[Cite as Calet v. E. Ohio Gas Co., 2017-Ohio-348.]


STATE OF OHIO                     )                       IN THE COURT OF APPEALS
                                  )ss:                    NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

JUNE CALET, et al.                                        C.A. No.   28036

        Appellees

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
EAST OHIO GAS COMPANY, et al.                             COURT OF COMMON PLEAS
                                                          COUNTY OF SUMMIT, OHIO
        Appellant                                         CASE No.   CV-2014-08-3758

                                 DECISION AND JOURNAL ENTRY

Dated: January 31, 2017



        CARR, Presiding Judge.

        {¶1}     Appellant, the City of Akron, appeals the judgment of the Summit County Court

of Common Pleas. This Court affirms.

                                                     I.

        {¶2}     This matter arises out of an incident that occurred on August 25, 2012. June Calet

was teaching a class at the YMCA aimed at helping runners prepare for the upcoming Akron

Marathon. The training regimen involved running portions of the marathon course. On the

morning of August 25, 2012, Calet was leading the class on an 18-mile run that traversed a

portion of Brown St., in Akron. While some members of the class had progressed ahead, Calet

and another woman were running side-by-side on Brown St. Calet determined that, for safety

reasons, it was necessary to move from the street to the sidewalk. When Calet ran through the

grassy tree lawn to the sidewalk, her left foot went into a hole, causing her to fall to the ground.
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Calet suffered numerous injuries as a result of the incident, including damaged vertebrae and a

badly broken wrist.

       {¶3}    On August 14, 2014, June Calet, and her husband John, filed a complaint against

East Ohio Gas Co. (“Dominion”), alleging claims of negligence and loss of consortium due to

negligence. Shortly thereafter, Calet filed an amended complaint naming the City of Akron as a

party and adding a second negligence claim. Dominion filed an answer to the complaint that

included a cross-claim against the City of Akron for contribution. The City subsequently filed

separate answers to the amended complaint and the cross-claim, generally denying the

allegations and further asserting that it was immune from liability.

       {¶4}    The City filed a motion for summary judgment.            The City made numerous

arguments in support of its motion, including that it was statutorily immune from liability. Calet

filed a brief in opposition to the motion for summary judgment, and the City replied thereto. On

November 9, 2015, the trial court issued a journal entry denying the City’s motion on the basis

that an exception to immunity was applicable in this case pursuant to R.C. 2744.02(B)(2).

       {¶5}    On appeal, the City raises one assignment of error.

                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY DENYING THE CITY OF AKRON’S
       MOTION FOR SUMMARY JUDGMENT[.]

       {¶6}    In its sole assignment of error, the City argues that the trial court erred in denying

its motion for summary judgment. Specifically, the City contends that it is immune from

liability under R.C. 2744.02(A) and that no statutory exemptions to immunity are applicable in

this case. This Court disagrees.
                                                 3


       {¶7}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983).

       {¶8}    Pursuant to Civ.R. 56(C), summary judgment is proper if:

       (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 party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

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

       {¶9}    The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact.      Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).

Specifically, the moving party must support the motion by pointing to some evidence in the

record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of

supporting its motion for summary judgment with acceptable evidence pursuant to Civ.R. 56(C),

Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or

denials of the moving party’s pleadings. Rather, the non-moving party has a reciprocal burden

of responding by setting forth specific facts, demonstrating that a “genuine triable issue” exists to

be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996).

       {¶10} R.C. 2744.02(A) provides that “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
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with a governmental or proprietary function.” The City qualifies as a political subdivision

pursuant to R.C. 2744.01(F). When it has been determined that a party generally qualifies for

immunity due to its status as a political subdivision, the second tier of the analysis is to

determine whether one of the five exceptions to immunity set forth in R.C. 2744.02(B) is

applicable. Shepard v. Akron, 9th Dist. Summit No. 26266, 2012-Ohio-4695, ¶ 16. Under R.C.

2744.02(B)(2), a political subdivision is liable for injury, death, or property loss caused by the

subdivision’s employees’ “negligent performance with respect to proprietary functions.”

Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28, 2012-Ohio-3881, ¶ 15.                   R.C.

