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Ricci W. Caputo, et al. v. the City of Toledo

November 4, 2011

RICCI W. CAPUTO, ET AL.
APPELLANTS
v.
THE CITY OF TOLEDO
APPELLEE



Trial Court No. CI0201002517

The opinion of the court was delivered by: Singer, J.

Cite as

Caputo v. Toledo,

DECISION AND JUDGMENT

{¶1} Appellants appeal a summary judgment issued by the Lucas County Court of Common Pleas in a negligence suit against a municipality. For the reasons that follow, we affirm.

{¶2} Appellants, Ricci W. and Debra Ann Caputo, live on Edgebrook Drive in Toledo. According to the couple's complaint, they began to see water ponding in their yard shortly after employees of appellee, city of Toledo, replaced a storm sewer cover in their front yard. When they complained to the city, they were told that a portion of the storm sewer leading from their property to a nearby creek had collapsed. Appellants claimed that throughout 2008 appellee's employees promised to fix the allegedly defective storm sewer.

{¶3} Nevertheless, by March 11, 2009, when heavy rains fell on the city, no repair had been undertaken. The result, appellants complained, was that large quantities of water collected on their property, flooding their home with two inches of water on the ground floor. Damages resulted. On March 5, 2010, appellants sued appellee claiming that appellee's negligence in failing to maintain its storm and sanitary sewers caused the damages to appellants' home.

{¶4} Appellee answered, denying responsibility for appellants' damages and raising several affirmative defenses, including governmental immunity. Following discovery, the parties filed cross-motions for summary judgment. In its motion, appellee argued that flood control and storm water system construction and reconstruction are governmental functions, entitled to immunity from suit pursuant to R.C. 2744.01.

{¶5} Appellants responded that, pursuant to R.C. 2744.01(G)(2)(d) and 2744.02(B)(2), maintenance of a sewer system is a proprietary function, not a governmental function and, therefore, is not immune from suit. Appellants supported their cross-motion with an affidavit from appellant Ricci Caputo who averred that appellants occupied the Edgebrook Drive home since 1990 and only began to notice ponding in 2007. According to Ricci Caputo, shortly after the March 11, 2009 flooding, appellee replaced a 15 to 20 foot length of the storm sewer after which no further flooding occurred.

{¶6} Appellee responded to appellants' cross-motion for summary judgment,

reiterating its assertion of immunity and maintaining that appellants failed to submit evidence of evidentiary value showing that an act or omission by appellee was responsible for their damages. Appellee supported its position with affidavits of various city engineers and employees who testified to discovering that the last section of storm sewer pipe before it drained to a nearby ditch had separated, causing seepage to the ground above. The ditch itself had also become silted in. According to the employees, remedy of one or both of these conditions would not have prevented flooding in a very heavy rain. Moreover, the city considered replacement of a section of pipe to be construction, and dredging the ditch to be an expensive major project requiring discretionary budgeting, both governmental functions.

{¶7} The trial court concluded that for purposes of statutory governmental immunity the March 2009 repair was a construction project that is within the statutory definition of a governmental function subject to immunity from suit. Alternatively, the court ruled, even if the activity was not immune from suit, appellants had failed to meet their burden to show a causal link between appellee's delay in effecting the repair and their damage. Accordingly, the court granted appellee's motion for summary judgment and denied appellants'. From this judgment, appellants now bring this appeal.

{¶8} Appellants set forth a single assignment of error:

{¶9} "The trial court erred in granting summary judgment to the City of Toledo on the claim of Ricci and Debra Caputo that they were damaged because the City, for one year, failed in its duty to maintain and see to the upkeep of the storm sewer near the Caputo home."

{¶10} On review, appellate courts examine a grant summary judgment de novo, Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, applying the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129. The motion may be granted only when it is demonstrated:

{ΒΆ11} "* * * (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly ...


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