[Cite as Jones v. John R. Jurgensen Co., 2015-Ohio-480.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLINTON COUNTY




GEORGE JONES, et al.,                                  :
                                                           CASE NO. CA2014-03-005
        Plaintiffs-Appellants,                         :
                                                                OPINION
                                                       :         2/9/2015
   - vs -
                                                       :

JOHN R. JURGENSEN COMPANY, et al.,                     :

        Defendants-Appellees.                          :




         CIVIL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
                            Case No. CVH 2012 0415


Ronald J. Kozar, Kettering Tower, 40 North Main Street, Suite 2830, Dayton, Ohio 45423, for
plaintiffs-appellants

Surdyk, Dowd & Turner Co., LPA, Edward J. Dowd, One Prestige Plaza, Suite 700, Dayton,
Ohio 45342, for defendant-appellee, City of Wilmington, Ohio



        M. POWELL, J.

        {¶ 1} Plaintiffs-appellants, George and Karen Jones, appeal a decision of the Clinton

County Court of Common Pleas which granted summary judgment to defendant-appellee,

the city of Wilmington, in a negligence case on the ground the city was immune from liability

under R.C. Chapter 2744.

        {¶ 2} Appellants have lived in their home on McDermott Avenue in Wilmington, Ohio
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since 1989. The house is located north of and downhill from West Locust Street. Appellants'

backyard faces West Locust Street and slopes downward, away from their home, into a

swale. The lowest point of the swale is located behind a house two doors west of appellants'

home. At this low point is a storm drain controlled by the city as part of its operation of its

storm sewer system.

       {¶ 3} On June 27, 2010, and through the night into the morning of June 28, 2010, the

city experienced unusually heavy rain. The rainfall caused water to accumulate and pond in

appellants' backyard, ultimately flooding their basement and garage and causing damage to

the garage door, basement, and personal possessions. Karen Jones, who was home at the

time of the flooding, testified that the water in their basement was about three feet high.

When she subsequently looked outside through a window facing West Locust Street, she

noticed the water ponding in her backyard. It was "like a lake of water," going from the back

of their house all the way down to the storm drain. Jones testified that while she has

witnessed similar heavy rainfall in Wilmington before and after the flooding, this was the first

and only flooding they ever experienced in their home.

       {¶ 4} For a period of time prior to the flooding, the John R. Jurgensen Company was

engaged in a city street and sidewalk improvement project on West Locust Street as a

contractor for the Ohio Department of Transportation (ODOT). The project involved the

removal of the old curb on the north side of the street and its replacement with a sidewalk

and new curb. Jones testified that at the time of the flooding, the curb and the drains

alongside West Locust Street had been removed and had not yet been replaced; there were

piles of mud, broken-up concrete from the old curb, and debris along the street during the

improvement project; and the new curb, drains, and sidewalks were installed a week or two

after the flooding. West Locust Street is located a short distance uphill from the storm drain.

       {¶ 5} John Norton, appellants' expert, owns an engineering company. On June 30,
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2011, a year after the flooding, appellants and Norton inspected the storm drain located two

doors west of appellants' home and observed that the drain gate was blocked and covered

with debris. Jones testified she did not know when or how the storm drain became covered

with debris. However, she noticed the debris was similar to that which she had observed

during the improvement project.

        {¶ 6} On June 26, 2012, appellants filed a complaint against the city alleging
                                           1
negligence, trespass, and nuisance.            Appellants alleged that during the heavy rainfall on

June 27-28, 2010, the storm drain became clogged or obstructed with worksite debris that

had washed away from the construction site on West Locust Street, which in turn caused the

swale to fill up like a bathtub and flood their basement and garage. Appellants alleged that

the city committed negligence "by suffering the West Locust Street work to be performed

without safeguards against foreseeable drainage of stormwater into the adjacent

neighborhood, and by neglecting and failing to maintain the storm drain at issue and to

protect it against the risk of obstruction by worksite debris."

