The opinion
[Cite as Castner v. Jefferson Cty., 2025-Ohio-1309.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
GEORGE CASTNER,
Plaintiff-Appellant,
v.
JEFFERSON COUNTY ET AL.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 24 JE 0017
Civil Appeal from the
Court of Common Pleas of Jefferson County, Ohio
Case No. 23-CV-515
BEFORE:
Katelyn Dickey, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Seth D. Chodosh, Chodosh and Chodosh, LLC, for Plaintiff-Appellant and
Atty. Richard A. Williams and Atty. Susan S.R. Petro, Williams & Finkbine Co., LLC, for
Defendants-Appellees.
Dated: April 11, 2025
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DICKEY, J.
{¶1} Appellant, George Castner, appeals the entry of summary judgment by the
Jefferson County Court of Common Pleas in favor of Appellees, Jefferson County and
Jefferson County Water and Sewer District (“water and sewer district”) (collectively
“County”), in this negligence action. Appellant suffered a torn meniscus after stepping on
an unsecured meter-well cover on his neighbor’s property following a repair to the water
line by the County. The trial court concluded the County is immune from suit because the
water and sewer district was not performing a “proprietary function,” as defined by R.C.
2744.01, when its employees repaired the water line.
{¶2} The resolution of this appeal turns on our interpretation of R.C.
2744.01(G)(2)(c), which reads:
(2) A “proprietary function” includes, but is not limited to, the
following:
...
(c) The establishment, maintenance, and operation of a utility,
including, but not limited to, a light, gas, power, or heat plant, a railroad, a
busline or other transit company, an airport, and a municipal corporation
water supply system[.]”
{¶3} The interpretation of the R.C. 2744.01(G)(2)(c) is a matter of first
impression. Because Appellant has failed to show his injuries were the result of the
County’s maintenance of a municipal corporation water supply system, we affirm the entry
of summary judgment in favor of the County.
FACTS AND PROCEDURAL HISTORY
{¶4} Ohio is divided into 88 counties. County governments are led by
commissioners and provide general government and services. Municipal corporations
are the most localized division of government. A municipal corporation of less than 5,000
residents is a village while municipal corporations with 5,000 residents or more are cities.
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Cities and villages may span county and township lines. The state is also divided into
townships, which provide government and services for areas not within a municipal
corporation.
{¶5} Title 7 of the Ohio Revised Code governs municipal corporations. R.C.
715.08, captioned “Water supply,” reads in its entirety:
Any municipal corporation may provide for a supply of water, by the
construction of wells, pumps, cisterns, aqueducts, water pipes, reservoirs,
and water works for the protection of such water supply and to prevent the
unnecessary waste of water and the pollution thereof. Such municipal
corporation may apply moneys received as charges for water to the
maintenance, construction, enlargement, and extension of the water system
and to the extinguishment of any indebtedness created therefor.
{¶6} A municipal corporation may, in the alterative, contract for a water supply.
R.C. 743.24, captioned “Municipal corporations may contract for a water supply; contract
to be submitted for a vote, reads in its entirety:
A municipal corporation may contract with any individual or an
incorporated company for supplying water for fire purposes, or for cisterns,
reservoirs, streets, squares, and other public places within its limits, or for
the purpose of supplying the citizens of such municipal corporation with
water for such time, and upon such terms as is agreed upon. Such contract
shall not be executed or binding upon the municipal corporation until it has
been ratified by a vote of the electors thereof, at a special or general
election. The municipal corporation shall have the same power to protect
such water supply and prevent the pollution thereof as though the water
works were owned by such municipal corporation.
{¶7} Chapter 6103 of the Ohio Revised Code governs county water supply
systems. R.C. 6103.02, captioned “Powers of board of county commissioners,” reads in
relevant part:
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For the purpose of preserving and promoting the public health and
welfare, a board of county commissioners may acquire, construct, maintain,
and operate any public water supply facilities within its county for one or
more sewer districts and may provide for their protection and prevent their
pollution and unnecessary waste. The board may negotiate and enter into
a contract with any public agency or any person for the management,
maintenance, operation, and repair of the facilities on behalf of the county,
upon the terms and conditions as may be agreed upon with the agency or
person and as may be determined by the board to be in the interests of the
county. By contract with any public agency or any person operating public
water supply facilities within or without its county, the board also may
provide a supply of water to a sewer district from the facilities of the public
agency or person.
{¶8} Jefferson County is a “political subdivision” as defined by R.C. 2744.01(F).
According to the affidavit of Michael Eroshevich, the Director of Sanitary Engineering at
the water and sewer district, the district identifies as a “regional water and sewer district”
as defined under R.C. 6119.011(U). (Eroshevich Aff., ¶ 3.) Eroshevich further avers the
water and sewer district “supplies water and sewer services to various municipalities in
the region, but it is not a municipality or municipal corporation itself and it does not operate
(or operate as) a municipal corporation water supply system.” (Id. at ¶ 4.)
