[Cite as Bernard v. Cincinnati, 2019-Ohio-1517.]




                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                    HAMILTON COUNTY, OHIO



 DON BERNARD,                                      :   APPEAL NO. C-180155
                                                       TRIAL NO. A-1700369
         and                                       :

 IRENE BERNARD,                                    :     O P I N I O N.

         Plaintiffs-Appellees,                     :

   vs.                                             :

 CITY OF CINCINNATI,                               :

       Defendant-Appellant.                        :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed in Part and Cause Remanded

Date of Judgment Entry on Appeal: April 24, 2019


Daniel E. Linneman, for Plaintiffs-Appellees,

Paula Boggs Muething, City Solicitor, and Taft Stettinius & Hollister LLP, Aaron M.
Herzig, Nicholas J. Pieczonka and Donnell J. Bell, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Presiding Judge.

   {¶1}       Aging governmental infrastructure poses problems that defy easy

solution, particularly in an era of shrinking budgets. Those problems often carry real-

world consequences, as the Bernards can certainly attest in this case. But when

disputes about infrastructure arise, it prompts the question of whether the remedy lies

in court or with elected representatives.

   {¶2}       In this case, although the Bernards attempt to frame their claims as

“proprietary” (to avoid the defense of governmental immunity), we find that most of

their claims assail the city of Cincinnati (“city”) for “governmental” tasks that are

shielded by sovereign immunity. The trial court accordingly erred in finding to the

contrary, and we reverse in part its decision.

                                            I.

   {¶3}       Plaintiffs-appellees Don and Irene Bernard own property where they

farm and board horses on Hillside Avenue situated on the west side of Cincinnati along

the Ohio River. Certain Metropolitan Sewer District of Greater Cincinnati (“MSD”)

sewer lines and associated manholes traverse this property. In particular, the Muddy

Creek Interceptor sits on their property and collects flows from the area’s sanitary

sewer pipes and combined sanitary/storm water sewer pipes. As originally built in

1935, it operated to send wastewater, by gravity, to the Ohio River. In 1960, the Muddy

Creek Pump Station was built to send this combined wastewater to the Muddy Creek

Wastewater Treatment Plant instead of directly to the Ohio River. Shortly after this,

in the early 1960s, the Army Corps of Engineers raised the river’s flood stage. Flooding

conditions along the river corridor seem to grow worse each year (the famed “fifty year

floods” almost appear to be annual events nowadays), and it is little wonder that aging

sewer systems are not up to the task.



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                     OHIO FIRST DISTRICT COURT OF APPEALS


   {¶4}       This property is located in a floodplain, and the Bernards have

experienced a number of prior sewer backups, a problem unlikely to abate anytime

soon. The backup giving rise to this lawsuit occurred after heavy rainfalls (combined

with snowmelt) in early March 2015. On March 6, 2015, ten to 12 feet of water and

sewage inundated their property, a condition which persisted for several weeks. This

flooding inflicted substantial damages upon the Bernards’ property.

   {¶5}       The Bernards initially sought redress from the city, which came out,

inspected, and allegedly damaged their property further in the midst of trying to help.

When the parties proved unable to resolve their dispute, the Bernards sued, initially

asserting negligence, trespass, and nuisance claims against the city. After the city

moved for summary judgment on immunity grounds, the Bernards sought and were

granted leave to amend their complaint—adding claims for negligent repair and

remediation, negligent maintenance related to a sinkhole, and estoppel. Additional

briefing ensued, and the trial court ultimately denied the city’s motion for summary

judgment, prompting the instant appeal.

                                          II.

   {¶6}       The city appeals, challenging the denial of sovereign immunity in its

first assignment of error.    Our jurisdiction over this appeal stems from R.C.

2744.02(C), which provides that an order denying a political subdivision alleged

immunity constitutes a final, appealable order. We review the denial of sovereign

immunity de novo. Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873

N.E.2d 878, ¶ 21.

                                          A.

   {¶7}       The Ohio Political Subdivision Tort Liability Act, R.C. 2744.01 et seq.,

governs the Bernards’ claims. As the Ohio Supreme Court has explained, the General


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                      OHIO FIRST DISTRICT COURT OF APPEALS


Assembly implemented statutory immunity protections “ ‘in order to ensure the

continued orderly operation of local governments and the continued ability of local

governments to provide public peace, health, and safety services to their residents.

