[Cite as Glover v. Columbus, 2018-Ohio-4743.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Barbara E. Glover et al.,                       :

                Plaintiffs-Appellees,           :
                                                                  No. 17AP-332
v.                                              :            (C.P.C. No. 16CV-4428)

City of Columbus,                               :         (REGULAR CALENDAR)

                Defendant-Appellant.            :



                                            DECISION

                                  Rendered on November 27, 2018


                On brief: Walton + Brown, LLP, Chanda L. Brown, and
                Sean L. Walton, for appellees. Argued: Chanda L. Brown.

                On brief: Zach Klein, City Attorney, Janet R. Hill Arbogast,
                and Sarah L. Harrell, for appellant. Argued: Janet R. Hill
                Arbogast.

                  APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Defendant-appellant, the City of Columbus ("city"), appeals a judgment of the
Franklin County Court of Common Pleas that denied the city's motion for summary
judgment. The city argued that it was entitled to immunity pursuant to Ohio Revised Code
Chapter 2744. For the following reasons, we reverse the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} For purposes of this appeal, the following are the relevant facts and
procedural history. The city began a capital improvements project, the Johnstown Road
Area Waterline Improvements Project ("the project"), in appellees' neighborhood in
February 2014. Defendant Darby Creek Excavating, Inc. ("Darby Creek") was awarded
work as the general contractor and began work on March 13, 2014. The project included
No. 17AP-332                                                                                 2

replacing approximately 10,650 feet of water lines on Johnstown Road, Cassady Avenue,
Sixth Avenue, Parkview Avenue, Columbia Avenue, Drexel Avenue, and Northview
Boulevard. This capital improvements project was constructed from February 2014 to
April 2015.
       {¶ 3} Plaintiffs-appellees, Barbara Glover and her husband Harold Glover, filed
this lawsuit on May 6, 2016, naming the city and Darby Creek as defendants. The complaint
alleges that Barbara Glover was injured in a trip and fall on February 18, 2015, while taking
out the trash and walking on the street outside her home located at 644 Northview
Boulevard in Columbus, Ohio. The complaint asserts that she tripped and fell "in a huge
pot-hole/pit that was partially filled with gravel and covered in snow." (Compl. at ¶ 7.)
Appellees allege that the "pit and gravel had been created as a result of maintenance work
being done on the sewage system near [their] home by * * * the City [and] Darby Creek."
(Compl. at ¶ 10.)
       {¶ 4} On March 13, 2017, Darby Creek filed a motion for summary judgment
arguing that "[n]o evidence exists that [it] breached any duty owed to Plaintiffs, or that any
breach was a proximate cause of Plaintiffs' injuries." (Def. Darby Creek's Mot. at 4.) On the
same date, the city filed a motion for summary judgment based on (1) its entitlement to
immunity from appellees' claims pursuant to Ohio Revised Code Chapter 2744, and (2) the
lack of any duty owed or breached by the city to appellees.
       {¶ 5} The trial court issued a journal entry on April 14, 2017, which, (1) granted
Darby Creek's motion for summary judgment, and (2) denied the city's motion for summary
judgment on appellees' claims. In regard to Darby Creek, the trial court found that:
              Plaintiffs have not offered any Rule 56 evidence showing the
              existence of a hole made by Darby Creek while they had
              constructive possession of the street and adjacent property that
              could be found to have proximately caused Ms. Glover's fall.

              Darby Creek did not breach any duty owed to plaintiffs, nor did
              its actions or omissions proximately cause Ms. Glover to fall on
              February 18, 2015. Accordingly, Defendant Darby Creek's
              motion is GRANTED. It is DISMISSED from this lawsuit.

(Emphasis sic.) Id. at 6.
       {¶ 6} In regard to the city, the trial court stated the law in this area and found that:
No. 17AP-332                                                                       3

           "The determination as to whether a political subdivision is
           immune from suit is purely a question of law properly
           determined by a court prior to trial and preferable on a motion
           for summary judgment." Martin v. City of Gahanna, 10th Dist.
           No. o6AP-1175, 2007-Ohio-2651, 2007 Ohio App. LEXIS 2449,
           ¶ 9 (quoting Summerville v. Columbus, 10th Dist. No. 04AP-
           1288, 2005-Ohio-5158, ¶ 12). "In reviewing a claim of political
           subdivision liability, R.C. 2744.o2(A)(1) directs [the court] to
           begin with a presumption of immunity. R.C. 2744.o2(A)(1) sets
           forth the general rule that 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 of omission of the political
           subdivision or an employee of the political subdivision in
           connection with a governmental or proprietary function.' The
           plaintiff must then present evidence that one or more of the
           exceptions to immunity set forth in R.C. 2744.o2(B) apply. In
           order for certain of the exceptions to apply, the court must
           determine whether the case involves a governmental or a
           proprietary function. If any of the exceptions are found to
           apply, the political subdivision may assert an affirmative
           defense set forth in R.C. 2744.03(A)." Martin at ¶ 14.