{¶9} R.C. 6119.011(U) defines “regional water and sewer district” as “a district
organized or operating for one or both of the purposes described in section 6119.01 of
the Revised Code . . . .” R.C. 6119.01, captioned “Organization of district; purpose,” reads
in its entirety:
Any area situated in any unincorporated part of one or more
contiguous counties or in one or more municipal corporations, or both, may
be organized as a regional water and sewer district in the manner and
subject to the conditions provided in Chapter 6119. of the Revised Code,
for either or both of the following purposes:
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(A) To supply water to users within and without the district;
(B) To provide for the collection, treatment, and disposal of waste
water within and without the district.
{¶10} In order to form a regional water and sewer district, a petition must be filed
with a common pleas court within the proposed district. After a finding that the proposed
district is probably necessary and conducive to the public health, safety, convenience, or
welfare, the trial court issues a preliminary order declaring the district to be organized and
an independent political subdivision of the state. R.C. 6119.04(B). Upon the filing by the
district of an operating plan, the common pleas court holds a hearing on the petition, then
grants a final order upon a finding the proposed district is necessary and conducive to the
public health, safety, convenience, or welfare.
{¶11} The definition of “political subdivision” in R.C. 6119.011(B) includes “special
water districts, including county and regional water and sewer districts.” A regional water
and sewer district may be sued and impleaded in its own name with respect to its
contracts or torts of its members, employees, or agents acting within the scope of their
employment. R.C. 6119.06(D).
{¶12} According to Appellant’s affidavit, he was a resident of Jefferson County,
Ohio residing at 273 Evergreen Terrace, Wintersville, Ohio 43935 at all times relevant to
the complaint. Appellant’s next-door neighbor was Ann Salinski, who resides at 201
Evergreen Terrace, Wintersville, Ohio 43935.
{¶13} Although their addresses have a Wintersville zip code, Appellant and
Salinski reside outside the village’s corporate limits in the city of Steubenville, Ohio. They
receive their water supply from the County. All pipes, meter well covers, and other
materials related to the water supply fare are under exclusive control of and maintained
solely by the County.
{¶14} In October of 2021, Appellant and Salinski noticed a loss of water pressure
on their properties. That same month, County employees removed the water meter well
cover on Salinski’s property in order to repair the water lines on her property.
{¶15} In August of 2022, Appellant and Salinski again experienced water pressure
issues. Appellant called the County on August 23, 2022 and requested maintenance. On
Case No. 24 JE 0017
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August 24, 2022, County employees dug up the meter wells and removed their covers,
repaired cracks in the water tap supplying the lines, and returned the meter well covers.
County employees failed to ensure the meter well covers were flush with the ground,
covered with dirt, or fully secured with bolts or other fasteners, as they had been prior to
the initial repairs of October 2021.
{¶16} That evening, while Appellant was mowing his lawn, he stepped on the
meter-well cover on Salinski’s property. The unsecured meter-well cover flipped up and
slipped off the meter well, causing Appellant to fall directly into the meter well hole.
Appellant sustained a torn meniscus in his left knee, among other injuries to his leg.
{¶17} On December 21, 2023, Appellant filed a complaint alleging the County and
three of its employees, named as John Doe defendants, were engaged in a proprietary
function and subject to liability under the exceptions to governmental immunity outlined
in R.C. 2744.01. On July 3, 2024, the County filed a Motion for Summary Judgment on
behalf of all defendants.
{¶18} The County argued the only relevant exception to general immunity is set
forth in R.C. 2744.01(G)(2)(c), which reads, “[a] ‘proprietary function’ includes, but is not
limited to, the following: . . . (c) The establishment, maintenance, and operation of a utility,
including, but not limited to, a light, gas, power, or heat plant, a railroad, a busline or other
transit company, an airport, and a municipal corporation water supply system.”
(Emphasis added.) The County reasoned the legislature, by specifically including a
municipal corporation water supply system in the listed examples of proprietary functions
exempted from general immunity, necessarily excluded a county water supply system
from the exceptions.
{¶19} Appellant filed his opposition brief on August 15, 2024. Appellant also
predicated his argument on R.C. 2744.01(G)(2)(c), asserting that any political subdivision,
including a county water and sewer district, performs a proprietary function when
maintaining a water supply system because it is a utility. Appellant argued the specific
reference to a “municipal corporation water supply system” did not except county water
supply systems from the definition of “proprietary function” based upon the twice-used
phrase “including but not limited to” in the relevant subsection of the statute. Appellant
further argued that two similar provisions, excepting the construction, operation, and
Case No. 24 JE 0017
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maintenance of “township cemeteries” and various types of detention facilities from the
definition of “proprietary function,” had corresponding statutory language specifically
including them in the definition of “governmental function.” Finally, Appellant argued the
County’s interpretation of the statute would produce an absurd result contrary to the clear
intent of the legislature, that is, a county-operated system supplying water to a municipal
corporation is immune from suit, but a municipal corporation-operated system supplying
water to a municipal corporation is not.
{¶20} The trial court heard oral argument on August 23, 2024, and issued the
judgment entry on appeal five days later. The trial court found the modifier “municipal
corporation” specifically exempted county-operated water supply systems, which are not
“municipal corporations” as defined by law. The trial court found it unnecessary to apply
any rule of construction, or undertake any analysis of legislative intent, given the lack of
ambiguity in the statute. Finally, the trial court rejected Appellant’s argument that
immunizing water departments operated by a county, but not a municipal corporation,
was “nonsensical,” because “[t]he legislature is free to write statutes that appear to be
nonsensical” so long as they are written “unambiguously.”
