[Cite as Ivory v. Austintown Twp., 2011-Ohio-3171.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

JOSEPH IVORY,                )
                             )                        CASE NO. 10 MA 106
        PLAINTIFF-APPELLANT, )
                             )
        - VS -               )                              OPINION
                             )
TOWNSHIP OF AUSTINTOWN OHIO, )
et al.,                      )
                             )
        DEFENDANTS-APPELLEE. )


CHARACTER OF PROCEEDINGS:                             Civil Appeal from Common Pleas
                                                      Court, Case No. 08 CV 2515.


JUDGMENT:                                             Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                              Attorney Peter C. Klimis
                                                      Attorney James E. Lanzo
                                                      4126 Youngstown-Poland Road
                                                      Youngstown, OH 44514

For Defendants-Appellee:                              Attorney James F. Mathews
                                                      Baker, Dublikar, Beck, Wiley
                                                      & Mathews
                                                      400 South Main Street
                                                      Canton, OH 44720




JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich


                                                      Dated: June 15, 2011
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DeGenaro, J.
       {¶1}    Plaintiff-Appellant, Joseph Ivory appeals the June 14, 2010 decision of the
Mahoning County Court of Common Pleas granting Defendant-Appellee, Township of
Austintown's motion for summary judgment. Ivory argues that the trial court incorrectly
found Austintown was immune from liability under R.C. 2744, the Political Subdivision
Tort Liability Act.
       {¶2}    Upon review, Ivory's assignment of error is meritless. Austintown is entitled
to immunity under R.C. 2744.02(B)(1), because it was engaged in a governmental
function, as defined by R.C. 2744.01(C)(2)(l), when it installed a new sewer abutting
Ivory's property, and thus none of the exceptions to immunity codified in R.C.
2744.02(B)(2) apply. Accordingly, the decision of the trial court is affirmed.
                              Facts and Procedural History
       {¶3}    Ivory owns a single-story house in Austintown, Ohio with a basement level
garage and living space.
       {¶4}    On June 24, 2006, Austintown experienced "heavy rains." Ivory testified
that surface water came rushing down the road onto his driveway, into his garage and
basement, and that three feet of water went through his property. According to Ivory, an
open drainage ditch had abutted his property. Two weeks prior to the storm, Austintown
replaced it with a pipe and catch basin, which Ivory claims was unable to collect all the
storm water and caused his home to flood.
       {¶5}    Ivory filed suit alleging Austintown negligently maintained its sewers when it
covered the drainage ditch and installed the pipe and catch basin. Following discovery,
Austintown moved for summary judgment, asserting it was immune from liability, which
the trial court granted, finding Austintown was immune under R.C. 2744.02(A)(1) and that
none of the exceptions to immunity codified in R.C. 2744.02(B) applied.
                      Governmental Immunity on Summary Judgment
       {¶6}    In his sole assignment of error Ivory asserts:
       {¶7}    "The trial court erred when it sustained Appellee's motion for summary
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judgment."
       {¶8}   Ivory asserts Austintown, a political subdivision generally protected from
liability under R.C. 2744.02(A), does not have immunity in this case under two exceptions
codified in R.C. 2744.02(B)(2) & (B)(3). First, it negligently performed a proprietary
function, and second, it negligently maintained public roads. Austintown counters,
arguing its immunity remains intact because the township was engaged in a governmental
function and the case does not involve the maintenance of public roads.
       {¶9}   When reviewing a trial court's decision to grant summary judgment, an
appellate court applies the same standard used by the trial court and, therefore, engages
in a de novo review. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826,
829, 586 N.E.2d 1121. A motion for summary judgment is proper if the court, upon
viewing the evidence in a light most favorable to the non-moving party, determines that:
(1) there are no genuine issues as to any material facts; (2) the movant is entitled to a
judgment as a matter of law; and (3) the evidence is such that reasonable minds can
come to but one conclusion and that conclusion is adverse to the opposing party. Civ.R.
56(C); Byrd v. Smith (2006), 110 Ohio St. 3d 24, 2006-Ohio-3455, 850 N.E.2d 47, at ¶10.
Further, "the moving party bears the initial responsibility of informing the trial court of the
basis for the motion, and identifying those portions of the record which demonstrate the
absence of a genuine issue of fact on a material element of the nonmoving party's claim."
Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, 662 N.E.2d 264. The nonmoving party
has the reciprocal burden of specificity and cannot rest on the mere allegations or denials
in the pleadings. Id. at 293.
       {¶10} "The determination as to whether a political subdivision is immune from suit
is purely a question of law properly determined by a court prior to trial and preferably on a
motion for summary judgment." Schaffer v. Board of Cty. Comrs. of Carroll Cty. (Dec. 7,
1998), 7th Dist. No. 672, at *4 (citations omitted).
       {¶11} In Cater v. City of Cleveland (1998), 83 Ohio St.3d 24, 697 N.E.2d 610, the
Ohio Supreme Court set forth a three-tiered analysis for determining whether a political
subdivision is immune from liability. First, R.C. 2744.02(A)(1) is a broad grant of immunity
to political subdivisions for "injury, death, or loss to persons or property allegedly caused
                                                                                         -4-


