[Cite as Westport Ins. Corp. v. Stark Cty. Sanit. Eng. Dept., 2017-Ohio-7573.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



WESTPORT INSURANCE CORP.                            :            JUDGES:
                                                    :            Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                          :            Hon. W. Scott Gwin, J.
                                                    :            Hon. Earle E. Wise, Jr., J.
-vs-                                                :
                                                    :
STARK COUNTY SANITARY                               :            Case No. 2017CA00006
ENGINEERING DEPARTMENT                              :
                                                    :
        Defendant-Appellant                         :            OPINION




CHARACTER OF PROCEEDING:                                         Appeal from the Court of Common
                                                                 Pleas, Case No. 2015CV02301



JUDGMENT:                                                        Reversed




DATE OF JUDGMENT:                                                September 11, 2017




APPEARANCES:

For Plaintiff-Appellee                                           For Defendant-Appellant

MARTIN T. GALVIN                                                 JOHN D. FERRERO
DANIELLE N. BENNETT                                              Stark County Prosecuting Attorney
101 West Prospect Avenue                                         By: STEPHAN P. BABIK
Suite 1400                                                       JESSICA L. LOGOTHETIDES
Cleveland, OH 44115-1093                                         110 Central Plaza South
                                                                 Suite 510
                                                                 Canton, OH 44702
Stark County, Case No. 2017CA00006                                                          2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Stark County Sanitary Engineering Department,

appeals the January 13, 2017 judgment entry of the Court of Common Pleas of Stark

County, Ohio denying its motion for summary judgment on the issue of sovereign

immunity, and granting Plaintiff-Appellee, Westport Insurance Corporation, leave to

amend its complaint.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On June 18, 2014, flooding occurred at a six unit apartment building located

at 7700-7732 Peachmont Avenue, NE, near Nimishillen Creek in North Canton, Ohio,

causing substantial property damage. The area had experienced an excessive amount

of rainfall over a few days, with 2.49 inches of rain falling in a short period of time on the

day in question.

       {¶ 3} Wastewater from the building is collected by the Stark County Metropolitan

Sewer District, created and operated by the Board of Stark County Commissioners. The

property is serviced by the Waltham Lift Station (LS #24), a pump station that takes flow

from a lower grade to a higher grade so that it may continue on a gravity sewer line.

Appellee compensated the building owners for their property damages.

       {¶ 4} On November 4, 2015, appellee, as a subrogee, filed a complaint against

appellant for negligent maintenance of its sanitary sewer system. On December 3, 2015,

appellant filed an answer, claiming the affirmative defenses of failure to join necessary

parties, sovereign immunity, and it is not sui juris, capable of being sued or bringing suit.

       {¶ 5} On October 31, 2016, appellant filed a motion for summary judgment,

claiming as a political subdivision, it was entitled to immunity under R.C. Chapter 2744.
Stark County, Case No. 2017CA00006                                                         3


Appellant argued the sewer backup was caused by a torrential rainstorm, not a

maintenance issue. Appellant claimed the Waltham Lift Station was thoroughly and

consistently maintained and was inspected on a daily basis, and attached numerous

maintenance records in support. Appellant also argued it was not sui juris and therefore

not capable of being sued.

       {¶ 6} On November 14, 2016, appellee filed its response, arguing appellant was

not entitled to immunity as its claim fell under one of the exceptions to sovereign immunity,

and arguing genuine issues of material fact existed that must be considered by a jury.

Appellee did not address the sui juris argument.

       {¶ 7} On November 28, 2016, appellant filed a memorandum contra appellee's

motion for leave to amend the complaint which was purportedly filed on November 22,

2016. However, there is no such filing in the record. Appellant argued Civ.R. 15(C) did

not permit appellee to amend its complaint pursuant to Civ.R. 3(A) and applicable case

law.

       {¶ 8} By judgment entry filed January 13, 2017, the trial court denied appellant's

motion for summary judgment, finding genuine issues of material fact to exist as to

whether the subject sewer system was properly maintained, and granted appellee leave

to amend its complaint to substitute the proper party defendant.

       {¶ 9} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:
Stark County, Case No. 2017CA00006                                                    4


                                            I

      {¶ 10} "THE TRIAL COURT ERRED BY DENYING THE STARK COUNTY

SANITARY ENGINEERING DEPARTMENT'S MOTION FOR SUMMARY JUDGMENT

PURSUANT TO R.C. CHAPTER 2744."

