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Jerome Bauer v. City of Brunswick

September 26, 2011

JEROME BAUER APPELLANT
v.
CITY OF BRUNSWICK APPELLEE



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 09CIV1767

The opinion of the court was delivered by: Whitmore, Judge.

Cite as Bauer v. Brunswick,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Plaintiff-Appellant, Jerome Bauer, appeals the order of the Medina County Court of Common Pleas that granted summary judgment to Defendant-Appellee, the City of Brunswick ("the City"). This Court affirms.

I.

{¶2} Bauer built a house in Brunswick in 1973. The property in his neighborhood is serviced by a sanitary sewer, but since 1975 has had a surface water retention system consisting of swales, culverts, and ditches. Bauer's home experienced flooding after heavy rains in 1976, 1987, and 1997. He noticed cracks in the south wall of his basement in the early 1990s. After each of these incidents, he performed maintenance on the pipe that connects his downspouts and sump pump to the ditch. In December 2004, his basement flooded again. After that incident, he hired a contractor to perform maintenance on the same area and also contacted the City with his belief that backup from the surface water retention system was causing the flooding. His property did not flood again.

{¶3} Bauer sued the City for negligence, arguing that the City had a duty to upgrade the existing storm sewer system when it proved to be inadequate to service his neighborhood. He also alleged that the City was liable for a continuing trespass and petitioned the court of common pleas for a writ of mandamus to compel the City to appropriate his property. The trial court granted summary judgment to the City, and Bauer appealed. His three assignments of error are rearranged for ease of disposition.

II.

Assignment of Error Number One

"THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO THE CITY OF BRUNSWICK AS THERE WAS A GENUINE ISSUE OF MATERIAL FACT WHETHER THE CITY OF BRUNSWICK ENGAGED IN A TAKING AND NEGLIGENCE AND THE CITY OF BRUNSWICK WAS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW."

Assignment of Error Number Three

"THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO THE CITY OF BRUNSWICK AS THERE WERE GENUINE ISSUES OF MATERIAL FACT WHETHER THERE WAS AN APPLICABLE EXCEPTION TO THE CITY'S SOVEREIGN IMMUNITY UNDER R.C. §2744.02(B)."

{ΒΆ4} Bauer's first and third assignments of error argue that the trial court improperly granted summary judgment to the City based on the conclusion that the City's actions with respect to the storm sewer were in performance of a governmental function. Bauer believes that a proprietary function is involved instead and argues that summary judgment was not proper because there are genuine issues of ...


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