[Cite as Ohio Bell Tel. Co. v. Cleveland, 2017-Ohio-5814.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104974




             THE OHIO BELL TELEPHONE COMPANY

                                                             PLAINTIFF-APPELLEE

                                                      vs.

                                  CITY OF CLEVELAND

                                                             DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-15-848165

        BEFORE: Jones, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: July 13, 2017
ATTORNEYS FOR APPELLANT

Barbara A. Langhenry
Director of Law

BY: Jerome A. Payne
Assistant Director of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William H. Hunt
Lydia E. Cancilla
W.H. Hunt Legal Group L.L.C.
24500 Center Ridge Road, Suite 170
Westlake, Ohio 44145

Edward L. Bettendorf
45 Erieview Plaza, Room 1441
Cleveland, Ohio 44114
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, the city of Cleveland, appeals from the trial court’s

judgment denying its motion for summary judgment based on immunity. For the reasons

that follow, we affirm.

Background

       {¶2} Plaintiff-appellee, The Ohio Bell Telephone Company (d.b.a. “AT&T Ohio”),

initiated this action against the city of Cleveland, alleging damage to the company’s utility

line as a result of work performed by the city.    Specifically, in February 2014, the city

was involved in an excavation project on Walter Road in North Olmsted, Ohio; the project

was to repair the city’s water main.

       {¶3} On February 17, an employee from the city’s water department called the Ohio

Utilities Protection Service (“OUPS”) to have the area “marked” for underground utilities.

 The worker indicated that the work would begin on February 20, and he did not indicate

that it was an emergency situation.        The area was marked by the United States

Infrastructure Corporation (“USIC”) on February 19; the ground was snow covered at the

time, so USIC made the markings by spray painting on the snow and placing flags.        The

city began its work on February 24.      The work report from that day stated that work

began at 9:05 a.m. as follows:

       Arrive. Safety. Water showing on both sides of street. Ran test rods in
       ground at out measurement, near drainage culvert. Can’t get rods down
       passed [sic] 4½ feet deep. Try slicing bar and sled [sic] hammer.
       Unable to get down in hard ground. Made follow up. Job not complete.

       {¶4} The report indicates that the city’s crew left the site at 12:40 p.m. Twenty
minutes prior to their departure, the crew’s supervisor called OUPS to request remarking

of the site.   The supervisor stated that he was aware that there were other underground

utilities in the area, and that area was visibly marked when the crew arrived.

Documentation regarding the remarking request stated, “update for previous tkt. * * *

reason for update:      Requesting remarkings[,] crew is in route — especially concerned

with gas and phone lines.”1 USIC went back to the site that same day, February 24, at

approximately 1:45 p.m.

       {¶5} AT&T contends that its utility line was damaged by the city in the course of its

work and, therefore, the company brought this action against the city. In Count 1 of its

complaint, the telephone company alleged that the city’s actions were negligent and

reckless; and in Count 2, it alleged that the city’s actions were wanton and reckless.

       {¶6} The city filed a motion for summary judgment, contending that, under R.C.

Chapter 2744, it was immune from liability; AT&T opposed the motion. The trial court

denied the city’s motion, finding as follows:

       There are genuine issues of material fact concerning whether defendant city
       of Cleveland was negligent in performing a proprietary function of
       maintaining and operating its municipal water supply system under R.C.
       2744.02(B)(2) and whether defendant city of Cleveland exercised its
       discretion in a wanton or reckless manner under R.C. 2744.03(A)(5).

       {¶7} The city now appeals, contending in its sole assignment of error that the trial

court erred in denying its motion for summary judgment.


       1
         The statement “crew is in route” conflicts with other evidence in the record that demonstrates
that at the time the request for remarking was made, the crew had already been at the site and
attempted to do the work.
Law and Analysis

        {¶8} Ordinarily, a decision denying a party’s motion for summary judgment is not a

final, appealable order.   But under R.C. 2744.02(C), “[a]n order that denies a political

subdivision or an employee of a political subdivision the benefit of an alleged immunity

from liability as provided in this chapter or any other provision of the law is a final order.”

 See also Sullivan v. Anderson Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88,

¶ 13.

Summary Judgment Standard

        {¶9} We review the trial court’s decision on a motion for summary judgment de

novo.    Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12.

Accordingly, we afford no deference to the trial court’s decision and independently review

the record and the inferences that can be drawn from it to determine whether summary

judgment is appropriate.    Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. Ross No.

11CA3277, 2012-Ohio-2464, ¶ 12.

        {¶10} Summary judgment is appropriate only when the following have been

established:   (1) that there is no genuine issue as to any material fact; (2) that the moving

party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to

only one conclusion, and that conclusion is adverse to the nonmoving party. Civ.R.

56(C); DIRECTV, Inc. v. Levin, 128 Ohio St.3d 68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶

15.

