchased two more plots adjoining the others. Years later, after remarrying, Thompson’s second husband died in 2006. When she went to bury him in the second group of burial plots she had purchased Thompson learned that the cemetery had sold both plots to another couple, both of whom had died and were buried. Despite admitting liability, Germantown raised political subdivision immunity. The trial court denied summary judgment, which was immediately appealed. The Second District began its analysis by explaining that Germantown owed a duty pursuant to the purchase contract for the burial plots, and that a tort claim arises when a party “fails to exercise due care when performing his obligations under a contract.”
After determining that Thompson’s allegations properly raise an exception to immunity under ORC § 2744.02(B)(2), the Second District next assessed whether Germantown could re- establish immunity pursuant to ORC § 2744.03. Specifically, the Second District considered ORC § 2744.03(A)(5) whereby a “political subdivision is immune from liability if the injury ... or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.” In support of this defense, Germantown argued that the recordkeeping for the cemetery at the time the burial plots were purchased involved only paper records, and that the cemetery had limited financial resources such that it could not afford to purchase computer system. The Second District dismissed this argument finding that the damage/injury did not result from the cemetery not having a computer, but rather by Germantown’s “inadvertence, inattention, or unobservance.” Hence, the Second District agreed with the trial court that Germantown was not entitled to summary judgment on its immunity defense.
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