[Cite as McCormick v. Flaugher, 2020-Ohio-2686.]


                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


 WILLIAM F. McCORMICK                              JUDGES:
                                                   Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                        Hon. Craig R. Baldwin, J.
                                                   Hon. Earle E. Wise, Jr., J.
 -vs-
                                                   Case No. 2019 CA 0094
 FRANK V. FLAUGHER, JR. et al.,

        Defendants-Appellants                      O P I N IO N




 CHARACTER OF PROCEEDINGS:                         Appeal from the Richland County Court of
                                                   Common Pleas, Case No. 2016-CV-
                                                   0554R


 JUDGMENT:

 DATE OF JUDGMENT ENTRY:                           April 22, 2020


 APPEARANCES:


 For Plaintiff-Appellee                            For Defendants-Appellants

 TODD H. NEUMAN                                    JOHN D. LATCHNEY
 JEFFREY R. CORCORAN                               O’Toole, McLaughlin, Dooley & Pecora
 Allen Stovall Neuman Fisher &                     Company, LPA
 Ashton, LLP                                       5455 Detroit Road
 17 South High Street, Suite 1220                  Sheffield Village, Ohio 44054
 Columbus, Ohio 43125
Richland County, Case No. 2019 CA 0094                                                   2


Hoffman, P.J.
      {¶1}   Defendant-appellant City of Ontario (“the City”) appeals the September 23,

2019 Order, which overruled its motion for summary judgment, following this Court’s

remand order in McCormick v. Flaugher, 5th Dist. Richland App. No. 18CA53, 2019-Ohio-

1211. Plaintiff-appellee is William McCormick (“McCormick”).

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   McCormick and Frank Flaugher own neighboring properties in the

Chambers Country Meadows Subdivision in Ontario, Richland County, Ohio. Flaugher

purchased his home and property located at 237 Chambers Road in November, 2000

(“the Flaugher Property”). McCormick purchased his home and property located at 261

Chambers Road (“the McCormick Property”) in March, 2006.

      {¶3}   An intermittent stream and a dry detention basin, or pond (“the Detention

Pond”), are located on a parcel of vacant property located between and to the east of the

Flaugher and McCormick Properties.        The Detention Pond, which existed prior to

Flaugher purchasing the Flaugher Property, was formed by an earthen dam, or headwall,

across the intermittent stream with a 24 inch control pipe outlet and an overflow spillway.

The Detention Pond and the intermittent stream were part of the storm water

management system of the Chambers Country Meadows Subdivision, and intended to

control run-off rainwater. Since the development of the Subdivision in the mid-1990s, the

City has had access by easement to the Detention Pond and the intermittent stream and

has exercised some degree of control over the area, including mowing grass and

replacing dislodged rip-rap. The City is permitted to manage the waters of the state of

Ohio within its municipality pursuant to an MS4 permit and an easement issued by the

Ohio Environmental Protection Agency
Richland County, Case No. 2019 CA 0094                                                    3


       {¶4}   In January, 2006, the vacant property was divided into two parcels.

Flaugher purchased the roughly L-shaped parcel immediately adjacent to the southern

and eastern property borders of the Flaugher Property. With this purchase, Flaugher

acquired the property situated between the Flaugher and McCormick Properties as well

as a portion of the Detention Pond containing part of the headwall.

       {¶5}   When McCormick purchased the McCormick Property, there was no

noticeable erosion on the Property, and the Detention Pond was functioning properly. On

or about April 9, 2009, the City modified the Detention Pond by removing the 24 inch

control pipe and cutting a V-shaped breach in the headwall. The City also conducted

work on the overflow spillway, which was not functioning properly.

       {¶6}   On May 31, 2016, McCormick filed a complaint against the City and Frank

V. Flaugher, Jr., alleging the City's actions changed the course and amount of water

flowing across the McCormick Property, resulting in erosion and damage thereto. The

City filed an Answer on July 21, 2016. McCormick filed an amended complaint on

November 22, 2017, and the City filed its answer on January 18, 2018. (The claims

against Flaugher are not addressed in this appeal.).

       {¶7}   The City filed a motion for summary judgment, arguing it was immune from

liability pursuant R.C. Chapter 2744. Via Judgment Entry filed June 5, 2018, the trial court

granted summary judgment in favor of the City. The trial court found the material facts

were undisputed and the City’s actions were governmental and immune from any claims.