                                           II

      {¶ 11} "THE TRIAL COURT ERRED BY DENYING THE STARK COUNTY

SANITARY ENGINEERING DEPARTMENT'S MOTION FOR SUMMARY JUDGMENT

BECAUSE THE STARK COUNTY SANITARY ENGINEERING DEPARTMENT IS NOT

SUI JURIS AND IS NOT CAPABLE OF SUING OR BEING SUED."

                                            I

      {¶ 12} Appellant claims the trial court erred in denying its motion for summary

judgment under R.C. Chapter 2744. We agree.

      {¶ 13} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):



            Civ.R. 56(C)     provides that before summary judgment may be

      granted, it must be determined that (1) no genuine issue as to any material

      fact remains to be litigated, (2) the moving party is entitled to judgment as

      a matter of law, and (3) it appears from the evidence that reasonable minds

      can come to but one conclusion, and viewing such evidence most strongly

      in favor of the nonmoving party, that conclusion is adverse to the party

      against whom the motion for summary judgment is made. State ex. rel.
Stark County, Case No. 2017CA00006                                                         5

      Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

      citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d

      466, 472, 364 N.E.2d 267, 274.



      {¶ 14} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

      {¶ 15} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:



             It is well established the party seeking summary judgment bears the

      burden of demonstrating that no issues of material fact exist for trial.

      Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

      L.Ed.2d 265(1986).       The standard for granting summary judgment is

      delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party

      seeking summary judgment, on the ground that the nonmoving party cannot

      prove its case, bears the initial burden of informing the trial court of the basis

      for the motion, and identifying those portions of the record that demonstrate

      the absence of a genuine issue of material fact on the essential element(s)

      of the nonmoving party's claims. The moving party cannot discharge its

      initial burden under Civ.R. 56 simply by making a conclusory assertion the

      nonmoving party has no evidence to prove its case. Rather, the moving
Stark County, Case No. 2017CA00006                                                       6


      party must be able to specifically point to some evidence of the type listed

      in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

      no evidence to support the nonmoving party's claims. If the moving party

      fails to satisfy its initial burden, the motion for summary judgment must be

      denied. However, if the moving party has satisfied its initial burden, the

      nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

      set forth specific facts showing there is a genuine issue for trial and, if the

      nonmovant does not so respond, summary judgment, if appropriate, shall

      be entered against the nonmoving party."            The record on summary

      judgment must be viewed in the light most favorable to the opposing party.

      Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.



      {¶ 16} In Greene County Agricultural Society v. Liming, 89 Ohio St.3d 551, 556-

557, 733 N.E.2d 1141 (2000), the Supreme Court of Ohio explained the three tier analysis

required for determining if sovereign immunity applies:



             R.C. Chapter 2744 sets out the method of analysis, which can be

      viewed as involving three tiers, for determining a political subdivision's

      immunity from liability. First, R.C. 2744.02(A)(1) sets out a general rule that

      political subdivisions are not liable in damages. In setting out this rule, R.C.

      2744.02(A)(1) classifies the functions of political subdivisions into

      governmental and proprietary functions and states that the general rule of

      immunity is not absolute, but is limited by the provisions of R.C. 2744.02(B),
Stark County, Case No. 2017CA00006                                                          7


       which details when a political subdivision is not immune. Thus, the relevant

       point of analysis (the second tier) then becomes whether any of the

       exceptions in R.C. 2744.02(B) apply.           Furthermore, if any of R.C.

       2744.02(B)'s exceptions are found to apply, a consideration of the

       application of R.C. 2744.03 becomes relevant, as the third tier of analysis.



       {¶ 17} In its November 4, 2015 complaint, appellee alleged appellant negligently

maintained the sewer system which resulted in a flood causing damage to its insured's

property. The complaint alleged the maintenance of a sewer system is a proprietary

function and therefore appellant is exempt from immunity under R.C. Chapter 2744.

       {¶ 18} In its October 31, 2016 motion for summary judgment, appellant argued the

sewer system was properly maintained, and the flooding was caused by a torrential

rainstorm.    Appellant argued R.C. Chapter 2744 provides immunity to political

subdivisions, unless the claim falls within an enumerated exception. R.C. 2744.02(A)(1)

states the following in pertinent part: "Except as provided in division (B) of this section, a

political subdivision is not liable in damages in a civil action for injury, death, or loss to

person or property allegedly caused by any act or omission of the political subdivision or

an employee of the political subdivision in connection with a governmental or proprietary

function."   R.C. 2744.01(G)(2)(d) specifically defines the "maintenance, destruction,

operation, and upkeep of a sewer system" as a proprietary function. R.C. 2744.02(B)

lists the following exceptions to immunity:
Stark County, Case No. 2017CA00006                                                        8


            Subject to sections 2744.03 and 2744.05 of the Revised Code, a

     political subdivision is liable in damages in a civil action for injury, death, or

     loss to person or property allegedly caused by an act or omission of the

     political subdivision or of any of its employees in connection with a

     governmental or proprietary function, as follows:

            (1) Except as otherwise provided in this division, political

     subdivisions are liable for injury, death, or loss to person or property caused

     by the negligent operation of any motor vehicle by their employees when

     the employees are engaged within the scope of their employment and

     authority.

            ***

            (2) Except as otherwise provided in sections 3314.07 and 3746.24

     of the Revised Code, political subdivisions are liable for injury, death, or loss

     to person or property caused by the negligent performance of acts by their

     employees with respect to proprietary functions of the political subdivisions.

            (3) Except as otherwise provided in section 3746.24 of the Revised

     Code, political subdivisions are liable for injury, death, or loss to person or

     property caused by their negligent failure to keep public roads in repair and

     other negligent failure to remove obstructions from public roads, except that

     it is a full defense to that liability, when a bridge within a municipal

     corporation is involved, that the municipal corporation does not have the

     responsibility for maintaining or inspecting the bridge.
Stark County, Case No. 2017CA00006                                                            9


              (4) Except as otherwise provided in section 3746.24 of the Revised

       Code, political subdivisions are liable for injury, death, or loss to person or

       property that is caused by the negligence of their employees and that occurs

       within or on the grounds of, and is due to physical defects within or on the

       grounds of, buildings that are used in connection with the performance of a

       governmental function, including, but not limited to, office buildings and

       courthouses, but not including jails, places of juvenile detention,

       workhouses, or any other detention facility, as defined in section 2921.01 of

       the Revised Code.

              (5) In addition to the circumstances described in divisions (B)(1) to

       (4) of this section, a political subdivision is liable for injury, death, or loss to

       person or property when civil liability is expressly imposed upon the political

       subdivision by a section of the Revised Code, including, but not limited to,

       sections 2743.02 and 5591.37 of the Revised Code. * * *



       {¶ 19} Appellant argued the only potential exception to its immunity was

subsection (B)(2). Attached to the motion were numerous exhibits relating to the weather

and the maintenance records during the time in question (Exhibits B-F). Appellant also

attached the July 15, 2016 report and accompanying exhibits (Exhibit A) and affidavit of

its expert, Scott Ellsworth, a licensed professional engineer, who averred the following in

pertinent part:
Stark County, Case No. 2017CA00006                                                     10


              3. I have personal knowledge of the events described in Plaintiff's

     Complaint and also have reviewed various documents in the litigation, as

     well as records retained by Stark County and have discussed this matter

     with counsel for and employees of Stark County to further acquaint myself

     more fully with the facts and issues in this case.

              4. On or about July 15, 2016, I personally prepared a "study of the

     Sanitary Wastewater Inundation of 7700-7732 Peachmont Ave. NE on June

     18, 2014" (the "Report") and a copy of that report is attached hereto as

     Exhibit 2 and incorporated herein by reference.

              5. My Report is based upon my own personal background,

     experience, expertise and knowledge and the conclusions contained within

     the Report represent my opinions based upon a reasonable degree of

     professional certainty.

              6. As set forth in greater detail in my Report, it is my opinion, to a

     reasonable degree of professional certainty, that the sewer backup that

     occurred at the property located at 7700-7732 Peachmont Ave. NE, North

     Canton, Ohio 44720 (the "Property") on June 18, 2014 was solely and

     proximately caused by torrential rain and not as a result of any negligent

     maintenance, operation or upkeep on the part of Stark County or any third

     party.

              7. As set forth in greater detail in my Report, it is my opinion, to a

     reasonable degree of professional certainty, that the planning, design and

     construction of the Waltham gravity lift station ("Waltham") that services the
Stark County, Case No. 2017CA00006                                                     11


       Property are adequate and sufficient, and in compliance with the

       Environmental     Protection   Agency's   Recommended        Standards    for

       Wastewater Facilities, to properly transport and dispose of wastewater

       derived from all users on lines feeding into Waltham, including the Property.



