County engineer not liable for damage relating to drainage project

Recently, in State ex rel. Rohrs v. Germann, 2013-Ohio-2497 (Ohio Ct. App., Henry County, June 17, 2013), the Court of Appeals held that the county engineer in the case was not liable for damage relating to a drainage project. In the late 1990s, a landowner in Washington Township approached the Henry County engineer about an open ditch on the landowner’s property that was causing drainage and flooding problems in his field. The county engineer completed an inspection of the ditch and determined that deepening and widening it was not possible due to the amount of erosion in the ditch and because it was too close to a county road.

To remedy the problem, the county engineer installed a new wide plastic drainage pipe in place of the open ditch and then filled the ditch. The project was categorized as a “road safety improvement project” and was entirely covered by the county engineer’s budget, with no cost assessed to the landowner. During the work, county employees encountered a metal crossover pipe and a buried catch basin. The county employees reported this situation to the county engineer, and the decision was made not to tie this crossover pipe into the new drainage system, but to fill it with cement-like material.

Not long thereafter, the landowner leased his field, assuring the tenants there was adequate drainage. Later that year, the tenants had drainage and flooding issues in the field. The county engineer reported one to five acres with standing water. The county engineer then worked with the landowner to locate a drainage exit or a field tile and, at the landowner’s direction, attempted unsuccessfully to locate the field tile by digging areas throughout the field. The county engineer, at his own cost, installed a new catch basin with an open grate for surface water drainage near the southeast corner of the field. The county engineer also installed a new catch basin underneath the county road.

The tenants then filed a lawsuit against the county engineer, alleging that the county’s work caused poor drainage of surface water on the property they leased from the landowner, and that they sustained major losses to their crops, suffering in excess of $70,500 in damage as a result of the drainage problems. The tenants’ independent engineering firm performed an excavation, which revealed that a functioning field tile was located approximately 15 feet from the catch basin that had been filled with cement by the county employees and a seed bag was stuffed into the field tile near the catch basin. The county employees who worked on the project denied that they intentionally placed the seed bag into the field tile and stated under oath that if the landowner or anyone else had reported the existence of this field tile or had it been found, the crossover pipe and catch basin would not have been filled with cement.

Ohio law provides that a political subdivision, such as the county in this case, is liable for the negligent acts of its employees with respect to “proprietary functions” of the political subdivision, but is immune from liability for “governmental functions.” Proprietary functions include projects such as the establishment of a utility or the maintenance of a sewer system, while governmental functions include projects such as the construction or reconstruction of a sewer system.

The court held that the drainage project in this case constituted a governmental function because the purpose of the project was not only to redesign and reconstruct the existing drainage system, but also to improve the safety of the county road by filling in the ditch. The court cited previous Ohio cases that recognized reconstruction and improvement projects similar to the ones performed in this case as governmental functions. Accordingly, the county engineer was immune from liability and no other exceptions to immunity applied in this case.