The Ohio Supreme Court ruled today that the state’s “sovereign immunity” statute bars a property owner from pursuing a civil lawsuit against a county for damages caused by repetitive flooding of the owner’s land . The county is exempt from liability when the damage results from the county’s failure to upgrade the capacity of one of its storm sewers to handle increases in storm water runoff .
Robert and Barbara Coleman of Rootstown had filed a civil suit against the county engineer in Portage County Common Pleas Court . The Colemans alleged that their property had suffered damage from flooding in 1982, 1989, 2003, 2005 and 2009, and that on each of those occasions the flooding was a result of storm water runoff from drainage ditches adjacent to their land that overflowed because the ditches and a drainage pipe installed by the county was too small.
The complaint stated that the Colemans had notified the county engineer on numerous occasions that the inadequate stormwater system was causing significant damage to their home and property, but the county had refused to take any corrective action. They asked the court to order the county to compensate them for their past damages based on its negligent design, construction and maintenance of the stormwater system, and to order the county to upgrade the culvert and storm sewer pipe to prevent flooding of their property after heavy rains.
News Release From The Ohio Supreme Court
The Supreme Court of Ohio ruled today that the state’s “sovereign immunity” statute bars a property owner from pursuing a civil lawsuit against a county for damages caused by repetitive flooding of the owner’s land when the damage results from the county’s failure to upgrade the capacity of one of its storm sewers to handle increases in storm water runoff since the sewer’s initial construction.
In a 6-1 decision authored by Chief Justice Maureen O’Connor, the court held that an exception in the immunity statute that allows a county to be sued for damage caused by negligent “maintenance or upkeep” of a sewer system did not apply in a Portage County case, because the plaintiff’s claims arose from the alleged inadequate design or construction of the sewer rather than a failure by the county to properly maintain the sewer or perform necessary repairs to it.
The case arose from a civil suit filed by Robert and Barbara Coleman of Rootstown in the Portage County Court of Common Pleas. In their complaint, the Colemans alleged that their property had suffered damage from flooding in 1982, 1989, 2003, 2005 and 2009, and that on each of those occasions the flooding was a result of storm water runoff from drainage ditches adjacent to their land that overflowed because the ditches and a drainage pipe installed by the county to carry stormwater away from their property was too small.
The complaint stated that the Colemans had notified the county engineer on numerous occasions that the inadequate stormwater system was causing significant damage to their home and property, but the county had refused to take any corrective action. They asked the court to order the county to compensate them for their past damages based on its negligent design, construction and maintenance of the stormwater system, and also sought an injunction ordering the county to upgrade the culvert and storm sewer pipe to prevent flooding of their property after heavy rains.
The Portage County engineer moved to dismiss the complaint, arguing that he was entitled to immunity under Ohio’s political subdivision immunity statute, R.C. Chapter 2744, which generally immunizes cities, counties and other local government units from civil liability for negligent acts during the performance of their governmental and proprietary functions, subject to certain exceptions. The trial court granted the motion to dismiss all of the Colemans’ claims, holding that “(t)he Portage County Engineer is immune from litigation based upon claims for negligent planning, design, and construction of the water pipleines referred to in the Plaintiffs’ pleadings.”
The Colemans appealed that decision. On review, the Eleventh District Court of Appeals partially affirmed and partially reversed the trial court. The appellate panel agreed that the county was exempt from liability for the Colemans’ claims based on alleged faulty design, planning or construction of the storm water system. The court of appeals held, however, that their claims based on an alleged failure by the county to update the system so that it adequately drained their property fell within a statutory exception to immunity for failure to properly “maintain” a sewer system. The court of appeals remanded the case for further proceedings on that portion of the complaint. The county engineer sought and was granted Supreme Court review of the Eleventh District’s adverse ruling.
Writing for the court in today’s decision, Chief Justice O’Connor said the key issue was the distinction in the immunity statute between a subdivision’s “governmental” and “proprietary” functions.