{¶21} This timely appeal followed. It is important to note that the trial court entered
summary judgment in favor of the John Doe defendants, however, that portion of the
judgment entry is not before us in this appeal.
STANDARD OF REVIEW
{¶22} This appeal is from a trial court judgment resolving a motion for summary
judgment. An appellate court conducts a de novo review of a trial court's decision to grant
summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C).
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Before summary judgment
can be granted, the trial court must determine that: (1) no genuine issue as to any
material fact remains to be litigated; (2) the moving party is entitled to judgment as a
matter of law; (3) it appears from the evidence that reasonable minds can come to but
one conclusion, and viewing the evidence most favorably in favor of the party against
whom the motion for summary judgment is made, the conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). Whether a fact is “material”
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depends on the substantive law of the claim being litigated. Beckett v. Rosza, 2021-Ohio-
4298, ¶ 21 (7th Dist.).
{¶23} "[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party's
claim." (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296 (1996). If the
moving party carries its burden, the nonmoving party has a reciprocal burden of setting
forth specific facts showing that there is a genuine issue for trial. Id. at 293. In other
words, when presented with a properly supported motion for summary judgment, the
nonmoving party must produce some evidence to suggest that a reasonable factfinder
could rule in that party's favor. Doe v. Skaggs, 2018-Ohio-5402, ¶ 11 (7th Dist.).
{¶24} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a
light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.
SOVEREIGN IMMUNITY
{¶25} Prior to 1982, political subdivisions in Ohio were immune from lawsuits
under the judicial doctrine of sovereign immunity. Thacker v. Bd. of Trustees of Ohio State
Univ., 35 Ohio St.2d 49 (1973). The doctrine of sovereign immunity was judicially
abolished in Ohio in Haverlack v. Portage Homes, Inc., 2 Ohio St.3d 26 (1982).
{¶26} In 1985, the Ohio legislature codified R.C. Chapter 2744, which established
the statutory governmental immunity that exists today. R.C. Chapter 2744, though, does
not provide governmental immunity from all legal actions against the state or its political
subdivisions. Chapter 2744 provides general immunity from negligence actions to political
subdivisions performing governmental and proprietary functions, then abrogates
immunity with respect to specific proprietary functions.
{¶27} The availability of immunity is a question of law to be determined by the
court prior to trial. Conley v. Shearer, 64 Ohio St.3d 284, 292 (1992). The burden of proof
is initially on the political subdivision to establish general immunity, and when established,
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the burden then shifts to the plaintiff to demonstrate one of the exceptions to immunity
applies. Mullins v. Liberty Township, 2022-Ohio-4350 (7th Dist.).
{¶28} The determination of whether a political subdivision is immune from liability
involves a three-tiered analysis. The first tier requires a determination of whether the
political subdivision is generally immune from liability because the alleged negligent acts
of its employee occurred in connection with either a governmental or proprietary function
pursuant to R.C. 2744.02(A).
{¶29} If general immunity exists, the second tier provides five exceptions to
immunity, which are listed in R.C. 2744.02(B). Doe v. Skaggs, 2018-Ohio-5402, ¶ 18 (7th
Dist.). Relevant to this appeal, R.C. 2744.02(B) provides in pertinent part, “political
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.” R.C. 2744.02(B)(2).
{¶30} R.C. 2744.01(G), captioned “Definitions,” reads in relevant part:
(1) “Proprietary function” means a function of a political subdivision
that is specified in division (G)(2) of this section or that satisfies both of the
following:
(a) The function is not one described in division (C)(1)(a) or (b) of this
section [the general definition of “governmental function”] and is not one
specified in division (C)(2) of this section [specific examples of
“governmental functions”];
(b) The function is one that promotes or preserves the public peace,
health, safety, or welfare and that involves activities that are customarily
engaged in by nongovernmental persons.
(2) A “proprietary function” includes, but is not limited to, the
following:
...
Case No. 24 JE 0017
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(c) The establishment, maintenance, and operation of a utility,
including, but not limited to, a light, gas, power, or heat plant, a railroad, a
busline or other transit company, an airport, and a municipal corporation
water supply system[.]
(d) The maintenance, destruction, operation, and upkeep of a sewer
system.
(Emphasis added.)
{¶31} If one of these exceptions is found to apply, the political subdivision loses
its immunity. However, immunity may be restored at the third tier, following an analysis
of the factors set forth in R.C. 2744.03(A). In the above-captioned case, the trial court
ended its analysis at the second tier, having found no exception to the County’s general
immunity.
{¶32} A primary purpose of R.C. Chapter 2744 is to preserve the fiscal resources
of political subdivisions. Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 353
(1994), citing Menefee v. Queen City Metro, 49 Ohio St.3d 27, 29 (1990). The legislative
intent to limit exposure of political subdivisions to closely circumscribed categories is
evident in the three-tiered inquiry, the first tier recognizing all political subdivisions
performing governmental and proprietary functions enjoy immunity from suit, with limited
exceptions to general immunity described at the second tier, that may nonetheless be
restored at the third tier. R.C. 2744.02(C).
