# Martin v. Payne

> Ohio Court of Appeals · May 3, 2021 · 2021 Ohio 1557

URL: https://www.frixlaw.com/law-library/cases/4683508

## Case

- **Court:** Ohio Court of Appeals
- **Decided:** May 3, 2021
- **Citations:** 2021 Ohio 1557
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Shaw
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

[Cite as Martin v. Payne, 2021-Ohio-1557.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY

ALLAN W. MARTIN, ET AL.,

PLAINTIFFS-APPELLANTS, CASE NO. 11-20-05

v.

VILLAGE OF PAYNE, OPINION

DEFENDANT-APPELLEE.

Appeal from Paulding County Common Pleas Court
Trial Court No. CI 19 040

Judgment Affirmed

Date of Decision: May 3, 2021

APPEARANCES:

Ian A. Weber for Appellants

Byron S. Choka for Appellee
Case No. 11-20-05

SHAW, J.

{¶1} Plaintiffs-appellants, Allan Martin and Jennifer Martin (“the Martins”),

bring this appeal from the November 18, 2020, judgment of the Paulding County

Common Pleas Court granting the summary judgment motion filed by defendant-

appellee, Village of Payne (“Payne”), on grounds of sovereign immunity. On

appeal, the Martins argue that the trial court erred by granting summary judgment

in favor of Payne because a genuine issue of material fact existed as to whether

Payne was negligent with respect to performing the proprietary function of

maintaining its sewer system.

Background

{¶2} In 2009 the Martins purchased a residence at 107 N. Maple Street in

Payne, Ohio. The residence was on property that had been occupied, at least in part,

by a school at some point in the late 1800’s. The current residence was built

“sometime in the 1920’s.”1 (Doc. No. 11, Ex. 11).

{¶3} Prior to purchasing the home, the Martins did not have a professional

inspection conducted; however, they did walk through the home and its basement.

Allan Martin did not recall having any conversations with the previous owner about

water issues in the basement. Nevertheless, the previous owner of the home had

installed an “underdrain system under the concrete floor and around the interior

1
This is according to a statement that Jennifer Martin made to the Poggemeyer Design Group.

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perimeter of the basement. The system was also installed under the concrete floor

along the interior wall running down the middle of the basement in an east-west

direction.” (Doc. No. 11, Ex. 11).

{¶4} Within two weeks of moving into the residence, the Martins noticed

that their sump pump was running every Tuesday and Thursday morning from 12

a.m. to 4 a.m. like “clock work.” (Martin Depo. at 27). They also noticed that a

“catch basin” adjacent to their property was filling up with “rust-color[ed] water”

even when there was no precipitation. (Id. at 28-29). The Martins reported the issue

to Payne. The Martins were told that there was not an issue caused by Payne

because there was no village water or sewer connection running from the specified

catch basin to the Martins’ basement.

{¶5} Winston Gross, the water plant operator, suggested that to alleviate the

water problem the Martins should dig around the property, find any drainage pipes,

and cut them off. Gross was familiar with the Martins’ property because he had

been there before due to complaints made by the previous owner. The previous

owner complained that the yard would be full of water when it rained. Gross

recalled the previous owner having four sump pumps in the basement that were

draining into the yard. Gross ran a dye test for the previous owner and found that

the yard was draining into the sump pumps and the sump pumps were pumping

water into the yard, establishing that the water was pumping in circles. Gross stated

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that he advised the previous owner to drain the pumps into the street but that never

happened.

{¶6} After Payne declared that the village was not the source of the Martins’

water issue, the Martins had an excavating company excavate around their home on

the north and east sides between the catch basin and the residence. They did not

excavate on the south and west sides of the residence at the time because they did

not have the money and because the north and east sides were where the “catch

basin” was located. (Martin Depo. at 38). The excavator found some field tiles in

the area and “capped them off;” unfortunately that did not alleviate the problem.