The trial court held because “a remedy to both the original problem and [McCormick’s]

erosion issue would require engineering studies, a redesign of the headwall and its

outlets, and a reconstruction of the headwall to the new design standards,” the actions of
Richland County, Case No. 2019 CA 0094                                                     4


the City were governmental as defined by R.C. 2744.01(C)(2); therefore, immune from

any claims under R.C. 2744.02(A)(1). June 5, 2018 Judgment Entry at 11.

       {¶8}   McCormick appealed the trial court’s June 5, 2018 Judgment Entry to this

Court. This Court vacated the trial court’s grant of summary judgment to the City and

remanded the matter. McCormick v. Flaugher, 5th Dist. Richland App. No. 18CA53, 2019-

Ohio-1211. We found “the record contains at least one question of material fact regarding

whether the pond still functions that must be resolved prior to deciding whether [the City’s]

acts were proprietary or governmental.” Id. at para. 34.

       {¶9}   Following the remand from this Court, the City filed a new motion for

summary judgment on May 13, 2019. Therein, the City argued McCormick’s claims were

barred by the discretionary immunity conferred upon it pursuant to R.C. 2744.03(A)(5).

McCormick filed his memorandum contra on June 12, 2019.

       {¶10} Via Order filed September 23, 2019, the trial court overruled the City’s

motion for summary judgment. The trial court noted the City failed to present Civ. R.

56(C) quality evidence establishing whether the Detention Pond was still functioning. The

trial court explained, “This was the genuine issue of material fact that the appellate court

found was necessary to resolve prior to deciding whether [the City’s] actions were

governmental or proprietary.” Sept. 23, 3019 Order at 3-4. The trial court found, because

the City failed to meet its initial evidentiary burden, the same genuine issue of material

fact remained unresolved; therefore, “reasonable minds could draw different conclusions

from the undisputed facts in the record.” Id. at 4. The trial court concluded the City’s

motion for summary judgment was not well taken and overruled the same.
Richland County, Case No. 2019 CA 0094                                                       5


       {¶11} It is from this judgment entry the City appeals, raising as its sole assignment

of error:



              THE TRIAL COURT ERRED IN DENYING DEFENDANT CITY OF

       ONTARIO’S MOTION FOR SUMMARY JUDGMENT WHICH ASSERTED

       R.C. 2744.01(A)(5) IMMUNITY.



                                     STANDARD OF REVIEW

       {¶12} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As such, this

Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

       {¶13} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain 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, 364 N.E.2d 267 (1977).

       {¶14} 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, 477

U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The standard for granting
Richland County, Case No. 2019 CA 0094                                                       6


summary judgment is delineated in Dresher v. Burt, 75 Ohio St.3d 280 at 293, 662 N.E.2d

264 (1996): “ * * * 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 party must be able to specifically point to some evidence of the type

listed in Civ.R. 56 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 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, 37

Ohio St.2d 150, 309 N.E.2d 924 (1974).
Richland County, Case No. 2019 CA 0094                                                     7


                                                 I

       {¶15} R.C. Chapter 2744 governs a political subdivision's immunity from tort

liability. The statute “sets out the method of analysis, which can be viewed as involving

three tiers, for determining a political subdivision's immunity from liability.” Greene Cty.

Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556 (2000). The analysis begins with the

general rule a political subdivision is not liable for damages arising from injury caused by

an act of the political subdivision or one of its employees “in connection with a

governmental or proprietary function.” R.C. 2744.02(A). This general rule of immunity is

not absolute. Under the second tier of the analysis, a court must consider whether any of

the five exceptions to immunity enumerated in R.C. 2744.02(B) apply. Finally, under the

third tier, if the court finds any of the R.C. 2744.03(B) exceptions apply, it must consider

whether immunity may be reinstated based upon the defenses found in R.C.

2744.03(A)(1)-(5).

       {¶16} The City’s characterization as a political subdivision is not disputed, so it is

presumptively immune, subject to the exceptions contained in R.C. 2744.02(B).

McCormick maintained the exception to immunity enumerated in R.C. 2744.02(B)(2) was

applicable as his damages were “caused by the negligent performance of acts by their

employees with respect to proprietary functions of the political subdivisions.”           In

McCormick I, this Court found a “question of material fact [existed] regarding whether the

pond still functions that must be resolved prior to deciding whether [the City’s] acts were

propriety or governmental.” McCormick, supra at para. 34.

       {¶17} In its September 23, 2019 Order, the trial court overruled the City’s motion

for summary judgment, finding the City failed to present Civ. R. 56(C) quality evidence
Richland County, Case No. 2019 CA 0094                                                     8


establishing whether the Detention Pond was still functioning, which “was the genuine

issue of material fact that the appellate court found was necessary to resolve prior to

deciding whether [the City’s] actions were governmental or proprietary.” Id. at 3-4.