           The City argues that R.C. 2744.01(C)(2)(l) applies, and this is a
           "governmental function," making it immune. That subsection
           states that "[t]he provision or nonprovision, planning or
           design, construction, or reconstruction of a public
           improvement, including, but not limited to, a sewer system" is
           a "governmental function." Plaintiffs contend that R.C.
           2744.01(G)(2)(c) applies instead, and this is a "proprietary
           function," meaning that the City is not immune. That
           subsection states that "[t]he establishment, maintenance, and
           operation of a utility, including, but not limited to, …a
           municipal corporation water supply system" is a "proprietary
           function."

           Maintaining water lines is a proprietary function under R.C.
           2744.01(G)(2)(c). The specific controls over the more general
           language in the immunity statute. Accordingly, the City of
           Columbus is not immune.

           ***

           Questions of fact remain as to whether the City breached a duty
           owed to plaintiffs and whether that breach proximately caused
           Ms. Glover's fall and subsequent injuries. Accordingly, the
           City's motion is DENIED.
No. 17AP-332                                                                                   4

(Emphasis sic.) Id. at 6-8.
       {¶ 7} The city's appeal, which was filed on May 5, 2017, is taken pursuant to R.C.
2744.02(C), based on the trial court's denial of the city's motion for summary judgment
based on immunity.
II. ASSIGNMENT OF ERROR
       {¶ 8} Appellant assigns a single assignment of error for our review:
              The trial court erred when it denied the motion for summary
              judgment filed by the City of Columbus, thereby denying the
              City the benefit of immunity.

III. DISCUSSION
       {¶ 9} When seeking summary judgment on the ground that the nonmoving party
cannot prove its case, the moving party 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 an essential element of the nonmoving
party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). A moving party does not
discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that
the nonmoving party has no evidence to prove its case. Id. Rather, the moving party must
affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the
nonmoving party has no evidence to support its claims. Id. Once the moving party has
supported its contention that there is no genuine issue of material fact, and that it is entitled
to judgment as a matter of law, the burden is on the nonmoving party to go beyond the
"mere allegations or denials of the party's pleadings," and to set forth specific facts, by
affidavit or by other appropriate evidence, "showing that there is a genuine issue for trial."
Civ.R. 56(E); Munday v. Village of Lincoln Hts., 1st Dist. No. C-120431, 2013-Ohio-
3095, ¶ 17.
       {¶ 10} Appellate review of summary judgment motions is de novo. Helton v. Scioto
Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). See Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105 (1996). "When reviewing a trial court's ruling on summary
judgment, the court of appeals conducts an independent review of the record and stands in
the shoes of the trial court." Mergenthal v. Star Bank Corp., 122 Ohio App.3d 100, 103
(12th Dist.1997).
No. 17AP-332                                                                                 5

       {¶ 11} The only issue before this court is whether or not the city is immune under
R.C. Chapter 2744. Appellees do not dispute that the city is a political subdivision to which
the general rule of immunity set forth in R.C. 2744.02(A)(1) applies. Appellees argue,
however, that the exception to immunity contained in R.C. 2744.02(B)(2) applies. That
exception states in part that, "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." Id. The determinative issue
is whether the city's project which replaced water mains and lines is a governmental or
proprietary function.
       {¶ 12} The city argues that R.C. 2744.01(C)(2)(l) applies, and therefore this project
is a "governmental function," making it immune. That subsection states that "[t]he
provision or nonprovision, planning or design, construction, or reconstruction of a public
improvement, including, but not limited to, a sewer system" is a "governmental function."
Id. Appellees contend that R.C. 2744.01(G)(2)(c) applies instead, and this project is a
"proprietary function," meaning that the city is not immune. That subsection states that
"[t]he establishment, maintenance, and operation of a utility, including, but not limited to
* * * a municipal corporation water supply system" is a "proprietary function." Id.
       {¶ 13} Appellees argue that the project was a proprietary function because it
involved the maintenance and upkeep of a sewer system, and/or the establishment,
maintenance and operation of a municipal corporation water supply system. The trial court
held that "[m]aintaining water lines is a proprietary function under R.C. 2744.01(G)(2)(c).
The specific controls over the more general language in the immunity statute. Accordingly,
the City of Columbus is not immune." (Apr. 14, 2017 Journal Entry at 7.) The city disagrees
with the trial court and cites our case of Repasky v. Gross, 10th Dist. No. 12AP-752, 2013-
Ohio-2516, for the proposition that the replacement of water mains and storm sewers is a
governmental function. Id. at ¶ 13. We agree with the city.
       {¶ 14} In Repasky, the plaintiff was injured when she and a companion rode a
tandem bicycle across an area of road construction. The road construction was part of a
project that consisted of water main and storm sewer repair and replacement, as well as
road construction and paving. Id. at ¶ 2. The plaintiff rode over a two-foot to four-foot wide
cut in the pavement. "The cut resulted from a trench that was previously dug to install a
No. 17AP-332                                                                                    6

