State ex rel. Slacas v. KCI Technologies, Inc.

[Cite as State ex rel. Slacas v. KCI Technologies, Inc., 2022-Ohio-4573.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY

STATE OF OHIO ex rel. CASE NO. 2022-P-0012

KATHLEEN SLACAS, et al.,

Plaintiffs-Appellees, Civil Appeal from the

Court of Common Pleas

- vs -

KCI TECHNOLOGIES, INC., et al., Trial Court No. 2014 CV 00572

Defendants,

PORTAGE COUNTY ENGINEER, et al.,

Defendants-Appellants.

OPINION

Decided: December 19, 2022

Judgment: Affirmed in part, reversed in part, and remanded

Thomas J. Connick, Schneider, Smeltz, Spieth, Bell, LLP, 1375 East Ninth Street, Suite

900, Cleveland, OH 44114 and Edward A. Proctor, Kim and Associates, 4100 Embassy

Parkway, Suite 200, Akron, OH 44333 (For Plaintiffs-Appellees).

Victor V. Vigluicci, Portage County Prosecutor, and David J. Garnier, Assistant

Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 and John D. Pinzone and

Frank H. Scialdone, Mazanec, Raskin & Ryder Co., LPA, 100 Franklin’s Row, 34305

Solon Road, Cleveland, OH 44139 (For Defendants-Appellants).

MATT LYNCH, J.

{¶1} Defendants-appellants, the Portage County Engineer; County of Portage,

Ohio; and the Portage County Board of Commissioners (the “Portage County

defendants”) appeal the decision of the Portage County Court of Common Pleas denying

them the benefit of political subdivision immunity under R.C. Chapter 2744 with regard to

certain tort claims. For the following reasons, we affirm in part and reverse in part the

decision of the court below and remand for further proceedings consistent with this

Opinion.

{¶2} On July 16, 2014, plaintiffs-appellees, Jessica L. Ayers and other

representative plaintiffs, filed a Class Action Complaint against KCI Technologies, Inc.;

MS Consultants, Inc.; Oscar Brugmann Sand & Gravel, Inc.; Todd Brugmann; the Portage

County Engineer; County of Portage, Ohio; Romano & Sons Nursery; Pasquale Romano;

and Michael Marozzi. The plaintiffs are or have been at relevant times residents or

property owners in the Aurora East Subdivision, Shalersville Township, Portage County.

With respect to the Portage County defendants, the Complaint alleged as follows:

Plaintiffs, on behalf of themselves and Class of similarly situated

persons defined below, bring this suit to seek redress for negligence,

continuing nuisance, continuing trespass, Unconstitutional Taking

under both the Ohio and Federal Constitutions, Writ of Mandamus

for Inverse Condemnation, and injunctive and declaratory relief. * *

* Plaintiffs have * * * been and continue to be damaged by the

negligence, reckless, willful and wanton actions of the Portage

County Engineer’s negligent failure to properly operate, maintain

and/or upkeep the Aurora East Storm Drainage Sewer System,

Aurora East roadways, and the drainage from the aforementioned

swamp area that the county has negligently maintained and alleged

unreasonable amounts of water to be diverted directly into the Aurora

East Subdivision. [Sic] Additionally, the Portage County engineer

has acted with wanton, willful and reckless disregard for the rights of

the Aurora East residents and property owners. Alternatively,

Plaintiffs are entitled to fair and just compensation for the County of

Portage, Ohio’s unconstitutional taking of their properties under both

the Ohio and Federal Constitution.

{¶3} In the course of the subsequent litigation, the plaintiffs dismissed KCI

Technologies, MS Consultants, Todd Brugmann, Romano & Sons Nursery, and Michael

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Marozzi as defendants. The Portage County Board of Commissioners was subsequently

added as a defendant.

