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Ohio Quay 55 L.L.C. v. City of Cleveland

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 1, 2018

OHIO QUAY 55 L.L.C. PLAINTIFF-APPELLANT
v.
CITY OF CLEVELAND DEFENDANT-APPELLEE

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-850298

          ATTORNEYS FOR APPELLANT Royce Roberts Remington Hahn, Loeser & Parks, L.L.P. Matthew K. Grashoff Brouse McDowell, L.P.A. Co.

          ATTORNEYS FOR APPELLEE Barbara Langhenry Director of Law By: Lisa A. Mack Assistant Director of Law Cleveland Law Department

          BEFORE: Keough, J., McCormack, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, JUDGE

         {¶1} 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.

         I. Procedural Background

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 followed.

         II. Law and Analysis

         {¶5} In its single assignment of error, Quay 55 contends that the trial court improperly granted summary judgment to the city.

         {¶6} 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).

         {¶7} 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.

         {¶8} 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 negligence claim.

         {¶9} 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." R.C. 2744.02(B)(2).

         {¶10} 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 ...


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