Property damage from flooding causes millions of dollars in damages per year in Ohio. Damages are not always covered by standard homeowner insurance policies, creating incentive for those experiencing losses to sue municipalities for their damages. The Ohio Supreme Court recently limited the circumstances under which property owners can sue political subdivisions for flood damage caused by alleged sewer defects.
The Ohio Revised Code provides municipalities with only limited immunity for the operation of sewer systems. R.C. 2744.01(C)(2)(l) identifies as an immune governmental function “the provision or nonprovision, planning or design, construction, or reconstruction of a . . . sewer system.” However, R.C. 2744.01(G)(2)(d) identifies “the maintenance, destruction, operation, and upkeep of a sewer system” as a proprietary function for which civil liability may attach.
In Coleman v. Portage County Engineer, 133 Ohio St. 3d 28, 2012-Ohio-3881, the Colemans sustained property damage from flooding when County drainage culverts overflowed. The Colemans alleged that the County was on notice that the culverts were inadequate to handle heavy rains and the failure to upgrade the sewer system was a “maintenance” issue for which the County could be sued. The Supreme Court addressed the question of whether the failure to upgrade a sewer system was “maintenance” for which liability as a proprietary function attached; or whether it was an immune governmental function for the planning, design, and construction of a sewer system. The Supreme Court ruled that because upgrading would require the County to redesign and reconstruct the sewer system, it was an immune governmental function. The Court’s decision further explains that political subdivisions cannot be sued merely because sewer systems become obsolete. Liability can only attach in instances where a political subdivision fails to maintain an already existing sewer system by failing to remove obstructions or making routine repairs and maintenance.
The Coleman decision is important for the fiscal health of Ohio political subdivisions due to the potentially catastrophic damages that can arise from massive flooding. The decision preserves the financial health of political subdivisions by not making political subdivisions the insurers for flooding damage which is not covered by property insurance policies.
Should you have any question regarding this decision or any other question regarding governmental or public entity liability, please contact any member of our Governmental/Public Entity Liability Group.