{¶4} On November 1, 2018, the trial court certified the following class: “All

persons who own or owned real property in the East Aurora Subdivision at any time since

1998 and whose property suffered excessive flooding and/or whose property was unduly

taken or otherwise adversely affected due to any actions on the part of Defendants

causing alterations of surface water through the Subdivision.” Class certification was

affirmed on appeal by this court in Ayers v. KCI Technologies, Inc., 2019-Ohio-3614, 131

N.E.3d 1015 (11th Dist.).

{¶5} On June 24, 2021, the Portage County defendants filed a Motion for

Summary Judgment, inter alia, on the grounds that they were entitled to political

subdivision immunity with respect to plaintiffs’ claims for negligence, trespass, and

nuisance. The plaintiffs filed a Brief in Opposition on September 15, 2021. And, on

September 30, 2021, the Portage County Defendants filed a Reply in Support of

Summary Judgment.

{¶6} On January 12, 2022, the trial court issued an Order and Journal Entry

denying the Motion for Summary Judgment. The Entry did not directly address the issue

of political subdivision immunity. Rather, it stated:

A review of the briefs submitted by the parties reveals a number of

genuine issues of material fact relating to alleged actions and/or

inactions of the Defendants, whether the damages allegedly suffered

by the Plaintiffs were proximately caused by said actions and/or

inactions, and whether the claims of the Plaintiffs, if any, fall within

the applicable statutes of limitations set forth in the Ohio Revised

Code. * * * As there are genuine issues of material fact and that

alternate conclusions may be made from the evidence presented in

the Defendant Portage County Engineer, Portage County, Ohio, and

the Portage County Board of Commissioners’ Motion for Summary

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Judgment, Plaintiffs’ Brief in Opposition, and Defendant Portage

County’s Reply Brief in support of its Motion, Defendants Portage

County’s Motion for Summary Judgment must be denied.1

{¶7} On February 10, 2022, the Portage County defendants filed a Notice of

Appeal. On appeal, they raise the following assignment of error: “The lower court denied

the benefit of immunity to defendants/appellants under Chapter 2744 of the Ohio Revised

Code.”

{¶8} “Whether a party is entitled to immunity is a question of law properly

determined by the court prior to trial pursuant to a motion for summary judgment.”

Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 12.

{¶9} “The review of a summary judgment denying political-subdivision immunity

is de novo and is governed by the summary-judgment standard set forth in Civ.R. 56.” Id.

at ¶ 13. “Summary judgment may be granted when ‘(1) [n]o genuine issue as to any

material fact remains to be litigated; (2) the moving party is entitled to judgment as a

matter of law; and (3) it appears from the evidence that reasonable minds can come to

but one conclusion, and viewing such evidence most strongly in favor of the party against

whom the motion for summary judgment is made, that conclusion is adverse to that

party.’” (Citations omitted.) Id.

{¶10} Pursuant to Ohio’s Political Subdivision Tort Liability Act, “a political

subdivision is not liable in damages in a civil action for injury, death, or loss to person or

property allegedly caused by any act or omission of the political subdivision or an

employee of the political subdivision in connection with a governmental or proprietary

1. This language is from an Order and Journal Entry Nunc Pro Tunc issued on April 15, 2022, which

included the Portage County Board of Commissioners as defendants.

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function.” R.C. 2744.02(A)(1). “[P]olitical subdivisions are liable for injury, death, or loss

to person or property caused by the negligent performance of acts by their employees

with respect to proprietary functions of the political subdivisions.” R.C. 2744.02(B)(2).

See Pelletier at ¶ 15 (describing the “familiar, three-tiered analysis” for determining

whether a political subdivision is immune from tort liability pursuant to R.C. Chapter 2744).

{¶11} “The provision or nonprovision, planning or design, construction, or

reconstruction of a public improvement, including, but not limited to, a sewer system” is a

governmental function. R.C. 2744.01(C)(2)(l). “The maintenance, destruction, operation,

and upkeep of a sewer system” is a proprietary function. R.C. 2744.01(G)(2)(d).

