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Ragazzo v. City of Willowick

Court of Appeals of Ohio, Eleventh District, Lake

December 29, 2017

KIMBERLEY RAGAZZO, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellee,
v.
THE CITY OF WILLOWICK, Defendant-Appellant.

         Civil Appeal from the Lake County Court of Common Pleas, Case No. 2015 CV 001165. Judgment: Affirmed.

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

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

          OPINION

          CYNTHIA WESTCOTT RICE, P.J.

         {¶1} Appellant, the city of Willowick, appeals the judgment of the Lake County Court of Common Pleas in favor of appellee, Kimberly Ragazzo, denying the city's motion for judgment on the pleadings on her negligence claim 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 action, which asserted the same allegations against the city, but without class action allegations, is also pending before this court in Abramezyk v. Willowick, 11th Dist. Lake No. 2017-L-060. For the reasons that follow, we affirm.

         {¶2} On July 14, 2015, Ms. Ragazzo, who is a resident of Willowick, on behalf of herself and all others similarly situated, filed a class-action complaint against the city asserting, as pertinent to this appeal, a claim for negligence. On the same date, the complaint in Abramezyk was filed. Ms. Ragazzo states on appeal that Abramezyk was "filed out of concern that class action status could be denied in the instant Ragazzo proceeding." Ms. Ragazzo subsequently filed an amended complaint that did not make any substantive changes to the original. The statement of facts that follows is derived from the allegations in Ms. Ragazzo's 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 Ms. Ragazzo's home, 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} Ms. Ragazzo alleged in her complaint that, throughout 2011, city representatives continued to note concerns regarding the condition and maintenance of the city's sanitary sewer lines. She 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. Ms. Ragazzo alleged that, as a result of the city's failure to maintain and repair the sewer system, the system backed up into her home and the homes of others similarly situated on July 20, 2013.

         {¶9} Ms. Ragazzo 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 her home and to the homes of others similarly situated, 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 the 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 Ms. Ragazzo's claim was barred by subdivision immunity. In her brief in opposition, Ms. Ragazzo 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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