       {¶ 20} In his report in Section I, Mr. Ellsworth explained how the pumps in the

sanitary sewer system operate. He opined the design of the sanitary system satisfied

both "reasonable engineering calculations for expected wastewater flow as well as the

Environmental Protection Agency's rules for design capacity." In Section II, Mr. Ellsworth

explained the two pumps at the Waltham Lift Station were checked several times on June

18, 2014, and were found to be functioning properly, pumping a total of 337,190 gallons

of water from the morning of June 17th to the afternoon on June 18th. He stated the

average daily flow at the lift station from June 2013 to June 2015 was approximately

93,000 gallons. Mr. Ellsworth noted because of the extreme rainfall the week of June

15th, "[t]he soil, the stream and the storm sewer system could not assimilate this amount

of water in such a short period of time. The rain ran off of the flooded soil, filled the

stream, overflowed the storm system and added hydrostatic pressure to the underground

utilities." He explained the following:



              There were observations from our service crews that portions of the

       streets along Peachmont, Moeller, and Chestnut Hill were flooded (See

       Exhibit 5). Even though the elevation of these streets are higher than the

       estimated flood elevation of the stream, the street's drainage system could
Stark County, Case No. 2017CA00006                                                     12


     not collect the volume of water that was deposited on them from the storm.

     Therefore, the streets flooded until the storm drainage system could catch

     up. As the sanitary manholes in these roads are not water tight, the sanitary

     collection system became flooded as well. When a major storm event such

     as this occurs, manholes taking on storm water are not usually the only

     source of water inundation. When an open pipe exists below a flooded

     surface and an increase in hydrostatic pressure occurs due to flooding

     overhead, water will find its way into the system through manhole castings

     that have sunk below the as-built construction elevation or through faulty

     chimney seals. Other venues for water intrusion include illegal yard drains

     or foundation drains connected to sump pumps that pump into the sanitary

     sewer instead of the storm water system as intended.

     ***

            Finally, as 7700-7732 is one of the last buildings on the gravity

     sanitary sewer line prior to entering the sanitary lift station, storm water in

     the sanitary pipe would have been flowing at a high velocity and volume so

     that the sanitary lift station could not keep up with the flow, even with two

     pumps working. The excess water would find relief through the basement

     drain at 7700-7732 Peachmont Ave. If this were the case, other properties

     with lower elevation basements would have experienced wastewater

     intrusion as well. This was the case as 7906 Peachmont (not shown) and

     7756-7754 Peachmont, which were affected as well. These are indicated

     on Exhibit 4.
Stark County, Case No. 2017CA00006                                                          13




       {¶ 21} Mr. Ellsworth concluded the weather situation caused the flooding, as the

sanitary sewer system was adequately designed and properly maintained.

       {¶ 22} Appellant also attached as exhibits the May 31, 2016 report (Exhibit G) of

appellee's expert, Joseph Schaller, a licensed professional engineer, and exerts from his

deposition (Exhibit I). We note the "report" is in the form of a letter to appellee's attorney.

It is not accompanied by an affidavit. "It is well settled that documents submitted in

opposition to a motion for summary judgment must be sworn, certified or authenticated

by affidavit to be considered by the trial court in determining whether a genuine issue of

material fact exists for trial." Sintic v. Cvelbar, 11th Dist. Lake No. 95-L-133, 1996 WL

649137, *2 (July 5, 1996).        See Heard v. Aultman Hospital, 5th Dist. Stark No.

2015CA00141, 2016-Ohio-1076, ¶ 27-29; Civ.R. 56(C). However, appellant did not make

a motion to strike the Schaller report and in fact attached the report to its motion for

summary judgment.

       {¶ 23} In his report, Mr. Schaller acknowledged "the rainfall event that occurred on

June 18, 2014, could be considered to be classified as a 100 year rainfall event."

However, he noted the rainfall event "did not lead to overland surface flooding of the units

that contributed to the damages. There were no reports that indicated that surface water

entered the units from the patios adjacent to the West Branch of Nimishillen Creek." Mr.

