[Cite as Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28, 2012-Ohio-3881.]




  COLEMAN ET AL., APPELLEES, v. PORTAGE COUNTY ENGINEER, APPELLANT.
                      [Cite as Coleman v. Portage Cty. Engineer,
                          133 Ohio St.3d 28, 2012-Ohio-3881.]
Political-subdivision immunity—R.C. Chapter 2744—Upgrading sewers involves
        construction and design and is therefore a governmental, not a
        proprietary, function—Judgment reversed.
     (No. 2011-0199—Submitted May 22, 2012—Decided August 29, 2012.)
    APPEAL from the Court of Appeals for Portage County, No. 2010-P-00016,
                          191 Ohio App.3d 32, 2010-Ohio-6255.
                                   __________________
        O’CONNOR, C.J.
        {¶ 1} In this appeal, we address whether “upgrading” a storm-sewer
system is a governmental or proprietary function of a political subdivision within
the meaning of R.C. 2744.01 and whether failure to “upgrade” subjects that
political subdivision to liability under R.C. 2744.02(B)(2). For the reasons that
follow, we hold that because upgrading involves construction and design, such
upgrading is a governmental, not a proprietary, function. Therefore, we reverse
the judgment of the court of appeals that holds otherwise.
                                        BACKGROUND
        {¶ 2} Appellees, Barbara Coleman and Robert Coleman, own real
property in Rootstown, Ohio. They sued appellant, the Portage County Engineer,
complaining that their property was flooded in 1982, 1989, 2003, 2005, and 2009
and the water caused damage to their real and personal property.1 The Colemans
averred, “on information and belief,” that

1. Because this case was resolved in the trial court on a motion to dismiss, we accept as true all
material allegations in appellees’ complaint and construe all reasonable inferences in their favor.
                               SUPREME COURT OF OHIO




        the flooding is a result of the defendant collecting drainage water
        from drainage ditches along State Route 44 in Rootstown, and
        discharging same through a piping system that runs across the
        adjacent Rootstown Public School System. The piping system is
        unable to accommodate all the drainage water, and accordingly the
        water overflows from the culverts in front of and behind the
        plaintiff’s [sic] residence.


They further alleged that their property will continue to be flooded,


        due to the fact that the defendant has neglected or failed to
        construct a drainage plan or water drainage system to properly
        discharge the water and prevent it from collecting on the plaintiff’s
        [sic] property and causing significant damages. The defendant also
        has failed to maintain the piping system that runs through the
        adjacent Rootstown Public School property to the storm sewer next
        to the Property.


Whether Portage County has improperly maintained the storm sewers or failed to
appropriately upgrade them has not been investigated. At oral argument, the
parties agreed that the cause of the storm-sewer backup is unclear.
        {¶ 3} The first count of the Colemans’ complaint alleges that Portage
County “breached the duty of due care owed to the plaintiffs in designing,
constructing and maintaining the water piping system that collects and discharges


Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Mitchell v. Lawson
Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988).




                                             2
                                 January Term, 2012




water on the plaintiff’s property.” The Colemans also asserted that “[d]efendant
has been notified on numerous occasions that they [sic] created a nuisance
causing flooding upon plaintiff’s [sic] property, and defendant has refused,
continues to refuse, and has been unwilling to abate the nuisance and resolve the
repetitive flooding on the plaintiff’s [sic] property.”
        {¶ 4} The second count pleaded that “the defendants [sic] be directed to
make modifications to the water piping system that is necessary to protect the
plaintiff [sic] from further flooding” and that “the court enjoin defendant, and
require the defendant to install adequate pipes and culverts, in order to prevent
future and continued damage from flooding to plaintiffs’ property by defendant.”
        {¶ 5} The Portage County Engineer moved to dismiss the complaint,
arguing that the Colemans had “failed to show that the [county engineer] is not
immune from their claims” and “have failed to show that they have pled sufficient
facts to show negligent maintenance of the pipeline.”       The county engineer
asserted that even assuming that the drainage system was improperly designed,
constructed, or installed, he is entitled to immunity under R.C. Chapter 2744,
which addresses political-subdivision liability for torts. The trial court agreed,
holding, “The Portage County Engineer is immune from litigation based upon
claims for negligent planning, design, and construction of the water pipelines
referred to the in the Plaintiffs’ pleadings.”
        {¶ 6} On the Colemans’ appeal from that order, the Eleventh District
Court of Appeals affirmed in part and reversed in part. In affirming in part, the
court wrote, “[The Colemans] argue that the trial court erred in dismissing their
claim in Count I alleging negligent design, planning, and construction of the
pipeline based on political-subdivision immunity because, they suggest, this claim
alleged the negligent performance of a proprietary function, which is an exception
to political subdivision immunity pursuant to R.C. 2744.02(B)(2). However, [the
Colemans] fail to cite any authority for the proposition that the design, planning,



