Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
Office of John H. Forg and John H. Forg, III, for
Law and Edward L. Vardiman, Jr., for Defendant-Appellee.
Plaintiff-appellant Chris Gavitt appeals the trial
court's judgment denying him damages after determining
that water runoff from defendant-appellee David
Remerowski's driveway onto Gavitt's driveway was a
private nuisance and ordering Remerowski to abate that
In a single assignment of error, Gavitt argues that the trial
court erred in finding that Remerowski was not liable for
damage to Gavitt's driveway caused by the private
nuisance. Finding no error in the trial court's
determination that Gavitt failed to prove that the specific
damage claimed by Gavitt to his driveway was caused by the
water runoff, we affirm its judgment.
and Procedural Background
Gavitt filed suit against Remerowski, alleging that
Remerowski had purposely diverted the flow of water from his
own driveway onto Gavitt's property by cutting openings
into a curb that ran along the driveway, causing damage to
Gavitt's driveway from the water flow. Gavitt sought both
equitable relief, in the form of an order requiring
Remerowski to plug the openings in the curb, and compensatory
damages for the damage caused to Gavitt's driveway.
At a bench trial before a visiting judge, Gavitt testified
that he purchased a home in Amberley Village in June of 2016.
Gavitt's home was next door to, and downhill from,
Remerowski's home. After purchasing the home, Gavitt
observed that during a rainfall, water poured through
openings that had been cut into the curb along
Remerowski's driveway directly onto his own driveway.
Videos depicting this water runoff were admitted into
evidence. Remerowski admitted to Gavitt that he had cut
openings into the curb, but he denied responsibility for the
water runoff onto Gavitt's driveway.
Gavitt's driveway was cracked in the area that received
the water runoff, and he testified that he had obtained two
estimates to repair the driveway. These estimates were for
$4, 600 and $5, 815, respectively. But they involved
replacing Gavitt's entire driveway, not just the portion
of the driveway that received the water runoff.
Testimony from Amberley Village zoning and project
administrator Wesley Brown further established that
Remerowski had obtained zoning approval in 2001 to replace
the curb that ran along his driveway. But in 2002, Remerowski
received a letter from Amberley Village notifying him that
the openings cut into his curb were not a part of the
original plans that had been approved and that the openings
needed to be closed and the storm water redirected in an
appropriate direction. Remerowski took no action to fill the
openings after receiving this letter.
Remerowski testified that the plans he submitted to Amberley
Village in 2001 for construction of the curb depicted the
drainage openings in the curb. And he explained that the
installation of the curb had no effect on the water flow from
his property onto Gavitt's, as the water flowed in the
same direction both before and after the curb was installed.
Remerowski further testified that the settlement cracks on
Gavitt's driveway were not caused by the water runoff, as
those cracks were already on the driveway when Remerowski
purchased his home in 1990.
Tyler Camerucci, the owner of an asphalt paving company,
testified in rebuttal that he had viewed Gavitt's
driveway and that it was in poor condition. Camerucci
elaborated that excess water flowing from what he described
as "slices" in the neighbor's concrete wall had
caused a portion of the driveway to become cracked and
broken. He had reviewed the two estimates that Gavitt
obtained to repair the driveway and opined that they were not
only reasonable, but were less than he would charge.
Camerucci estimated that it would cost approximately $3, 600,
plus tax, to repave only the damaged section of Gavitt's
The visiting judge issued an entry in which he erroneously
treated Gavitt's complaint as having raised two separate
claims: a claim alleging that he was entitled to compensation
for the damage to his driveway caused by Remerowski's
negligence, and a claim alleging that he was entitled to
relief in equity to abate the private nuisance caused by
Remerowski's diversion of the water. With respect to the
first claim, the visiting judge found that the continuing
flow of water caused damage to Gavitt's driveway, but
that Gavitt had failed to offer sufficient evidence to prove
causation and related damages. We interpret the trial
court's legal conclusion as a determination that, while
the water flow did cause damage to the driveway, Gavitt
failed to establish that the water flow was the sole cause of
the damage or what portion of the damage was in fact caused
by the water flow. But as to the latter claim, ...