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Abramezyk v. City of Willowick

Court of Appeals of Ohio, Eleventh District, Lake

December 29, 2017

RONALD ABRAMEZYK, et al., Plaintiffs-Appellees,
THE CITY OF WILLOWICK, Defendant-Appellant.

         Civil Appeal from the Lake County Court of Common Pleas, Case No. 2015 CV 001164.

          Phillip A. Ciano and Andrew S. Goldwasser, Ciano & Goldwasser, LLP, Robert E. Kennedy and Daniel P. Goetz, Weisman, Kennedy & Berris Co., L.P.A., and Paul W. Flowers, Paul W. Flowers Co., L.P.A., (For Plaintiffs-Appellees).

          John T. McLandrich and Robert F. Cathcart, Mazanec, Raskin & Ryder Co., L.P.A., and Michael C. Lucas, Wiles and Richards, (For Defendant-Appellant).



         {¶1} Appellant, the city of Willowick, appeals the judgment of the Lake County Court of Common Pleas in favor of appellees, Ronald Abramezyk, et al., denying the city's motion for judgment on the pleadings on appellees' negligence claims against the city. At issue is whether the court erred in finding the city was not entitled to political subdivision immunity. The city's appeal of a judgment in a related class action, which asserted the same allegations against the city as those asserted in the instant action, is also pending before this court in Ragazzo v. Willowick, 11th Dist. Lake No. 2017-L-061. For the reasons that follow, we affirm.

         {¶2} On July 14, 2015, appellees, who are 148 homeowners and/or residents of Willowick, filed a complaint against the city asserting, as pertinent to this appeal, claims of negligence. The statement of facts that follows is derived from the allegations in the complaint and documents attached to the city's answer.

         {¶3} The city owns, operates, and maintains a sanitary sewer system that provides sewer services to its residents. On July 20, 2013, the city's sewer system backed up into hundreds of homes in Willowick, including appellees' homes, causing them to be flooded with raw sewage, bacteria-tainted water, feces, urine, dirt, debris, and noxious odors.

         {¶4} In the past several years prior to the July 20, 2013 sewer system backup, the city's residents experienced a number of such backups.

         {¶5} In June 2010, about 200 city residents were affected by a sanitary sewer backup. On October 12, 2010, during a meeting of Willowick City Council, in which Council discussed the deteriorating condition of the city's sewer system, then-Mayor Richard Bonde said: "[T]he city has done all it can to cut back on the expenses to avoid passing costs onto residents. However, the city is now at the point where they cannot fix the sewers."

         {¶6} At the same hearing, Bob Patton, Chairman of the Streets, Sidewalks, and Sewers Committee, said: "The city is in a bad place with making this decision, in light of the photographs the city engineer produced of the collapse[d] sewers, something needs to be done." Further, Mr. Patton said that the "city must do something" and that he was "very concerned with the fact that there are bricks falling and blocking the sewers." Council member, Mike Vanni, said: "the photographs of the bricks blocking the sewers is just more justification that the city needs to do something."

         {¶7} Two months later, during a Council meeting on December 7, 2010, the city's Service Director, Joe Dominick, said: "[t]he 305th [Street] sewer line is in need of jetting, " i.e., cleaning out. He said: "there are three troublesome areas that have 70%, 50%, and 20% restricted flow. The [sewer] lines have calcifications that cannot be easily cleaned out." To clarify, Mr. Dominick said: "there is one location that has a blockage of 70%" and "another spot [is] at 50% and 20% blockages." Mr. Dominick said this was the same blockage the city engineer discussed at the public meetings on October 12, 2010 and October 19, 2010. City Engineer Juday, who was also present at the December meeting, said this could be the reason for the sewer backup on Willowick Drive. At this meeting, Mayor Bonde said he "still has some concerns with the Bayridge [Boulevard] overflow that occurred this year."

         {¶8} Appellees alleged in their complaint that, throughout 2011, city representatives continued to note concerns regarding the condition and maintenance of the city's sanitary sewer lines. Appellees further alleged that the city never appropriately addressed these issues and that, despite these ongoing concerns, the city never took the necessary steps to repair the sewers through proper upkeep, maintenance, operation, and repair. Appellees alleged that, as a result of the city's failure to maintain and repair the sewer system, the system backed up into their homes on July 20, 2013.

         {¶9} Appellees alleged the city had a duty to maintain and repair its sewer system, and that the city's breach of that duty resulted in damage to appellees' homes and personal property and personal injury, for which the city is liable in negligence.

         {¶10} The city filed an answer, denying the material allegations of the complaint and asserting various affirmative defenses, including that appellees' complaint was barred by political subdivision immunity, pursuant to R.C. Chapter 2744.

         {¶11} Two weeks later, the city filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C), arguing that appellees' claims were barred by subdivision immunity. In their brief in opposition, appellees argued that maintenance and repair of a sewer system is a "proprietary" function, which is an exception to the city's immunity.

         {¶12} The trial court designated this case to be "complex litigation" due to, in part, "the extent of the discovery necessary to ...

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