Consistent with these definitions, Ohio “courts of appeals have developed a body of law

holding that subdivisions are immune from claims that flow from the design and

construction of a sewer system.” Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28,

2012-Ohio-3881, 975 N.E.2d 952, ¶ 19, citing Spitzer v. Mid Continent Constr. Co., Inc.,

8th Dist. Cuyahoga No. 89177, 2007-Ohio-6067, ¶ 20 (“Ohio courts have found that

municipalities are immune from suit when flooding to private property was a result of an

improperly designed sewer that was inadequate to handle increased storm runoff”).

{¶12} On appeal, the Portage County defendants assert that they are “entitled to

R.C. Chapter 2744 immunity on the state law tort claims for negligence, trespass,

nuisance, and the state taking claim for direct monetary damages.” Brief of Appellants at

11. They characterize the plaintiffs’ claims of liability as being essentially based on the

County’s failure to upgrade the sewer system in the East Aurora Subdivision. Relying on

Coleman, the Portage County defendants maintain that the failure to upgrade a sewer

system constitutes the construction or design of a system and, thus, is a governmental

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function. Coleman at ¶ 1 (“because upgrading involves construction and design, such

upgrading is a governmental, not a proprietary, function”).

{¶13} To the contrary, the plaintiffs assert that “[t]he repeated flooding in the

Subdivision that is the subject of this case was caused by design, construction, and lack

of maintenance issues as described in [their] expert reports.” Brief of Appellees at 8.

The causes of flooding, as identified by the expert report, are summarized as follows:

[1.2] Portage County and the Portage County Engineer failed to

obtain easements, and design and construct the berms, swales,

inlets, and pipe connections from the adjoining upland drainage

areas to the existing Subdivision storm drainage system. As such,

flooding occurs because drainage from adjoining upland property to

the east and west occurs as sheet flow in an undirected and

uncontrolled manner into the Subdivision. Problem areas include

Greenwich, Field, and Nolte Streets.

[2.] Portage County and the Portage County Engineer failed to obtain

easements, and design and construct the berm, ditch and pipe

needed to re-route the swamp ditch to a storm drainage pipe at the

west end of Invernest Street. The swamp ditch carries a large

drainage flow rate in wet weather that currently discharges into the

Subdivision storm drainage system at Hadley Street, overloads the

Subdivision storm drainage system, and floods the Subdivision.

[3.] Portage County and the Portage County Engineer failed to

maintain the Subdivision drainage system causing flooding. This

maintenance involved the cleaning of the Bartlett Road trash rack,

repair of the driveway culverts, and clearing of ditches and catch

basin gratings. Michael Marozzi, the Portage County Engineer,

admitted in his deposition that his department only performs storm

drainage system maintenance after complaints are lodged which

typically is after flooding has occurred.

[4.] Portage County, the Portage County Engineer and Romano have

failed to maintain the 8-inch drainage pipe from the Romano property

to the catch basin at the west end of Greenwich Street. This lack of

2. The alleged causes of flooding have been identified numerically for ease of discussion.

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maintenance is a cause of flooding in the Subdivision on the north

side of Greenwich Street.

[5.] Portage County and the Portage County Engineer built a berm

along the Romano property line at the end of Greenwich Street that

makes flooding worse in the Subdivision on the north side of

Greenwich Street.

[6.] Portage County and the Portage County Engineer have allowed

filling of an overflow “saddle” along the swamp ditch near the west

end of Invernest Street. The filling occurred in about 2010 and has

increased the drainage flow rates being discharged in wet weather

into the Subdivision storm drainage system at Hadley Street and

increased flooding in the Subdivision.

[7.] Portage County and the Portage County Engineer paved the

roads in the Subdivision in about 1999 and raised the roads 2 to 3-

inches. Some homes in the Subdivision have slab elevations that

are now below the road levels. Flooding has increased for these

homes because the roads were raised.

Expert Report of Karen E. Ridgway, P.E. at 5-6.

{¶14} The majority of the causes identified by the plaintiffs clearly pertain to the

provision or nonprovision, planning or design, construction, or reconstruction of the sewer

system for the East Aurora Subdivision. Accordingly, they are classified as a

governmental function for which the Portage County defendants are entitled to tort

immunity apart from their takings claims.

