March 6, 2013
Storm Drains and Immunity

by Justice Paul E. Pfeifer

When Barbara and Robert Coleman – who own a home in Rootstown, Ohio, east of Akron – filed a lawsuit against the Portage County Engineer, they likely never expected that their case would end up coming before us – the Supreme Court of Ohio.

In their complaint, the Colemans alleged that their property was flooded in 1982, 1989, 2003, 2005, and 2009 because of “upgrades” the county had done to the storm-sewer system. The Colemans claimed that drainage water from ditches along State Route 44 discharged through pipes that run across the adjacent school property. The system, unable to accommodate all the drainage water, overflows the culverts in the front and back of their house, flooding their property and their home.

They further alleged that the flooding would continue because the county had neglected to construct a drainage system to properly discharge the water and prevent it from collecting on their property, and failed to maintain the system that runs through the adjacent school property.

The Colemans claimed that the county had “breached the duty of due care” in designing, constructing and maintaining the system, and that the county had been notified repeatedly about the flooding and “refused, continues to refuse, and has been unwilling to abate the nuisance and resolve the repetitive flooding.” They asked that the county be directed to make modifications to the water piping system to prevent further flooding.

The county engineer filed a motion to dismiss the complaint, arguing that the Colemans had “failed to show that the engineer is not immune from their claims,” and that they had “failed to show that they have pled sufficient facts to show negligent maintenance of the pipeline.”

The county engineer asserted that even assuming the drainage system was improperly designed, constructed, or installed, he was entitled to immunity. The trial court agreed. After that ruling, the Colemans turned to the court of appeals.

Ohio’s immunity law has been in place for decades and confers broad immunity on the state’s political subdivisions – such as cities, towns and counties. The law says that a “political subdivision is not liable ... for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee ... in connection with a governmental or proprietary function.”

But the legislature has imposed certain exceptions to this general rule, including the one which states that political subdivisions are liable for injury, death, or property loss caused by the negligent performance of acts by their employees with respect to proprietary functions.

Whether or not the storm sewers were properly upgraded or maintained was never investigated. That wasn’t the issue in this case. Rather, the case boiled down to this question: Is “upgrading” a storm-sewer system a governmental or proprietary function of a political subdivision, and does a failure to “upgrade” subject that political subdivision to liability?

One section of the immunity law identifies as a governmental function the “planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system.”  Which means that the construction or improvement of a sewer system is immune from liability.

But another section of the law identifies “the maintenance, destruction, operation, and upkeep of a sewer system” as a proprietary function for which the political subdivision may be liable.

When the court of appeals reviewed the case, it affirmed part of the trial court’s decision – specifically that the design, planning, or construction of a sewer system is not a proprietary function. Therefore, according to the court of appeals, the county was not liable on that point.

But, on the other claim – that the county had negligently maintained the sewer system – the court of appeals agreed with the Colemans. The court concluded that the “maintenance, destruction, operation, and upkeep of a sewer system” is a proprietary function, and thus the county was not immune in that regard.

In reaching that conclusion, the court of appeals rejected the county’s assertion that a “negligent-maintenance claim necessarily refers to a failure to install a larger pipeline system,” which is a governmental function – not a proprietary one.

The court of appeals disagreed, ruling that if, indeed, “the city is responsible for that pipeline, then the failure to upgrade sewers that are inadequate to service upstream property owners despite sufficient notice of the inadequacy can best be described as a failure to maintain or upkeep the sewer.” And if that was proven, then the “failure would constitute the breach of a duty arising out of a proprietary function and would expose the city to liability.”

By a six-to-one vote, our court affirmed the first part of the court of appeals’ judgment – that the county was immune for the claims arising from the Colemans’ assertions that the county was negligent in the design, planning, and construction of the sewer system. But our court disagreed with the court of appeals’ reasoning on the Colemans’ second claim – that the county could be held liable for a failure to upgrade the system.

In making that determination, the majority of our court observed that the Ohio legislature did not use the term “upgrade” in writing the immunity law, and it pointed out that courts must “abstain from inserting words into” a law that the legislature didn’t put there.

The majority asserted that the failure to upgrade is different from the failure to maintain or upkeep. To upgrade means “to exchange a possession for one of greater value.” But “upkeep” means “maintenance in proper operation, condition, and repair.”

I cast the dissenting vote. Simply put, I would have affirmed the judgment of the court of appeals that the county was not immune from the claim that it had negligently maintained the sewer.

Nevertheless, the majority concluded that “a claim based on a failure to upgrade is a claim based on a failure of design and construction, for which political subdivisions enjoy immunity.” Therefore, according to the majority, the Colemans’ attempt to characterize their claims as ones based on maintenance failed.

EDITOR'S NOTE: The case referred to is Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28, 2012-Ohio-3881. Case No. 2011-0199. Decided August 29, 2012. Majority opinion written by Chief Justice Maureen O'Connor.