Court of Appeals of Ohio, Eighth District, Cuyahoga
FRANK M. SMITH, Plaintiff-Appellee,
CITY OF EUCLID, Defendant-Appellant.
Appeal from the Cuyahoga County Court of Common Pleas Case
Henderson & Schmidlin & McGarry Co., L.P.A., Timothy
L. McGarry, and Brendan Mewhinney, for appellee.
& Haverfield, L.L.P., R. Todd Hunt, Benjamin G.
Chojnacki, and Sara J. Fagnilli, for appellant
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, ADMINISTRATIVE JUDGE.
1} Defendant-appellant, the city of Euclid
("the City"), appeals the trial court's
decision denying its motion for summary judgment. For the
reasons set forth below, we affirm.
2} In October 2017, plaintiff-appellee, Frank Smith
("Smith") brought a breach of easement and
negligence-nuisance action against the City for damage to his
residential property located at 21731 Edgecliff Drive
("property") in Euclid, Ohio. Smith's property
abuts Lake Erie. The prior owner of the property granted an
easement to the City on Smith's property to allow the
City to maintain an overflow sanitary relief sewer. The sewer
line runs through the west side of the property and through a
concrete sewer out into Lake Erie.
3} In 2012, a sinkhole developed on the property
behind the retaining wall. The City's investigation of
this sinkhole revealed an approximate 2" by 4"
opening in the top of the sewer pipe just before it connects
with the manhole. The City repaired the opening in the pipe
in 2012 by covering the pipe's hole with cement and
surrounding the outside of the pipe with brick. The
City's former Service Department Superintendent, Scott
Reese ("Reese"), additionally determined that the
wood retaining wall on the property needed to be repaired and
the sinkhole should be filled with a cement-based
"flowable fill" material, rather than dirt. Unlike
dirt, flowable fill can enter all open cavities of an erosion
hole. The flowable fill then hardens, thereby providing
stability and preventing soil displacement from behind the
4} Then in 2016, a second sinkhole developed on the
hillside behind the retaining wall on the property. Smith
alleges that the City's 2012 repair of the manhole
located on his property subsequently caused the second
sinkhole, which damaged his property, breakwall, boathouse,
landscaping, and steps.
5} Smith alleges that the City, as the owner of the
easement, has breached its contractual duty to make the
repairs necessary to prevent the easement from damaging his
property. Smith further alleges that the City is not immune
from liability under R.C. 2744.01(G)(2)(d) for the damages
because the damage was caused by the negligent performance of
the City's employees for "proprietary
functions," including the "maintenance,
destruction, operation, and upkeep of a sewer system."
The City responded, arguing immunity under R.C. Chapter 2744.
6} After the conclusion of discovery, the City moved
for summary judgment, contending that its operation and
upkeep of the sewer system did not cause damage to the
property. The City argued that Smith's breach of easement
claim is "an attempt to repackage his negligence claim
as a breach of contract." The City further argued that
even if it did damage the property, it is immune from
liability under R.C. Chapter 2744. Smith opposed the City's
motion for summary judgment. In his opposition, Smith argued
that as the owner of the easement, the City was contractually
responsible to Smith for making repairs of the use if, using
Smith's allegation, the "easement" damages his
property. According to Smith, the City's failure to
properly make repairs in 2012 caused the leak in the sewer,
which caused the sinkhole and damage to the property. Smith
further argued that City is not immune from liability because
the City failed to maintain the sewer, which is a proprietary
7} The City responded to Smith's opposition,
arguing that the supplies, materials, personnel, and
resources selected by the City did not cause damage to the
property. Moreover, even if it had caused damage, the City
established that it was immune from liability for such
discretionary acts under R.C. 2744.03(A)(5). The next day,
the trial court issued its decision, denying the City's
motion for summary judgment. The court stated:
Th[is] court has reviewed [the City's] motion,
[Smith's] brief in opposition, and [the City's] reply
brief. In viewing the facts and construing the evidence in
the light most favorable to [Smith] as the non-moving party,
the court finds that there are genuine issues of material
fact concerning whether [the City] was negligent in
performing a proprietary function of maintaining and
operating its storm sewer system under R.C. 2744.02(B)(2) and
whether such negligence proximately caused damages to
plaintiff. Riscatti v. Prime Properties Ltd.
Partnership, 2012-Ohio-2921. As such, [the City] is not
entitled to judgment as a matter of law and summary judgment
is not proper under Civ.R. 56(C). The court further finds
that the discovery rule applies to this claim. Cohen v.
City of Bedford Heights, 2015-ohio-1308. Genuine issues
of material fact exist as to whether [Smith] knew or by the
exercise of reasonable diligence should have known that he
was injured by the conduct of [the City].
The court further finds that there are genuine issues of
material fact concerning whether [the City] had a duty under
the easement to maintain the storm sewer and to prevent
damage to the servient estate. Market Enterprises v.
Summerville, 2002-ohio-3692. See also, 36 Ohio
Jurisprudence 3d (1982) 464, Easements and Licenses, Section
8} It is from this order that the City appeals,
raising the following single assignment of error for review: