[Cite as Tangler v. Carrollton, 2018-Ohio-1343.]



                            STATE OF OHIO, CARROLL COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

CHRISTOPHER & BRITTANY TANGLER, )
                                )
     PLAINTIFFS-APPELLEES,      )
                                )                               CASE NO. 17 CA 0920
V.                              )
                                )                                     OPINION
VILLAGE OF CARROLLTON,          )
                                )
     DEFENDANT-APPELLANT.       )

CHARACTER OF PROCEEDINGS:                          Civil Appeal from Court of Common
                                                   Pleas of Carroll County, Ohio
                                                   Case No. 16-CVH-28518

JUDGMENT:                                          Reversed. Judgment for Appellant.

APPEARANCES:
For Plaintiffs-Appellees                           Attorney J. Lundholm
                                                   405 Chauncey Avenue, N.W.
                                                   P.O. Box 668
                                                   New Philadelphia, Ohio 44663

For Defendant-Appellant                            Attorney Kristen Campbell Traub
                                                   Bretton Commons, Suite 400
                                                   8040 Cleveland Avenue, NW
                                                   North Canton, Ohio 44720




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                   Dated: April 5, 2018
[Cite as Tangler v. Carrollton, 2018-Ohio-1343.]
DONOFRIO, J.

          {¶1}   Defendant-appellant, the Village of Carrollton, appeals the judgment of
the Carroll County Court of Common Pleas denying its motion for summary judgment
regarding political subdivision immunity.
          {¶2}   Appellant is a political subdivision as defined under Ohio law. Plaintiffs-
appellees, Christopher and Brittany Tangler, reside on Courtview Drive inside
appellant’s jurisdiction. This action concerns a sewer system that is operated and
maintained by appellant which services appellees’ residence.
          {¶3}   The sewer system itself was constructed at some time during the
1950's. The relevant sewer line was constructed with terracotta clay tiles. Appellees
purchased their home in appellant’s jurisdiction in May of 2014. In October of 2014,
appellees experienced a backup with the sewer system. After appellees contacted
appellant about the October 2014 backup, appellant had employees inspect
appellees’ residence and the sewer line itself. After the inspection, appellant’s
employees were unable to locate any deficiency that caused the backup.
          {¶4}   In July of 2015, appellees experienced another backup with the sewer
system and again contacted appellant. Appellant sent employees to inspect the
system and the employees did locate a problem with the sewer system that caused
the backup affecting appellees’ home. The problem in the sewer system was directly
in front of appellees’ residence. At that point, appellant performed an excavation and
removed the damaged portion of the sewer line and replaced it with PVC pipe.
          {¶5}   Upon further inspection of a larger portion of the sewer system,
appellant concluded the current sewer system was inadequate to service the needs
of some of appellant’s residents. As a result, appellant put plans in place to replace
the entire length of sewer line between the manholes on Courtview Drive and Moody
Street.
          {¶6}   After appellant began to make plans for the sewer replacement, but
before the sewer line itself was replaced, appellees experienced a third backup in the
sewer system in January of 2016. Appellees then filed a complaint against appellant
claiming that appellant was negligent in its maintenance of the sewer system.
                                                                                  -2-


Appellees also requested a temporary restraining order to prevent appellant from
moving forward with its plans to replace the sewer system arguing that doing so
would destroy evidence vital to appellees’ action. The trial court granted appellees’
motion for a temporary restraining order.
         {¶7}   After discovery concluded, appellant filed a motion for summary
judgment. The crux of appellant’s motion for summary judgment was that it, as a
political subdivision, enjoyed immunity to which no exception applied which ultimately
barred appellees’ action. In the alternative, appellant argued that even if an exception
to its immunity applied, a statutory defense would also apply and re-establish
appellant’s immunity. Appellees argued that the backups were due to negligent
maintenance of the sewer lines, which is considered a proprietary function. Because
maintenance issues are considered propriety functions of political subdivisions,
appellees argued that appellant was not entitled to immunity protection.
         {¶8}   In a judgment entry dated July 12, 2017, the trial court ruled that there
were material questions of fact which precluded summary judgment and denied
appellant’s motion. Pursuant to R.C. 2744.02(C), the trial court held that its ruling on
appellant’s motion for summary judgment was a final appealable order. Appellant
timely filed this appeal on August 11, 2017. Appellant now raises one assignment of
error.
         {¶9}   Appellant’s sole assignment of error states:

                THE TRIAL [COURT] ERRED IN DENYING SUMMARY
         JUDGMENT TO APPELLANT VILLAGE OF CARROLLTON BASED
         ON POLITICAL SUBDIVISION IMMUNITY.