{¶15} The first two causes are premised on the Portage County defendants’ failure

to implement certain recommendations contained in a 1974 drainage study performed by

the Mosure-Fok & Syrakis Company (MFS). The MFS study recognized that an effective

storm sewer system would need to be able to intercept drainage from adjoining upland

properties. When the existing drainage system was designed and built between 1993

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and 1999, several of these recommended features were not included. The expert report

states:

Not all elements required for a complete and functioning storm

drainage system in the Subdivision were designed and built by

* * * Portage County and the Portage County Engineer from 1993

through 1999. * * * MFS recognized that the new Subdivision storm

sewers in all road rights-of-way needed to extend to the east and

west to intercept drainage from the adjoining upland property. This

intent was clearly stated and shown in the MFS report but did not

occur in the design and construction of the new Subdivision storm

drainage system.

(Emphasis sic.)

{¶16} In distinguishing the governmental design and construction of a sewer

system from the proprietary maintenance of the system, the Ohio Supreme Court adopted

the following: “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.’ Essman [v. Portsmouth, 4th Dist. No.

09CA3325, 2010-Ohio-4837] at ¶ 32. 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.’ Essman at ¶ 32-33.” (Citation omitted.)

Coleman, 133 Ohio St.3d 28, 2012-Ohio-3881, 975 N.E.2d 952, at ¶ 30.

{¶17} Here, the remedy for the first two causes of flooding would require the

Portage County defendants to redesign and reconstruct the sewer system in accordance

with the recommendations from the MFS report. Thus, they present design and

construction issues for which the Portage County defendants enjoy immunity.

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{¶18} The third cause of flooding properly states a maintenance issue for which

the Portage County defendants do not have immunity. According to the expert report,

there is a trash rack located at the upstream end of a culvert running underneath Bartlett

Road in the Subdivision. The rack requires “frequent cleaning” to avoid having water

diverted from the culvert over the road. The rack has been reported as blocked during

three identified flooding events. The necessity of keeping the rack free from obstruction

is a non-discretionary act of routine maintenance and, thus, a proprietary function.

{¶19} The fourth and fifth causes of flooding are described in the expert report as

follows:

An 8-inch diameter pipe runs from a hole in a low-lying area on the

[adjoining] Romano property near Greenwich Street * * *. It is not

known who designed or constructed the 8-inch pipe, but it is

obviously not properly sized for the drainage area served. The pipe

appears to drain from a hole in the ground on Romano’s property and

the pipe is plugged with earth at the hole. * * * A berm was

constructed by Portage County and the Portage County Engineer

west of the catch basins at the end of Greenwich Street along the

Romano property line * * *. [This berm] directs storm drainage

overflow * * * into the backyards of the homes on the north side of

Greenwich Street. The berm makes the flooding worse in the

Subdivision.

{¶20} The failure to maintain the 8-inch pipe, i.e., the pipe is plugged with earth

and/or has deteriorated, presents a proprietary issue and, thus, the Portage County

defendants were properly denied immunity as to that precise issue (as distinct from

design issues relating to pipe size or configuration). Pierce v. Gallipolis, 2015-Ohio-2995,

39 N.E.3d 858, ¶ 24 (4th Dist.) (immunity did not apply where the plaintiffs alleged “that

their claimed injuries resulted from appellant’s alleged failure to repair damage to the

sewer line, to inspect it, to remove obstructions, or to remedy general deterioration”). We

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are cognizant that there is an issue as to whether these defendants have any duty to

maintain the pipe inasmuch as there is no evidence that they constructed or designed the

pipe and as the pipe is on private property. Such issues involving the merits of the

plaintiffs’ claims, however, are not properly before this court at this time. Only that part

of the trial court’s order denying the Portage County defendants immunity constitutes the

final order and so may be raised in an interlocutory appeal. R.C. 2744.02(C) (“[a]n order

that denies a political subdivision * * * the benefit of an alleged immunity from liability * *

* is a final order”); Reinhold v. Univ. Hts., 8th Dist. Cuyahoga No. 100270, 2014-Ohio-

1837, ¶ 21 (“[a]n appeal from a denial of summary judgment based on sovereign immunity

is limited to the review of alleged errors in the portion of the trial court’s decision that

denied the political subdivision the benefit of immunity”); Brown v. Cincinnati, 2020-Ohio-

5418, 162 N.E.3d 1274, ¶ 6-7 (1st Dist.) (R.C. 2744.02(C) does not provide for appellate

review of all interlocutory matters).