        {¶ 7} The city moved for summary judgment on the ground it was immune from

liability under R.C. Chapter 2744.             Specifically, the city argued that while appellants'

negligence claim was ostensibly alleging negligent maintenance, when stripped to its core the

claim was actually alleging negligent planning and design, a governmental function for which

the city was entitled to immunity. The city further argued that even if it was not entitled to

immunity, appellants' claim failed as there was no evidence the city had notice, constructive

or actual, of any defect in the storm drain. The city did not submit any evidence with its

motion for summary judgment but referred to the depositions of Jones and Norton. Both


1. Appellants also filed a complaint against Jurgensen and ODOT for negligence, trespass, and nuisance.
However, in August 2012, appellants voluntarily dismissed their complaint against ODOT without prejudice. In
July 2013, Jurgensen moved for summary judgment. The trial court denied the motion in November 2013.
Subsequently, appellants and Jurgensen settled the case and appellants voluntarily dismissed their complaint
against Jurgensen, without prejudice, in March 2014.
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depositions were later filed with the trial court.

       {¶ 8} Appellants filed a memorandum in opposition to the city's motion for summary

judgment. Attached to the memorandum were appellants' respective affidavits and the city's

responses to interrogatories. Appellants argued that their negligence claim in fact alleged

three separate acts of misfeasance by the city, including "neglecting and failing to maintain

the storm drain at issue," a proprietary function for which the city was not entitled to

immunity. With regard to notice, appellants argued that under applicable case law, the city

was "chargeable with knowledge of what a reasonable inspection would have revealed."

       {¶ 9} On November 7, 2013, the trial court granted summary judgment to the city.

The trial court first found that whether appellants' negligence claim challenged (1) "the street

and sidewalk repair project itself," (2) "a combination of the street and sidewalk project and

negligently maintained sewers or defectively designed sewers," or (3) "poorly designed

sewers or a failure to upgrade the sewers," those were governmental functions for which the

city was entitled to immunity. The trial court further found that

              Even if this court were to find that the proprietary function of
              sewer maintenance was not connected to or combined with any
              other governmental function so as to come under the umbrella of
              Chapter 2744 immunity, the City is still entitled to summary
              judgment as to plaintiffs' negligence claims [as] the City and
              plaintiffs have offered uncontroverted Civ.R. 56(C) evidence that
              * * * the City was unaware of any maintenance issues in regards
              to the sewer and storm drain at issue.

Finally, the trial court also found the city was immune from liability under R.C. Chapter 2744

with regard to the nuisance and trespass claims.

       {¶ 10} Appellants appeal, raising one assignment of error:

       {¶ 11} THE TRIAL COURT'S ENTRY OF SUMMARY JUDGMENT IN FAVOR OF THE

CITY OF WILMINGTON WAS ERROR.

       {¶ 12} Appellants argue the trial court erred in granting summary judgment to the city


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on the ground the city was immune from liability under R.C. Chapter 2744. Specifically,

appellants first argue the trial court erred in finding the city was immune because the damage

occurred during a road project, a governmental function. Appellants also argue there is a

genuine issue of material fact as to whether the city was negligent in maintaining the storm

drain.

         {¶ 13} Summary judgment is proper when the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations

of fact, if any, show that (1) there is no genuine issue of any material fact; (2) the moving

party is entitled to judgment as a matter of law; and (3) the evidence submitted can only lead

reasonable minds to a conclusion which is adverse to the nonmoving party. Civ.R. 56(C);

Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978). The moving party

bears the initial burden of informing the court of the basis for the motion and demonstrating

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293

(1996). Once this burden is met, the nonmoving party has a reciprocal burden to set forth

specific facts showing there is some genuine issue of material fact yet remaining for the trial

court to resolve. Id.

         {¶ 14} In determining whether a genuine issue of material fact exists, the court must

answer the following inquiry: "Does the evidence present a sufficient disagreement to require

submission to a jury or is it so one-sided that one party must prevail as a matter of law?"