{¶7} Around April of 2010, the Martins had a plumbing service run a camera

through an “EverDry system” that had been installed in the basement by the

previous owner. The plumbing service discovered some problems with the EverDry

system such as a “swirl” in the system. As a result of what was learned, Allan

Martin was advised by the plumbing service to put a hole in the basement floor with

a sledgehammer.2 When Allan struck the floor, the floor collapsed, creating a hole

roughly three or four feet by six feet. After digging out chunks of cement that had

broken, the plumbing company located tile underneath the basement floor “running

eastwardly. The material, the stone, the dirt was all ate out from underneath the

2
It is not clear from the record what the initial intention was behind putting a hole in the basement floor.

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basement, that is why [the plumber] said [the floor] collapsed.” (Martin Depo. at

42-43).

{¶8} Further, the plumbing company discovered a pipe underneath the

basement. A camera was run through the pipe and the plumbing company

determined that it was a drain pipe for the basement that ran to the sewer. The

Martins had not been aware of this pipe previously. The previous owner of the

residence told Allan Martin that he also was not aware of the drain pipe.

{¶9} The Martins took measures to “vent” the drain pipe and to seal it off so

that the pipe would be “cut off” at two points. (Id. at 43). In addition, the Martins

had a concrete company fill the voids both in and under the basement caused by the

drain pipe. According to Allan Martin, around this time the Martins contacted

EverDry to have the company look at their system, but EverDry had a fire and had

purportedly lost records. Allan indicated that EverDry did not come out to the

property or do anything with regard to the system.

{¶10} Fortunately, capping/venting the drain pipe alleviated the issue of the

sump pumps running regularly on Tuesday and Thursday mornings. However,

Allan Martin indicated that water was still coming into the basement and that it got

worse over time, prompting the Martins to add sump pumps so that they had “five

or six sump pumps over the years” running out of the same pit. (Id. at 52).

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{¶11} Around a year after the voids in the basement had been filled by

concrete, some of the concrete patches were “blown out” after a heavy rainstorm.

The concrete company returned and repaired the blowouts, but they wanted to find

the western end of the previously discovered drain pipe, which they did. Since the

pipe was already capped off, the company repaired the floor, noting that the Martins

had significant water pressure problems. Despite these new repairs, the Martins had

water in their basement after heavy rainfalls.

{¶12} In February of 2012, the Martins filed a complaint with the EPA

regarding their water issues. The EPA contacted Payne to investigate the matter and

report back. Payne then hired the Poggemeyer Design Group to investigate the

issues with the Martins’ property. Poggemeyer investigated the Martins’ property

and determined that a six-inch tile under the basement, which had been plugged only

on the eastern end, was still conveying water from the west side of the property into

the under-the-floor drainage system and into the Martins’ sump pit. Poggemeyer

stated that the glazed tile that was found indicated that the original house was

“constructed over a storm tile associated either with the school or some other

drainage.” (Doc. No. 11, Ex. 11).

{¶13} Poggemeyer observed moisture on the inside face of the poured

concrete foundation wall, which showed that moisture was penetrating the

foundation wall from the surrounding ground. Poggemeyer stated that the original

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residence likely did not have a basement because there were dissimilar materials

making up the exterior foundation walls: “The top portion is concrete block, which

appear[s] to be the original foundation wall and beneath the concrete block is a

poured concrete wall. The junction of the concrete block and poured concrete is not

uniform vertically which leads to my opinion that the basement was added at a later

date than the original construction.” (Id.) Poggemeyer learned from the Martins

that a cistern was on the property, likely from when the property contained a school,

but the Martins were unsure where exactly the cistern was located.

{¶14} Poggemeyer suggested certain actions to be taken by the Martins to

alleviate the water problem such as finding the cistern on the property and

determining how the cistern was filled in. Poggemeyer suggested that, if possible,

the Martins should determine if there were any active pipes connected to the cistern

bringing water to the cistern and possibly bringing water under the floor slab.

Poggemeyer also suggested examining the 6” pipe to the west via video to determine

where it went and if it was connected to any lateral tiles or catch basins.3

{¶15} The Martins did not examine the cistern as Poggemeyer suggested

because they spoke with the previous owner and the previous owner stated that the

cistern had been filled with cement, dirt, and stone. The previous owner claimed he

3
The Martins indicated the pipe had only been videoed to the east.

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had “knocked off the lines, cut the lines off, plugged it up.”4 (Martin Depo. at 91).

