Court of Appeals of Ohio, Eighth District, Cuyahoga
OHIO QUAY 55 L.L.C. PLAINTIFF-APPELLANT
CITY OF CLEVELAND DEFENDANT-APPELLEE
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Royce Roberts Remington Hahn, Loeser
& Parks, L.L.P. Matthew K. Grashoff Brouse McDowell,
ATTORNEYS FOR APPELLEE Barbara Langhenry Director of Law By:
Lisa A. Mack Assistant Director of Law Cleveland Law
BEFORE: Keough, J., McCormack, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, JUDGE
Plaintiff-appellant, Ohio Quay 55 L.L.C. ("Quay
55"), appeals from the trial court's judgment
granting summary judgment in favor of defendant-appellee, the
city of Cleveland (the "city"). We affirm.
On the night of January 17, 2014, a city water main ruptured
near an apartment building owned by Quay 55. A portion of the
building flooded and sustained damage as a result of the
rupture. Quay 55 subsequently filed this action against the
city alleging claims of negligence, trespass, and nuisance.
The negligence claim made no allegation that the city acted
with malicious purpose, in bad faith, or in a wanton or
reckless manner. The city answered the complaint and asserted
various defenses, among them that it was statutorily immune
from liability under Ohio's Political Subdivision Tort
Liability Act (the "Act"), R.C. 2744.01, et seq.
After discovery was completed, the city filed a motion for
summary judgment. The city argued that the trespass and
nuisance claims were not actionable because the exceptions to
sovereign immunity set forth in the Act are limited to
negligent conduct, and do not include intentional torts such
as trespass or nuisance. With respect to the negligence
claim, the city argued that it was immune from liability
under R.C. 2744.03(A)(5) because its employees exercised
judgment and discretion in determining how to respond to the
water main break.
Quay 55 opposed the city's motion. It made no argument
regarding its trespass and nuisance claims. With respect to
its negligence claim, Quay 55 argued that the city's
actions in responding to the water main break were negligent,
and the negligence did not arise from a positive exercise of
judgment or discretion. The trial court granted the
city's motion, ruling that the city was immune from
liability regarding Quay 55's claims. This appeal
Law and Analysis
In its single assignment of error, Quay 55 contends that the
trial court improperly granted summary judgment to the city.
Civ.R. 56(C) provides that summary judgment is appropriate
when (1) there is no genuine issue of material fact, (2) the
moving party is entitled to judgment as a matter of law, and
(3) after construing the evidence most favorably for the
party against whom the motion is made, reasonable minds can
reach only a conclusion that is adverse to the nonmoving
party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio
St.3d 367, 369-370, 696 N.E.2d 201 (1998); Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267
(1977). We review the trial court's judgment de novo,
using the same standard that the trial court applies under
Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio
St.3d 102, 105, 671 N.E.2d 241 (1996).
Questions of immunity are matters of law, so they are
particularly apt for resolution by way of summary judgment.
FirstEnergy Corp. v. Cleveland, 179 Ohio App.3d 280,
2008-Ohio-5468, 901 N.E.2d 822, ¶ 7 (8th Dist). We
employ a three-tier analysis under the Act to determine
whether a political subdivision enjoys immunity. Cramer
v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946,
865 N.E.2d 9. The first tier is the general rule that a
political subdivision is immune from liability incurred in
performing either a governmental or proprietary function.
R.C. 2744.02(A)(1). The second tier of the analysis requires
a court to determine whether any of the five exceptions to
immunity listed in R.C. 2744.02(B) apply to expose the
political subdivision to liability. If any of the exceptions
to immunity apply, then the third tier of the analysis
requires a court to determine whether any of the defenses in
R.C. 2744.03 apply, thereby providing the political
subdivision a defense against liability. Id. at
¶ 14-16, citing Colbert v. Cleveland, 99 Ohio
St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.
Initially, we note that Quay 55 has not challenged the
dismissal of its trespass and nuisance claims, presumably
recognizing that the exceptions to sovereign immunity set
forth in the Act are limited to negligent conduct, and do not
include intentional torts such as trespass or nuisance.
See, e.g., Fink v. Twentieth Century Homes, Inc.,
8th Dist. Cuyahoga No. 99550, 2013-Ohio-4916, ¶ 21.
Accordingly, we address whether the trial court properly
granted summary judgment to the city on Quay 55's
The parties agree that under the first and second tiers of
the three-tier analysis, the city's operation of a
municipal water supply system is a proprietary function, R.C.
2744.01(G)(2)(c), and that the city is "liable for
injury, death, or loss to person or property caused by the
negligent performance of acts by their employees with respect
to proprietary functions of the political subdivisions."
The parties dispute the third tier of the analysis: whether
any of the defenses in R.C. 2744.03 apply to provide the city
with a defense against liability. The city argued, and the
court found, that the city had ...