replacement storm sewer line. That portion of the line was completed and the trench was
backfilled with gravel and stone to grade level. The roadway had not yet been repaved." Id.
at ¶ 3.
          {¶ 15} Like the appellees in this case, the plaintiff in Repasky argued that the city of
Upper Arlington was engaged in a proprietary function since the construction project
involved the maintenance and upkeep of a sewer system and the "establishment,
maintenance and operation of a municipal corporation water supply system." Id. at ¶ 12.
However, we held that "[t]he replacement of a storm sewer line constitutes the construction
or reconstruction of a sewer system, not the maintenance and upkeep of a sewer system nor
the maintenance of a water supply system." Id. at ¶ 13. Consequently, Upper Arlington was
engaged in a governmental function and was entitled to immunity. Id. Our application of
Repasky to the present case yields the same result.
          {¶ 16} Our review shows that the project at issue in this case was not the routine
maintenance of water lines or the repair of a water main break. The project involved a
decision to completely reconstruct, update, or upgrade its water supply system in appellees'
neighborhood by completely replacing the water mains and lines. The city retained an
engineer to produce a detailed design for the project, then solicited bids and awarded the
construction contract in the amount of $2,296,930.08 to Darby Creek. The construction
project included replacing old water mains under the streets (which necessitated digging
trenches in the streets), replacing water lines and water service lines, filling in the trenches,
and repaving the streets. The project included replacing approximately 10,650 feet of water
lines, replacing water mains under the streets, and replacing water service lines. This
capital improvements project took over one year to complete, from February 2014 to April
2015.
          {¶ 17} Since the city was involved in the construction or reconstruction of the water
supply system, it was engaged in a governmental function and is immune from liability
pursuant to R.C. 2744.02(A)(1). The plain language of R.C. 2744.01(C)(2)(l) also supports
the city's position. "[T]he * * * construction, or reconstruction of a public improvement,
including, but not limited to, a sewer system" is a governmental function. Id.
          {¶ 18} Other appellate courts have reached the same conclusion as this court in
similar cases. "Municipal decisions regarding updating or upgrading, rather than simple
No. 17AP-332                                                                                7

maintenance and repair of existing systems have been held to be a governmental function
to which immunity applies." Matter v. Athens, 4th Dist. No. 13CA20, 2014-Ohio-4451, ¶
22, citing Essman v. Portsmouth, 4th Dist. No. 09CA3325, 2010-Ohio-4837, ¶ 46. "[A]
political subdivision's decision regarding an upgrade of its sewer system [or water supply
system] is a governmental function. A decision to upgrade requires a political subdivision
to weigh various considerations, including the availability of fiscal resources, the use and
acquisition of additional equipment, and the overall design of the system." Essman at ¶ 44.
See also Smith v. Stormwater Mgt. Div., 111 Ohio App.3d 502, 507 (1st Dist.1996). Since
"upgrading involves construction and design, such upgrading is a governmental, not a
proprietary, function." Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28, 2012-Ohio-
3881, ¶ 1. The Supreme Court of Ohio adopted the reasoning of the Essman court in finding
that "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.' "
Coleman at ¶ 30, quoting Guenther v. Springfield Twp. Trustees, 2d Dist. No. 2010-CA-
114, 2012-Ohio-203, ¶ 18.
       {¶ 19} The application of Repasky to this case is dispositive. The city was involved
in a construction project that replaced water mains and connection lines. As with the
replacement of a sewer line, the replacement of water mains and lines "constitutes the
construction or reconstruction of a [water supply system], not the maintenance and upkeep
of a * * * water supply system." Id. at ¶ 13. Since the city was involved in the construction
or reconstruction of the water supply system, it was engaged in a governmental function
and is immune from liability pursuant to R.C. 2744.02(A)(1).
IV. DISPOSITION
       {¶ 20} For the foregoing reasons, we sustain the city's sole assignment of error. We
reverse the judgment of the Franklin County Court of Common Pleas and this matter is
remanded for further proceedings consistent with this decision.
                                                       Judgment reversed; case remanded.

                         BROWN, P.J. and DORRIAN, J., concur.
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