Wilson v. Maple, 12th Dist. Clermont No. CA2005-08-075, 2006-Ohio-3536, ¶ 18. In

determining whether a genuine issue of material fact exists, the evidence must be construed

in favor of the nonmoving party. Walters v. Middletown Properties Co., 12th Dist. Butler No.

CA2001-10-249, 2002-Ohio-3730, ¶ 10. An appellate court reviews a trial court's decision to

grant or deny summary judgment de novo, without any deference to the trial court's

judgment. Bravard v. Curran, 155 Ohio App.3d 713, 2004-Ohio-181, ¶ 9 (12th Dist.).
                                               -5-
                                                                        Clinton CA2014-03-005

       {¶ 15} R.C. Chapter 2744 sets forth a three-tier analysis in determining whether a

political subdivision is immune from liability. Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-

Ohio-3319, ¶ 7.     First, R.C. 2744.02(A)(1) sets forth the general rule that a political

subdivision is immune from liability 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." Id. However, that

immunity is not absolute, and is subject to the five exceptions to immunity listed in R.C.

2744.02(B). Id., Wamsley v. West Jefferson, 139 Ohio App.3d 170, 173 (12th Dist.2000).

       {¶ 16} The second tier of the analysis requires a court to determine whether any of the

five exceptions to immunity listed in R.C. 2744.02(B) apply. Colbert at ¶ 8. In the case at

bar, the relevant exception to immunity is set forth in R.C. 2744.02(B)(2), which states:

              Except as otherwise provided in [R.C.] 3314.07 and 3746.24,
              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.

In 1997, the Ohio Supreme Court extended the reach of this statutory provision to allow

liability for "injury, death, or loss to persons or property caused by an act or omission of the

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

proprietary function." Hill v. Urbana, 79 Ohio St.3d 130, 134 (1997); Wamsley at 173.

       {¶ 17} Finally, if liability exists under R.C. 2744.02(B), immunity may be reinstated if

the political subdivision can successfully assert one of the defenses to liability provided for in

R.C. 2744.03(A). Colbert, 2003-Ohio-3319 at ¶ 9; Estate of Enzweiler v. Clermont Cty. Bd. of

Commrs., 12th Dist. Clermont Nos. CA2010-11-085 and CA2010-11-086, 2011-Ohio-896, ¶

11. Whether a political subdivision is entitled to sovereign immunity under R.C. Chapter

2744 is a question of law. Enzweiler at ¶ 10.

       {¶ 18} Appellants first argue the trial court erred in finding the city was immune
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because the damage occurred during a road project, a governmental function.

       {¶ 19} It is undisputed that the city is a political subdivision under R.C. 2744.01(F) and

is generally immune from liability under the first tier of the analysis. See R.C. 2744.02(A)(1).

As stated above, however, a political subdivision is liable under R.C. 2744.02(B)(2) 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." R.C.

2744.01(G)(2)(d) clearly provides that "the maintenance, destruction, operation, and upkeep

of a sewer system" is a proprietary function. In its entry granting summary judgment to the

city, the trial court acknowledged R.C. 2744.01(G)(2)(d) and found that "[t]herefore, a city

may not enjoy immunity from liability and damages may arise if based solely on sewer

maintenance issues."

       {¶ 20} Nonetheless, the trial court found that the city was immune from liability on the

ground that because appellants' negligence claim alleged the flooding was caused by a

combination of debris from the sidewalk improvement project on West Locust Street and an

improper sewer maintenance, and because the maintenance and repair of streets and

sidewalks is a governmental function under R.C. 2744.01(C)(2)(e) for which a city is immune

from liability, that immunity extended to the maintenance of the storm drain. Specifically, the

trial court found that:

               Political subdivision activity that starts out as a governmental
               function before it impinges on a proprietary function has been
               found to be altogether a governmental function allowing the
               political subdivision to maintain its immunity.

The trial court relied on a decision of the Eighth Appellate District in support of its holding.

