[Cite as Goebel v. Minster , 2022-Ohio-883.]

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

EDWARD GOEBEL, ET AL., PLAINTIFFS-APPELLANTS,

v. CASE NO. 2-21-19 VILLAGE OF MINSTER, DEFENDANT-APPELLEE, -and- O P I N I O N HELMS & SONS EXCAVATING, INC.,

DEFENDANT-APPELLANT.

Appeal from Auglaize County Common Pleas Court Trial Court No. 2020-CV-52 Judgment Affirmed Date of Decision: March 21, 2022

APPEARANCES: 

### Jonathon N. Bond, Sean Alto and Jeffrey Kenney for Appellants Goebel 

### James D. Utrecht for Appellant Helms & Sons Excavating, Inc. 

### Jared A. Wagner for Appellee, Village of MinsterCase No. 2-21-19

-2- SHAW, J. {¶1} Plaintiffs-appellants, Edward and Lisa Goebel, et al. (collecti vely, “landowners”), and defendants-appellants, Helms & Sons Excavati ng, Inc. (“Helms”), bring this appeal from the September 8, 2021 judgmen t of the Auglaize County Common Pleas Court granting summary judgment in favor ofdefendantappellee, Village of Minster (“Minster”), on the grounds of sov ereign immunity. On appeal, landowners and Helms both contend that Minster was n ot entitled to sovereign immunity. Background {¶2} In early 2019, Minster solicited bids from contractors for the “Northeast Sanitary Sewer Improvements” project, which called for the “rec onstruction of Second Street, including the installation of storm sewer modifi cations, water main, sanitary sewer, service laterals, sidewalks, and curb and gutte r. Also installation of sanitary sewer down a portion of Garfield and Third Street.” ( Harrod Depo. Ex. H). {¶3} The project had been contemplated as early as 2015-2016 because Minster was “having some storm water problems backed up into so me people’s homes along South Lincoln Street in the village” and because th e village was “anticipating two new subdivisions coming in * * * on the north east quarter of [Minster].” (Harrod Depo. at 9). Helms reviewed the blueprint s for the project,Case No. 2-21-19

-3- which had been produced by Choice One Engineering, submitted th e lowest bid,

and was awarded the contract. {¶4} After Helms commenced work on the project, problems began to ar ise. First, soil conditions were poorer than expected in certain are as. Second, it was discovered that the blueprints for the proposed work were not e ntirely accurate. 1 Upon digging a trench, Helms discovered that the old sewer line was too close to the storm line to fit the new construction between them, which was what the project originally called for. Helms and a representative from Minster discussed the issue and determined that instead of running the new sanitary line between the old lines as the project originally called for, the new sanitary line wou ld be placed over the old line, replacing the old line as the new line was placed. W ith this change agreed upon, work continued. {¶5} The next problem occurred on May 16, 2019, as Helms proceeded t o the removal of a buried, circular concrete structure also known as a “manhole” or a

“wet well.” 2 The project called for the removal of the manhole, which, at the time of excavation, was sealed and not in use. The manhole had been put in place

sometime around 1994 when Minster’s older “lift station” was re novated. During

1 Shane Helms, the founder, owner, and president of Helms, testi fied that when deali ng with old sanitary lines that are over twenty feet d eep, “the best [blue]prints in the world, if you get them 60 percent correct, you’re doing really good.” (S. Helms Depo. at 12). 2 According to testimony, the structure was a “wet well” when in use, but since there was no pump inside of it, the structure was a “manhole.” We will refer to the struct ure as a “manhole,” but any other references to “structure” or “wet well” in testimony excerpts are regarding t he same manhole.Case No. 2-21-19

-4- the renovation, the manhole had a pump inside of it and it redi rected water flow. Once renovation on the lift station was complete, the pump insi de the manhole was removed. However, the manhole itself was sealed and left in th e ground. {¶6} Helms began excavating the manhole by removing the top of the structure. With the top of the manhole removed, Helms found tw o pipes, or “lines,” leading into the manhole. Some testimony indicated that the se cond line, or pipe, going into the manhole was unexpected while other testimony int imated that the parties were aware of its presence before the top of the manhol e was removed. 3 Regardless, upon uncovering the second line in the manhole, Hel ms asked Minster’s representative if the second line was “live,” i.e. pressurized, and what should be

done with the line. {¶7} Minster’s representative believed that the line was abandoned—i t was capped inside the manhole. All individuals who testified on th e issue indicated that they believed the line was abandoned based on Minster’s represe ntations. Acting under the belief that the line was not pressurized and that it was, in fact, abandoned, Minster instructed Helms to continue its excavation by cutting the second line in the manhole back several feet, and capping it. 4

3 While this fact may be disputed , it is not material to the out come of this case. 4 All testimony indicated that while Minster instructed Helms in what to do, it did not control how Helms conducted its work.Case No. 2-21-19

-5- {¶8} As soon as Helms excavated into the line in question, sewage an d water “erupted” from the line, surprising everyone on site. (Nichols Depo. at 72). “Sewage was blowing everywhere and you c[ouldn’t] stop it. [Th e line] should have been dead.” (Snyder Depo. at 44). {¶9} A GIS technician for Minster was on site daily during the proje ct and he was present when the sewage was shooting out of the second l ine into the manhole and the trench. A separate Minster employee was dispat ched to the “lift station” to find the valve that stopped the water flow through the line that was previously thought to be abandoned. Within thirty minutes the line was shut down. After the line was shut down, it was cut back and capped by Hel ms. {¶10} Meanwhile, Minster hired a company with a vacuum truck to come in

and clean out the excavated trench and manhole that had been fi lled with sewage, concrete, and rubble due to the eruption from the pipe. Notabl y, the eruption from the pipe “removed earth and stone material[,] * * * [and] under mined the storm sewer * * * by taking all the earth away from it and then the s tone from around the bottom of it and the side of it to where it was exposed[.] * * * [Helms] c[ould] see that line now.” (Nichols Depo. at 72). {¶11} Throughout the evening of May 16, 2019, the individual with the vacuum truck and some Helms employees removed debris from the t rench/manhole area. Helms employees on site indicated that the individual us ing the vacuum truckCase No. 2-21-19

-6- could not do the job alone. Helms’ employees assisted the indi vidual with the vacuum truck because it “was just the right thing to do to stay and make sure it got cleaned out.” (Musgrave Depo. at 49). When they were finished , “[t]he wet well and all the gravel was cleaned up and [the system] was flowing like it should be.” (Langenkamp Depo. at 65). Stated differently, they “cleaned ev erything up, everything was running perfectly fine. The SCADA reports all showed that the [lift station] pumps were running at normal at that point * * * prior to any of the house basement issues.” (Meyer Depo. at 26-27). {¶12} It was sprinkling rain around 11:30 p.m. when the Helms employe es finished at the site for the night. The forecast called for ra in but Helms’ employees were not overly concerned about it because “there was no talk o f 5 inches of rain in like three hours.” (Musgrave Depo. at 42). Before they left th e site, Helms employees had cleared the area so there was an open flowing tre nch and they sealed the area off so people could not get in. A trench box and stee l plates were employed to protect the trench itself. {¶13} Through all of these issues, including the severed line that wa s thought to be abandoned and the filling of the trench/manhole, there wa s no indication that

any of the landowners’ homes were flooded. {¶14} During the early morning hours of May 17, 2019, in the hours af ter the trench had been cleared, five or more inches of rain fell in th e Minster area. TheCase No. 2-21-19

-7- Superintendent of Minster’s wastewater treatment plant said tha t all four pumps were running at the lift station, which he had never seen befor e. The rain caused the water in the Miami and Erie canal to rise to the top of the banks, which then backed water into the storm sewer because the storm sewer empti ed into the canal. Testimony indicated that the storm sewer line was in poor condi tion, rotted and rusted, which was part of the reason it was being replaced. Th e storm sewer was also partially exposed when Helms was excavating. The overload ed storm line “collapsed,” causing water to flow into the open manhole. Mins ter’s lift station could not handle all of the water going into the sewer system, leading to flooding in

the landowners’ homes. {¶15} A Minster employee was called at approximately 3:30 a.m. on May 17, 2019, and notified that an inch or two of water was in a la ndowner’s basement. He indicated he had seen flooding in basements before but never on Second Street. The Minster employee went to the construction site and found th e manhole completely full of water. {¶16} One of Helms’ employees was back at the trench by 7:00 a.m. on May 17, 2019. To help remedy the flooding/water backup situation, a metal plate was placed in front of the canal to block the flow of additional wa ter into Minster’s storm sewer. Once the plate was in place, the pumps at the lift stat ion were able to remove the excess water and the flooding receded in approximately 45 m inutes.Case No. 2-21-19

-8- Landowners would claim that sewage and water flooded their home s causing substantial damage to both real and personal property. {¶17} On April 15, 2020, landowners filed a complaint against Minster and Helms alleging negligence in the destruction of a sewer system pursuant to R.C. 2744.01(G)(2)(d), and breach of contract to a third-party benef iciary. {¶18} Helms filed an answer on May 1, 2020, denying negligence, and asserting that appellees were not third-party beneficiaries and had no privity of

contract in this matter. {¶19} On May 8, 2020, Minster filed a Civ.R. 12(B)(6) motion to dismi ss the complaint filed by appellees arguing that Minster was entit led to sovereign immunity. Further, Minster argued that landowners had no groun ds to attempt to

enforce the contract between Minster and Helms. The landowners opposed

Minster’s motion. {¶20} On June 3, 2020, the trial court filed an entry denying Minster ’s motion to dismiss the negligence claim on sovereign immunity gr ounds at such an early stage of the litigation; however, Minster’s motion to dis miss with regard to the breach of contract claim was granted. {¶21} Minster appealed the denial of its motion to dismiss the neglig ence claim on sovereign immunity grounds to this Court in Goebel v. Minster , 3d Dist. Auglaize No. 2-20-14, 2020-Ohio-5467. Ultimately we affirmed t he trial court’sCase No. 2-21-19

-9- denial of Minster’s motion to dismiss, noting that at this very early stage of the proceeding we were unable to find beyond doubt that landowners could prove no set of facts entitling them to recovery; however, we noted that immunity could still be established later in a summary judgment proceeding if the undisputed facts warranted such a finding. Goebel at ¶ 32. {¶22} With the case returned to the trial court, on December 18, 2020 , Minster filed an answer to landowners’ complaint asserting, inter alia , the defense of sovereign immunity. Minster also filed a cross-claim agains t Helms asserting,

inter alia , a claim for breach of contract. {¶23} On December 28, 2020, Helms filed an answer to Minster’s crossclaim and filed its own cross-claim against Minster. Minster s ubsequently filed an

answer to Helms’ cross-claim. 5 {¶24} Discovery proceeded with interrogatories being served and answe red and numerous depositions being taken and filed with the trial c ourt. {¶25} On July 12, 2021, Minster filed a motion for summary judgment asserting sovereign immunity. Minster argued that it was entit led to immunity, that the parties had not established an exception to immunity, and t hat even if the parties

5 On May 25, 2021, Frankenmuth Mutual Insurance Company moved to consolidate trial court case 2021 CV 0047 with the instant case, arguing that Frankenmuth had filed a subrogation complaint against Helms regarding water loss from the reconstruction project and that t he cases should be consolidated. The cases were consolidated by entry dated May 27, 2021. Frankenmuth’s c omplaint and subsequent filings by the parties related to Frankenmuth’s case against Helms were filed in the record; however, Frankenmuth’s case against Helms has little relevance to the matter sub judice , so we will not further address that action.Case No. 2-21-19