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or construction of a sewer system is a proprietary function, in violation of App. R.
16(A)(7).     Moreover, [the Colemans] present no argument that the same
constitutes a proprietary function, in violation of the same appellate rule. For this
reason alone, [the Colemans’] argument is not well taken.” Coleman v. Portage
Cty. Engineer, 191 Ohio App.3d 32, 2010-Ohio-6255, 944 N.E.2d 756, ¶ 18 (11th
Dist.).
          {¶ 7} The court of appeals also relied on its own precedent, Moore v.
Streetsboro, 11th Dist. No. 2008-P-0017, 2009-Ohio-6511, ¶ 42, in holding that
the county engineer cannot be held liable in tort in this case. Applying R.C.
Chapter 2744, which immunizes certain governmental functions, including the
decision whether to upgrade inadequate sewers, from tort liability, the court held
that upgrading storm sewers is a governmental function.          Coleman at ¶ 20.
Therefore, the Portage County engineer “is immune from liability for [his] alleged
failure to design and construct an adequate storm-sewer system.” Id.
          {¶ 8} Nevertheless, the court of appeals agreed with the Colemans that
their claim was not barred by political-subdivision immunity to the extent that the
county had negligently maintained the sewer system. Id. at ¶ 32. For this
holding, the court relied on Moore and R.C. 2744.01(G)(2)(d), which includes as
a political subdivision’s proprietary function the “maintenance, destruction,
operation, and upkeep of a sewer system.”
          {¶ 9} We accepted the Portage County Engineer’s discretionary appeal,
Coleman v. Portage Cty. Engineer, 128 Ohio St.3d 1458, 2011-Ohio-1829, 945
N.E.2d 522, which asserts a single proposition of law: “A political subdivision's
failure to upgrade the capacity of an inadequate sewer system is not a proprietary
function within the meaning of R.C. 2744.01(G)(2)(d) so as to subject a political
subdivision to liability under R.C. 2744.02(B)(2). The upgrade of sewer system
capacity is an immune governmental function under R.C. 2744.01(C)(2)(i). (R.C.
2744.01(G)(2)(d) and R.C. 2744.01(C)(2)(i) interpreted and applied) .” We agree



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that upgrading a sewer system is construction and design, not upkeep, and
accordingly, we reverse the judgment of the court of appeals.
                                     ANALYSIS
                  Ohio’s Political Subdivision Tort Liability Act
        {¶ 10} R.C. Chapter 2744, Ohio’s Political Subdivision Tort Liability Act,
has been in place for more than 25 years and confers broad immunity on the
state’s political subdivisions. R.C. 2744.02(A)(1) states:


        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.


(Emphasis added.)
        {¶ 11} But the legislature has imposed exceptions to this general rule.
Relevant here is the exception in R.C. 2744.02(B)(2), which declares that as a
rule,


        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.


(Emphasis added.)
        {¶ 12} R.C. 2744.01(C)(2)(l) identifies as a governmental function “the
provision or nonprovision, planning or design, construction, or reconstruction of a



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public improvement, including, but not limited to, a sewer system,” making these
responsibilities immune from political-subdivision liability. By contrast, R.C.
2744.01(G)(2)(d) identifies “the maintenance, destruction, operation, and upkeep
of a sewer system” as a proprietary function for which civil liability may attach.
       {¶ 13} We often have interpreted and explained the purpose of this
statutory scheme:


       “[T]he protections afforded to         political   subdivisions   and
       employees of political subdivisions by this act are urgently needed
       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.
       We noted in Hubbell [v. Xenia], 115 Ohio St.3d 77, 2007-Ohio-
       4839, 873 N.E.2d 878, that “ ‘[t]he manifest statutory purpose of
       R.C. Chapter 2744 is the preservation of the fiscal integrity of
       political subdivisions.’ ” Id. at ¶ 23, quoting Wilson v. Stark Cty.
       Dept. of Human Servs. (1994), 70 Ohio St.3d 450, 453, 639 N.E.2d
       105.


Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d
522, ¶ 38.
       {¶ 14} We also held:


       “ ‘[D]etermination of whether a political subdivision is immune
       from liability is usually pivotal to the ultimate outcome of a
       lawsuit. Early resolution of the issue of whether a political
       subdivision is immune from liability pursuant to R.C. Chapter



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                               January Term, 2012




       2744 is beneficial to both of the parties. If the appellate court holds
       that the political subdivision is immune, the litigation can come to
       an early end, with the same outcome that otherwise would have
       been reached only after trial, resulting in a savings to all parties of
       costs and attorney fees. Alternatively, if the appellate court holds
       that immunity does not apply, that early finding will encourage the
       political subdivision to settle promptly with the victim rather than
       pursue a lengthy trial and appeals. Under either scenario, both the
       plaintiff and the political subdivision may save the time, effort, and
       expense of a trial and appeal, which could take years.’ ”
       (Emphasis sic.) [Hubbell] at ¶ 25, quoting Burger v. Cleveland
       Hts. (1999), 87 Ohio St.3d 188, 199-200, 718 N.E.2d 912
       (Lundberg Stratton, J., dissenting).


Summerville, ¶ 39.
       {¶ 15} Our legislature has generally shielded political subdivisions from
tort liability. Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-
557, 733 N.E.2d 1141 (2000); R.C. 2744.02(A)(1). But that immunity is not
absolute, and one exception to immunity is the political subdivision’s
“maintenance, destruction, operation, and upkeep of a sewer system,” which is
identified as a proprietary function. R.C. 2744.01(G)(2)(d). R.C. 2744.02(B)(2)
provides that political subdivisions are liable for injury, death, or property loss
caused by the subdivision’s employees’ “negligent performance with respect to
proprietary functions.”
       {¶ 16} With the statutory framework in mind, we turn to the specific issue
before us.




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                 Governmental Function or Proprietary Function?
        {¶ 17} “ ‘Functions which can be categorized as either governmental or
proprietary * * * are clearly intended for use as a guide in determining whether, in
a particular case, the activity attributed to a subdivision falls with the ambit of the
statute.’ ” Spitzer v. Mid Continent Constr. Co., Inc., 8th Dist. No. 89177, 2007-
Ohio-6067, ¶ 18, quoting Franks v. Sandusky Bd. of Trustees, 6th Dist. No. S-91-
18, 1992 WL 66561, *3 (Mar. 31, 1992).
        {¶ 18} 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 that is immunized from tort lawsuits under
R.C. 2744.01(C)(2)(l), or sewer “maintenance, * * * operation, and upkeep”
under R.C. 2744.01(G)(2)(d), a proprietary function for which political-
subdivision tort liability is allowed.
        {¶ 19} Our courts of appeals have developed a body of law holding that
subdivisions are immune from claims that flow from the design and construction
of a sewer system. Spitzer at ¶ 20 (“Ohio courts have found that municipalities
are immune from suit when flooding to private property was a result of an
improperly designed sewer that was inadequate to handle increased storm
runoff”). See also Ferguson v. Breeding, 4th Dist. No. 99 CA 22, 2000 WL
1234262, *6 (Aug. 25, 2000). Reviewing the Colemans’ claims for relief, the
court of appeals held, “ ‘It is clear that the city is immune from its failure to
design and construct an adequate sewer system.’ ” Coleman, 191 Ohio App.3d
32, 2010-Ohio-6255, 944 N.E.2d 756, ¶ 19, quoting Moore, 2009-Ohio-6511,
¶ 45.
        {¶ 20} To the extent that the court of appeals in this case held that the
county enjoyed immunity for the claims arising from the Colemans’ assertions
that the county was negligent in the design, planning, and construction, we affirm.




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                                January Term, 2012




But we disagree with the appellate court’s reasoning in holding that the
Colemans’ claims of failure to upgrade the sewer system were not barred.
       {¶ 21} In so holding, the court of appeals rejected the county’s assertion
that a “negligent-maintenance claim necessarily refers to a failure to install a
larger pipeline system,” which is a governmental function. Coleman, 191 Ohio
App.3d 32, 2010-Ohio-6255, 944 N.E.2d 756, ¶ 44. It held:


               “If, indeed, the city is responsible for that pipeline, then
       ‘the failure to upgrade sewers that are inadequate to service
       upstream property owners despite sufficient notice of the
       inadequacy can be best be described as a failure to maintain or
       upkeep the sewer.’        H. Hafner & Sons Inc. v. Cincinnati
       Metropolitan Sewer Dist. (1997), 118 Ohio App.3d 792, 797 [694
       N.E.2d 111]; see, also, Hedrick v. Columbus (Mar. 30, 1993), 10th
       Dist. Nos. 92AP-1030 and 92AP-1031 [1993 WL 104713]. ‘If
       proven, this failure would constitute the breach of a duty arising
       out of a proprietary function and would expose the city to liability
       under R.C. 2744.02(B)(2).’ * * * Id.”