Schaller opined the following:



              Based on the data made available and the information provided, it is

       my opinion that the cause of the sewage backup and subsequent flooding
Stark County, Case No. 2017CA00006                                                        14


       that occurred at 770-7732 Peachmont Avenue on June 18, 2014 is

       attributable to the backup of the public sanitary sewer system.            The

       discharge flow rates recorded at the plant of 0.365 mgd may have been

       elevated beyond normal but should still should have been contained within

       an 8" sewer installed at OEPA accepted minimum grades of 0.4%. The fact

       that there was no overflow reported on or after the day of the rainfall event,

       further confirms that the cause of the backup (which occurred through the

       sewer floor drains) was related to the lack of proper function in the gravity

       sections of the sanitary sewer system or due to a system backup or flooding

       of the lift station that allowed extraneous storm water to enter the system.

              It is my further opinion that a system backup, such the one that

       appears to have occurred on June 18, 2014 could therefore, only be

       attributable to lack of proper system maintenance [of] the gravity sewers or

       due to the lack of protection from flooding of the lift station. Both the system

       maintenance and the protection of the pumping station from flooding are the

       direct responsibility of Stark County.



       {¶ 24} In his September 1, 2016 deposition, Mr. Schaller acknowledged he did not

review the designs of the Waltham Lift Station or the actual sewer lines in the area. T. at

46-47. He had no knowledge of the depth or condition of the sewer lines. T. at 47. In

determining causation for the flood, Mr. Schaller "looked at the specific type of backup

that occurred, and knowing that it was most likely related to an overload of sanitary sewer
Stark County, Case No. 2017CA00006                                                     15

system because the floor drains had backed up." Id. When questioned about the

excessive rainfall, Mr. Schuller explained the following (T. at 57-59):



              A. Well, the rainfall led to high amount of storm runoff, which led to

       flooding of areas; okay? That link then is flooding of areas impacted the

       sanitary sewer system. My report says the failure to keep that separation

       between storm water and the sanitary sewer system is part of the cause of

       the maintenance issue.

              Q. Is part of the cause. What are the other causes?

              A. Potentially, I have not seen anything that ruled out condition

       defects within the sanitary system.

              ***

              Q. Well, let me finish. You have not examined the condition or any

       reports relating to the condition of the sanitary sewer system; isn't that

       correct?

              A. That's correct.

              Q. So how would you have any idea what the condition is?

              ***

              A. Based on my experience, sewer condition is one of the factors in

       sanitary sewer that you need to be aware of. The potential for sewers to

       receive groundwater and other flow, for sanitary sewers, is something that

       should be a concern simply because that water was never designed or

       intended to be within that system. The other problem or issues that I've
Stark County, Case No. 2017CA00006                                                     16


       seen that impact the capacity of the sanitary system are potential solids

       buildups or grease buildups within the system, which is always a

       maintenance issue in areas depending on what's tied into them. And also,

       then how does - - how tight is the system, how does the sanitary act when

       groundwater rises, when streets are flooded.



       {¶ 25} Mr. Schaller did not see any data tending to show grease or roots in the

system as a contributing factor to the flooding on June 18, 2014, and was not aware of

any cracks in any pipe or any joints that were broken that would have allowed flood waters

to enter the sanitary sewer system. T. at 59-60, 82-83. He relied on the maintenance

records contained in Mr. Ellsworth's report which indicated the sewer lines were last

cleaned between June 2012 and July 2013 prior to the flooding in 2014. T. at 60;

Ellsworth Report at Section IV. Mr. Schaller testified a reasonable time frame to clean

sewer lines is every five years, but depending on a number of factors such as grease

buildup and root intrusion, maybe two or three years. T. at 61. Mr. Schaller did not see

the floor drain of the subject property, and did not know how deep the lateral sewer line

was that serviced the property. T. at 65. He acknowledged the property was build

adjacent to a FEMA designated 100-year floodplain, meaning in any 100-year period,

"there would be a 1 percent chance of this flood occurring." T. at 67-68. He agreed to

the following (T. at 83):



              Q. And looking at it not on a daily, not on an average, not on an

       acceptable amount of rainfall that enters it [the sanitary sewer system],
Stark County, Case No. 2017CA00006                                                          17


       looking at it specifically on June 18, 2014, if you had a properly maintained

       sewer system that doesn't flood regularly, is it possible that this amount of

       rainfall alone could cause that system - - interference with that system?