{¶33} Questions involving statutory interpretation are legal questions that we
review de novo. State v. Straley, 2014-Ohio-2139, ¶ 9. The primary focus is the text of
the statute. State v. Beatty, 2024-Ohio-5684, ¶ 8.
{¶34} When a court considers the meaning of a statute, the first step is to
determine whether the statute is “plain and unambiguous.” State v. Hurd, 89 Ohio St.3d
616, 618 (2000). The question is not “what did the general assembly intend to enact,” but
“what is the meaning of that which it did enact.” Slingluff v. Weaver, 66 Ohio St. 621
(1902), paragraph two of the syllabus. “The preeminent canon of statutory interpretation
requires a court to ‘presume that [the] legislature says in a statute what it means and
means in a statute what it says there.’ ” BedRoc Ltd., L.L.C. v. United States, 541 U.S.
Case No. 24 JE 0017
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176, 183 (2004), quoting Connecticut Natl. Bank v. Germain 503 U.S. 249, 253-254
(1992). If “a statute’s meaning is clear and unambiguous, the statute is applied as written.”
State v. Fazenbaker, 2020-Ohio-6731, ¶ 14.
{¶35} A statutory provision is ambiguous if it is “capable of bearing more than one
meaning.” Dunbar v. State, 2013-Ohio-2163, ¶ 16. Without “an initial finding” of ambiguity,
“inquiry into legislative intent, legislative history, public policy, the consequences of an
interpretation, or any other factors identified in R.C. 1.49 is inappropriate. . .” Id.; State v.
Brown, 2015-Ohio-486, ¶ 10.
{¶36} In construing an ambiguous statute, a court must ascertain the intent of the
legislature. In re Guardianship of Lombardo, 86 Ohio St.3d 600, 604 (1999), citing State
ex rel. Sinay v. Sodders, 80 Ohio St.3d 224, 227 (1997). In determining intent, a court
must look to the language of the statute, giving effect to the words used and not deleting
words used or inserting words not used. Rice v. CertainTeed Corp., 84 Ohio St.3d 417,
419 (1999); Cline v. Ohio Bur. of Motor Vehicles, 61 Ohio St.3d 93, 97 (1991). When the
language of a statute is ambiguous, a court may consider rules of construction to
determine legislative intent. Turner v. Hooks, 2018-Ohio-556, ¶ 10; Symmes Twp. Bd. of
Trustees v. Smyth, 87 Ohio St.3d 549, 553 (2000). However, if “the language of a statute
is plain and unambiguous and conveys a clear and definite meaning there is no occasion
for resorting to rules of statutory interpretation,” because “an unambiguous statute is to
be applied, not interpreted.” Sears v. Weimer, 143 Ohio St. 312 (1944), paragraph five of
the syllabus.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT ON
THE BASIS OF POLITICAL SUBDIVISION IMMUNITY.
{¶37} Appellant concedes the County is not a municipal corporation, but contends
that a water supply system is a utility regardless of the operator. Appellant relies on the
phrase “including but not limited to,” which appears twice in the relevant statute, to argue
the statute is ambiguous, when read in its entirety. Next, Appellant contends the
sovereign immunity statute specifically includes a function in the definition of
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“governmental function” when it excludes that function from the definition of “proprietary
function.” Finally, Appellant alleges the County’s interpretation of R.C. 2744.01(G)(2)(c)
would create an absurd result.
{¶38} At oral argument, both sides relied on common law definitions of
“proprietary” versus “governmental” functions. The Ohio Supreme Court provided the
following summary of the pre-statute definitions in Greene Cty. Agriculture Soc. v. Liming,
89 Ohio St.3d 551 (2000):
R.C. Chapter 2744 was the General Assembly’s response to judicial
abolishment of the doctrine of sovereign immunity. See Franks v. Lopez
(1994), 69 Ohio St.3d 345, 347, 632 N.E.2d 502, 504. In making the
distinction between governmental functions and proprietary functions[,] a
key component of R.C. Chapter 2744 when it was enacted in 1985, the
General Assembly has chosen to embrace a concept that was developed
through the case law of this court prior to the adoption of that chapter, even
though the concept has been criticized by numerous judges and
commentators. See Comment, The Ohio Political Subdivision Tort Liability
Act: A Legislative Response to the Judicial Abolishment of Sovereign
Immunity (1986), 55 U.Cin.L.Rev. 501, 505-507, 510-521. Those earlier
cases can be instructive in illustrating the rationale behind the distinction.
For example, in Wooster v. Arbenz (1927), 116 Ohio St. 281, 284-
285, 156 N.E. 210, 211-212, a case considering the immunity of a
municipality, this court stated:
“In performing those duties which are imposed upon the state as
obligations of sovereignty, such as protection from crime, or fires, or
contagion, or preserving the peace and health of citizens and protecting
their property, . . . the function is governmental, and if the municipality
undertakes the performance of those functions, whether voluntarily or by
legislative imposition, the municipality becomes an arm of sovereignty and
a governmental agency and is entitled to . . . immunity . . . . If, on the other
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hand, there is no obligation on the part of the municipality to perform them,
but it does in fact do so for the comfort and convenience of its citizens . . .
and the city has an election whether to do or omit to do those acts, the
function is private and proprietary. [“arm of sovereignty” test]
“Another familiar test is whether the act is for the common good of
all the people of the state, or whether it relates to special corporate benefit
or profit.”
