Court of Appeals of Ohio, Eleventh District, Lake
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
T. McLandrich and Robert F. Cathcart, Mazanec, Raskin &
Ryder Co., L.P.A., and Michael C. Lucas, Wiles and Richards,
CYNTHIA WESTCOTT RICE, P.J.
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
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
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.
In the past several years prior to the July 20, 2013 sewer
system backup, the city's residents experienced a number
of such backups.
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."
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
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
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,
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
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
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.
The trial court designated this case to be "complex
litigation" due to, in part, "the extent of the
discovery necessary to ...