Regardless of the Martins’ actions, as a result of Poggemeyer’s report, the EPA

determined that Payne had complied with its obligations to the Martins.

Poggemeyer did not find that there were any issues with Payne’s sewer system that

were causing the Martins’ issues.

{¶16} Over the next several years, the Martins employed two excavators to

dig around their property. The first excavator dug around three sides of the property

but not the fourth due to the Martins’ money issues. The second excavator did the

final side of the property in 2017. The excavators were instructed to dig deeper than

the first excavator because the first excavator did not know the lawn was graded.

More clay tiles were found on the property as a result of excavation. The tiles were

plugged shut; however this did not alleviate the water problem in the basement.

{¶17} In the spring of 2018, the Martins learned that the Ohio Gas Company

had cut into a pipe located on their property while installing a new gas line. The gas

company spoke with the Village Water Superintendent and he told the gas company

to cover the pipe since it was not connected to anything and the pipe was plugged

solid on both sides. Shortly thereafter, the Martins began getting gas and sewer

smells in their basement whenever it rained. Payne was notified and a village

4
The Martins claimed there was another recommendation that was not included in Poggemeyer’s written
report, which was to “grade” the lawn. However, Allan Martin stated that the lawn was already graded so
this recommendation was not followed.

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employee came to the Martins’ residence. The employee thought that the smell was

merely “stagnant water” rather than gas or sewer smells. Nevertheless, Payne

inspected its sewer lines by running a camera down the lines in the area of the

Martins’ residence. The inspector determined that there was no blockage or any

other issues with Payne’s operation of the sewer system that could have been

causing the Martins’ basement issues. The inspection revealed that there was no

major damage to the sewer system, that there were no chunks missing in the pipes,

and that the sewer was intact.

{¶18} The Martins later received a recording of the inspection of the sewer

pipe near their home and they disputed that the system was intact, stating upon their

own review of the video, one of the pipes was damaged. The Martins had nothing

to support this claim other than their own personal viewing of the video that had

been taken, which the inspector for Payne had determined showed a properly

functioning sewer pipe.

{¶19} In November of 2018, the Martins had yet another plumbing service

inspect the sewer lines of their home and the lines were found to be completely

intact. “We did confirm that the sewer line [all the way to the city main] is

completely intact and should not allow any ground water, etc. to leach in and back

feed through the sewer line.” (Doc. No. 11, Ex. 2). Further, the outdoor sump pump

line was found to be working properly by those conducting the test.

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{¶20} Notably, the plumbing company did not explore the inlet pipes to the

Martins’ sump pit and the plumbing company was unable to determine the cause of

the water incursion or the sewer smell in the basement. “Using our camera on these

inlet lines to the sump pit would be able to rule this out as a potential cause.” (Id.)

The plumbing company stated that if the issue of the water incursion could not be

resolved, they had a solution to keep water from getting into the basement, which

included, inter alia, installing an outdoor sump pit with primary and secondary

backups.

{¶21} The Martins did not have the EverDry system inspected again at that

time because it had been done in 2010. Although it was eight years later, Allan

Martin did not believe the EverDry system could have been the problem.

{¶22} Due to the ongoing issues with the Martins’ basement and the

sewer/gas smells, in 2019, Payne conducted “smoke tests” of the sewer lines around

the Martins’ property. For a smoke test, the sewer pipe is plugged at two ends and

then smoke is pumped into a sewer line along with pressure. Generally, in a

successful test, smoke would not be found coming out of unexpected places that are

connected to the sewer lines. However, smoke was found coming out of the

Martins’ sump pit even though it was not connected to a sewer line by Payne.

{¶23} Winston Gross, the water plant operator, emphasized that there was no

connection between Payne’s sewer lines and the Martins’ sump pit. Gross

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speculated that there should have been a solid bottom to the sump pit, but there was

apparently something hooked into the pit and he did not know why, and it was not

done by Payne. He thought that perhaps EverDry had connected something to the

pit, but he did not know. Ultimately as a result of the “smoke test,” the Martins

were told that the problem shown by the test appeared to be with the “traps” in the

Martins’ residence or from a backup through the “clean out pipe” in the Martins’

front yard. Either way, the Martins were told that the problem was on their end, and

not a result of anything done by Payne. Nevertheless, a water analysis was

conducted of the water in the Martins’ basement and it determined that there was

some “fecal coliform” in the non-potable water.

