Opinion

Malone v. City of Chillicothe, Unpublished Decision (6-23-2006)

  • 2006 Ohio 3268
Court
Ohio Court of Appeals
Filed
Jun 23, 2006
Status
Unpublished
On the bench
McFARLAND, J.:
Cited by
10 cases

finding city's decision regarding sewer repair was not a discretionary decision entitled to immunity No. 13AP-849 13 under R.C. 2744.03(A)(5)5 because city had "a duty to properly maintain its sewers and cannot shirk its duty by claiming that the decision to properly maintain the sewers involved discretion in allocating limited financial resources and personnel"

How later courts described this case

  • finding city's decision regarding sewer repair was not a discretionary decision entitled to immunity No. 13AP-849 13 under R.C. 2744.03(A)(5)5 because city had "a duty to properly maintain its sewers and cannot shirk its duty by claiming that the decision to properly maintain the sewers involved discretion in allocating limited financial resources and personnel"
  • concluding that R.C. 2744.03(A)(5) does not insulate a political subdivision from liability for damages stemming from the negligent maintenance of its buildings or grounds
  • considering whether the city’s conduct involved “the creative exercise of political judgment that goes to the heart of government”

Written by the judges who cited it.

The opinion

{¶ 29} I agree with the trial court's and the principal opinion's conclusion. After appellant decided to install and maintain a sewer system, it may not simply opt to refuse to make necessary repairs to the system. Although costly maintenance obviously results in financial hardship, appellant is obligated to properly maintain the system.

{¶ 30} I certainly sympathize with the plight of appellant and many Ohio political subdivisions in view of burgeoning expenses and declining financial resources. Nevertheless, appellant may not stand idly by and watch citizens suffer the consequences. This case is especially egregious because authorities had known about the system's potential collapse for a substantial period of time, and failed to either repair the line or warn residents who could possibly have taken preventative action.

{¶ 31} Thus, I fully agree that the trial court's judgment in this matter should be affirmed.

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Exceptions.

Abele, J.: Concurs in Judgment and Opinion with Concurring Opinion.

Kline, J.: Concurs in Judgment and Opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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