by any act or omission of the political subdivision or an employee of the political
subdivision in connection with a governmental or proprietary function." Once immunity is
established the second tier of analysis requires the Court to determine whether any of the
five enumerated exceptions in R.C. 2744.02(B)(1)-(5) apply. Id. at 28. If one of the five
exceptions to immunity applies then the political subdivision is not entitled to immunity. Id.
Under the third tier of analysis, the court reinstates immunity if the political subdivision
can successfully argue that one of the defenses contained in R.C. 2744.03 applies. Id.
       {¶12} Both parties correctly agree that Austintown is a political subdivision entitled
to the broad grant of immunity under R.C. 2744.02(A)(1). At issue is whether either the
exception for the negligent performance of a proprietary function or the negligent failure to
maintain public roads applies. R.C. 2744.02(B)(2) or (3).
                       Proprietary Function - R.C. 2744.02(B)(2)
       {¶13} Under R.C. 2744.02(B)(2) "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." This
exception to immunity necessitates first determining whether the political subdivision was
engaged in a proprietary or governmental function.
       {¶14} When a political subdivision works on its sewers it can be engaged in either
a governmental or proprietary function, depending on the nature of the work. "Functions
which can be categorized as either governmental or proprietary are listed in the
definitional section of the statute, R.C. 2744.01" and aid the court in determining what
kind of action the political subdivision was engaged in and whether it is entitled to
immunity. Spitzer v. Mid Continent Constr. Co., 8th Dist. No. 89177, 2007-Ohio-6067, at
¶18 (quoting, Franks v. Sandusky Bd. of Trustees (Mar. 31, 1992), 6th Dist. No. S-91-18).
Governmental functions include "the provision or nonprovision, planning or design,
construction, or reconstruction of a public improvement, including, but not limited to, a
sewer system." R.C. 2744.01(C)(2)(l). Proprietary functions include "the maintenance,
destruction, operation, and upkeep of a sewer system." R.C. 2744.01(G)(1)(D). Given the
overlapping nature of these definitions, "[d]etermining whether an allegation of negligence
relates to the maintenance, operation, or upkeep of a sewer system or, instead, the
                                                                                      -5-


design, construction, or reconstruction of a sewer system is not always a simple inquiry."
Essman v. Portsmouth, 4th Dist. No. 09CA3325, 2010-Ohio-4837 at ¶32.
       {¶15} In Essman, property owners alleged the city negligently maintained its
sewers when the sewer system repeatedly backed up, flooding their homes with raw
sewage. Portsmouth asserted immunity under R.C. 2744.02(A)(1) or 2744.03(A)(5) while
the homeowners asserted the city was liable under R.C. 2744.02(B)(2). The Court
synthesized the various cases concerning sewers and the application of R.C.
2744.02(B)(2) and set out general guidelines for determining whether a town's actions are
governmental or proprietary. The Court found that a proprietary function was involved
when: (1) "remedying the sewer problem would involve little discretion but, instead, would
be a matter of routine maintenance, inspection, repair, removal of obstructions, or general
repair of deterioration;" or (2) a city or municipality decided to tap sewer lines into an
existing sewer system. Id. at ¶32 (citations omitted). The Court found a governmental
function was involved when: (1) "remedying a problem would require a city to, in essence,
redesign or reconstruct the sewer system;" or (2) "a sewer system operates as it was
designed." Id. at ¶32-33 (citations omitted). Based on this analysis the Fourth District
held that Portsmouth could be subject to liability under 2744.02(B)(2) for negligently
operating its wet gates but ultimately reinstated immunity under R.C. 2744.03(A)(5), which
extends to activities that involve weighing alternatives or making decisions requiring a
high degree of official judgment or discretion.
       {¶16} The determination of whether Austintown's actions were proprietary or
governmental is more difficult because the record does not contain any information
concerning the construction, design, or maintenance of the sewer in question. Both
parties agree on the essential facts. Prior to the June 2006 storm Austintown covered a
sewer drainage ditch abutting Ivory's property and installed a pipe and catch basin. But
neither party has presented any testimony indicating why the pipe and catch basin were
installed or whether it operated correctly during the storm. Instead, Ivory merely asserts
its construction constituted maintenance while Austintown asserts that the pipe and catch
drain was a new sewer design and construction. Austintown also points to Ivory's
deposition testimony:
                                                                                       -6-