-10- did establish an exception, Minster would be able to reinstate its immunity under R.C. 2744.03(A)(5) as there was no evidence that its employees acted in bad faith, wantonly, maliciously, or recklessly. {¶26} On August 9, 2021, Helms filed a memorandum in opposition to Minster’s summary judgment motion claiming that Minster was neg ligent in maintaining its sewer system in several respects unrelated to the construction project such that it constituted negligence in the performance of a proprietary function. Further, Helms argued that Minster specifically dire cted it to excavate the

“abandoned” line. {¶27} On August 20, 2021, landowners filed their memorandum in opposition to Minster’s summary judgment motion arguing that Mi nster negligently performed a proprietary function and did not have statutory imm unity, that Minster’s negligence contributed to the flooding of the landown ers’ homes, and that Minster was not entitled to have immunity reinstated. {¶28} On September 7, 2021, Minster filed a reply in support of its s ummary judgment. {¶29} On September 8, 2021, the trial court filed a judgment entry gr anting Minster’s motion for summary judgment. The trial court determi ned that “the errors and omissions [by Minster] * * * were partially governmental an d partiallyCase No. 2-21-19

-11- proprietary functions as defined within R.C. 2744.01(C)(2)((l) and R.C. 2744.01(G)(2)(d)[.]” (Doc. No. 99). The trial court then dete rmined as follows: 2. [Minster] is entitled to the general immunity as set forth in R.C. 2744.02(A)(2); 3. the performance by [Minster] of a proprietary function is within the exception to the general grant of immunity in accordance with R.C. 2744.02(B)(2); 4. The performance by [Minster] of a governmental function is within the exception to the general grant of immunity in accordance with R.C. 2744.02(B)(4) if caused by the negligence of their employees and that occurs within or on the grounds of, an d is due to physical defects within or on the grounds of, buildin gs that are used in connection with the performance of a governmental function; 5. there was no physical defects within or on the grounds of any building being used in connection with the performance of a governmental function, and therefore, the exception in R.C. 2744.02(B)(4) is inapplicable; 6. [Minster] may avail itself of the defense of immunity pursuant to R.C. 2744.03(A)(5)[.] * * * 6 7. There is no evidence of malicious purpose, bad faith, wantonness or recklessness [establishing Minster’s defense to an immunity exception pursuant to R.C. 2744.03(A)(5)]; 8. when construed most strongly in favor of [landowners] and cross-claimant Helms, the facts do not support any genuine issu e of material fact whether [Minster] is immune in this instance.

6 The trial court quotes the language of R.C. 2744.03(A)(5), whi ch we cite infra at ¶ 50.Case No. 2-21-19

-12- (Doc. No. 99). The trial court thus determined that there were no genuine issues of material fact, that reasonable minds could come to but one conc lusion, and that conclusion was adverse to the non-moving parties. The trial co urt granted Minster’s summary judgment motion, dismissed landowners’ complaint and He lms’ crossclaim against Minster on the basis of immunity. {¶30} The landowners brought the instant appeal from the trial court’ s judgment, asserting the following assignment of error for our r eview. Landowners’ Assignment of Error The trial court erred by granting the Village of Minster’s moti on for summary judgment holding that the Village enjoyed statutory immunity under R.C. 2744 et seq . {¶31} Helms also appealed the trial court’s judgment and asserted the following assignments of error for our review. Helms’ First Assignment of Error It was error for the trial court to grant summary judgment when the cause of the sewage overflowing the trench was negligence i n the performance of a proprietary function, to wit: operation repair and maintenance of a sewer system. Helms’ Second Assignment of Error It was error for the trial court to grant summary judgment when the Village employees were directing and controlling the work o f the excavation contractor, Helms and Sons, Inc.’s direction and control which places the case in an exception to governmental immunity.Case No. 2-21-19

-13- {¶32} As all of the assignments of error challenge the trial court’s determination with regard to Minster’s summary judgment motion, we will address the assignments of error together. Landowners’ Assignment of Error and Helms’ Assignments of Error {¶33} On appeal, the landowners and Helms both argue that the trial c ourt erred by determining that Minster was entitled to sovereign imm unity in this matter.

Standard of Review {¶34} “Whether a party is entitled to immunity is a question of law p roperly 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, ¶ 12, citing Conley v.

Shearer , 64 Ohio St.3d 284, 292 (1992). {¶35} We review a decision to grant a summary judgment motion on the basis of sovereign immunity de novo. See Pelletier at ¶ 13; Smith v. McBride , 130 Ohio St.3d 51, 2011-Ohio-4674, ¶ 12. “De novo review is indepen dent and without

deference to the trial court’s determination.” ISHA , Inc

. v. Risser , 3d Dist. Allen No. 1-12-47, 2013-Ohio-2149, ¶ 25. {¶36} Summary judgment is proper where there is no genuine issue of material fact, the moving party is entitled to judgment as a ma tter of law, and reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and the conclusion is adverse to the n on-moving party.Case No. 2-21-19

-14- Civ.R. 56(C); State ex rel. Whittaker v. Lucas County Prosecutor’s Office , 164 Ohio St.3d 151, 2021-Ohio-1241, ¶ 8. Material facts are those facts “ ‘that might affect the outcome of the suit under the governing law.’ ” Turner v. Turner , 67 Ohio St.3d 337, 340 (1993), quoting Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). “Whether a genuine issue exists is answered by the following inquiry: [d]oes the evidence present ‘a sufficient disagreement to require submission to a jury’ or is it ‘so one-sided that one party must prevail a s a matter of law[?]’ ”

Id . quoting Anderson at 251-252. {¶37} “The party moving for summary judgment has the initial burden o f producing some evidence which demonstrates the lack of a genuin e issue of material

fact.” Carnes v. Siferd , 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing

Dresher v. Burt , 75 Ohio St.3d 280, 282 (1996). “In doing so, the moving part y is not required to produce any affirmative evidence, but must iden tify those portions of the record which affirmatively support his argument.” Id ., citing Dresher at 292. “The nonmoving party must then rebut with specific facts showin g the existence of a genuine triable issue; he may not rest on the mere allegation s or denials of his pleadings.” Id . citing Dresher at 292. Sovereign Immunity Framework {¶38} Ohio’s Political Subdivision Tort Liability Act, which governs political subdivision liability and immunity, is codified in Ch apter 2744 of theCase No. 2-21-19

-15- Revised Code. McConnell v. Dudley , 158 Ohio St.3d 388, 2019-Ohio-4740, ¶ 20. “Determining whether a political subdivision is immune from tor t liability pursuant to R.C. Chapter 2744 involves a familiar, three-tiered analysis .” Pelletier , 153 Ohio St.3d 611, 2018-Ohio-2121, ¶ 15. {¶39} The first tier of the sovereign-immunity analysis generally est ablishes that “a political subdivision is not liable in damages in a civ il action for injury, death, or loss to person or property allegedly caused by any act or om ission of the political subdivision or an employee of the political subdivision in conn ection with a governmental or proprietary function.” R.C. 2744.02(A)(1). Ho wever, that immunity is not absolute. See R.C. 2744.02(B); McConnell at ¶ 21. {¶40} In the second tier of the analysis, we consider the potential applicability of any of the five exceptions to immunity listed in R.C. 2744.02(B)(1)- (5), which would lift the immunity from the political subdivisi on. Id . at ¶ 22. {¶41} Finally, if any of the exceptions to political subdivision immu nity in R.C. 2744.02(B)(1)-(5) are applicable to remove immunity from t he political subdivision, then we move to the third tier of the analysis and consider whether immunity can be restored to the political subdivision based on the defenses