         {¶10} Appellant raises numerous issues concerning its sole assignment of
error. However, we need only address appellant’s first argument that the trial court
failed to perform any legal analysis to determine if appellees’ claims should have
been barred by political subdivision immunity. Appellant urges this Court to perform
the political subdivision legal analysis, reverse the trial court’s decision, and grant its
                                                                               -3-


motion for summary judgment pursuant to App.R. 12.
       {¶11} An appellate court reviews a trial court’s summary judgment decision de
novo, applying the same standard used by the trial court. Ohio Govt. Risk Mgt. Plan
v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d 1155, ¶ 5. A motion for
summary judgment is properly granted if the court, upon viewing the evidence in a
light most favorable to the nonmoving party, determines that: (1) there are no
genuine issues as to any material facts; (2) the movant is entitled to 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, 110 Ohio St. 3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.
       {¶12} “[T]he 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, 75 Ohio St.3d 280, 296, 662 N.E.2d 264
(1996). The trial court’s decision must be based upon “the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence, and
written stipulations of fact, if any, timely filed in the action.” Civ. R. 56(C). The
nonmoving party has the reciprocal burden of specificity and cannot rest on the mere
allegations or denials in the pleadings. Id. at 293.
       {¶13} In Dresher, the Ohio Supreme Court held that a party who moves for
summary judgment need not support its motion with affidavits provided that the party
does not bear the burden of proof on the issues contained in the motion. Dresher at
277. Further, there is no requirement in Civ. R. 56 that any party submit affidavits to
support a motion for summary judgment. See, e.g., Civ. R. 56(A) and (B). Id.
However, there is a requirement that a moving party, in support of a summary
judgment motion, specifically point to something in the record that comports with the
evidentiary materials set forth in Civ. R. 56(C). Id.
       {¶14} Summary judgment is appropriate when there is no genuine issue as to
any material fact. A “material fact” depends on the substantive law of the claim being
                                                                                  -4-


litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d, 598, 603, 662 N.E.2d
1088 (8th Dist. 1995), citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
        {¶15} “Whether a political subdivision is entitled to immunity is analyzed using
a three-tiered process.” Iannuzzi v. Harris, 7th Dist. No. 10-MA-117, 2011-Ohio-3185,
¶ 9 citing Green Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556, 733 N.E.2d
1141 (2000). First, R.C. 2744.02(A)(1) sets forth the general rule that political
subdivisions are not liable in damages. Id. Second, the court must determine if any of
the exceptions to political subdivision immunity as set forth in R.C. 2744.02(B) apply.
Id. Third, if the court finds that an exception found in R.C. 2744.02(B) does apply, the
court must then consider R.C. 2744.03 which provides defenses and immunities to
liability. Id.
        {¶16} The political subdivision immunity is an affirmative defense and the
burden of proof is on the political subdivision to establish general immunity. Slane v.
Hillard, 10th Dist. No. 15AP-493, 2016-Ohio-306, ¶ 30. When the political subdivision
establishes general immunity, the burden then shifts to the plaintiff to show that one
of the exceptions to immunity applies. Id. at ¶ 31.
        {¶17} Pursuant to the first tier of the analysis, it is uncontested that appellant
is a political subdivision pursuant to R.C. 2744.01(F). As such, the burden then shifts
to appellees to show that an exception to political subdivision immunity applies.
        {¶18} Analyzing the second tier, appellees’ memorandum in opposition to
summary judgment implicitly argues that the applicable exception to appellant’s
immunity is R.C. 2744.02(B)(2). Pursuant to 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.” “* * * [B]efore R.C. 2744.02(B)(2) will remove a
political subdivision's immunity, the plaintiff must establish: (1) the elements required
to sustain a negligence action-duty, breach, proximate cause, and damages; and (2)
that the negligence arose out of a ‘proprietary function.’” Pierce v. Gallipolis, 4th Dist.
                                                                                    -5-


No. 14CA3, 2015-Ohio-2995, ¶ 20 citing Gabel v. Miami E. School Bd., 169 Ohio
App.3d 609, 2006-Ohio-5963, 864 N.E.2d 102, ¶ 39-40 (2d Dist.).
       {¶19} Appellees’ argue that the backups they experienced with the sewer
system were due to appellant’s negligent maintenance of the sewer line near their
home. Pursuant to R.C. 2744.01(G)(2)(d), the maintenance, destruction, operation,
and upkeep of a sewer system are defined as proprietary functions.
       {¶20} Before liability can attach in a negligent maintenance claim for failure to
maintain a sewer system, proof that the political subdivision had either constructive or
actual notice of a defect is required. Yetts v. City of Toronto, 7th Dist. No. 98-JE-6,
1999 WL 689964 citing Beebe v. Toledo, 168 Ohio St. 201, 151 N.E.2d 738 (1958),
see also Thompson v. Campbell, 7th Dist. No. 07-MA-54, 2008-Ohio-1545, ¶ 3. In
this case, it is undisputed that appellees contacted appellant after each backup
occurred. Therefore, appellant had proper notice of a defect with the sewer system.
       {¶21} Addressing the negligence claim, there are two pieces of evidence
appellees rely on to show that appellant negligently maintained the sewer line on
Courtview Drive. First, appellees rely on the affidavit of their expert, Ron Waid.
(Memo in Opp. to Summary Judgment, Exhibit A). In his affidavit, Waid states that he
has been employed with a company that is in the business of sewer cleaning and
sewer construction since 1981. (Waid Aff. ¶ 3-4). Waid also states that he is state
certified in sewer maintenance and installation and takes courses annually to
maintain his certification. (Waid Aff. ¶ 5). Finally, Waid states that it is his opinion that
the blockages in the sewer line that caused appellees’ backups could have been
avoided had appellant checked the line with a camera as part of a regular program of
preventative maintenance. (Waid Aff. ¶ 17).
       {¶22} Second, appellees point to portions of the deposition of Roy Ford,
appellant’s superintendent of waste water. (Ford Dep. 7). Ford testified that part of
the normal maintenance program his department performed was to “jet out” various
sewer lines throughout the village. (Ford Dep. 40). But Ford did not know how
frequently maintenance was performed on the Courtview Drive sewer line. (Ford Dep.
                                                                                -6-