{¶24} As to the maintenance of the sewer lines, Payne indicated that the lines

were inspected on a monthly basis in addition to whenever a complaint was made.

The lines were “jetted”5 on a rolling basis at least twice a year, the lift station was

monitored on a daily basis, and two overflow locations were inspected by Payne

employees weekly and after each rainfall.

{¶25} On March 22, 2019, the Martins filed a complaint against Payne

alleging that Payne was negligent with regard to the maintenance, inspection, and

upkeep of its sewer system. The Martins alleged that water incursion into their

basement had been occurring for approximately a decade at that point, and that they

5
Winston Gross defined jetting as running jets of water down the lines, which then drags back any debris,
sucking it out of the pipe. Gross stated that jetting the lines would bring back a brick if one was in there.

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suspected it was the result of a “broken, failed, and washed-out section of [a] large

sewer pipe directly outside” of their home. They claimed that the video inspection

of the sewer pipes showed, to their eyes, that the pipe was broken. (Doc. No. 1)

{¶26} In addition to the purportedly broken sewer pipe outside their home,

the Martins alleged that Payne had taken measures over the years that strained the

capacity of the sewer pipes such as “bridging” sewer pipes from another area and

tying them directly into the sewer pipe running past the Martins’ home.

{¶27} The Martins alleged that the gas, sewage smell, and airborne

contaminants caused them to leave their home multiple times, and that the issues

also resulted in exposure-related illnesses.6 The Martins stated that they, and/or

their predecessors in interest, had taken numerous diagnostic, preventative, and

remedial measures to protect the home and basement such as waterproofing,

installing as many as seven sump pumps into the same pit, having concrete injected

into voids developed beneath the basement floor due to water erosion, and

employing numerous professionals to find and fill tile/pipes on their property.

Ultimately the Martins alleged that as a result of Payne’s failure to properly perform

regular inspections, failure to perform regular maintenance, and Payne’s failure to

remedy the problem with the sewer system despite numerous complaints, the

Martins had suffered in excess of $60,000 in damages.

6
The Martins claimed that household members had issues with Hepatitis E and Giardia (ingesting feces) as
a result of the problems.

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{¶28} On April 29, 2019, Payne filed an answer denying negligence and

asserting multiple affirmative defenses including, inter alia, that it was entitled to

sovereign immunity pursuant to R.C. 2744.02, that the Martins’ own negligence

caused the problem, that the Martins were aware of any issues with the property

when they purchased their home, that Payne discharged any duty owed to the

Martins, and that any damages were the result of a superseding or intervening cause.

{¶29} As the case proceeded, discovery was exchanged and three depositions

were taken. Allan Martin—one of the homeowners—was deposed, Winston

Gross—the water plant operator until he retired in June of 2018—was deposed, and

John Hall—the president of the Board of Public Affairs—was deposed. Those

depositions were filed with the trial court.

{¶30} On January 27, 2020, Payne filed a motion for summary judgment

arguing that it was entitled to immunity as a political subdivision in this matter.

Payne argued that despite numerous inspections, including some done by businesses

employed by the Martins, the Martins had not established any defects with Payne’s

sewer system. Further, Payne argued that the undisputed evidence established that

routine inspection and maintenance occurred on the sewer system, thus the Martins

could establish no breach of Payne’s duty to the Martins, or any causation in this

matter.

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{¶31} On March 3, 2020, the Martins filed a response to Payne’s motion for

summary judgment. The Martins contended that despite numerous inspections the

problem with water ingress into their home had not been identified. Additionally,

the Martins argued that the smoke test performed by Payne resulted in smoke

“pouring into their basement,” establishing that there was a leak somewhere.

Moreover, the Martins claimed that there was “obvious” damage to the regularly

inspected sewer line under the street immediately in front of the Martin’s home as

evidenced by video of the 2018 line inspection.