       {¶17} "Q. Essentially your claim is that by eliminating the ditch and installing just
the one catch basin as well as the piping in the enclosed ditch, that that design or
configuration that the township put in simply did not have the capacity to handle the rain
during this June 24 event?
       {¶18} "A. Uh-huh."
       {¶19} The legal question is whether the installation of the pipe and catch basin
constituted maintenance of a sewer, a proprietary function, or the provision, design or
construction of a sewer, a governmental function. Integral to Ivory's claim is the assertion
that the old drainage ditch was a sufficient sewer system while the new pipe and catch
drain is not. This is a tacit admission that the flooding problem can only be remedied by
the removal or redesign of the pipe and catch basin. Viewing the evidence in a light most
favorable to Ivory, when Austintown covered the drainage ditch and installed the pipe and
catch basin, it had provided/redesigned/constructed a new sewer, not maintained it.
Because sewer design and construction is a governmental, not proprietary, function, R.C.
2744.02(B)(2) does not apply and Austintown's immunity remains intact. See also R.C.
2744.01(C)(2)(r) (flood control measures are governmental functions.)
                     Maintain Public Roads - R.C. 2744.02(B)(3)
       {¶20} Under R.C. 2744.02(B)(3) "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." R.C.
2744.01(H) defines "public road" as: "public roads, highways, streets, avenues, alleys and
bridges within a political subdivision. 'Public roads' does not include berms, shoulders,
rights-of-way, or traffic control devices unless the traffic control devices are mandated by
the Ohio manual of uniform traffic control devices." The purpose behind 2744.02(B)(3) is
to ensure the safety of the public on roads and it is generally applicable only when a
condition causes the road to become unsafe for travel. See Ross v. Board of Educ. of
Solon City School Dist. (July 2, 1992), 8th Dist. Nos. 62978, 63020 at 3 (construing a
previous version of 2744.02(B)(3)).
       {¶21} Ivory asserts this exception applies because "drainage ditch[es] and catch
basins * * * are used to prevent water from accumulating on the roadway."               But
                                                                                        -7-


2744.03(B)(3) is a narrow exception which applies to traveled portions of the street and
which explicitly does not contemplate shoulders or berms as part of "public roads." See
Wooten v. CSX RR. (2005), 164 Ohio App.3d 428, 443, 842 N.E.2d 603 at ¶50 ("the
focus should be on whether a condition exists within the political subdivision's control that
creates a danger for ordinary traffic on the regularly travelled [sic] portion of the road.")
The Twelfth District, analyzing R.C. 2744.03(B)(3)'s applicability where a pedestrian
tripped and fell in a culvert, noted the Supreme Court, when construing R.C. 723.01,
found that a "catch basin and drainage slope were not part of the paved or traveled
portion of the street, did not render the street unsafe for customary vehicular or
pedestrian travel, and did not cause injury to a person using the street in an expected and
ordinary manner." Neudecker v. Butler Cty. Engineer's Office (2001), 146 Ohio App.3d
614, 619, 767 N.E.2d 776 (quoting Lovick v. Marion (1975), 43 Ohio St.2d 171, 174 331
N.E.2d 445). The Twelfth District held that the public road exception to immunity did not
apply to a culvert. Id.
       {¶22} Because the catch basin and pipe in question is not a part of the paved or
traveled portion of the street, it is not a public road as defined in R.C. 2744.01(H) and the
exception contained in R.C. 2744.02(B)(3) simply does not apply. Given the narrow
scope of the exception in 2744.02(B)(3), Austintown's immunity under 2744.02(A)(1)
remains intact.
       {¶23} In conclusion, neither of the exceptions in R.C. 2744.02(B)(2) or (3) apply,
and Austintown's immunity remains intact. Accordingly, Ivory's sole assignment of error is
meritless, and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.