{¶21} As for the pipe not being properly sized and as for the berm diverting

overflow into backyards, these issues would require the Portage County defendants to

redesign or reconstruct those portions of the sewer system. Thus, for the reasons given

above, the defendants have immunity with respect to these issues regarding the tort

claims that stand apart from the takings issues implicated by plaintiffs’ mandamus claim

seeking initiation of appropriations proceedings.

{¶22} The sixth cause of flooding concerns a “saddle” or topographical “low point”

existing next to a ditch which drains water from a swamp area to the west of the

Subdivision. According to plaintiffs’ expert, when the ditch would overflow under high flow

conditions, the saddle would receive some of the overflow thereby decreasing the water

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flow into the Subdivision. At some time between 2010 and 2011, two to three feet of fill

were added to the saddle negating its ability to reduce overflow into the Subdivision. It

appears that the saddle exists on private property and was not part of the system

constructed between 1993 and 1999. The expert report states that the Portage County

defendants have the authority “to demand that upland property owners remove fill and

restore drainage patterns if the fill is increasing the downstream flooding.” The report

continues: “A properly designed and constructed ditch, berm, and storm drainage pipe

from the swamp ditch to the existing storm drainage pipe at the west end of Invernest

Street could mitigate this issue.”

{¶23} The failure to incorporate the saddle and/or swamp ditch into the existing

drainage system constitutes a governmental function for the reasons set forth above in

connection with the first two causes, i.e., the remedy would require the redesign or

reconstruction of the existing system. We construe the failure to have the fill removed

from the saddle to be unrelated to either the construction or the maintenance of the sewer

system. Rather, the plaintiffs are essentially charging the Portage County defendants

with failing to abate a nuisance on private property. It is generally recognized that

“[a]batement of a public nuisance is a governmental function.” O’Farrell v. Harlem Twp.

Bd. of Trustees, 5th Dist. Delaware Nos. 18 CAH 08 0059 and 18 CAH 08 0062, 2019-

Ohio-1675, ¶ 36; Oliver v. Marysville, 3d Dist. Union No. 14-18-01, 2018-Ohio-1986, ¶ 26

(“it is well-settled that abating a nuisance is a governmental function”). Regardless of

whether the sixth cause is considered a failure of design or a failure to abate a nuisance,

the Portage County defendants enjoy immunity.

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{¶24} The seventh cause of flooding claims that, sometime around 1999, the

subdivision roads were improved and the pavement raised two to three inches. This put

the elevation of the roads above that of the floor slabs of certain low-lying homes thereby

increasing their susceptibility to flooding. As with the sixth cause, and for purposes of

non-takings tort claim analysis, the elevation of the roads is not formally part of the

drainage system and the question of whether the repaving is a design or maintenance

issue is inapposite. Relevant to this cause, “the maintenance and repair of * * * roads”

are governmental functions. R.C. 2744.01(C)(2)(e). However, “political subdivisions are

liable for injury, death, or loss to person or property caused by their negligent failure to

keep public roads in repair and other negligent failure to remove obstructions from public

roads.” R.C. 2744.02(B)(3).