Because the City failed to meet its initial evidentiary burden, the trial court concluded the

same genuine issue of material fact remained unresolved; therefore, “reasonable minds

could draw different conclusions from the undisputed facts in the record.” Id. at 4.

       {¶18} In its Brief to this Court, the City concedes McCormick established the

existence of a genuine issue of material fact as to whether the City was engaged in a

proprietary function. Appellant City of Ontario Brief at 11. However, the City asserts,

because “the City Engineer exercised his professional engineering judgment and

discretion in making a recommendation to the City Service Director that the headwall be

removed from the detention basin * * * [and] made this recommendation because he felt

that the detention basin and headwall were not functioning as designed”, the City’s

immunity was restored as the exercise of engineering judgment and discretion falls within

the ambit of R.C. 2744.03(A)(5).

       {¶19} R.C. 2744.03(A)(5) provides:



              The political subdivision is immune from liability if the injury, death,

       or loss to person or property 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 unless the

       judgment or discretion was exercised with malicious purpose, in bad faith,

       or in a wanton or reckless manner.
Richland County, Case No. 2019 CA 0094                                                    9


       {¶20} “The R.C. 2744.03(A)(5) discretionary defense extends only to activities

that involve weighing alternatives or making decisions that involve a ‘high degree of

official judgment or discretion’.” Leasure v. Adena Local Sch. Dist, 4th Dist. App. No.

11CA3249, 2012-Ohio-3071, ¶ 31, citing Enghauser Mfg. Co. v. Eriksson Engineering

Ltd., 6 Ohio St.3d 31, 451 N.E.2d 228 (1983), paragraph two of the syllabus. “Thus,

political subdivisions are immune from liability for certain acts which go to the essence of

governing, i.e., conduct characterized by a high degree of discretion and judgment in

making public policy choices.      Id. (Citations and internal quotations omitted.) The

“exercise of judgment and discretion” contemplated by R.C. 2744.03(A)(5) does not apply

to every decision a political subdivision makes. Mathews v. Waverly, 4th Dist. No.

08CA787, 2010-Ohio-347, ¶ 45. As this Court noted in McCormick I, “R.C. 2744.03(A)(5)

is not to be interpreted so broadly as to encompass every choice between alternative

courses of conduct”. McCormick, supra at para. 32.

       {¶21} We now must determine if the City is entitled to summary judgment on the

issue of whether immunity was restored under R.C. 2744.03(A)(5).

       {¶22} “Decisions involving the proper maintenance of the sewer or drainage

system is a proprietary act, which is mandatory and not discretionary.” Nelson v.

Cleveland, 8th Dist. Cuyahoga No. 98548, 2013-Ohio-493, ¶ 30. “These decisions do not

involve a high degree of discretion.” Id. “Rather, they involve routine inspection and

maintenance.” Id. Conversely, we find decisions which require an engineering analysis

could potentially involve “a high degree of discretion and judgment”.

       {¶23} As we noted in McCormick I, “[t]he uncertainty regarding the precise

problem [the City] sought to resolve is matched by the conflicting and ambiguous
Richland County, Case No. 2019 CA 0094                                                    10


solutions described in the record.” McCormick, supra at ¶ 25. This uncertainty creates the

disputed fact as to whether the City’s actions involved the exercise of judgment and

discretion contemplated by R.C. 2744.03(A)(5).

         {¶24} In a September 2, 2015 correspondence to James Childress, McCormick’s

attorney, Andrew Medwid, the City Law Director, noted the “Detention Pond was never

totally removed by the City”, explaining the headwall was removed in approximately 2008,

“because it was a pond built in the middle of a waterway thus rendering it ineffective.”

Medwid added, “The City Engineer did not approve removal of the Detention Pond

because it was never actually entirely removed, only a headwall was removed.” Medwid

acknowledged the City could not find evidence of “any studies or calculations being

performed” relative to the removal of the headwall.

         {¶25} In its response to Interrogatory No. 2 of McCormick’s first set of

interrogatories, the City stated “[t]he reason for the removal was that the Detention Pond

was not big enough when built causing water to overflow around the dam and eroding the

soil around the dam.” In its response to Interrogatory No. 3, the City conceded “[n]o

analysis was performed” prior to the removal of the headwall.