        {¶11} In ruling on a motion for summary judgment, the court must construe the
record and all inferences therefrom in the nonmoving party’s favor. Civ.R. 56(C). The

party moving for summary judgment bears the initial burden to demonstrate that no

genuine issues of material fact exist and that they are entitled to judgment in their favor as

a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

To meet its burden, the moving party must specifically refer to the “pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence, and

written stipulations of fact, if any, timely filed in the action,” that affirmatively

demonstrate that the nonmoving party has no evidence to support the nonmoving party’s

claims. Civ.R. 56(C); Dresher at 293.

       {¶12} Moreover, the trial court may consider evidence not expressly mentioned in

Civ.R. 56(C) if such evidence is incorporated by reference in a properly framed affidavit

pursuant to Civ.R. 56(E). Discover Bank v. Combs, 4th Dist. Pickaway No. 11CA25,

2012-Ohio-3150, ¶ 17; Wagner v. Young, 4th Dist. Athens No. CA1435, 1990 Ohio App.

LEXIS 3410, (Aug. 8, 1990). Once that burden is met, the nonmoving party then has a

reciprocal burden to set forth specific facts to show that there is a genuine issue for trial.

Dresher at id.; Civ.R. 56(E).

R.C. Chapter 2744: Governmental Immunity

       {¶13} “The Political Subdivision Tort Liability Act, as codified in R.C. Chapter

2744, sets forth a three-tiered analysis for determining whether a political subdivision is

immune from liability.” Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610

(1998); see also Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070,
865 N.E.2d 845, ¶ 10.        The first tier involves determining whether the political

subdivision is generally immune from liability under R.C. 2744.02(A)(1). Elston at id.;

Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, 852 N.E.2d 716, ¶ 12.

       {¶14} Once immunity is generally established, the “second tier of analysis is

whether any of the five exceptions to immunity in subsection (B) apply.”     Hortman at id.

 Only when one of the exceptions listed in R.C. 2744.02(B) applies do courts move to the

third tier. Terry v. Ottawa Cty. Bd. of Mental Retardation & Dev. Disabilities, 151 Ohio

App.3d 234, 2002-Ohio-7299, 783 N.E.2d 959, ¶ 13 (6th Dist.); Dolan v. Glouster, 173

Ohio App.3d 617, 2007-Ohio-6275, 879 N.E.2d 838, ¶ 17 (4th Dist.). If an exception to

the general immunity provision does apply, “under the third tier of analysis, immunity can

be reinstated if the political subdivision can successfully argue that any of the defenses

contained in R.C. 2744.03 applies.” Hortman at id.

       {¶15} The parties do not dispute that the city of Cleveland is a political subdivision

subject to immunity under R.C. Chapter 2744. Instead, the dispute here focuses on

whether the exception in R.C. 2744.02(B)(2) applies.

       {¶16} Under R.C. 2744.02(B)(2), a political subdivision is subject to liability for

the negligent performance of acts by their employees with respect to proprietary functions

of the political subdivision. Thus, before R.C. 2744.02(B)(2) will remove a political

subdivision’s immunity, the plaintiff must establish the following: (1) the elements

required to sustain a negligence action, that is, duty, breach of duty, proximate cause, and

damages; and (2) that the negligence arose out of a proprietary function. Williams v.
Glouster, 4th Dist. Athens No. 10CA58, 2012-Ohio-1283, ¶ 17. The “establishment,

maintenance, and operation of a utility” constitutes a proprietary function.            R.C.

2744.01(G)(2)(c).

The City’s Summary Judgment Motion

       {¶17} In its motion for summary judgment, the city contended that, as evident

through discovery, the phone company did not have any “expert or technical testimony that

sets forth any standard of care or method of a water supply system in modern use by

ordinarily prudent cities in the operation of such systems and how such care or method was

violated.”   According to the city, the only element of a negligence claim that AT&T

could prove was injury.

       {¶18} In support of its motion, the city submitted the following evidentiary

materials:   (1) an affidavit of Joseph Dressman (“Dressman”), the water pipe repair

supervisor from the city’s division of water; (2) the work order authorizing the city’s work

at the site; (3) the damage report from the division of water; and (4) a letter/report to the

city’s legal department from Peter Zwick.

       {¶19} In his affidavit, Dressman averred that city employees were assigned to find

water leaks in the water main on the day in question.       The employees were trained to

“drop test rods down to the underground pipe, * * * with the intention to make contact

with [the] water main.”    Dressman averred that the employees attempted to drop the rods,

but “were unable to get the test rods on the water main due to what we [thought] was the

hardness of the ground.”
       {¶20} Dressman averred that he personally observed that the telephone company’s

lines were directly over the city’s water main, which made it “extremely difficult” to locate

and repair the leak to the city’s water main and lines.   According to Dressman, the city’s

work was “reasonably undertaken and performed to the standard in which [the city]

train[s] [its] employees at the Division of Water, [and it] complied with the standard of

care of a reasonable water utility.”

       {¶21} The city’s damage report also indicated that the telephone company’s duct

was “on top of” the city’s water main, that the duct “should have never been installed this

way,” and that the placement of the duct made it “virtually impossible” to work on the

city’s water main.

       {¶22} In the letter/report from Zwick, the engineer stated the following: (1) that

based on his review of weather records, the “first markings likely had been obscured by

snow melting on the ground”; (2) the water department’s digging methods were

appropriate for the situation; (3) AT&T’s line was directly on top of the water main —

which was “not good construction practice” —         and that placement on the telephone

company’s utility made it impossible to not disturb it when attempting to repair the city’s

water main; and (4) that much of the damage to AT&T’s utility line was “likely” caused by

AT&T’s excavator when it dug to make repairs to the telephone utility.     Zwick stated that

his statements and conclusions were “expressed to a reasonable degree of engineering

certainty.” AT&T’s Opposition

       {¶23} In opposition to the city’s summary judgment motion, AT&T contended that
it was reckless for the city to dig without adequate utility markings, and that the city

should have ordered a remarking of the area prior to doing any work at the site.       The

telephone company submitted, in part, the affidavit of Kyle Peyton (“Peyton”), an

employee of USIC Locating Services, and the affidavit of Steve Roden (“Roden”), an

AT&T manager.

       {¶24} USIC Locating Services is a company that, among other things, provides

locating and marking services for Ohio utility companies. Peyton averred that USIC

provided marking services for the subject area on February 19, 2014, and received

notification on February 27 that AT&T’s underground utilities at the site had been

damaged.

       {¶25} Roden averred that, on February 24, 2014, after receiving multiple

complaints about customer outages, he drove to the subject site and observed “holes in the

ground near spray painted underground utility markings and water bubbling up from some

holes and going down into others.”       He contacted AT&T workers and construction

contractors to come to the site and watched as the site was dug up.   Roden further averred

that the “water main was below and slightly to the left of the Ohio Bell Conduit when

looking down from the north, [and that] although a slight portion was still under the duct

run, the majority was not. Furthermore, the damage to Ohio Bell’s cable was on the right

side of the duct run.”   According to Roden, the “damage was consistent with the holes he

saw on the surface.”

Ohio Bell Telephone Co. v. Cleveland, 8th Dist. Cuyahoga No.98683, 2013-Ohio-270
       {¶26} Upon review, we find that the instant case is on point with Ohio Bell

Telephone Co. v. Cleveland, 8th Dist. Cuyahoga No. 98683, 2013-Ohio-270. In the 2013

Ohio Bell case, city workers did emergency excavation work, which included the insertion

of test rods, to repair a water main leak.    The telephone company alleged that, during the

course of the city’s work, the city damaged the telephone company’s utilities and caused

flooding in its nearby company office.       The company also alleged that the city was aware

that there were other utility lines in the area.

       {¶27} The trial court denied the city’s motion for summary judgment based on

immunity, and this court affirmed finding that the city’s determinations as to the drilling

were “more than routine maintenance decisions requiring little judgment or discretion,

[but] the record reflects genuine issues of material fact as to whether this discretion was

exercised in a wanton or reckless manner.”         Id. at ¶ 16.   In the 2013 Ohio Bell case, this

court noted the following facts, which are similar to the within case:

       Ohio Bell alleges that the City caused damage to its property and
       underground utility facilities by failing to maintain reasonable clearance
       while drilling and by failing to protect the visible markings of the
       underground utility facilities and otherwise failing to excavate in a careful
       and prudent manner. Ohio Bell submitted evidence establishing that test
       holes were drilled in the area above the damaged PVC conduit. Several
       individuals observed damage consistent with the drill holes and the type of
       damage that could be caused by the type of drill that was used. Upon our
       review, we find the record presents genuine issues of material fact pertaining
       to whether the City’s conduct was negligent and whether it was the cause of
       the damage to Ohio Bell’s property.

Id. at ¶ 20.

       {¶28} Here, Ohio Bell also alleged that the city caused damage to its utilities by
“negligently and recklessly fail[ing] to maintain reasonable clearance between Plaintiff’s

underground utility facilities and the cutting edge or point of powered equipment, fail[ing]

to preserve and protect the markings of the approximate location of Plaintiff’s

underground facilities and otherwise fail[ing] to excavate in a careful and prudent

manner.”

       {¶29} The record demonstrates that the city workers were aware that there were

other underground utilities in the subject area, and there is evidence in the record that

creates a genuine issue of material fact as to whether the city’s actions were negligent,

reckless, or wanton, and whether it was the cause of the damage to the telephone’s

company’s property.

       {¶30} In light of the above, the city’s sole assignment of error is not well taken.

       {¶31} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