The Wooster court expounded that “[i]f the function being exercised
is proprietary and in pursuit of private and corporate duties, for the particular
benefit of the [municipal] corporation and its inhabitants, as distinguished
from those things in which the whole state has an interest, the city is liable.”
116 Ohio St. at 284, 156 N.E. at 211.
When a political subdivision’s acts go beyond governmental
functions (and when it acts in a proprietary nature) there is little justification
for affording immunity to that political subdivision. “Having entered into
activities ordinarily reserved to the field of private enterprise, a [political
subdivision] should be held to the same responsibilities and liabilities as are
private citizens.” Schenkolewski v. Cleveland Metroparks Sys. (1981), 67
Ohio St.2d 31, 37, 21 O.O.3d 19, 24, 426 N.E.2d 784, 788. [“common
benefit” test]
Greene at 558-559.
{¶39} The County argues the water and sewer district provides the water supply
service by legislative imposition. To the contrary, a county is not required to provide water
service to its citizens, the service is undertaken voluntarily pursuant to R.C. 6103.02. The
County further argues the water supply service preserves the health of the County’s
citizens, and therefore constitutes a duty imposed upon the state as an obligation of
sovereignty.
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{¶40} Appellant counters the water service is voluntary and provided for the
comfort and convenience of local citizens, and constitutes an activity ordinarily reserved
to the field of private enterprise. As a consequence, the water supply service is not for
the common good of all the people of the state.
{¶41} The general common law definitions of “proprietary” versus “governmental”
functions, which are codified in large measure in the sovereign immunity statute, have
marginal impact given the specific definition of “proprietary” function at issue in this
appeal. No Ohio court has directly addressed the modifier “municipal corporation” in R.C.
2744.01(G)(2)(c). The Ninth District raised then pretermitted the issue in Giebner v.
Summit County, 2002-Ohio-1106 (9th Dist.), because the parties in that case conceded
Summit County was performing a proprietary function in operating its water supply
system. The Ninth District observed in a footnote:
Neither party has challenged the trial court’s determination that
Summit County was engaged in a proprietary function under R.C.
2744.01(G)(2)(c), even though Summit County was operating a county
water supply system, while the statute refers to a “municipal corporation
water supply system[.]” (Emphasis added.) While R.C. 2744.01(G)(2)(c)
sets forth a nonexclusive list of covered utilities, none of the utilities listed,
except the water supply system, is modified by the term “municipal.”
Nevertheless, as the parties have conceded that Summit County is engaged
in a proprietary function, we need not address the issue on appeal.
Accordingly, the parties' concession has no precedential impact on this
issue in future cases. Furthermore, we express no opinion as to the merits
of such a claim had it been raised.
(Emphasis added) Id. at n. 2.
{¶42} At oral argument, Appellant cited Ladrigan v. Clemont County Sewer and
Water Co., 1998-Ohio-620. Ladrigan was injured when she stepped on an improperly-
installed water meter lid on her property. The Twelfth District found the maintenance of
water meters involves the exercise of judgment or discretion such that Clermont County
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was immune from suit at step three of the analysis. The Ohio Supreme Court reversed
the Twelfth District based on its decision a year earlier in Hill v. Urbania, 79 Ohio St.3d
130 (1997), in which the Ohio Supreme Court found the operation of a water works and
distribution system by a municipality is a proprietary function.
{¶43} Like Summit County in Giebner, supra, Clermont County did not assert its
sovereign immunity at step two, essentially conceding it was engaged in a proprietary
function. Insofar as neither the Twelfth District nor the Ohio Supreme Court interpreted
R.C. 2744.01(G)(2)(c) in Ladrigan, we do not consider it as controlling precedent in this
case.
{¶44} Appellant cites our decision in East Liverpool v. Buckeye Water Dist., 2012-
Ohio-2821 (7th Dist.), for the proposition that the operation of a water works and
distribution system is a proprietary function. However, all but one of the cases we cited
in East Liverpool predates statutory immunity. The remaining Tenth District case is
distinguishable, as are the cited common law immunity cases, because the water supply
systems at issue were operated by a municipal corporation. The same is true of Hill,
supra.
{¶45} In East Liverpool, the city sought to garnish bank accounts held by Buckeye
Water District (“BWD”). Pursuant to a written agreement executed in 1995, Columbiana
County agreed to purchase a certain minimum amount of water from East Liverpool
through 2025. When the water consumption by the County’s assignee, BWD, fell below
the minimum requirement, East Liverpool prevailed in a breach of contract action against
both parties, then initiated garnishment proceedings against various banks in which BWD
was thought to have accounts to collect on the judgment.
{¶46} BWD argued sovereign immunity barred East Liverpool’s garnishment
action. However, we opined R.C. Chapter 6119 allows a water district to be sued on its
contracts. We further found R.C. Chapter 2744 does not grant immunity from contract
disputes.