Am.Sub.H.B. No. 176 Section 8, 141 Ohio Laws, Part I, 1733.’ ” Coleman v. Portage

Cty. Engineer, 133 Ohio St.3d 28, 2012-Ohio-3881, 975 N.E.2d 952, ¶ 13, quoting

Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶

38. The parties agree that the city is a political subdivision (R.C. 2744.01(F)) entitled

to general immunity against damages claims for injury or loss to persons or property

as provided by statute. R.C. 2744.02(A)(1).

   {¶8}        The General Assembly painted with a broad brush in implementing

statutory immunity: “Except as provided in division (B) of this section, 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 with a governmental or proprietary

function.” R.C. 2744.02(A)(1). This broad immunity, however, is not without limits.

Pertinent here, the statute carves out from the scope of immunity those damages

“caused by the negligent performance of acts by [the city’s] employees with respect

to proprietary functions of the [city].”     (Emphasis added.)       R.C. 2744.02(B)(2).

Proprietary functions include “[t]he maintenance, destruction, operation, and upkeep

of a sewer system.” R.C. 2744.01(G)(2)(d). There is no exception to immunity (for

present purposes), however, for governmental functions, which include “[t]he

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).




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                     OHIO FIRST DISTRICT COURT OF APPEALS


   {¶9}       This case therefore poses the question of whether the alleged harm

suffered by the Bernards falls on the governmental or proprietary side of the line (and

if the latter, whether it was occasioned by a negligent act). Fortunately, we have

guidance from the Supreme Court on this very issue. See Coleman, 133 Ohio St.3d 28,

2012-Ohio-3881, 975 N.E.2d 952. Much like this case, Coleman confronted a situation

in which aggrieved landowners sued a municipality claiming that a faulty sewer system

caused flooding and related damage on their property. The court appreciated that the

question “is whether failure to keep a storm-sewer system functional is a ‘design,

construction, or reconstruction * * * [of] a sewer system’ and therefore a governmental

function” or whether it qualifies as “sewer ‘maintenance, * * * operation, and upkeep,’

” and hence proprietary. Id. at ¶ 18.

   {¶10}      Although the Bernards attempt to distinguish Coleman because it

originated from a motion to dismiss, rather than a summary-judgment ruling, we find

this difference immaterial to our present analysis. Coleman supplies the governing

legal framework that we must apply, whether to allegations or undisputed facts.

   {¶11}      In its analysis, the Supreme Court walked through extant precedent in

the sewer context, highlighting two cases from our sister districts, Murray v.

Chillicothe, 164 Ohio App.3d 294, 2005-Ohio-5864, 842 N.E.2d 95 (4th Dist.), and

Zimmerman v. Cty. of Summit, Ohio, 9th Dist. Summit No. 17610, 1997 WL 22588

(Jan. 15, 1997). We can distill a few basic principles from Coleman and this pair of

cases that it builds upon. First, a design flaw (or, perhaps, a design that simply failed

to account for changing conditions) squarely falls in the “governmental” bucket.

Issues of design of a sewer system are accorded governmental immunity. Coleman at

¶ 27 (describing Murray as holding that “no liability can attach to the political

subdivision for obsolete design”).



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                     OHIO FIRST DISTRICT COURT OF APPEALS


   {¶12}       Flowing from that premise, courts must be wary about a design flaw

masquerading as a maintenance problem.           Id. at ¶ 31 (“Although creative, the

Colemans’ attempt to characterize their claims as ones based on maintenance fails.”).

After all, if any plaintiff could characterize all of the inherent flaws in a sewer system

as “maintenance,” it would undermine the statutory intent by stripping away

immunity protections. In Coleman, the court distinguished between the “failure to

upgrade” and “maintenance or upkeep,” underscoring that upgrades and related

improvements implicate “governmental” functions. Id. at ¶ 24. It also cited the

Second District favorably in its holding that a claim sounds in “maintenance” when

“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.” Id. at ¶ 30 (quoting Second and Fourth District authority).

   {¶13}       Coleman thus focuses our attention on whether the Bernards’ harm

resulted more from “routine maintenance” negligently performed or more systemic

problems in the sewer system.        While Coleman supplies this legal framework,

however, it does not provide us the ultimate answer in this case because we must apply

Coleman to the factual record at hand. To that record we now turn.

                                           B.

