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Marshall v. City of Columbus

February 26, 2007


The opinion of the court was delivered by: Judge Holschuh

Magistrate Judge King


After experiencing property damage caused by rising surface water, Plaintiffs filed suit against numerous defendants including dozens of homeowners in a nearby subdivision. Count 4 of Plaintiffs' Second Amended Complaint alleges that these defendants have made unreasonable use of surface water, resulting in the flooding of Plaintiffs' property. This matter is currently before the Court on seven motions for summary judgment filed by various groups of the homeowner-defendants. (Record at 94, 98, 103, 107, 109, 117, 142). For the reasons stated below, the Court grants all of those motions for summary judgment.

I. Background and Procedural History

According to the Second Amended Complaint, Plaintiffs William Marshall, Sharen Salyers, Angela and Christopher Bathrick, Robert and Brenda Locke, Kendele Wilson, and Sara Treneff own real property in Franklin Township on the southwest side of Columbus. Their property is located within the drainage area of Whims Ditch, a manmade ditch constructed in 1919 by Franklin County. Plaintiffs allege that in times of heavy rain, water from Whims Ditch floods their property. Plaintiffs have asserted various federal and state claims against Franklin County, the City of Columbus, and numerous property owners in the area.

Count 4 of the Second Amended Complaint, which is the subject of the pending motions for summary judgment, alleges that Foxboro Communities, Inc., Maronda Homes, Inc., and the owners of 41 lots in the nearby Westmeadow Section I subdivision have made "unreasonable use of surface water." Plaintiffs maintain that the surface water from the lots in this subdivision drains into a storm water detention basin and then into tile storm sewers which empty into Whims Ditch, contributing to the flooding of Plaintiffs' property.

Seven separate groups of the defendant-homeowners have filed motions for summary judgment: (1) Kevin and Alicia Henderson (Record at 94); (2) Richard and Lori Hicks (Record at 98); (3) Jerry and Tina McCallister (Record at 103); (4) Sharon Adams, James and Jeanette Atkins, Oscar and Lisa Bermeo, Charles and Cathy Boyd, Michael Courtright, Susan Stoneman, Donald and Bonnie Glass, Garrett Cattell, and Pamela Kelly (Record at 107); (5) Jennie Sayaseng (Record at 109); (6) Richard and Cynthia Orf, Jack and Judy McCallister, Christopher and Lynette Deming, Frank and Jane Bruce, Shallon Smith, Benjamin and Barbara Brookes, Tracy Haynes-Castro, Jesse Howard, and Rashawn Reese-Howard (Record at 117); and (7) Dixie Rollyson (Record at 142).

Defendants all assert essentially the same arguments. They contend that because they did not design or construct the surface water drainage system in their subdivision, and have done nothing since purchasing the property to alter the drainage system, they cannot be held liable for damages to Plaintiffs' property. Defendants further contend that they owe no duty to abate a nuisance they did not affirmatively create. Plaintiffs have filed a single response to the motions; Defendants have filed separate replies.

II. Standard for Granting Summary Judgment

Although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). The standard for summary judgment is found in Federal Rule of Civil Procedure 56(c):

[Summary judgment] . . . shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Summary judgment will be granted "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is . . . [and where] no genuine issue remains for trial, . . . [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 467 (1962) (quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944)). See also Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

Moreover, the purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir. 1978). The court's duty is to determine only whether sufficient evidence has been presented to make the issue of fact a proper question for the jury; it does not weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Weaver v. Shadoan, 340 F.3d 398, 405 (6th Cir. 2003).

In a motion for summary judgment, the moving party bears the initial burden of showing that no genuine issue as to any material fact exists and that it is entitled to a judgment as a matter of law. Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). All the evidence and facts, as well as inferences to be drawn from the underlying facts, must be considered in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Wade v. Knoxville Util. Bd., 259 F.3d 452, 460 (6th Cir. 2001). Additionally, any "unexplained gaps" in materials submitted by the ...

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