{¶25} The plaintiffs maintain “that paving and height/depth of roads raises a

question of fact as to whether and when that work was performed constitutes ‘in repair’

for purposes of R.C. 2744.02(B)(3).” Brief of Appellees at 25. The argument is

unconvincing. Repaving the subdivision roads because they have deteriorated on

account of flooding, as claimed by the plaintiffs, constitutes the maintenance and repair

of roads, not the negligent failure to keep roads in repair. Stated otherwise, the plaintiffs’

argument is that the Portage County defendants negligently maintained or repaired the

roads, not that they negligently failed to do so. The distinction is material. It has been

held that “‘in repair’ in its ordinary sense refers to maintaining a road’s condition after

construction or reconstruction, for instance by fixing holes and crumbling pavement.”

Bonace v. Springfield Twp., 179 Ohio App.3d 736, 2008-Ohio-6364, 903 N.E.2d 683, ¶

29 (7th Dist.). “Consequently, ‘in repair’ does not create a duty to change allegedly absurd

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designs such as extreme and unnecessary side slopes that were constructed * * * into a

road.” Id.

{¶26} For example, in Keller v. Carroll Cty. Bd. of Commrs., 2022-Ohio-3526,198

N.E.3d 155 (7th Dist.), the appellant claimed that he was injured by loose stone from the

county’s road resurfacing so that an issue of material fact existed as to whether the road

was “in repair” for purposes of R.C. 2744.03(B)(3). Id. at ¶ 11. The court of appeals held

“this exception does not apply here; Blade Road was in good condition and was also

neither disassembled nor deteriorated at the time and location of Appellant’s accident.”

Id. at ¶ 21. Rather, “some amount of loose gravel is a characteristic of a road that has

been recently resurfaced via the chip and seal process,” therefore, “the presence of loose

stone does not reflect that Blade Road was a road in disrepair such that this exception to

immunity applies.” Id. at ¶ 28. In contrast, this court in Lakota v. Ashtabula, 11th Dist.

Ashtabula No. 2015-A-0010, 2015-Ohio-3413, found the city could be liable for injuries

caused by a sinkhole in a public road while the city was in the process of repairing the

road. We held that “the exception to immunity can apply when the city negligently fails to

keep the road in repair during ongoing construction.” Id. at ¶ 33. Stated otherwise, “[a]

repair that causes an additional danger to drivers cannot create a road that is ‘in repair.’”

Id. at ¶ 30. We distinguished the Bonace case in Lakota by noting that “the issue is not

the design of the road but the condition of the road caused by a sinkhole and an

incomplete repair.” Id. at ¶ 28. Similarly, in Volny v. Portage Cty., 2022-Ohio-338, 184

N.E.3d 925 (11th Dist.), this court held that the county could be liable where a motorist

was injured by a hole in an asphalt-filled trench in the road created by the county in the

course of replacing a crossover pipe. Id. at ¶ 43. In Volny, we affirmed that the “in repair”

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exception to the county’s immunity was applicable. We distinguished Bonace because

the issue in Volny was “not the county’s design of the road.” Id. at ¶ 46. Rather, “[t]he

asphalt-filled trench was not a design feature,” but “a temporary condition awaiting final

repair, i.e., paving.” Id. In the present case, the increased elevation of the subdivision

roads is a design feature and, thus, the “in repair” exception to the Portage County

defendants’ immunity does not apply. Note Pelletier, 153 Ohio St.3d 611, 2018-Ohio-

2121, 109 N.E.3d 1210, at ¶ 19 (“the duty to keep roads in repair did not extend to ‘matters

unrelated to actual roadway conditions,’ such as tree limbs overhanging a county road”)

(citation omitted).

{¶27} Thus, it is established that the Portage County defendants are entitled to

immunity except to the extent that they may be liable for failing to maintain, i.e., keep free

of obstruction and deterioration, the trash rack at the Bartlett Road culvert and the pipe

connecting to the Greenwich Street drainage intercept. Bernard v. Cincinnati, 2019-Ohio-

1517, 135 N.E.3d 485, ¶ 32 (1st Dist.) (“[a] comprehensive and integrated review of the

record demonstrates * * * that a total sewer system overhaul, and not regular, routine

maintenance, is the only possible answer (if any) to the [plaintiffs’] unfortunate

predicament”); Jochum v. Jackson Twp., 5th Dist. Stark No. 2013CA00013, 2013-Ohio-

3592, ¶ 22 (township was “immune from liability with respect to appellant’s claims alleging

trespass, nuisance and negligence” where the “appellant, in his complaint, alleged that

[the township] failed to maintain the pipeline by replacing individual pipes ‘to a size

appropriate to manage the increased water flow’”).