   {¶14}       In its first assignment of error, the city argues that the trial court

improperly characterized the Bernards’ claims as related to the city’s proprietary

functions (maintenance, operation, and upkeep under R.C. 2744.01(C)(2)(l)) as

opposed to its governmental functions (design, construction, or reconstruction under

R.C. 2744.01(G)(2)(d)). Sifting through the record, the trial court based its ruling on

the following perceived issues of material fact related to alleged negligent




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                     OHIO FIRST DISTRICT COURT OF APPEALS


maintenance, operation, and upkeep: inflow and infiltration (“I/I”) issues, the

operation of manholes and sewer gates, root intrusion, and pipe debris.

   {¶15}       Before taking a closer look at the evidence, we pause to highlight several

constraints on the Bernards’ case. While we certainly construe all of the evidence in a

light most favorable to the Bernards, there is a gaping hole in the record from their

perspective.   Even if we assume that they can identify examples of botched

maintenance, they fail to connect those dots via causation to show that maintenance

inadequacies actually caused their harm. As we shall see, the record contains no

material evidence establishing that the harm resulted from maintenance failures

rather than basic design flaws or other systemic problems with the sewer system.

   {¶16}       Typically, in a case of this nature, causation would be established by an

expert witness, but the Bernards presented no such testimony. Although we do not

mean to say that the Bernards necessarily had to have an expert, since they did not, it

limited their ability to establish causation, and they generally sought refuge in

evidence tendered by the city. That is particularly so given that Mr. Bernard himself

admitted that when the river reaches a certain stage, his “property floods no matter

what the sewer system does” and that increased river levels are a factor in sewer

backups. He also disavowed any attempt to present a causation opinion:

       Q.      So if you had to summarize your opinion of why there are

       overflows on your property, what is your summary of that?

                                            ***

       A.      No, I couldn’t answer that. That would be – without more study

       of it, I couldn’t answer that, no.

   {¶17}       For that reason, both sides essentially debate the significance of the

city’s evidence. The city relied principally upon the testimony of its expert, Mike



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                       OHIO FIRST DISTRICT COURT OF APPEALS


Pittinger, who served as the Wastewater Collection Superintendent for MSD. His

affidavit is accompanied by a report referenced by the parties as the “BCE” (short for

the “Lower Muddy Creek Interceptor SSO Remediation Business Case Evaluation”)

and various other MSD business records. Mr. Pittinger testified at a deposition and

the record contains his expert report.1 Gene Weber (MSD Surveyor) also testified on

behalf of the city.

    {¶18}       The reliance on the city’s evidence creates sundry problems for the

Bernards. Most notably, the Bernards feature the BCE as their central piece of

evidence, claiming that it chronicles certain maintenance problems that remove this

dispute from the “governmental” heartland, and indeed, the trial court agreed with

them on that score (repeatedly citing the BCE). But the Bernards here confront a

threshold problem: the BCE is dated in June 2012—approximately three years prior

to the flooding in issue. The BCE certainly cannot speak to conditions in 2015 or to

what actually caused the Bernards’ harm. Without an expert or other similar evidence

to connect the BCE to the 2015 flood, the Bernards are left trying to fit the square peg

of the BCE into the round hole of the 2015 conditions. For the reasons we explain

more fully below, we cannot conclude that they have succeeded. “If the evidence is

merely colorable, or is not significantly probative, summary judgment may be

granted.” (Citations omitted.) Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 96,

585 N.E.2d 384 (1992) (citing Anderson).




1 The Bernards challenge the court’s consideration of Mr. Pittinger’s expert report, because it was
not incorporated by reference into an affidavit for purposes of Civ.R. 56(C). Their authority cited
for this position, however, expressly allows consideration of such evidence “when there has not
been any objection to the evidence.” Waller v. Thorne, 189 Ohio App.3d 161, 2010-Ohio-2146, 937
N.E.2d 1047, ¶ 18 (9th Dist.). The Bernards did not object to the report below.

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                     OHIO FIRST DISTRICT COURT OF APPEALS


   {¶19}       Moreover, R.C. 2744.02(B)(2) requires a showing of negligence in the

performance of proprietary functions to overcome the defense of immunity. In his

deposition, Mr. Pittinger discussed the evolution of city sewer maintenance industry-

wide toward a proactive, risk assessment strategy. Put differently, the city runs risk

models to determine the optimal time to inspect aspects of the sewer system based on

a cost/benefit analysis and historical data. Even if we were to find credible evidence

in the record that certain omissions in the proprietary functions of the city could have

caused the backup on the Bernards’ property, a proprietary inaction falls short of a

negligent action.