{¶47} In addition, we observed BWD, as a water district, was performing a
proprietary rather than a governmental function, and the assets associated with a
proprietary function were subject to garnishment. We reasoned:
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Appellants argue that only property held by a political subdivision in
its proprietary capacity is subject to garnishment. They contend that BWD
owns all of its property in a governmental capacity and not a proprietary
capacity. Therefore, they claim that no property is available for garnishment.
Governmental functions are those “imposed upon the state as obligations
of sovereignty, such as protection from crime, or fires, or contagion, or
preserving the peace and health of citizens and protecting their property[.]”
City of Wooster v. Arbenz, 116 Ohio St. 281, 284, 156 N.E. 210 (1927).
Proprietary functions are those voluntarily undertaken by the state for the
comfort and convenience of its citizens. Id. at 285, 156 N.E. 210.
Appellants would have us rely on the reasoning set forth in State ex
rel. First Natl. Bank v. Botkins, 141 Ohio St. 437, 48 N.E.2d 865 (1943), to
support the conclusion that water district property is derived from a
governmental function and as such may not be garnished. State ex rel. First
Nat’l Bank held that “[p]roperty held by a municipality in its proprietary
capacity, as distinguished from its governmental capacity, is subject to levy
and sale after judgment.” Id. at 442, 48 N.E.2d 865. Assuming arguendo
that this holding may continue to apply even after the judicial abrogation of
sovereign immunity in Haverlack, supra, we do not believe the holding
supports Appellants’ position in this appeal. See, e.g., Jaegers v. City of
Cleveland, 8th Dist. No. 45463, 1983 WL 5815 (Mar. 3, 1983). Appellants’
reliance on State ex rel. First Nat’l Bank is misplaced for the simple reason
that BWD, as a water district, is engaged in a proprietary activity. Hence, its
property is subject to execution, levy, attachment and garnishment. We
have previously held that: “The operation of a water works and distribution
system is generally admitted to be performed in a proprietary capacity in
this state. City of Barberton v. Miksch, 128 Ohio St. 169, 190 N.E. 387
[(1934)]; Mahoning County Commissioners v. City of Youngstown, 49 Ohio
Law Abs. 186, 75 N.E.2d 724 [ (1946) ]. In other states where this rule exists
levy may be made on waterworks property. City of Hazard v. Duff, 287 Ky.,
427, 154 S.W.2d 28 [(1941)]; see Fred Berlonti [Berlanti] & Son, Inc. v.
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Borough of Manheim Authority, 93 F.Supp. 437 [D.C. (1950)].” State ex rel.
Baldine, supra, 1 Ohio App.2d [117,] 119, 204 N.E.2d 91 [7th Dist. 1964].
Other cases more recent than our 1964 Baldine opinion continue to
affirm the principle that the operation of a water system is a proprietary
function. “It is clear that the city of Cleveland, in the operation of its Water
Department, acts in a proprietary capacity.” Ranells v. City of Cleveland, 41
Ohio St.2d 1, 4, 321 N.E.2d 885 (1975), fn.1. See, also, November
Properties, Inc. v. City of Mayfield Heights, 8th Dist. No. 39626, 1979 WL
210535 (Dec. 6, 1979); Seiler v. Norwalk, 192 Ohio App.3d 331, 2011-Ohio-
548, 949 N.E.2d 63; Franklin v. Columbus, 130 Ohio App.3d 53, 719 N.E.2d
592 (10th Dist.1998). In view of the fact that the Ohio Supreme Court, as
well as various appellate courts (including this Court), treat the operation of
water works as a proprietary function, we find no merit in Appellants’
argument that BWD is engaged in a governmental function and its assets
may not be garnished.
East Liverpool v. Buckeye Water Dist., 2012-Ohio-2821, at ¶ 50-52 (7th Dist.).
{¶48} It is important to note that Columbiana County was the recipient of the water
service in East Liverpool, not the operator. All of the cases we cited in East Liverpool
involve the operation of a water system by a municipality. The only case cited by this
Court in East Liverpool that interpreted statutory immunity was Franklin v. Columbus,
supra. Franklin was a negligence action, in which Franklin, an individual (not Franklin
County), alleged that she suffered flood damage to her rental property after the city of
Columbus failed to terminate her water service.
{¶49} The Franklin panel concluded the facts in that case were “strikingly similar”
to the facts in Hill v. Urbania, 79 Ohio St.3d 130 (1997). The Tenth District summarized
Hill as follows:
In Hill, the plaintiff sued a municipality under a negligence theory for
damages arising out of a work-site accident in which the plaintiff, an
employee of a contractor hired by the city to improve sections of the city’s
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water distribution system, was injured when the city turned the water on to
the section of the water line prior to the completion of a valve installation
project being performed by the plaintiff. The trial court granted summary
judgment for the municipality, and the court of appeals affirmed.
