Court of Appeals of Ohio, Eleventh District, Lake
KIMBERLEY RAGAZZO, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellee,
THE CITY OF WILLOWICK, Defendant-Appellant.
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
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 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.
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.
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.
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
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.
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
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.
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.
The trial court designated this case to be "complex
litigation" due to, in part, "the extent of the
discovery necessary to ...