{¶32} Further, the Martins argued that they had “eliminated” any other

possible causes on their own property, thus the problem must be due to Payne and

the “damaged” sewer system that they claimed was shown by the video inspection.

Moreover, they argued that per the deposition of John Hall, the sewer system was

not inspected in its entirety due to a bend in the system. Finally, the Martins claimed

that Payne had lost EPA report records for roughly a year pertaining to inspections,

placing the issue of whether Payne was actually having regular inspections into

dispute.

{¶33} On March 19, 2020, Payne filed a reply in support of its motion for

summary judgment arguing that no defects with Payne’s sewer lines had ever been

discovered, that the Martins had no evidence showing that the basement issues were

related to some defect or damage to the Payne sewer system, and that Allan Martin’s

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lay interpretation that the sewer pipe was damaged was not sufficient to create a

genuine issue of material fact where the only experts in the matter had stated that

the pipe was not damaged.

{¶34} On November 18, 2020, the trial court filed a judgment entry granting

Payne’s motion for summary judgment. In the entry, the trial court recited evidence

presented through deposition testimony and various letters written after inspections

had been made of the Martins’ property. The trial court found that although the

testimony of Allan Martin would cause any homeowner to “empathize” with him,

the Martins had offered “not one professional that would say that the [Martins’]

basement issue was caused by the negligent maintenance of the sewer system by the

Village of Payne. Neither the presence of water, fecal material or smoke is sufficient

evidence to support [the Martins’] claims of negligence against [Payne].” (Doc. No.

16). Thus Payne was granted summary judgment and the Martins now appeal,

asserting the following assignments of error for our review.

Assignment of Error No. 1
Whether the trial court erred in granting the Appellee’s motion
for summary judgment pursuant to Civil Rule 56(C).

Assignment of Error No. 2
Whether the trial court as a matter of law erred in granting the
Appellee’s motion for summary judgment pursuant to Civil Rule
56(C).

{¶35} Appellants’ assignments of error are interrelated and argued together

in their brief, therefore we will address them together.

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First and Second Assignments of Error

{¶36} In their assignments of error, the Martins argue that the trial court erred

by granting summary judgment to Payne. More specifically, the Martins contend

that there was a genuine issue of material fact as to whether Payne was negligent in

maintaining its sewer system.

Standard of Review

{¶37} We review a grant of summary judgment de novo—that is, we will

consider the evidence as if for the first time—using the standard set out in Civ.R.

56. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29. A

court may grant summary judgment only when no genuine issue of material fact

remains to be litigated, the moving party is entitled to judgment as a matter of law,

and, viewing the evidence in the light most favorable to the nonmoving party,

reasonable minds can reach a conclusion only in favor of the moving party. M.H.

v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, ¶ 12, citing Temple v.

Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C).

Sovereign Immunity Framework

{¶38} A claim of sovereign immunity by a political subdivision requires the

three-tiered analysis provided in R.C. Chapter 2744. Baker v. Wayne Cty., 147 Ohio

St.3d 51, 2016-Ohio-1566, ¶ 11, citing Rankin v. Cuyahoga Cty. Dept. of Children

& Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, ¶ 16. Under the first tier of

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the analysis, a political subdivision has immunity for any act or omission of the

political subdivision, or its employees, that was conducted in connection with a

governmental or proprietary function. R.C. 2744.02(A)(1). The second tier of the

analysis examines whether any of the five exceptions to the general grant of

immunity apply that are listed in R.C. 2744.02(B). Rankin at ¶ 18. If an exception

does apply, the third tier of the analysis considers whether sovereign immunity can

be reinstated by one of the statutorily listed defenses, such as the discretionary

defenses set forth in R.C. 2744.03(A)(3) and (5). Rankin at ¶ 27.

Analysis

{¶39} In this case there is no dispute that Payne is a political subdivision that

is generally entitled to immunity pursuant to R.C. 2744.02(A)(1). Thus there is no

factual or legal dispute in this matter with regard to the first tier of the sovereign

immunity analysis.

{¶40} With regard to the second tier of the sovereign immunity analysis, the

parties are in agreement that, by definition, “[t]he maintenance, destruction,

operation, and upkeep of a sewer system” is a proprietary function. R.C.