41).
       {¶23} The evidence relied on by appellees is not sufficient to create a genuine
issue of material fact regarding appellant’s negligence. Ford’s affidavit, which was
attached to appellant’s motion for summary judgment, states that appellant’s waste
water department routinely performed inspections and maintenance on the sewer
system. (Ford Aff. ¶ 2-6). Such maintenance included jetting approximately 1,500 to
2,500 feet of sewer line each month. (Ford Aff. ¶ 6). Additionally, a lift station, which
monitors water flow in the sewer system, was located near appellees’ residence and
it was also inspected and maintained routinely. (Ford Aff. ¶ 7). The lift station was
inspected at least once a week. (Ford Dep. 41).
       {¶24} Ford’s affidavit also states that he inspected the sewer line after
appellees’ first backup in October of 2014 and found no problems. (Ford Aff. ¶ 10). It
was not until appellees’ second backup in July of 2015 when a problem with the
Courtview Drive sewer line was discovered. (Ford Aff. ¶ 11). Upon the discovery of
that problem, appellant performed an excavation of the sewer line, replaced the
damaged portion sewer line with PVC pipe, and began implementing plans to replace
the entire sewer line on Courtview Drive. (Ford Aff. ¶ 12-17).
       {¶25} This evidence indicates that appellant never breached any duty it owed
to appellees. Appellant put forth evidence that its sewers lines were routinely
inspected and maintained. Moreover, this evidence also shows that once appellant
discovered the problem with the Courtview Drive sewer line after appellees’ second
backup, steps were taken to fix the backup problem and to help prevent future
backups from occurring.
       {¶26} Analyzing the evidence relied on by appellees, Ron Waid’s opinion that
the backups could have been prevented had appellant used a camera to inspect the
sewer lines does not negate the fact that appellant routinely inspected and
maintained its sewer system. The lack of a camera to inspect the sewer system does
not amount to a breach of appellant’s duty in this case because the evidence in the
record shows that appellant routinely performed maintenance on its sewer system.
                                                                               -7-


Appellant routinely jetted its sewer lines and routinely inspected the Courtview Drive
lift station. Appellant’s employees also inspected the Courtview Drive sewer line after
appellees experienced backups and took steps to replace the sewer line after a
problem was identified.
       {¶27} Similarly, the fact that Ford could not recall how frequently the
Courtview Drive sewer line was serviced does not negate the fact that appellant
routinely inspected and maintained its sewer lines, including Courtview Drive. With no
evidence that appellant breached any duty it owed to appellees, there is no evidence
that appellant or its employees were negligent in their maintenance of the Courtview
Drive sewer line. As such, no exception to appellant's immunity exists in this case
and we need not address the third tier of the political subdivision immunity analysis.
       {¶28} Even if a genuine issue of material fact existed regarding appellant’s
negligence, immunity would still apply because the issue with the Courtview Drive
sewer line would be considered a governmental function and not proprietary. “R.C.
2744.01(C)(2)(l ) identifies as a governmental function ‘the provision or nonprovision,
planning or design, construction, or reconstruction of a public improvement, including,
but not limited to, a sewer system,’ making these responsibilities immune from
political-subdivision liability.” Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28,
2012-Ohio-3881, 975 N.E.2d 952, ¶ 12.
       {¶29} Evidence in the record shows that the old design of the sewer system
was deficient and needed to be redesigned and replaced. (Ford Aff. ¶ 16-18). Even
appellees’ expert provided evidence that sewer systems using terracotta clay tiles
break “over time” and that the Courtview Drive sewer line was “old and worn out.”
(Waid Aff. ¶ 13-14). These portions of Waid’s affidavit indicate that the sewer’s
original design and usage of clay tiles had become deficient over time and needed
replaced.
       {¶30} Accordingly, appellant’s sole assignment of error has merit and is
sustained.
                                                                         -8-


      {¶31} For the reasons stated above, the trial court’s judgment is hereby
reversed and summary judgment is hereby entered in favor of appellant.


Waite, J., concurs.

Robb, P., J., concurs.