She wrote: “R.C. 2744.01(C)(2)(l) identifies as a governmental function ‘the provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system,’ making these responsibilities immune from political-subdivision liability. By contrast, R.C. 2744.01(G)(1)(d) identifies ‘the maintenance, destruction, operation, and upkeep of a sewer system’ as a proprietary function for which civil liability may attach. ... The question is whether failure to keep a storm-sewer system functional is a ‘design, construction, or reconstruction ... [of] a sewer system’ and therefore a governmental function that is immunized from tort lawsuits under R.C. 2744.01(C)(2)(l), or sewer ‘maintenance, ... operation, and upkeep’ under R.C. 2744.01(G)(2)(d), a proprietary function for which political-subdivision tort liability is allowed.”
“To the extent that the court of appeals in this case held that the county enjoyed immunity for the claims arising from the Colemans’ assertions that the county was negligent in the design, planning, and construction, we affirm. But we disagree with the appellate court’s reasoning in holding that the Colemans’ claims of failure to upgrade the sewer system were not barred.”
“Initially, we observe that the General Assembly did not use the term ‘upgrade’ in writing Chapter 2744. Courts must abstain from inserting words into a statute that were not placed there by the General Assembly. ... It is not proper for courts to read ‘upgrade’ into the statute. Moreover, the failure to upgrade is different from the failure to maintain or upkeep. To upgrade means ‘[t]o exchange a possession for one of greater value or quality; trade up.’ ... ‘Upkeep,’ however, means ‘[m]aintenance in proper operation, condition, and repair.’ Our courts of appeals have recognized this distinction.”
“As the Second District recently explained (in Guenther v. Springfield Twp. Trustees, 2d Dist. No. 2010-CA-114, 2012-Ohio-203, citing Essman v. Portsmouth, 2010) ‘A complaint is properly characterized as a maintenance, operation, or upkeep issue when “remedying the sewer problem would involve little discretion but, instead, would be a matter of routine maintenance, inspection, repair, removal of obstructions, or general repair of deterioration.” ... But the complaint presents a design or construction issue if “remedying a problem would require a [political subdivision] to, in essence, redesign or reconstruct the sewer system.”’
“Although creative, the Colemans’ attempt to characterize their claims as ones based on maintenance fails. For purposes of R.C. Chapter 2744, 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, and not a claim based on a failure to properly maintain, for which political-subdivision liability may be extant.”
“In so holding, we are not unmindful that damages suffered by homeowners like the Colemans can be devastating to property and possessions, as well as physical and mental health. But the same is true for many other claims for which immunity attaches. And we recognize that property owners have little control over the quality of storm and sewer systems to which their homes are attached. But absent amendment to R.C. Chapter 2744 or other legislative action, relief does not lie in suits against political subdivisions based on a failure to upgrade the sewer system.”
Chief Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown. Justice Paul E. Pfeifer dissented without opinion.
Portage County Drug Task Force agents were called to Rootstown to help dispose of a meth lab dump site this morning.
A Rootstown Township employee was mowing grass on Lynn Road around 9:30 a.m. when he hit a garbage bag full of trash, including items used to manufacture meth. The garbage caught on fire and was burning along the side of the road before the worker put it out.
Task Force members than stablized the chemicals and called a chemical disposal company to get rid of the dangerous items that are capable of producing explosions, fires, or other harmful effects.
Portage County Sheriff David Doak says people who find trash along the side of the road including back packs, containers, and other suspicious bags should contact the Portage County Drug Task Force or the Portage County Sheriff’s Office.
In addition Tuesday, the Task Force also located 28 marijuana plants in a wooded area off State Route 88 in Nelson Township after acting on a tip. The plants averaged about 4 feet in height and the owner of the plants is unknown at this time.
On Tuesday, July 24, 2012, Portage County Drug Task Force was called by Rootstown Twp. Road Department to respond to a Meth Lab dump site on Lynn Road off Rootstown Road. Task Force Members learned that an employee of the township was mowing on Lynn Road when he struck a garbage bag full of trash which ignited and started burning along side the road. The fire was extinguished by the worker. Task Force members stabilized the chemicals and contacted a chemical disposal company to dispose.
According to Sheriff David W. Doak this is the third Meth Lab the Task Force has dealt with in the past 5 days and these labs continue to be a growing problem in the Portage County area. Sheriff Doak wants to remind the citizens of the county of the dangers of flash fire, chemical exposure and explosions that are associated with meth labs and cautions citizens when finding trash along side our roads to report suspicious bags, back packs and containers to your local police department, the Portage County Drug Task Force or the Portage County Sheriff’s Office.
Also on Tuesday, July 24, 2012, Task Force Agents acting on a tip responded to a wooded area off State Route 88 in Nelson Twp where they located and pulled 28 marijuana plants averaging about 4 foot in height. At this time the owner of these plants is unknown.
A Portage County post office building is being named after a Marine who died in the line of duty.
It's now the Marine Sgt. Jeremy E. Murray Post Office Building.
Murray, an Atwater High School graduate died in Iraq during his third tour of duty. Today adds to a longer list of honors, including the Purple Heart, Gold Star and Navy and Marine Corps Achievement Medal.
It may be particularly special whenever Jeremy's mother walks into the post office at 4865 Tallmadge Road in Rootstown - and she walks in there a lot , since she works there.
The dedication ceremony took place this morning at Grace Church of Rootstown.
Update: 11:08 a.m.
Deputies nabbed two Akron men after a Rootstown Circle K was robbed early Monday morning.
Portage County Sheriff deputies say it happened shortly after midnight when officers responded to a 911 call from the store in the 4300 block of State Route 44.
Deputies say Bradley Harvey, 25, was driving a car with Christopher Miller, 28, as his passenger when they stopped at the Circle K to pump gas.
As Harvey waited at the vehicle pumping gas, Miller entered the store and pulled out a semi automatic handgun, ordering a customer to the ground.
Miller then confronted the clerk with the gun and ordered the clerk to give him the money from the cash register.
Deputies say Miller struck the clerk on the back of the head with a handgun after the clerk did not act fast enough. Both men fled in their car at high rates of speed.
During a car chase, the suspects fired several shots at a Ravenna police cruiser and then fled on foot after crashing their car at the Ravenna Arsenal.
Officers from Portage County Sheriff Office, Metro SWAT, Ravenna City, Akron FBI, and the State Highway Patrol are currently searching for the subjects.
Authorities found the suspects after searching the arsenal property.
Both are currently being held at the Portage County Jail and were charged with aggravated robbery. Additional charges are expected pending a review by the Portage County Prosecutors Office.
It's the first of it's kind in Ohio.
Northeast Ohio Medical University (NEOMED) will be sharing their campus in Rootstown with high school freshman attending the Bio-Med Science Academy.
The Akron Beacon Journal reports the academy will be sponsored by the Rootstown school district as a charter school focusing on medical studies.
It will be located on the university campus which is across the street from Rootstown High School.
The school will teach STEM disciplines of science, technology, engineering, mathematics and medicine.
Students will be able to work with college students and in university laboratories.
The creation of the school was approved by the school board on Monday. It will open next fall to Portage County students.
On the Web: www.ohio.com
A Rootstown woman is behind bars after she admitted to beating her children last year.
The Record-Courier reports Portage County Common Pleas Judge Laurie Pittman sentenced 27-year-old Holly Bryan to four years in prison. In June, Holly pleaded guilty to charges of child endangerment and domestic violence for abusing her children between July and August of last year.
The investigation into this case started after a tipster called authorities last August saying that Holly and her husband, 30-year-old Michael Bryan, had been abusing their children.
Prosecutors tell the newspaper that when child services visited the couple's house in the 4800 block of Gower Road, they found that the children had sustained bruises and bite marks. The children said their parents beat them with curtain rods, bit them and slammed their heads into walls.
Last December, a grand jury indicted the parents on charges of child endangerment and domestic violence. Court records say Michael pleaded guilty to domestic violence in June and will be sentenced later this month.
On the Web: Record-Courier
Copyright © 2013 AkronNewsNow & Rubber City Radio Group |All Rights Reserved | 1795 West Market Street | Akron, OH 44313 | 330.869.9800