2744.01(G)(2)(d). Further, the parties agree that pursuant to R.C. 2744.02(B)(2),

“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[.]” Thus the parties agree that there is an exception to Payne’s

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general immunity in this matter if the Martins could establish that Payne was

negligent with regard to the maintenance, operation, or upkeep of the sewer system.

However, it is important to emphasize that once a political subdivision establishes

general immunity, which is not disputed here, the burden shifts to the plaintiff to

show that one of the exceptions to immunity applies. Slane v. Hilliard, 10th Dist.

Franklin No. 15AP-493, 2016-Ohio-306, ¶ 31.

{¶41} In this case the Martins contend that they have, at the very least,

established that a genuine issue of material fact exists as to whether Payne was

negligent with respect to the maintenance, operation, and upkeep of its sewer

system. In support of their argument, the Martins contend that video they had

obtained from the inspection of the sewer system “clearly shows the clay tile outside

of the [the Martins’] home [was] [] badly damaged.” (Appt.’s Br. at 13). The

Martins argue that with the camera paused, it “is clear that the majority of a section

of sewer tile has been broken, collapsed, and is no longer in place[.]” (Id.) Allan

Martin stated that he could personally see that the sewer pipe was damaged;

however, the Martins did not present any evidence from any professionals who

stated that the sewer pipe was damaged or that the purportedly damaged pipe was

responsible for the Martins’ issues in their basement. Nevertheless, the Martins

argue that their interpretation of the video of the sewer pipe inspection creates a

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genuine issue of material fact as to whether Payne was properly maintaining the

sewer system.

{¶42} The Martins also allege that Payne “lost” records that would show that

Payne had been actively inspecting the sewer lines, calling into doubt the testimony

that the lines were regularly inspected. Finally, the Martins argue that testimony

established that not all portions of the sewer system were regularly inspected, which

showed that Payne was derelict in its maintenance and upkeep duties.

{¶43} By contrast, Payne argues that the only evidence in the record

established that the sewer system was routinely inspected, jetted, and maintained,

that the sewer lines near the Martins’ home had been inspected on a number of

occasions, and that no defects or damages to that sewer system had been discovered.

Payne emphasizes that the Martins did not offer evidence from any professionals,

experts, or contractors that had been employed over the years to show that the issues

in the Martins’ basement were related to some defect or damage in Payne’s sewer

system. Finally, Payne argues that Allan Martin’s lay opinion that Payne’s sewer

operation must be at fault for their issues was not sufficient to defeat summary

judgment.

{¶44} After reviewing the evidence presented, the legal authority, and the

arguments of the parties, the trial court determined that any person would

“empathize” with the issues the Martins had to deal with; however, the trial court

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found that the Martins had not shown that Payne had breached its duty with regard

to a proprietary function or that any purported breach by Payne specifically caused

damage to the Martins.

{¶45} Following our own review of the record, we agree with the trial court

on all accounts. The Martins have had repeated misfortunes with water/sanitation

issues in their basement, but the focus of this action is on the purported negligence

of Payne, and whether the Martins have established a genuine issue of material fact

with respect to Payne’s operation, upkeep, and maintenance of its sewer system.

Payne presented evidence that the sewer lines were regularly inspected, maintained,

and jetted. The Martins’ argument that some inspection or maintenance records

spanning roughly a year may have been lost does not create a genuine issue of

material fact where the only evidence in the record is that the sewer lines were

maintained. The depositions of Winston Gross and John Hall established as much.

{¶46} Further, when looking at the actions of Payne in this matter, the

evidence established that Payne was responsive when the Martins contacted the

village with issues—although the Martins may not have liked the responses they

received from Payne. Payne had employees speak with the Martins and investigate

the issues when Payne was presented with them. When the EPA complaint was

made, Payne hired an outside firm to investigate the matter, and there were no issues

found with Payne’s operation of the sewer system.