{¶28} The final issue, then, is whether there are any statutory defenses that would

restore the Portage County defendants’ immunity with respect to these maintenance

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issues. Pelletier at ¶ 15. A “political subdivision is immune from liability if the injury,

death, or loss to person or property resulted from the exercise of judgment or discretion

in determining whether to acquire, or how to use, equipment, supplies, materials,

personnel, facilities, and other resources unless the judgment or discretion was exercised

with malicious purpose, in bad faith, or in a wanton or reckless manner.” R.C.

2744.03(A)(5). It is fairly established, however, that the performance of routine

maintenance, such as the Portage County defendants are potentially liable for failing to

perform, does not involve the exercise of judgment or discretion. Accordingly, they are

not entitled to discretionary immunity. Economus v. Independence, 2020-Ohio-266, 151

N.E.3d 1046, ¶ 21 (8th Dist.) (“Ohio courts have held that the decision to provide

maintenance and repair to a sewer system does not involve the exercise of discretion that

would reinstate immunity under R.C. 2744.03(A)(5)”) (cases cited); Coleman, 133 Ohio

St.3d 28, 2012-Ohio-3881, 975 N.E.2d 952, at ¶ 19; Perkins v. Norwood City Schools, 85

Ohio St.3d 191, 193, 707 N.E.2d 868 (1999).

{¶29} Our holding applies to the plaintiffs’ tort claims for negligence, trespass, and

nuisance. On appeal, the Portage County defendants argue that political subdivision

immunity applies to the plaintiffs’ claim against Portage County for inverse condemnation

pursuant to Article I, Section 19, of the Ohio Constitution (Count V). In briefing and at

oral argument, they concede that immunity does not apply to takings claims, but assert

that it does to Count V because the plaintiffs are “seeking direct monetary damages for

inverse condemnation.” Reply Brief of Appellants at 10. The Portage County defendants

cite no authority in support of this proposition. Moreover, they did not raise this argument

before the trial court, but, instead, only argued in their Motion for Summary Judgment that

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immunity applied to the plaintiffs’ negligence, trespass, and nuisance claims. Given

plaintiffs’ failure to raise it in the trial court, we decline to address it for the first time on

appeal.3

{¶30} To the extent indicated above, the sole assignment of error is with merit.

{¶31} For the foregoing reasons, the Order and Journal Entry of the Portage

County Court of Common Pleas, denying the Portage County defendants the benefit of

political subdivision immunity, is affirmed in part and reversed in part. Apart from and

without regard to the inverse condemnation claims, the Portage County defendants are

entitled to immunity with respect to plaintiffs’ claims for negligence, trespass, and

nuisance except to the extent that these claims are based on their alleged failure to

maintain, i.e., keep free of obstruction and deterioration, the trash rack at the Bartlett

Road culvert and the pipe connecting to the Greenwich Street drainage intercept. This

matter is remanded for further proceedings consistent with this Opinion. Costs to be

taxed between the parties equally.

JOHN J. EKLUND, P.J.,

FREDERICK D. NELSON, J., Ret., Tenth Appellate District, sitting by assignment,

concur.

3. In footnote 2 on page 3 of the Brief of Appellees, it is stated that the unconstitutional takings claims as

well as a claim for inverse condemnation under Ohio law “are not part of the present appeal.” In footnote

4 on page 11, it is stated that “inverse condemnation and similar direct actions to obtain compensation for

an alleged taking of private property are not recognized in Ohio” and so “Count V must be dismissed as a

matter of law.” It is only in the Reply Brief of Appellees that it is directly asserted that political subdivision

immunity applies to inverse condemnation claims.

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