2744.01(G)(2)(c) states that a “proprietary function” means “[t]he establishment, maintenance,

and operation of a utility, including, but not limited to, a light, gas, power, or heat plant, a

railroad, a busline or other transit company, an airport, and a municipal corporation water supply

system[.]”

                                          Background

       {¶11} In denying the motion for summary judgment, the trial court rejected the City’s

argument that it was immune from liability. The City asserted in its motion that it was the

condition of the sidewalk that caused the accident, emphasizing that sidewalks do not fall under

the public roads exemption to political subdivision immunity. The trial court determined that

there was evidence to support the conclusion that Calet’s injury was caused by an access hole to

the water distribution system, and not the sidewalk itself. The access hole in question fell under

the purview of the City of Akron Public Utilities Bureau, Water Distribution Division, who is

tasked with maintenance of the water distribution system. The trial court concluded that because

maintenance of the water distribution system constituted a proprietary function, the City was not
                                                 5


immune from liability as proprietary functions are specifically exempted from political

subdivision immunity under R.C. 2744.02(B)(2).

                                            Discussion

       {¶12} The City’s principal argument on appeal is that it is immune from liability as a

political subdivision under R.C. 2744.02(A) and that no statutory exception is applicable in this

case. The City maintains that it was the condition of the sidewalk that caused Calet to fall. The

City argues that because a sidewalk does not fall under the “public roads” exception to political

subdivision immunity under R.C. 2744.02(B)(3), the trial court erred in denying its motion for

summary judgment. The City further argues that even if a proprietary function analysis is

applicable in this case, it did not have actual or constructive notice of the hazard. With respect to

the elements of negligence, the City argues that it did not owe Calet a duty under the Public Duty

Rule. The City further contends that it did not owe a duty to Calet because the condition was

open and obvious, and further because Calet assumed the risk of her actions. Finally, the City

raises numerous additional arguments in support its contention that Calet could not prove her

negligence claim including, but not limited to, the City’s allegation that the proximate cause of

Calet’s injuries were her own actions.

       {¶13} We begin our discussion by underscoring that the scope of the City’s appeal is

limited to the immunity issue. Though a trial court’s order denying a motion for summary

judgment is generally not a final, appealable order, R.C. 2744.02(C) permits the City to appeal to

the extent that the trial court’s order denies a political subdivision the benefit of an alleged

immunity from liability. Davis v. Akron, 9th Dist. Summit No. 27014, 2014-Ohio-2511, ¶ 12.

Thus, while the trial court addressed a number of issues in its journal entry denying the City’s

motion for summary judgment, this Court’s review is limited to whether, when construing the
                                                  6


facts in the light most favorable to Calet, the City established that it is immune from liability as a

matter of law. Davis at ¶ 14.

       {¶14} There is no dispute in this case that the City is entitled to a general grant of

immunity under R.C. 2744.02(A)(1). The issue is whether the action for which Calet seeks to

hold the City accountable evokes the proprietary function exception to immunity under R.C.

2744.02(B)(2).

       {¶15} A review of the summary judgment materials does not support the City’s

contention that the evidence unequivocally showed that Calet’s fall resulted from the condition

of the sidewalk as opposed to the negligent performance of a proprietary function. Calet stated

in her deposition that as she ran over the tree lawn to get from the street to the sidewalk, her left

foot went down into a hole, causing her to fall forward. Upon climbing to her feet, Calet looked

back to find that her fall had been caused by a sizeable hole in the sidewalk. Photographs of the

hazard showed a six-inch circular hole that was six inches in diameter and made of PVC piping.

There was no cover over the opening. A supervisor for the City’s Water Distribution Division

identified the hole as a “water curb box” and explained that it contained a valve used by the City

to control water service to that location.