Coleman, ¶ 45, quoting Moore, 2009-Ohio-6511, ¶ 59.
       {¶ 22} We disagree.
       {¶ 23} Initially, we observe that the General Assembly did not use the
term “upgrade” in writing R.C. Chapter 2744. Courts must abstain from inserting
words into a statute that were not placed there by the General Assembly. State ex
rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478,
2012-Ohio-1484, 967 N.E.2d 193, ¶ 18, citing State ex rel. Cassels v. Dayton City
School Dist. Bd. of Edn., 69 Ohio St.3d 217, 220, 631 N.E.2d 150 (1994). It is
not proper for courts to read “upgrade” into the statute.



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        {¶ 24} Moreover, the failure to upgrade is different from the failure to
maintain or upkeep. To upgrade means “[t]o exchange a possession for one of
greater value or quality; trade up.” American Heritage Unabridged Dictionary
1890 (4th Ed.2000).      “Upkeep,” however, means “[m]aintenance in proper
operation, condition, and repair.” Id. Our courts of appeals have recognized this
distinction.
        {¶ 25} For example, in Murray v. Chillicothe, a landscaper sued the city
after his foot fell through a storm-sewer grate located in a public street. The
landscaper claimed that the grate had been poorly maintained. 164 Ohio App.3d
294, 2005-Ohio-5864, 842 N.E.2d 95, ¶ 1, 3. He brought a negligence claim
against the city, but the trial court granted summary judgment in the city’s favor,
holding that the city was immune from liability. Id. at ¶ 9.
        {¶ 26} The Fourth District Court of Appeals affirmed, holding:


               Murray argues that his injury occurred because of the city’s
        failure to maintain the storm-sewer grate. The city disagrees,
        arguing that the injury stems from the design of the storm-sewer
        grate. It contends that Murray's injury occurred because of the
        width of the grate's openings, which is “simply a matter of the
        design of the grate.”
               Webster's Dictionary defines “maintenance” as the “act of
        maintaining or state of being maintained.” Webster's New College
        Dictionary (1999) 660. It defines “maintain” as “To preserve or
        keep in a given existing condition, as of efficiency or good repair.”
        Id. The deposition testimony presented indicates that the accident
        in this case occurred because the openings in the storm-sewer grate
        were too wide. There is no evidence that the four-inch openings
        existed because the grate was in a state of disrepair. Rather, the



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       evidence indicates that the grate was designed with four-inch
       openings. Because Murray's injury did not result from the catch-
       basin grate's being in a state of disrepair, we cannot say that this
       case involves the maintenance of a storm-sewer system. In most
       instances, the government's duty to maintain a structure does not
       include the duty to upgrade it to current construction standards.
       See Treese v. Delaware (1994), 95 Ohio App.3d 536, 543 [642
       N.E.2d 1147], stating in the context of highways that maintenance
       involves only the preservation of existing facilities, and not the
       initiation of substantial improvements (but leaving unanswered the
       issue of whether maintenance may include upgrading where a
       nuisance condition has arisen). See, also, Thomas v. Cuyahoga Cty.
       Bd. of Commrs., Sept. 30, 1993, Cuyahoga County Court of
       Appeals Case No. 62949, 1993 WL 389781, stating that the board
       had no duty to upgrade a highway median barrier as technology
       developed.


Id. at ¶16-17.
       {¶ 27} The Fourth District recognized that injury resulting from an
antiquated storm-sewer design has different legal significance from injury
resulting from improper storm-sewer maintenance. The design, pursuant to R.C.
2744.01(C)(2)(l), is a governmental function, and under R.C. 2744.02, no liability
can attach to the political subdivision for obsolete design. Id. at ¶ 18. Put another
way, “a private sewer system with a design flaw does not convert that design flaw
into a maintenance responsibility.” Id.
       {¶ 28} The analysis in Murray is consistent with that in Zimmerman v.
Summit Cty., 9th Dist. No. 17610, 1997 WL 22588 (Jan 15, 1997).               There,
homeowners sued the county, alleging that the county had dumped sewage into a