   {¶20}       Finally, the only expert in this case, Mr. Pittinger, remained unequivocal

in his opinion that the “operation and maintenance of the existing MSD system/assets

did not cause or contribute to the overflow from the manholes on the Muddy Creek

Interceptor onto the Bernards’ property in March-April of 2015.” In making that

determination, Mr. Pittinger highlighted exactly the type of design flaws that Coleman

deemed governmental: “Only a series of large-scale capital improvement projects * *

* will mitigate the future risk of overflows from the Muddy Creek Interceptor during

periods when the Muddy Creek Basin experiences wet weather and the Ohio River is

at flood stage.”

                                           1.

   {¶21}       Leaving aside these threshold problems for the moment, closer scrutiny

of the evidence reveals other concerns with the specific, alleged factual disputes at

hand. The Bernards emphasize the inflow and infiltration issues (so-called “I/I”),

isolating a phrase from the BCE that “there are severe I/I problems at pipe joints.” But

context refutes the point made by the Bernards, as we take a brief step back to see

where that phrase appears: “It has been suspected that the construction of the



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                      OHIO FIRST DISTRICT COURT OF APPEALS


interceptor was poor because of ground water conditions and that there are severe I/I

problems at pipe joints. However, CCTV and Sonar inspection data gathered * * * was

unable to confirm this, and the pipe joints inspected appeared to be in good

condition.” (Emphasis added.) We cannot turn a blind eye to the context. See

Greenwood Rehab, Inc. v. Boxell, 6th Dist. Lucas No. L-04-1256, 2005-Ohio-2492, ¶

29 (out-of-context deposition testimony excerpts were “unreliable” and not sufficient

“to create a question of fact”).

   {¶22}       Indeed, the balance of the BCE further undermines the basic claim

because it concludes that “[o]verall, the system is functioning the way it was designed

and built, although the system experiences severe I/I problems during high Ohio River

Level conditions.” This sounds to us very similar to the design problems at issue in

Coleman. More to the point, the BCE details the long-standing nature of the I/I

problem: “It is likely that I/I problems have been occurring since the system was

originally built. I/I problem (sic) were exacerbated when the Ohio River pool stage was

raised in the early 1960’s (sic) due to the construction of the Markland and Meldahl

Locks and Dams.” A chronic problem of this nature points in favor of governmental

design issues rather than negligent maintenance.

   {¶23}       Lest any doubt remained, the report is emphatic in its failure to attribute

causation for sewer backups to I/I. After pointing to “Suspected Sources of I/I[,]” the

BCE concludes that these sources “have not been confirmed” and that “[i]t is not

known whether the suspected sources of I/I contribute to overflow problems.” The

Bernards feature this conclusion in their brief, but we do not see how it helps them. A

party cannot rely on a report that professes causation “is not known” to establish

causation.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


   {¶24}       The BCE discusses the possibility of lining the 8,450 feet of sewer piping

to address I/I, but concludes: “removing all I/I from the system is not required for the

pressure capable sewer system to function properly because overflows are being

consolidated rather than controlled.” Only completely revamping the sewer system,

at a multi-hundred million dollar price tag, might control the overflows. But that is

squarely within the “governmental” function according to Coleman. “[T]he failure to

upgrade is different from failure to maintain or upkeep.” Coleman, 133 Ohio St.3d 28,

2012-Ohio-3881, 975 N.E.2d 952, at ¶ 24.

   {¶25}       Finally, the Bernards emphasize a quote from Mr. Pittinger’s deposition

where he acknowledged, in a general sense, that pipes ordinarily should not permit

the escape of sewage from them. Coupled with Mr. Bernard’s recollection that he saw

sewage enter his property through the ground, they argue they have therefore

identified a genuine issue of material fact (almost akin to a res ipsa loquitur argument).

Yet the Bernards fail to take the next, and critical, step to show how an

acknowledgement of a hypothetical issue is tantamount to evidence that the city

actually caused the pipes at issue to function improperly. Moreover, just because a

pipe fails or does not perform optimally does not establish negligence in the immunity

context.

                                             2.