The Ohio Supreme Court reversed, holding that plaintiff had
established a right to recover under the Act. In particular, the court noted
that pursuant to R.C. 2744.02(B)(2), a city is liable for the negligent acts of
its employees with respect to proprietary functions of the city. Id. at 133, 679
N.E.2d at 1112. Because the operation of a water system clearly constituted
a proprietary function under R.C. 2744.01(G)(2)(c) and because the city
clearly acted negligently in prematurely turning on the water despite being
told not to, the court concluded that “pursuant to the statute, liability
attache[d] to appellee.” (Emphasis added.) Id. . . .
Franklin at 61.
{¶50} The plaintiffs in both Franklin and Hill alleged negligence on the part of
employees of a municipal water supply system. As a consequence, all of the cases cited
in East Liverpool, as well as Hill, supra, are distinguishable based on the fact that they
involved a municipal water supply system. Although we concluded in East Liverpool that
the water district was engaged in a proprietary function, we did not address R.C.
2744.01(G)(2)(c).
{¶51} The trial court concluded R.C. 2744.01(G)(2)(c) unambiguously exempts
county water supply systems from the definition of a proprietary function, by modifying
“water supply system” with “municipal corporation.” Because the statute is unambiguous,
the trial court refrained from inquiry into legislative intent, legislative history, public policy,
rules of construction, or any other factors identified in R.C. 1.49.
{¶52} Appellant argues the specific reference to a “municipal corporation water
supply system” must be read in conjunction with both “including but not limited to” clauses.
Although the trial court opined the statute was unambiguous and required no
interpretation, the trial court applied the canon of construction, “[e]xpressio unius est
Case No. 24 JE 0017
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exclusion alterius.” In translation, this Latin phrase means the express mention of one
thing excludes all others. Morley v. Sheriff of Medina Cnty., 2022-Ohio-3469, ¶ 3 (9th
Dist.)
{¶53} For instance, in Hoops v. United Telephone Co. of Ohio, 50 Ohio St.3d 97
(1990), the Ohio Supreme Court determined there was no constitutional right to a jury trial
in statutory age discrimination actions brought pursuant to R.C. 4101.17 (repealed),
because the claim did not exist prior to the adoption of Section 5, Article I of the Ohio
Constitution. Where a statute sets forth a new civil right, the legislature may grant a
concomitant right to jury trial, but need not do so.
{¶54} R.C. 4101.17 read in relevant part:
If the court finds that an employer has discriminated on the basis of age, the
court shall order an appropriate remedy which shall include reimbursement
to him for the costs, including reasonable attorney fees, of the action, or to
reinstate the employee in his former position with compensation for lost
wages and any lost fringe benefits from the date of the illegal discharge and
to reimburse him for the costs, including reasonable attorney fees, of the
action.
{¶55} The statute was silent with respect to the right to a jury trial. The Ohio
Supreme Court opined, “[t]he General Assembly is presumed to have known that its
designation of a remedy would be construed to exclude other remedies, consistent with
the statutory construction maxim of expressio unius est exclusion alterius.” Hoops at 101;
see also Kent v. Kent, 2010-Ohio-6457, ¶ 7 (9th Dist.) (“the canon of construction
expressio unius est exclusion alterius, i.e., the express inclusion of one thing implies the
exclusion of the other, compels this Court to conclude that the legislature did not intend
to expand the domestic relations court’s jurisdiction over emancipated children simply by
omitting any reference to them in the statute.”)
{¶56} Appellant correctly argues the specific examples of “proprietary functions”
provided by the statute are intended to be a non-exhaustive list, given the “including but
not limited to” clauses. Colbert v. Cleveland, 2003-Ohio-3319, ¶ 14. Nonetheless, the
specific reference to municipal corporation water supply systems evinces an intent to
Case No. 24 JE 0017
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exclude water supply systems operated by entities other than municipal corporations
based on the applicable canon of construction.
{¶57} At oral argument, Appellant asserted that municipal corporation water
supply systems were specifically mentioned because of their capacity to provide water
service beyond their territorial limits. Appellant speculated that the legislature intended
to foreclose the argument that municipal corporation water supply systems operating
extraterritorially could be characterized as acting for the common good of all the state. If
that was the legislature’s intent, they would have specifically included “water” in the
specific list of utilities, then added, “including, but not limited to, municipal corporation
water supply companies.”
{¶58} Next, Appellant argues that two statutory exclusions from the statutory
definition of “proprietary function” – for the construction, operation and maintenance of
township cemeteries and various types of detention facilities – are specifically excluded
from the definition of a proprietary function, and specifically included in the definition of a
governmental function. R.C. 2744.01(G)(2)(b) specifically defines a “proprietary function”
as “[t]he design, construction, reconstruction, renovation, repair, maintenance, and
operation of a public cemetery other than a township cemetery.” Correspondingly, R.C.
2744.01(C)(2)(s) specifically defines “governmental function” as “[t]he design,
construction, reconstruction, renovation, operation, care, repair, and maintenance of a
township cemetery.”
{¶59} Similarly, R.C. 2744.02(B)(4) reads:
political subdivisions are liable for injury, death, or loss to person or property
that is caused by the negligence of their employees and that occurs within
or on the grounds of, and is due to physical defects within or on the grounds
of, buildings that are used in connection with the performance of a
governmental function, including, but not limited to, office buildings and
courthouses, but not including jails, places of juvenile detention,
workhouses, or any other detention facility, as defined in section 2921.01 of
the Revised Code.