enumerated in R.C. 2744.03.Case No. 2-21-19

-16- Analysis {¶42} There is no dispute in this case that Minster is a political su bdivision generally entitled to immunity under R.C. 2744.02(A)(1). {¶43} With immunity generally established, and the first tier of the immunity analysis completed, we turn to the second tier of the analysis to determine whether any of the exceptions to immunity listed in R.C. 2744.02(B)(1)- (5) are applicable in this case. Generally, landowners argue that the exception codi fied in R.C. 2744.02(B)(2) is applicable to strip immunity from Minster, whi le Helms argues that the exception in R.C. 2744.02(B)(4) is applicable to strip immunity from Minster. These provisions read as follows. (B) Subject to sections 2744.03 and 2744.05 of the Revised Cod e, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused b y an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:

* * * (2) Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property cau sed by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.

* * * (4) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, dea th, or loss to person or property that is caused by the negligence ofCase No. 2-21-19

-17- their employees and that occurs within or on the grounds of, an d is due to physical defects within or on the grounds of, buildin gs 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. R.C. 2744.02(B)(2), (4). {¶44} We will deal with the applicability of each potential exception in turn, beginning with R.C. 2744.02(B)(2). Importantly, the exception in (B)(2) is limited to acts of employees with respect to “proprietary functions.” The exception does not include acts with respect to “governmental functions.” Bot h “governmental” and “proprietary” functions are defined in R.C. 2744.01. (C)(1) “Governmental function” means a function of a political subdivision that is specified in division (C)(2) of this sectio n or that satisfies any of the following: (a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement; (b) A function that is for the common good of all citizens of the state; (c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are n ot engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this s ection as a proprietary function. (2) A “governmental function” includes, but is not limited to, the following:Case No. 2-21-19

-18- * * * (e) The regulation of the use of, and the maintenance and repai r of, roads, highways, streets, avenues, alleys, sidewalks, bridg es, aqueducts, viaducts, and public grounds;

* * * (l) The provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system [.] R.C. 2744.01(C). By contrast, (G)(1) “Proprietary function” means a function of a political subdivision that is specified in division (G)(2) of this sectio n or that satisfies both of the following: (a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section; (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, t he following:

* * * (d) The maintenance, destruction, operation, and upkeep of a sewer system [.] R.C. 2744.01(G).Case No. 2-21-19

-19- {¶45} In this case, the parties disagree as to whether a “governmenta l” or “proprietary” function was being performed. Landowners and Hel ms maintain that Minster’s employees were negligent in the maintenance, destruct ion, operation, and upkeep of its sewer system in this matter, making its actions p roprietary functions. R.C. 2744.01(G). More specifically, they contend that Minster mistakenly left the “abandoned” sewer line open, that Minster negligently instructe d Helms to “destroy” the line that was thought to be abandoned without che cking it for pressure first, and that Minster permitted a sloppy cleanup after the pi pe erupted, which led to flooding. {¶46} By contrast, Minster contends that it was performing a function specifically defined as “governmental,” namely the “constructio n, or reconstruction of a public improvement, including, but not limited to, a sewer system.” R.C. 2744.01(C)(2)(1). Further, Minster argues that pursuant to the plain, unambiguous language of R.C. 2744.01 itself, an action cannot be proprietary if it has already been defined as governmental. R.C. 2744.01(G)(1)(a); Bucey v. Carlisle , 1st Dist. Hamilton No. C-090252, 2010-Ohio-2262, ¶ 14 (“Where a function is specifically defined as a governmental function, it cannot be a proprietary function.”). The terms proprietary and governmental have been described as “mutually e xclusive.” DSS Services, LLC v. Eitel’s Towing, LLC , 10th Dist. Franklin No. 18AP-567, 2019- Ohio-3158, ¶ 15.Case No. 2-21-19