   {¶26}       The Bernards also turn exclusively to the BCE for evidence that open

manholes contribute to sewer backups. Many manholes in the vicinity of the Bernards’

property apparently have unbolted lids that allow overflow to occur upstream of the

pump station during river flooding. While open manhole covers certainly contribute

to I/I, their contribution begins after the flooding/overcapacity event. The BCE

qualifies their contribution to I/I as occurring “if Ohio River levels rise above the



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                      OHIO FIRST DISTRICT COURT OF APPEALS


manhole rim.” They are properly viewed as a symptom, rather than the cause, of the

backup on the Bernards’ property. According to Mr. Pittinger’s report: “The MSD

system overflowed from the manholes because wet weather flow * * * exceeded the

system’s designed maximum pumping capacity at a time that the designed ‘relief

overflow’ * * * was restricted by the Ohio River’s flood stage.” It is evident from the

record that simply resecuring the manhole covers would not remedy the underlying

issues that cause sewer backups on the property. The portions of the BCE cited by the

Bernards discuss the interplay between open manhole covers and I/I, but they do not

establish genuine factual issues as to whether the open manhole covers caused the

March 2015 sewer backup. If anything, the two paragraphs quoted by the Bernards in

the BCE both discuss manholes in the context of “peak flows” and a rising Ohio River.

There is no indication that the sewer backups resulted from an act committed by the

city related to these manholes independent of flooding conditions—let alone a

negligent act.

                                           3.

   {¶27}         Next, the Bernards refer to two malfunctioning gates in the sewer

system on their property, also noted by the trial court. In this respect, they again rely

on the BCE as the foundation for this point, latching on to the BCE’s assessment of a

flapgate and sluice gate as a major sources of I/I in flooding conditions as evidence of

causation.   But according to Mr. Pittinger, the functioning of the flapgate was

irrelevant at the time of the 2015 overflows due to the river’s elevation. And regardless

of whether the faulty flapgate previously contributed to I/I, it had been repaired by the

March 2015 incident.      Likewise, the increased Ohio River stage in March 2015

rendered the sluice gate effectively obsolete, regardless of its functionality. Given that

Mr. Pittinger evaluates these issues at the time of the March 2015 flooding event, the



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                     OHIO FIRST DISTRICT COURT OF APPEALS


Bernards cannot defeat summary judgment by simply referring back to the outdated

2012 BCE. They marshal no other competent evidence to generate a material dispute

of fact on this point, and notably they fail to respond in their brief to the city’s

discussion of Mr. Pittinger’s testimony on this score.

                                           4.

   {¶28}      With respect to debris and root intrusion, the Bernards again feature

the BCE, as well as one page from an MSD proposal, for evidence that these conditions

caused their damages. The former simply notes the fact of debris, and the latter

describes cleaning debris as part of a proposal to “reduce the frequency and/or

duration of overflows,” but not eliminate them. Critically, neither points definitively

to debris as the cause of the backups—the MSD proposal passage even noting in the

portion cited by the Bernards that “water level remains high much of the time” near

where debris was found. Perhaps most importantly, the BCE states that debris is “not

a major source of overflows” and is suspected to be the result of the associated,

overloaded pump station. The BCE proposes cleaning 8,450 feet of pipe only as part

of a temporary fix that would consolidate, but not control, overflow. Mr. Pittinger

testified that he considered the debris referred to in the BCE as “transient,” meaning

it would wash away in the ordinary course; there was “no indication of consistent

hardpan debris.” The fact that this alleged maintenance issue is transient makes it

especially unconvincing as a genuine issue of material fact in light of the fact that the

BCE preceded (by almost three years) the backup at issue. Mr. Weber likewise echoed

that “having debris in the sewer system is not uncommon.”

   {¶29}      As to root intrusion, Mr. Pittinger explains in his deposition: “I’m not

aware of any root intrusion.” Later, he discusses the fact that root intrusion upstream




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                     OHIO FIRST DISTRICT COURT OF APPEALS


would have the practical effect of benefitting the Bernards, as it would lower the need

to release system pressure through manholes on their property.

   {¶30}       The fact that the BCE and MSD proposal discuss pipe debris and root

intrusion does not generate a material issue of fact that debris or root intrusion caused

the Bernards’ 2015 damages. We cannot conclude that the BCE and MSD proposal,

when read and considered as a whole, establish a genuine issue of material fact

regarding debris or root intrusion as raised by the Bernards and cited by the trial court.

                                            5.

   {¶31}       In their amended complaint, cognizant of the specter of the city’s

immunity defense, the Bernards presented a negligent maintenance claim related to

an alleged sinkhole on their property. While Mr. Pittinger and Mr. Weber discuss

potential sinkholes in their depositions, neither conclusively attributes the sinkholes

to a negligent act undertaken by the city. The Bernards offer no evidence to the

contrary, other than Mr. Bernard testifying that he saw sewage coming through the

ground on his property. Without more, we cannot conclude that this lay observation

constitutes material evidence that negligence related to an alleged sinkhole caused

their 2015 sewer backup damages.

