Does a public entity have immunity for claims based on the failure to upgrade an existing sewer?

This article comes from our Spring 2013 Water & Wastewater Newsletter
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The Supreme Court of Ohio clarified the issue of whether or not a public entity has immunity for claims based on the failure to upgrade an existing sewer in its holding in Coleman et al. v. Portage County Engineer (2012), 133 Ohio St.3d 28. In this case, Barbara and Robert Coleman, who owned real estate in Portage County, Ohio, sued the Portage County Engineer claiming that their property was flooded in 1982, 1989, 2003, 2005 and 2009. The Colemans alleged that the flooding was the result of drainage water in drainage ditches along State Route 44, which discharged into a piping system that was unable to accommodate the drainage water.

The Colemans further alleged that the water in the piping system would overflow from culverts in the front and rear of their residence and flood their property. Finally, the Colemans alleged that the Portage County Engineer neglected or failed to construct a drainage plan or water drainage system to properly discharge the water and prevent it from collecting on their property.

The Colemans’ complaint included two counts. In their first count, the Colemans alleged that the Portage County Engineer breached the duty of care owed to the plaintiffs in designing, constructing and maintaining the water piping system that discharges water onto the Colemans’ property. In their second count, the Colemans demanded that the Portage County Engineer be directed to make modifications to the water piping system that are necessary to protect the Colemans from further flooding.

At the trial court level, Portage County moved the court to dismiss the Colemans’ complaint on the basis that the Colemans failed to prove that the Portage County Engineer was not immune from the Colemans’ claims and that the Colemans failed to submit sufficient facts showing that the Portage County Engineer negligently maintained the pipeline. Finally, the Portage County Engineer asserted that even if the drainage system was improperly designed, constructed or installed, the Portage County Engineer is entitled to immunity under ORC 2744. The trial court agreed with the Portage County Engineer and dismissed the Colemans’ claims.

The Colemans appealed the trial court’s decision to the Eleventh District Court of Appeals, which affirmed the trial court’s decision in part and reversed it in part. The court distinguished between the maintenance of sewers versus the design and construction of sewers. In reaching this decision, the court held that the design and construction is a government function, which is subject to immunity. However, the court held that the maintenance of a sewer is a proprietary function, which is not subject to immunity. Thus, the Court of Appeals held that the Colemans’ claims were not barred by political subdivision immunity to the extent that the Portage County Engineer negligently maintained the sewer system. This case was then submitted to the Supreme Court of Ohio.

The Supreme Court of Ohio was asked to determine whether Portage County’s failure to upgrade an existing sewer system is a governmental function that would provide immunity to the county or whether it is a proprietary function that may subject the county to liability. The Ohio Revised Code does provide some guidance on this issue, but doesn’t completely answer the question. ORC 2744.02(A)(1) provides broad immunity to political subdivisions in Ohio. Specifically, this section states: Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.

Although ORC 2744.02(A)(1) provides immunity for both governmental and proprietary functions, ORC 2744.01(B)(2) carves out an exception to this immunity and states:

[P]olitical subdivisions are 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.

The ORC provides some additional information on what is a governmental function and what is a proprietary function. Specifically, ORC 2744(C)(2)(i) provides that a governmental function is “[t]he provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system.” Conversely, ORC 2744(G)(1)(d) states that “[t]he maintenance, destruction, operation, and upkeep of a sewer system” is a proprietary function. However, these provisions do not address a situation where the maintenance of a sewer would require a county to upgrade an existing sewer, which was the issue presented to the Ohio Supreme Court.

In this case, the Supreme Court of Ohio ultimately determined that the failure of the Portage County Engineer to upgrade the sewer system was a governmental function for which the Portage County Engineer was entitled to immunity. In reaching this decision, the Court reasoned that a complaint is properly characterized as a maintenance, operation or upkeep issue when remedying the issue would involve little discretion but, instead, would be a matter of routine maintenance, inspection, repair, removal of obstructions, or general repair of deterioration.

Because the issue raised by the Colemans would require the Portage County Engineer to, in essence, redesign or reconstruct the sewer system, this issue is not a maintenance issue, but a design and construction issue for which the Portage County Engineer has immunity.