Case No. 24 JE 0017
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(Emphasis added.) Correspondingly, R.C. 2744.01(C)(2)(h) specifically defines
“governmental function” as “[t]he design, construction, reconstruction, renovation, repair,
maintenance, and operation of jails, places of juvenile detention, workhouses, or any
other detention facility, as defined in section 2921.01 of the Revised Code.”
{¶60} Because there is no corresponding statutory section that recognizes the
operation of a water supply system by an entity other than a municipal corporation as a
governmental function, Appellant reasons the trial court erred in concluding the County
enjoys statutory immunity in this case. While it is true that township cemeteries and
various types of detention facilities are specifically omitted from the definition of
“proprietary function” and also specifically included in the definition of “governmental
function,” we find nonetheless the County is immune from suit.
{¶61} “ ‘No part [of the statute] should be treated as superfluous unless that is
manifestly required, and the court should avoid that construction which renders a
provision meaningless or inoperative.’ ” Citizens Bank, NA v. Leek, 2018-Ohio-2813, ¶ 17
(7th Dist.), quoting State ex rel. Carna v. Teays Valley Loc. Schl. Dist. Bd. of Edn., 2012-
Ohio-1484, ¶ 19. Otherwise, words would be improperly eliminated from the text of the
statute. See generally Carna at ¶ 18 (accord significance and effect to every word, phrase,
sentence, and part of the statute). Appellant’s interpretation renders the modifier
“municipal corporation” as surplusage, as he offers no interpretation that reconciles the
modifier with his argument that the operation of a water supply system is a proprietary
function regardless of the operator.
{¶62} Appellant’s final argument is predicated upon an exception to the general
rule that the words in a statute should be given their plain meaning. “Statutes must be
construed, if possible, to operate sensibly and not to accomplish foolish results.” Id. See
also State ex rel. Clay v. Cuyahoga Cty. Med. Examiner's Office, 2017-Ohio-8714, ¶ 22
(“The absurd result principle in statutory interpretation provides an exception to the rule
that a statute should be interpreted according to its plain meaning.”). The trial court did
not consider this argument as it concluded a statute could create a nonsensical outcome
as long as it is unambiguous.
{¶63} Appellant contends the trial court’s interpretation accomplishes an absurd
result, that is, it immunizes county water supply systems from suit while it exposes
Case No. 24 JE 0017
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municipal corporation water supply systems to liability for the negligence of its employees.
Appellant concedes there is no legislative history explaining the distinction. Moreover,
Appellant offers no argument that there exists no distinction between municipal
corporations and other water supply systems.
{¶64} The legislature made many similar distinctions, which arguably accomplish
foolish results, in the sovereign immunity statute. For instance, the maintenance,
destruction, operation, and upkeep of a sewer system is a proprietary function. In
Coleman v. Portage Cty. Engineer, 2021-Ohio-3881, the Colemans asserted they
suffered property damage as a result of upgrades to the County sewer system. The
Colemans reasoned that the upgrades constituted maintenance of the existing sewer
system. However, the Ohio Supreme Court opined that the upgrading of a storm-sewer
system is a governmental function, because it involves construction and design. In other
words, the damages to the Colemans’ property would have been recoverable against the
County had they resulted from the maintenance, destruction, operation or upkeep of the
County sewer system.
{¶65} It is the function of the General Assembly to balance competing interests
when enacting legislation. McConnell v. Dudley, 2019-Ohio-4740, ¶ 32. Second-
guessing the wisdom of the legislature’s policy choices in striking that balance does not
fall within the scope of judicial review. State ex rel. Ohio Congress of Parents & Teachers
v. State Bd. of Edn., 2006-Ohio-5512, ¶ 20. Rather, the judicial power granted by the
Constitution is limited to interpretation and application of the law enacted by the General
Assembly, not to rewrite it. Houdek v. ThyssenKrupp Materials N.A., Inc., 2012-Ohio-
5685, ¶ 29. Accordingly, we cannot “rewrite” the statute based on the unsupported claim
that there exists no reason to treat municipal corporation water supply systems differently
than regional water and sewer districts.
CONCLUSION
{¶66} In summary, the plain language of RC. 2744.01(G)(2)(c) specifically defines
a “proprietary function” as “the establishment, maintenance, and operation of a utility,
including, but not limited to, . . . a municipal corporation water supply system.” Based on
the canon of construction that the express inclusion of one thing implies the exclusion of
Case No. 24 JE 0017
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the other, we find the maintenance of a water supply system that is not operated by a
municipal corporation is not a “proprietary function.” To conclude otherwise would render
the modifier “municipal corporation” meaningless. Further, the foregoing interpretation
does not produce an absurd result, as Appellant has failed to show that municipal
corporations are indistinguishable from other water service suppliers. Accordingly, the
entry of summary judgment in favor of the County is affirmed.
Robb, P.J., concurs.
Hanni, J., concurs.
Case No. 24 JE 0017
[Cite as Castner v. Jefferson Cty., 2025-Ohio-1309.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.