                                          11
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creek that ran through their property. Id. at *1. The county admitted that during
severe rain storms, it pumped rain water and sewage from its sewer system into
the creek to prevent sewage backups into basements. Id. at *2. It contended that
“periodic pumping was necessary because the sewer system, as it was designed
and constructed over twenty years before, could not handle all the rain water and
sewage that currently pass through it” and noted that it had a permit from the
Ohio Environmental Protection Agency to pump the sewage into the stream. Id.
       {¶ 29} The trial court rejected the county’s claim of immunity, but the
court of appeals reversed. It held:


       Plaintiffs’ claimed injuries and losses * * * were not caused by [the
       county’s] maintenance and operation of its sewer system. Unlike
       other cases in which Ohio courts have recognized that actions
       taken with respect to sewer systems were proprietary in nature,
       plaintiffs' claimed injuries and losses did not arise from [the
       county’s] failure to repair damage to the system, to inspect it, to
       remove obstructions, or to remedy general deterioration. See Doud
       v. Cincinnati (1949), 152 Ohio St. 132 [87 N.E.2d 243] (city
       allegedly failed to detect deterioration of sewer system) and Nice v.
       Marysville (1992), 82 Ohio App.3d 109 [611 N.E.2d 468] (city
       failed to detect and repair damage to sewer system). Instead, they
       resulted from [the county’s] original design and construction of the
       sewer system. As evidenced by [the county’s environmental
       services director’s] affidavit, [the county’s] decision to pump
       sewage and rain water into the stream was a response to the sewer
       system's inability as designed and constructed to handle the
       volume of materials that currently pass through it. This was not a
       problem that [the county] could remedy through routine



                                        12
                               January Term, 2012




        maintenance. It would require extensive redesigning and
        reconstructing of the system to meet current demands.


Id. at *3.
        {¶ 30} We find that the better-reasoned approach, and the one consistent
with the immunity statute’s wording and the General Assembly’s intent, is that of
the Fourth and Ninth District Courts of Appeals in Murray and Zimmerman. As
the Second District recently explained, “A complaint is properly characterized as
a maintenance, operation, or upkeep issue 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.’ Essman [v. Portsmouth, 4th Dist. No. 09CA3325, 2010-Ohio-
4837] at ¶ 32. But the complaint presents a design or construction issue if
‘remedying a problem would require a [political subdivision] to, in essence,
redesign or reconstruct the sewer system.’ Essman at ¶ 32–33.” (Brackets sic.)
Guenther v. Springfield Twp. Trustees, 2d Dist. No. 2010-CA-114, 2012-Ohio-
203, 970 N.E.2d 1058, ¶ 18. We agree.
        {¶ 31} Although creative, the Colemans’ attempt to characterize their
claims as ones based on maintenance fails. For purposes of R.C. Chapter 2744, a
claim based on a failure to upgrade is a claim based on a failure of design and
construction, for which political subdivisions enjoy immunity, and not a claim
based on a failure to properly maintain, for which political-subdivision liability
may be extant.
        {¶ 32} In so holding, we 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. But the same is true for many other claims for
which immunity attaches.




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       {¶ 33} And we recognize that property owners have little control over the
quality of storm and sewer systems to which their homes are attached. But absent
amendment to R.C. Chapter 2744 or other legislative action, relief does not lie in
suits against political subdivisions based on a failure to upgrade the sewer system.
                                                                Judgment reversed.
       LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and MCGEE
BROWN, JJ., concur.
       PFEIFER, J., dissents and would affirm the judgment of the court of
appeals.
                              __________________
       UAW-GM Legal Services Plan and Darrell D. Maddock, for appellees.
       Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, and Frank H.
Scialdone; and Victor Vigluicci, Portage County Prosecuting Attorney, and Leigh
S. Prugh, Assistant Prosecuting Attorney, for appellant.
       Roetzel & Andress, L.P.A., and Stephen W. Funk, urging reversal for
amicus curiae Ohio Association of Civil Trial Attorneys.
       Isaac, Brant, Ledman & Teetor, L.L.P., Mark Landes, and Scyld D.
Anderson, urging reversal for amici curiae County Commissioners Association of
Ohio, County Engineers Association of Ohio, County Sanitary Engineers
Association, County Risk Sharing Authority, Metropolitan Sewer District of
Greater Cincinnati, Ohio Municipal League, Ohio Township Association,
Coalition of Large Urban Townships, and Association of Ohio Metropolitan
Wastewater Agencies.
                           _______________________




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