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Plank v. City of Bellefontaine

Court of Appeals of Ohio, Third District, Logan

November 20, 2017

CHRISTOPHER PLANK, ADMINISTRATOR OF THE ESTATE OF MONICA PLANK, PLAINTIFF-APPELLEE,
v.
CITY OF BELLEFONTAINE, ET AL., DEFENDANTS-APPELLANTS.

         Appeal from Logan County Common Pleas Court Trial Court No. CV 16 02 0040

          Keona R. Padgett for Appellants.

          Jeff Ratliff for Appellee.

          OPINION

          ZIMMERMAN, J.

         {¶1} Defendant-Appellant, the City of Bellefontaine and the City of Bellefontaine Water Department, (hereafter referred to as "Appellant")[1] 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.

         Facts and Procedural History

         {¶2} 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 killed.

         {¶3} 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[2] 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.).

         {¶4} 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. (Id.).

         {¶5} On March 10, 2016, Appellant filed its answer denying negligence and asserting multiple defenses to Appellee's claim, including political subdivision immunity. (Doc. No. 15).

         {¶6} 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. No. 116).

         {¶7} 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.

(Id.).

         {¶8} From this Judgment Entry Appellant appeals pursuant to R.C. 2744.02(C), [3] and presents the following sole assignment of error for our review:

         ASSIGNMENT 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 NON-LIABILITY.

         {¶9} 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.

         Standard ...


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