CHRISTOPHER PLANK, ADMINISTRATOR OF THE ESTATE OF MONICA PLANK, PLAINTIFF-APPELLEE,
CITY OF BELLEFONTAINE, ET AL., DEFENDANTS-APPELLANTS.
from Logan County Common Pleas Court Trial Court No. CV 16 02
R. Padgett for Appellants.
Ratliff for Appellee.
Defendant-Appellant, the City of Bellefontaine and the City
of Bellefontaine Water Department, (hereafter referred to as
"Appellant") appeal the June 28, 2017 Judgment Entry of
the Logan County Common Pleas Court denying its motion for
summary judgment in a negligence lawsuit. For the reasons
that follow, we reverse the judgment of the trial court.
and Procedural History
In the early morning hours of February 16, 2014, Christopher
Plank, ("Christopher" or "Appellee")
Plaintiff-Appellee, and his wife, Monica Plank
("Monica"), were with friends at the Route 68 Grill
in Bellefontaine, Ohio. Around 1 a.m., Monica became upset
and decided to leave the Route 68 Grill, by herself, to
return to the Comfort Inn in Bellefontaine, Ohio, where she
and Christopher were staying. When Christopher saw that
Monica had left the Route 68 Grill, he paid their tab and
started out on foot to follow Monica. While walking north on
South Main Street in Bellefontaine, Monica chose to walk in
the street because the sidewalk was covered with snow.
Christopher, who was also in the street, was following behind
Monica. While walking in the street, Monica was struck by a
vehicle and killed in the vicinity of 917 South Main Street
in Bellefontaine. The building located at 917 South Main
Street was the City of Bellefontaine Water Department, which
was owned and operated by the City of Bellefontaine. The
sidewalk in front of the Water Department Building had not
been cleared of snow at the time Monica was struck and
On February 16, 2016, Christopher filed a wrongful death
action in the Logan County Court of Common Pleas naming the
City of Bellefontaine, the City of Bellefontaine Water
Department, and Danny L. Levan and Loretta A.
Levan as defendants. (Doc. No. 1). In his
complaint, Christopher alleged that as a result of the
plowing of roads by city employees, there was a severe and
unnatural accumulation of snow and ice on the sidewalk in
front of the Bellefontaine City Water Department Building,
and that unnatural accumulation of snow and ice on that
sidewalk forced Monica to walk in the street, and proximately
caused her death. (Id.).
Christopher's lawsuit also cited Bellefontaine City Code
Section 521.06, which provided that it was the duty of the
owner or occupant of each and every parcel of real estate in
the City of Bellefontaine to the keep the sidewalk abutting
his or her premises free and clear of snow and ice and to
remove therefrom all snow and ice within a reasonable time.
(Id.). Further, Christopher's wrongful death
complaint alleged that the City of Bellefontaine and the City
of Bellefontaine Water Department violated the city code, and
negligently allowed unsafe and dangerous conditions to exist
on the sidewalk after a reasonable time, which forced Monica
to walk in the street. (Id. at 5). The wrongful
death complaint alleged that Monica died as a direct and
proximate result of Appellant's negligence.
On March 10, 2016, Appellant filed its answer denying
negligence and asserting multiple defenses to Appellee's
claim, including political subdivision immunity. (Doc. No.
On May 10, 2017, Appellant filed its Motion for Summary
Judgment in the trial court. (Doc. No. 78). In its motion,
Appellant asserted that summary judgment was appropriate as a
matter of law because it is a political subdivision, engaged
in a governmental function, and was entitled to immunity
under R.C. Chapter 2744 as a matter of law. (Id. at
7). On June 2, 2017, Appellee filed a response to
Appellant's motion, asserting that summary judgment was
not appropriate because material questions of fact exist and
that Appellant was not immune under R.C. 2744.02(B). (Doc.
On June 28, 2017, the trial court issued its Judgment Entry
on Appellant's motion for summary judgment. (Doc. No.
127). The trial court held:
Plaintiffs decedent, Monica Plank, was killed on South Main
Street, Bellefontaine on February 15, 2014 in front of the
premises owned by the City of Bellefontaine as part of its
city water department (917 South Main Street) and the Levans
at 909 South Main Street. The deceased [sic] while walking
north on Main Street was struck by an automobile and died
from those injuries sustained in that impact. Plaintiff's
complaint alleges that but for the negligence of the city the
Plaintiff would not have had to walk in the street. The city
in its defenses and in its motions alleges numerous defenses.
The Court finds, however, that under Plaintiff's
complaint the city may be liable under the proprietary
function exception to government immunity contained in R.C.
2744.02(B)(2). By definition the establishment, maintenance
and operation of a water supply system is a proprietary
function, R.C. 2744.01(G)(2)(c). The Court finds under the
theory of liability and that exception of governmental
immunity there are many genuine issues of material fact.
Among them are whether the snow on the Defendant's
sidewalk was a natural accumulation or a man-made
accumulation, whether the Defendant's negligence, if any,
was the proximate cause of decedent's death, and whether
the deceased's conduct (assumption of risk) was
comparatively more negligent than the city's. It is
therefore ORDERED that the Defendant'
[sic] motion for summary judgment be, and hereby is denied.
From this Judgment Entry Appellant appeals pursuant to R.C.
2744.02(C),  and presents the following sole assignment
of error for our review:
OF ERROR NO. I
THE TRIAL COURT ERRED BY DENYING POLITICAL
SUBDIVISION IMMUNITY TO THE CITY OF BELLEFONTAINE AND THE
CITY OF BELLEFONTAINE WATER DEPARTMENT BECAUSE THEY ARE
ENTITLED TO A GENERAL GRANT OF IMMUNITY, NONE OF THE
EXCEPTIONS UNDER R.C. 2744.02(B) APPLY TO BAR IMMUNITY, AND,
EVEN IF AN EXCEPTION APPLIES, THREE DEFENSES ESTABLISH
On appeal, Appellant presents three issues for this Court to
review: (1) whether the City of Bellefontaine and the City of
Bellefontaine Water Department are a political subdivision
entitled to a grant of immunity; (2) whether any of the
exceptions under R.C. 2744.02(B), including the exception
regarding negligent performance of a proprietary function
apply, removing immunity in a case regarding the maintenance
of a sidewalk; and (3) whether, even if one of the exceptions
under R.C. 2744.02 does apply, R.C. 2744.03 is applicable to
establish Appellant's nonliability. For the reasons that
follow, we sustain Appellant's assignment of error and
reverse the judgment of the trial court.