       {¶16} The maintenance and operation of a municipal corporation water supply system is

a proprietary function pursuant to R.C. 2744.01(G)(2)(c). The supervisor testified that the City

was responsible for the installation of the water curb box in 1987. Though there was not an

extensive record of repairs to the water curb box, Calet presented evidence showing that City

employees and technicians had been at that location for various reasons relating to their

responsibilities in maintaining the water system.         “The ‘establishment, maintenance, and

operation’ of a municipal corporation water supply system encompasses, but is not limited to, the
                                                 7


installing of * * * equipment, and other materials which are a necessary part of the system and

such activity is a proprietary function of a political subdivision.” Hill v. Urbana, 79 Ohio St.3d

130 (1997), paragraph two of the syllabus. While it is not difficult to conceive of circumstances

where the deterioration, weathering, or flawed design of a sidewalk may result in a dangerous

condition, Calet presented evidence here that could support the conclusion that the hazard that

engulfed Calet’s foot existed for the purpose of allowing the City to engage in the proprietary

function of maintaining the City’s water supply system. We reiterate that summary judgment is

not appropriate where the facts, which must be viewed in a light most favorable to the party

opposing the motion, are subject to reasonable dispute. Friebel v. Visiting Nurse Assn. of Mid-

Ohio, 142 Ohio St.3d 425, 2014-Ohio-4531, ¶ 33. Moreover, while the City contends that it did

not have actual or constructive notice of the hazard, a trier of fact might reasonably conclude that

the City had actual notice of the hole given that the City was responsible for its installation and

its employees went to that location in the years preceding Calet’s fall.               Under these

circumstances, we cannot accept the City’s contention that there was not, at a minimum, a

question of material fact regarding whether the proprietary function exception articulated in R.C.

2744.02(B)(2) was applicable in this case.

       {¶17} Finally, the City argues that even if the proprietary function exception to

immunity is applicable in this case, immunity is restored pursuant to R.C. 2744.03(A)(3) & (5).

R.C. 2744.03(A)(3) restores immunity when the issue stems from a decision that “was within the

discretion of the employee with respect to policy-making, planning, or enforcement powers by

virtue of the duties and responsibilities of the office or position of the employee.” The City

suggests that Calet’s lawsuit is premised on the notion that the City, in its discretion, declined to

institute a policy or plan for the inspection for safety inspection of water distribution components
                                                 8


under its control. This argument is without merit, however, as Calet’s theory of the case focuses

on the City’s alleged negligent maintenance of the specific location on Brown Street as opposed

to a broader policy making or planning concern. The City also points to R.C. 2744.03(A)(5),

which restores immunity when the alleged injury “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[.]”   Courts must construe the R.C. 2744.03(A)(5)

discretionary defense narrowly. Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551

(2000).   The defense articulated in R.C. 2744.03(A)(5) pertains to decisions involving a

heightened degree of official judgment or discretion. Inland Prods. Inc. v. Columbus, 193 Ohio

App.3d 740, 2011-Ohio-2046, ¶ 62 (10th Dist.). The City emphasizes that its water distribution

service area covers 125 square miles and services 300,000 residents, mandating the

superintendent of the Water Distribution Division to make countless decisions about the

deployment of personnel and the use of equipment. Though the City suggests that it may have

been more focused on the challenges of providing water services to a large number of people, it

has not provided evidence of a specific discretionary decision in relation to alleged hazard that

caused Calet’s injury. Compare East Ohio Gas Co. v. Akron, 9th Dist. Summit No. 25830,

2012-Ohio-3780, ¶ 10 (where the City identified a specific discretionary decision regarding the

allocation of resources to repair a water main break). We are mindful that “routine decisions

requiring little judgment or discretion and that, instead, portray inadvertence, inattention, or

unobservance, are not covered by the defense provided in R.C. 2744.03(A)(5).” Hubbell v.

Xenia, 175 Ohio App.3d 99, 2008-Ohio-490, ¶ 22 (2d Dist.). Thus, as the City has not pointed to

evidence indisputably demonstrating that Calet’s injuries resulted from a specific decision, or

heightened degree of official judgment, pertaining to the water curb box at issue in this case, we
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cannot say that the trial court erred in concluding that the City was not entitled to immunity from

liability pursuant R.C. 2744.03(A)(5) at the summary judgment phase.

       {¶18} The assignment of error is overruled.

                                                III.

       {¶19} Calet’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT
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MOORE, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

EVE V. BELVANCE, Director of Law, and MICHAEL J. DEFIBAUGH and JOHN
CHRISTOPHER REECE, Assistant Directors of Law, for Appellant.

MICHAEL J. ELLIOTT, Attorney at Law, for Appellees.