         {¶26} In his deposition, Jeffrey Wilson, the City Service Safety Director, indicated

any calculations performed prior to excavation would be kept indefinitely.           Wilson

explained, despite searching “through every record that we could find that had anything

to do with this,” the City was unable to find anything. Deposition of Jeffrey Wilson at pp.

63-64.

         {¶27} In his deposition, Jerrod Swinehart, former Engineer for the City, testified

Ontario City Code Chapter 937 requires the preparation of a comprehensive storm-
Richland County, Case No. 2019 CA 0094                                                  11


management plan prior to engaging in soil-disturbing activities, but indicated the City did

not prepare such a storm-management plan prior to removing the headwall. Swinehart

could not recall whether any alternatives to breaching the embankment were proposed.

He explained the Detention Pond was not working 100% properly because it was

overflowing too much. Deposition of Jerrod W. Swinehart at p. 89. Swinehart stated, “I

think I would have done rudimentary calculations on what theoretically could happen.” Id.

at p. 126. However, Swinehart did not have a specific recollection regarding the decision

making process, but testified the decision would have been collaborated between himself,

the mayor/service director, and the street department. Id. at pp. 74-76. He added the

final decision “would have been my recommendation with the service director.” Id. at p.

76.

       {¶28} We find genuine issues of material fact remain as to whether the City’s

decision to remove the headwall involved “weighing alternatives or making decisions that

involve[d] a ‘high degree of official judgment or discretion’.” Leasure, supra, at ¶ 31

(Citation omitted).

       {¶29} Assuming, arguendo, the City’s decision constituted the type of discretion

contemplated by R.C. 2744.03(A)(5), we, nonetheless, find genuine issues of material

fact exist as to whether the City exercised that discretion in bad faith, or in a wanton or

reckless manner.

       {¶30} “Bad faith connotes a dishonest purpose, moral obliquity, conscious

wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of

the nature of fraud.” Thomas v. Bagley, 3d Dist. No. 11–04–12, 2005–Ohio–1921, ¶ 49.

(Internal quotations and citations omitted). “Wanton misconduct is the failure to exercise
Richland County, Case No. 2019 CA 0094                                                      12


any care toward those to whom a duty of care is owed in circumstances in which there is

great probability that harm will result.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-

Ohio-5711, 983 N.E.2d 266, ¶ 33. “[I]t must be under such surrounding circumstances

and existing conditions that the party doing the act or failing to act must be conscious,

from his knowledge of such surrounding circumstances and existing conditions, that his

conduct will in all common probability result in injury.” Id. at ¶ 25 citing Universal Concrete

Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843 (1936), paragraph two of syllabus.

“Reckless conduct is characterized by the conscious disregard of or indifference to a

known or obvious risk of harm to another that is unreasonable under the circumstances

and is substantially greater than negligent conduct.”        Id. at ¶ 34 (Citation omitted).

“[R]eckless conduct is characterized by a substantial and unjustifiable risk of harm to

others and a conscious disregard of or indifference to the risk, but the actor does not

desire harm.” Id.

       {¶31} As noted, supra, Swinehart testified Ontario City Code Chapter 937 requires

the preparation of a comprehensive storm-management plan prior to engaging in soil-

disturbing activities, but indicated the City had not prepared such a storm-management

plan prior to removing the headwall. The City admitted “[n]o analysis was performed”

prior to the removal of the headwall. Wilson stated any calculations performed prior to

excavation would be kept indefinitely, however, despite searching “through every record

that we could find that had anything to do with this,” the City was unable to find anything.

There is, at a minimum, a genuine disputed issue of material fact as to whether the City

considered the effects of the removal of the headwall on the McCormick Property.
Richland County, Case No. 2019 CA 0094                                                   13


        {¶32} In addition, Swinehart stated, because the headwall was breached at the

overflow location, the excavation should have been conducted at that location. However,

the record reveals the headwall was actually breached at the site of the inflow for the

control pipe, which was approximately 75 feet south of the overflow location. As a result

of this error, the intermittent stream was rerouted away from its natural location onto the

McCormick Property.

        {¶33} Viewing the aforementioned evidence most strongly in favor of McCormick,

we find reasonable minds could reach different conclusions as to whether the City acted

in bad faith, or in a wanton or reckless manner with respect to the removal of the Detention

Pond.

        {¶34} Based upon the foregoing, we find the trial court did not err in denying the

City’s motion for summary judgment.

        {¶35} The City’s sole assignment of error is overruled.

        {¶36} The judgment of the Richland County Court of Common Pleas is affirmed.



By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur