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{¶47} In addition, when the Martins continued to have problems over the

years, Payne ran a camera through the sewer lines to ensure that the sewer lines were

intact. The camera operator determined that there were no damaged areas that

would have caused problems for the Martins. Then, to further respond to the

Martins’ issues, Payne conducted a “smoke test” to check for any issues with the

pipes. Payne has thus presented evidence that it has not ignored the Martins’

problems, that it has maintained and checked the sewer lines, and that Payne has

taken steps to ensure that the problems in the Martins’ home did not reside with the

village’s sewer lines.

{¶48} To contradict Payne’s evidence regarding the maintenance and upkeep

of the sewer system, the Martins point to Allan’s testimony that the sewer pipe looks

damaged to him. However, Allan Martin’s bald claim that he thinks that the camera

footage shows that the sewer pipe near his home was damaged is not enough to

defeat summary judgment. “[A] non-movant’s own self-serving assertions, whether

made in an affidavit, deposition or interrogatory responses, cannot defeat a well-

supported summary judgment when not corroborated by any outside evidence.”

White v. Sears, Roebuck & Co., 10th Dist. Franklin No. 10AP-294, 2011-Ohio-204,

¶ 9; Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-93, 2016-Ohio-

3197, ¶ 22; Boulton v. Vadakin, 4th Dist. Washington No. 07CA26, 2008-Ohio-666,

¶ 20; Mobley v. James, 8th Dist. Cuyahoga No. 108470, 2020-Ohio-380, ¶ 43. The

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Martins had the opportunity to introduce affidavits or depositions into the record

that would support their bald claim that the pipe was damaged and causing their

issues but they did not.

{¶49} Moreover, while there is no evidence in the record establishing

Payne’s negligence with respect to Payne’s operation of its sewer system, the record

does show numerous potential issues with regard to the Martins’ own property. For

example, John Hall testified in his deposition that there was likely a problem with

the Martins’ “clean-out” pipe, which was something that was put in by one of the

property owners, not Payne. Hall testified that this was likely the cause of the smoke

coming from the sump pit during the smoke test.

{¶50} Furthermore, the record establishes that the Martins have not re-

inspected their EverDry system since 2010 despite the worsening problems with

water in their basement. Given that a “swirl” was found in the initial inspection of

the system back in 2010, which was apparently a problem with the system, the

Martins may have wanted to check the system again. In addition, the Martins did

not inspect the cistern on the property despite Poggemeyer’s suggestion to do so

following the EPA investigation in 2012. Rather than inspecting the matter

themselves, the Martins simply accepted the previous owner’s word that the cistern

had been properly filled in and that any connected pipes had been capped.

Moreover, the Martins also did not have the inlet pipes to their sump pit inspected

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by the plumbing company in 2018, which the plumbing company indicated would

help rule-out any issues with the pit or connections to it.

{¶51} All of these issues show that, in addition to producing no evidence that

an issue with Payne’s sewer system caused the Martins problems, the record

contains evidence supporting many causation possibilities for the Martins’

problems. The Martins may feel that they have exhausted their options in this matter

and that their issues must be Payne’s fault, but the record does not establish this fact.

{¶52} In sum, the record establishes a long history of the Martins, and the

previous owner of the residence in question, attempting to remedy the water

conditions in the basement. However, despite Payne filing a well-supported motion

for summary judgment, the Martins have produced no evidence that there is a defect

with Payne’s sewer system that is causing their water issues. As far as the record

establishes, Payne has still yet to be informed by any professionals that there is, in

fact, a defect in Payne’s sewer system. See Tangler v. Village of Carrollton, 7th

Dist. Carroll No. 17 CA 0920, 2018-Ohio-1343, ¶ 25 (reversing denial of sovereign

immunity in summary judgment case where, inter alia, evidence had not established

that village breached its duty with respect to operation of sewer lines). The only

evidence in the record shows that the sewer lines are regularly inspected, jetted, and

maintained. For all of these reasons, the Martins’ first and second assignments of

error are overruled.

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Conclusion

{¶53} For the foregoing reasons the Martins’ assignments of error are

overruled and the judgment of the Paulding County Common Pleas Court is

affirmed.

Judgment Affirmed

ZIMMERMAN and MILLER, J.J., concur.

/jlr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4683508. Public record. Not legal advice.