              A. I would say yes, it's possible.



       {¶ 26} Mr. Schaller identified three possible causes of the flooding: lack of proper

function in the gravity sections of the system, system backup, or flooding of the lift station.

T. at 87. He opined all would be the result of maintenance issues. T. at 88-89.

       {¶ 27} In its November 14, 2016 opposition brief, appellee argued in reviewing the

evidence most strongly in its favor, genuine issues of material fact exist as to whether the

damages were caused by negligent maintenance.

       {¶ 28} A hearing on the motion for summary judgment was not held. In its January

13, 2017 judgment entry denying the motion, the trial court concluded the following:



              Upon review of the briefs filed, and the evidence submitted,

       including but not limited to the Affidavit of Scott Ellsworth and attached

       exhibits, and the deposition testimony of Joseph Schaller and attached

       exhibits, and in viewing the evidence in a light most favorable to the

       Plaintiff, the Court finds that there is a genuine issue of material fact as to

       whether the subject sewer system was properly maintained. Therefore,

       the Court denied Defendant's motion for summary judgment.
Stark County, Case No. 2017CA00006                                                         18


       {¶ 29} We disagree with the trial court's decision. In order for appellant to be liable

for damages under R.C. Chapter 2744, it must have been negligent in maintaining the

sanitary sewer system. Under a summary judgment standard, appellant, as the moving

party, must first demonstrate the absence of a genuine issue of material fact by

specifically pointing to some evidentiary quality evidence which affirmatively

demonstrates appellee, as the nonmoving party, has no evidence to support its claims.

In reviewing the affidavit and report of Mr. Ellsworth, as well as the attached weather

reports and maintenance records, we find appellant has met its burden. The Waltham

Lift Station was regularly maintained, and was inspected on a daily basis. The pumps in

the station were regularly serviced, and were checked several times on the day in

question and although they were overwhelmed with the excessive rainfall, they were

found to be functioning properly. In fact, the pumps functioned at over twice their design

capacity throughout the rainfall event.

       {¶ 30} Once appellant has met its burden, appellee has a reciprocal burden to set

forth specific facts showing a genuine issue for trial. Appellee presented the report of Mr.

Schaller, dated May 31, 2016, wherein he opined the system backup was caused by

negligent maintenance.      In his deposition taken September 1, 2016, Mr. Schaller

acknowledged he did not look at the designs of the sewer station or the sewer lines

servicing the property, and did not review any records relating to maintenance, operation,

and upkeep of the Waltham Lift Station or the Bob-O-Link sewer plant other than those

attached to Mr. Ellsworth's report. Mr. Ellsworth report is dated July 15, 2016. Mr.

Schaller's opinion in his report, made a month and a half prior to Mr. Ellsworth report, was

not based on any supporting data and was mere speculation. Mr. Schaller agreed the
Stark County, Case No. 2017CA00006                                                      19


amount of rainfall on the day in question could interfere with the operation of a properly

maintained sewer system.

      {¶ 31} We distinguish our decision, cited by appellee, in Nimishillen Township

Trustees v. State ex rel. Groffre Investments, 5th Dist. Stark No. 2003 CA 00410, 2004-

Ohio-3371. In that case, we affirmed the trial court's denial of the township's motion for

summary judgment on the issue of sovereign immunity. The case involved flooding

related to storm water ditches, not a sanitary sewer system. At ¶ 38, we specifically found

the township "would not be entitled to the defenses contained in R.C. 2744.03(A)(3) and

(A)(5) because the township 'produced no evidence of upkeep or reasonable diligence in

the inspection and maintenance of the system.' Judgment Entry, Dec. 5, 2003, at 3."

Such is not the case sub judice. Appellant has presented ample evidence of upkeep and

reasonable diligence in the inspection and maintenance of the sanitary sewer system.

      {¶ 32} Viewing the record in a light most favorable to appellee, we find appellee

has not shown a genuine issue of material fact relating to the maintenance of the sanitary

sewer system to overcome appellant's immunity under R.C. 2744.02(A)(1).

      {¶ 33} Upon review, we find the trial court erred in denying appellant's motion for

summary judgment.

       {¶ 34} Assignment of Error I is granted. Assignment of Error II is moot.
Stark County, Case No. 2017CA00006                                          20


      {¶ 35} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby reversed.

By Wise, Earle, J.

Delaney, P.J. and

Gwin, J. concur.



EEW/sg 628