                                            6.

   {¶32}       We have no doubt that the Bernards have suffered real harm here, but

they cannot present the simple fact of harm as sufficient proof to survive an immunity

defense, particularly in light of the proprietary-governmental dichotomy.               A

comprehensive and integrated review of the record demonstrates that the issues

emphasized by the Bernards fall short of raising genuine issues of material fact. Put

differently, reasonable minds reviewing this record—in a light most favorable to the

Bernards—are left with the distinct conclusion that a total sewer system overhaul, and



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                      OHIO FIRST DISTRICT COURT OF APPEALS


not regular, routine maintenance, is the only possible answer (if any) to the Bernards’

unfortunate predicament. The BCE acknowledges several times that a property-by-

property approach to remedying sewer backups would only serve to alleviate one

property owner’s “problem at the expense of another.” In other words, a band-aid that

might help the Bernards could well harm their neighbors. For good or ill, we trust

governments to make these types of public policy decisions, and this further

demonstrates that the claims at bar can be redressed only by redesign or

reconstruction—prototypical     governmental     functions   according    to   Coleman.

Coleman, 133 Ohio St.3d 28, 2012-Ohio-3881, 975 N.E.2d 952, at ¶ 30.

                                          III.

   {¶33}        We now address the two remaining counts not covered by the analysis

above (counts IV and VI). In the proceedings below, the trial court granted the

Bernards leave to amend their complaint subsequent to the initial briefing on the city’s

motion for summary judgment on immunity grounds. The amended complaint added

counts for negligent repair and remediation and estoppel (in addition to the negligent

maintenance related to a sinkhole issue covered above).          Both sides submitted

supplemental briefing in the wake of this filing. The trial court issued a blanket denial

of summary judgment on the immunity defense, and it did not parse each count

individually.

   {¶34}        The city’s motion for summary judgment argued for immunity based

upon the alleged sewer backup damages being grounded in governmental functions of

the city. Counts IV (negligent repair and remediation) and VI (estoppel) of the

amended complaint, by contrast, assert damages of a different character—those

caused by the city’s alleged negligent remediation after the sewer backup and those

caused by reliance on the city’s alleged promises regarding remediation. The city



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                     OHIO FIRST DISTRICT COURT OF APPEALS


conceded in its reply brief here that counts IV and VI “do not affect the subject of this

appeal” and that “the Court should grant judgment in the city’s favor on all claims

related to damage caused by the sewer overflows,” and it reiterated this position at oral

argument. Based on this concession, we find that the appeal before us challenges only

the trial court’s ruling on counts I–III and V of the amended complaint, and we have

no occasion to pass upon the merits of the conclusions in counts IV and VI. We leave

it to the trial court on remand to conduct further proceedings on those counts

consistent with this opinion.

                                          IV.

   {¶35}      As acknowledged with respect to the plaintiffs in Coleman, we are

cognizant of the extraordinary damage that the Bernards are left to manage in the

wake of this decision. See Coleman, 133 Ohio St.3d 28, 2012-Ohio-3881, 975 N.E.2d

952, at ¶ 32 (“[W]e are not unmindful that damages suffered by homeowners like the

Colemans can be devastating to property and possessions, as well as physical and

mental health.”). It is a reality, unfortunately, not unique in the harsh context of

immunity. Inwood Village, Ltd. v. Cincinnati, 1st Dist. Hamilton No. C-110117, 2011-

Ohio-6632, ¶ 10. Nevertheless, this court cannot impose liability where the legislature

has intentionally proscribed it. See Coleman at ¶ 33. The city is immune from the

liability asserted in counts I–III and V of the Bernards’ amended complaint under R.C.

2744.02(A)(1); the city’s first assignment of error is therefore sustained. Because we

find that immunity attaches under R.C. 2744.02(A)(1), we do not reach the city’s

arguments relative to R.C. 2744.03(A)(5) in its second assignment of error, and deem

that moot. The judgment of the trial court is reversed as to counts I–III and V, and we

remand counts IV and VI for further proceedings consistent with this opinion.

                                      Judgment reversed in part and cause remanded.



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                     OHIO FIRST DISTRICT COURT OF APPEALS


CROUSE and WINKLER, JJ., concur.

Please note:
       The court has recorded its own entry this date.




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