See CAC Bldg. Properties v. Cleveland, 8th Dist. Cuyahoga No. 91991, 2009-Ohio-1786.

       {¶ 21} We find the trial court erred in applying the governmental function immunity to

appellants' claim of negligent maintenance simply because the storm drain was allegedly


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obstructed by debris from the sidewalk improvement project, a governmental function. We

also find that CAC is factually distinguishable and therefore, its holding is inapplicable here.

       {¶ 22} At the outset, we note that appellants' complaint alleged the city was negligent

in three separate aspects: (1) failure to provide safeguards against foreseeable drainage of

storm water into the adjacent neighborhood, (2) failure to maintain the storm drain at issue,

and (3) failure to protect the drain against the risk of obstruction by worksite debris. In their

memorandum opposing the city's motion for summary judgment, appellants conceded that if

the first and third acts of misfeasance required the city to make special expenditures of funds

or special purchases of equipment to deal with the water-control issues raised by the

roadwork, such acts of misfeasance might be subject to governmental immunity. Appellants

argued, however, that the second act of misfeasance "suffer[ed] no such infirmity."

Thereafter, appellants focused their argument solely on their claim the city was negligent for

failing to maintain the storm drain. Likewise, we will only address that claim.

       {¶ 23} The CAC decision relied on by the trial court involved a transportation corridor

construction project in Cleveland which included upgrades to utility vaults below Euclid

Avenue. The CAC Building had five utility vaults located under Euclid Avenue. On March 28

and 29, 2006, the contractor hired by Cleveland worked on constructing a concrete masonry

wall under the CAC Building. On March 29, 2006, the wall collapsed, and the low strength

mortar flooded the CAC Building, destroying electrical and mechanical equipment. In

September 2006, the contractor left the excavations open, which exposed the electrical

switchgear. As a result of a thunderstorm, water touched the CAC Building's electrical

switchgear and caused an explosion and fire. CAC filed a complaint against Cleveland for

negligence. Cleveland moved for summary judgment on the ground it was immune from

liability. The trial court denied the motion.

       {¶ 24} On appeal, Cleveland argued it was immune from liability because the work it
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was performing was a governmental function, either as a public improvement project, a

sidewalk and/or road repair, or an urban renewal project, all three of which are governmental

functions under R.C. 2744.01(C)(2). By contrast, CAC argued Cleveland was engaged in the

maintenance of a utility, a proprietary function under R.C. 2744.01(G). The Eighth Appellate

District found that Cleveland was immune from liability as follows:

              The city has shown that the problem with the utility occurred
              during a public improvement project and/or a road or sidewalk
              repair, both of which are governmental functions. In fact, CAC
              managing member, Robert Munson, testified via deposition that
              "the Euclid Corridor project and the related vault work under and
              attached to [the building] was part of a project to maintain, repair,
              or construct roads, streets, or sidewalks." * * *

              ***

              The fact that a utility may have been involved in this project does
              not transform the public improvement project into a utility
              venture. As discussed above, in support of its motion for
              summary judgment, the city provided evidence that the vault
              work was related to the Euclid Corridor Project. CAC has not
              presented any evidence to refute that contention. Because the
              vault work was related to the Euclid Corridor Project, it must be
              considered a governmental function[.]

              Accordingly, the city is not liable under the R.C. 2744.02(B)(2)
              exception because the property loss was not caused by an
              employee performing a proprietary function. Rather, the
              employee was performing a governmental function, from which
              the city is immune.

CAC, 2009-Ohio-1786 at ¶ 31, 33-34.

       {¶ 25} In finding that Cleveland was immune from liability as a result of a

governmental function, it was significant to the appellate court that the utility vault work was

directly related to the construction project, and that the Euclid Corridor project and the related

vault work were both components of an overall project to repair and construct streets and

sidewalks. Indeed, the Euclid Corridor project specifically included upgrades to utility vaults

located under Euclid Avenue, including the CAC Building vaults, and the damage was


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caused as a direct result of the vaults being a part of the project. Such was not the case

here.

        {¶ 26} The West Locust Street sidewalk improvement project solely involved West

Locust Street and did not include the storm drain at issue. Because the storm drain was not

related to or a component of the West Locust Street sidewalk project, its unrelated general

maintenance or lack thereof cannot be considered a governmental function, even if the storm

drain allegedly became obstructed by debris from the sidewalk improvement project. The

source of the debris which obstructed the drain is irrelevant. In other words, the city's alleged

failure to generally maintain the storm drain does not become a governmental function simply

because another political subdivision was involved in an unrelated sidewalk improvement

project nearby, a governmental function.

        {¶ 27} We also note that Ohio courts have long recognized that a city can be liable for

the negligent maintenance of its sewers. Nelson v. Cleveland, 8th Dist. Cuyahoga No.

98548, 2013-Ohio-493, ¶ 18. See Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250 (1925)

(when a municipal corporation assumes the control and management of a sewer system or

drain, it is bound to use reasonable diligence and care to keep such sewer or drain in good

repair, and is liable in damages to any property owner injured by its negligence in this

respect); Doud v. Cincinnati, 152 Ohio St. 132 (1949) (when a municipality constructs or

maintains sewers, it becomes its duty to keep them in repair and free from conditions which

will cause damage to private property; and in the performance of such duty the municipality is

in the exercise of a proprietary function and not a governmental function within the rule of

municipal immunity from liability). Here, the city had a duty to inspect and maintain its sewer

system and storm drains. The fact that the obstruction to the storm drain at issue may have

originated from an immune sidewalk improvement project does not relieve the city of that

duty.
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                                                                         Clinton CA2014-03-005

         {¶ 28} In light of the foregoing, we find that the trial court erred in applying CAC to

appellants' negligent maintenance claim, in treating appellants' negligent maintenance claim

as a combined claim regarding the sidewalk improvement project and negligently maintained

sewers, and in holding that the city was immune from liability because the unrelated sidewalk

improvement project constituted a governmental function. We note that the city has not

asserted one of the defenses to liability provided for in R.C. 2744.03(A). While the city

argued a lack of notice below and on appeal, "[t]his is not a defense dealing with immunity

[as] it does not fit under any of the defenses listed under R.C. 2744.03." Reinhold v. Univ.

Hts., 8th Dist. Cuyahoga No. 100270, 2014-Ohio-1837, ¶ 16.

         {¶ 29} Appellants also argue the trial court erred in granting summary judgment to the

city because there is a genuine issue of material fact as to whether the city was negligent in

maintaining the storm drain. The city argues, and the trial court found, that the city is entitled

to summary judgment because it had no actual or constructive notice of a defect in the storm

drain.

         {¶ 30} In order to establish negligence, one must show the existence of a duty, a

breach of that duty, and that the breach was the proximate cause of an injury. Nelson, 2013-

Ohio-493 at ¶ 22. As stated above, the Ohio Supreme Court has held that when a

municipality assumes the control and management of a sewer system, it becomes its duty to

keep the sewer in good repair and free from conditions which will cause damage to private

property. Mitchell Mfg. Co., 113 Ohio St. at 255; Doud, 152 Ohio St. at 137. In Doud, the

supreme court further held that:

                It is true that a municipality is not liable for damages growing out
                of a dangerous condition which suddenly arises in connection
                with the use or operation of its streets, sewers or other
                structures, until it has actual or constructive notice of such
                condition. But, where there rests upon the municipality, as there
                did in this case, a duty of inspection of the sewer as an
                instrumentality under its supervision and control, the municipality
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              becomes chargeable with notice of what reasonable inspection
              would disclose.

              ***

              The duty of a municipality to keep its sewers in repair involves
              the exercise of a reasonable degree of watchfulness in
              ascertaining their condition, from time to time, and preventing
              them from becoming dilapidated or obstructed. Where the
              obstruction or dilapidation is an ordinary result of the use of the
              sewer, which ought to be anticipated and could be guarded
              against by occasional examination and cleansing, the omission
              to make such examinations and to keep the sewers clear is a
              neglect of duty which renders the municipality liable.

Doud at 137-138.

       {¶ 31} This court relied on Doud in a case similar to the case at bar. See Kiep v.

Hamilton, 12th Dist. Butler No. CA96-08-158, 1997 WL 264236 (May 19, 1997). In Kiep,

homeowners filed a complaint against the city of Hamilton after their backyard and garage

were flooded. The flood was caused by blockage of the opening to an underground culvert

located in the rear of the homeowners' yard by an accumulation of logs, branches, tree limbs,

leaves, and other natural debris after a storm. Prior to the flood, there had been no flooding

problems associated with the ditch. The trial court granted summary judgment to Hamilton

on the ground it was immune from liability. This court reversed the grant of summary

judgment on the ground, inter alia, that:

              Evidence that there was damage to the sewer, that the damage
              may have been the result of Hamilton's failure to inspect and
              maintain the sewer, and that excessive flooding occurred is
              sufficient evidence to maintain a claim of negligence and defeat
              a motion for summary judgment. Ohio courts have held that if a
              city accepts the responsibility to maintain a sewer and is then
              negligent in its inspection and/or maintenance of the sewer, the
              city may be liable for damages proximately caused by its
              negligence.

              Appellants presented evidence that the flooding occurred
              because the underground culvert opening was blocked and
              evidence that Hamilton had not inspected the ditch since 1990.
              Appellants also showed that major tree trimming work by
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             Asplundh took place prior to the flood. Appellants also
             presented evidence that cut logs similar to the ones found
             blocking the ditch opening were found upstream and stacked
             close to the stream bed. Construing the evidence in a light most
             favorable to appellants, a reasonable person could find that
             because of Hamilton's employees' negligent failure to inspect the
             ditch, or because of the negligence of the employees in
             maintaining the ditch, Hamilton proximately caused the flooding
             that caused damage to appellants. The fact that it has not been
             conclusively determined who caused the underground culvert
             opening to be blocked shows that there "is a genuine issue of
             material fact, as the city could be found negligent based on
             inferences viewed most favorably to appellants."

(Internal citations omitted.) Kiep, 1997 WL 264236 at *6. But see Kendle v. Summit Cty., 9th

Dist. Summit No. 15268, 1992 WL 80074 (Apr. 15, 1992) (finding that the county was not

negligent in a case involving raw sewage in homeowner's basement more than two years

after the county's last inspection and cleaning of the sewer line, because there was no

showing the sewer line was defective or that the county had any prior notice the sewer was

clogged or about to become clogged, and there was no evidence more recent inspections

would have revealed the blockage that occurred in that case).

      {¶ 32} Here, in granting summary judgment to the city, the trial court found that:

             The City offered evidence that it was not on any notice of any
             maintenance issues. The City stated in [its] answer to
             interrogatories that "no complaints concerning the storm drain in
             question" were received. Plaintiffs offered no counter evidence
             to establish that the City was on notice of a defect in the sewer
             system. In fact, plaintiffs admit they had never contacted
             Defendant City in regards to issues with the storm drain at issue
             before the flooding. The Ohio courts have consistently held that
             without notice of a sewer problem, a municipality will not be held
             negligent.

             The uncontroverted Civ.R. 56(C) evidence before the Court
             regarding no prior notice of a sewer maintenance problem,
             entitles the City to have Plaintiffs' claim based upon negligent
             sewer maintenance dismissed. (Internal citations omitted.)

      {¶ 33} As stated earlier, the city did not submit any evidence with its motion for

summary judgment but simply referred to the depositions of Jones and Norton in its motion.
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Jones testified that (1) the June 27-28, 2010 flooding was the only flooding she and her

husband experienced in their home; (2) she did not know when or how the storm drain

became covered with debris; (3) she did not know whether the storm drain was obstructed

before the flooding; (4) before June 2010, they never had any problems or concerns with the

storm drain being "plugged or backing up;" and (5) she never saw workers working on the

storm drain before June 27, 2010. Norton testified he did not know whether the storm drain

was already blocked before June 26, 2010, or what its condition was immediately before the

heavy rainfall.

       {¶ 34} The city's answers to interrogatories were submitted by appellants with their

memorandum in opposition to the city's motion for summary judgment. Asked about "all

repair work, maintenance work, cleaning work, clearing work, or other work performed since

January 1, 2000 upon the storm drain or storm sewer a few steps behind the backyard of

[appellants'] residence," the city answered as follows:

              The City is unaware of any repair or maintenance work to the
              storm sewer or storm drain in question. Relative to any cleaning
              or clearing work, the City does not maintain any records
              concerning any cleaning efforts. The City has numerous storm
              drains located within its jurisdiction and the Sewer Department
              personnel are instructed to remove any debris that may be
              obstructing any storm drains if it is brought to their attention
              either by personal observation or citizen complaint. The City
              does maintain a complaint tracking system, which was initiated in
              2008. There were no complaints concerning the storm drain in
              question.

              We are unable to provide the name of any particular employee
              that may have performed any cleaning tasks. Any one of the
              Sewer Department crew may have removed debris over the
              years.

              To the best of our knowledge, no repairs or maintenance work
              was ever performed on the storm drain in question. To the
              extent any debris removal from the drain relative to any cleaning
              comment would be limited to the removal [of] any debris that may
              be obstructing the flow into the storm drain. No records are
              maintained for the removal of any obstructions.
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(Emphasis added.)

       {¶ 35} Upon carefully reviewing the evidence submitted by the parties, which must be

construed in favor of appellants, the nonmoving party, we find that the evidence is not so

one-sided that the city is entitled to judgment as a matter of law. To the contrary, in light of

the city's answers to interrogatories, we find there is a genuine issue of material fact as to

whether the city was negligent in maintaining the storm drain. We also find there is a

genuine issue of material fact as to whether the storm drain was obstructed at the time of the

heavy rainfall on June 27-28, 2010. Jones testified that the only time they experienced

flooding in their home was on June 27-28, 2010, at a time when Jurgensen was involved in a

sidewalk improvement project on West Locust Street, uphill and a short distance from the

storm drain at issue. She further testified that prior to June 27-28, 2010, they never had a

problem with the storm drain and she never saw workers working on the storm drain. The

city acknowledged no maintenance work has ever been performed on the storm drain, and

while it keeps a citizen complaint tracking system, it neither has nor keeps a record regarding

storm drain obstruction removal, cleaning work, or clearing work.

       {¶ 36} In the case at bar, a reasonable person could find that because of the city's

negligent failure to inspect or maintain the storm drain, the city proximately caused the

flooding that caused damage to appellants. See Kiep, 1997 WL 264236. The operation of a

sewer system includes a duty to inspect for defects or potential problems. See Doud, 152

Ohio St. 132. Therefore, the city is chargeable with knowledge of what a reasonable

inspection would have revealed. See Kendle at *2, citing Restatement of the Law 2d, Torts,

Section 289, Comment j (1965). The fact it has not been conclusively determined what

caused the storm drain to become obstructed or when it became obstructed shows there is a

genuine issue of material fact, as the city could be found negligent based on inferences


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viewed most favorably to appellants. See Billmaier v. Ohio Dept. of Transp., Ct. of Cl. No.

2008-02223-AD, 2009-Ohio-3019.

       {¶ 37} We therefore find the trial court erred in granting summary judgment to the city

regarding appellants' claim the city was negligent in failing to maintain the storm drain.

       {¶ 38} Appellants' assignment of error is well-taken and sustained.

       {¶ 39} Judgment reversed and remanded to the trial court for further proceedings.


       RINGLAND, P.J., and S. POWELL, J., concur.




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