-20- {¶47} In assessing whether Minster was performing a governmental or proprietary function, we emphasize that under the plain, unambi guous language of R.C. 2744.01(C)(2)(l), the reconstruction of a sewer system would be a governmental function. Furthermore, there is case authority th at would support the proposition that Minster was engaged in a governmental function in this case by reconstructing the sewer. “Municipal decisions regarding updating or upgrading, rather than simple maintenance and repair of existing systems have bee n held to be a governmental function to which immunity applies.” Matter v. Athens , 4th Dist. No. 13CA20, 21 N.E.3d 595, 2014-Ohio-4451, ¶ 22, citing Essman v. Portsmouth , 4th Dist. No. 09CA3325, 2010-Ohio-4837, ¶ 46. “[A] political subdivision's decision regarding an upgrade of its sewer system [or water sup ply system] is a governmental function. A decision to upgrade requi res a political subdivision to weigh various considerations, includ ing the availability of fiscal resources, the use and acquisition o f additional equipment, and the overall design of the system.” Essman at ¶ 44. See also Smith v. Stormwater Mgt. Div. , 111 Ohio App.3d 502, 507, 676 N.E.2d 609 (1st Dist.1996). Since “upgrading involves construction and design, such upgrading is a governmental, not a proprietary, function.” Coleman v. Portage Cty. Engineer, 133 Ohio St.3d 28, 2012-Ohio-3881, ¶ 1, 975 N.E.2d 952. Glover v. City of Columbus , 10th Dist. Franklin No. 17AP-332, 2018-Ohio-4743, ¶ 18. Based on both statutory language and case authority, the c utting back andCase No. 2-21-19

-21- capping of the line in question and the resulting cleanup were both part of sewer reconstruction and thus would be governmental functions. 7 {¶48} If landowners’ and Helms were only arguing about actions that occurred during the sewer reconstruction project, we could end the second tier analysis here. However, landowners also argue that Minster was negligent by leaving the “abandoned” line pressurized, which they contend wo uld constitute negligent operation/maintenance/upkeep even if the other issues did not, making it a proprietary function. 8 {¶49} Importantly, even if we accepted landowners’ arguments and determined that the negligence alleged by leaving the valve ope n to the “abandoned” line was in relation to a proprietary function, 9 thus removing the cloak of immunity, Minster could still restore immunity in this matter through the defenses listed in R.C. 2744.03(A)(5). {¶50} In fact, to the extent that the trial court evidently determine d that the functions in this matter were partly proprietary, the trial cou rt explicitly determined

7 Moreover, to find that Minster was engaging in a proprietary f unction rather than a governmental function regarding the sewer lines, we would have to determine that cutt ing back and capping a single line amounted to the “destruction” of a sewer system within the proprietary f unction definition. 8 In its entry on the matter, the trial court found that Minster was engaged in actions that were “partially governmental” and “partially proprietary.” (Doc. No. 99). Not ably, the trial court did not specify how it reached this conclusion in parsi ng out governmental and proprie tary functions, or what actions it determined were governmental versus proprietary. 9 To make this determination, we would have to divorce the fact that even though the line was “open” and it should not have been, it was not improperly functioning and a p roblem was only caused when it was cut open as part of the reconstruction project.Case No. 2-21-19

-22- that Minster’s immunity was restored under R.C. 2744.03(A)(5), which reads as

follows. (A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for inju ry, death, or loss to person or property allegedly caused by any ac t or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:

* * * (5) The 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, personn el, facilities, and other resources unless the judgment or discreti on was exercised with malicious purpose, in bad faith, or in a wan ton or reckless manner. {¶51} Landowners argue that R.C. 2744.03(A)(5) should not apply in th is matter because there was no evidence presented as to how there was an exercise of judgment or discretion regarding the use of equipment. Further , landowners contend that immunity under R.C. 2744.03(A)(5) “attaches only t o the broad type of discretion involving public policy made with ‘the creative e xercise of political judgment.’ ” McVey v. Cincinnati , 109 Ohio App.3d 159, 163, 671 N.E.2d 1288, 1290 (1st Dist.1995), quoting Bolding v. Dublin Local School Dist. , 10th Dist. Franklin No. 94APE09-1307, 1995 WL 360227. “Immunity does not apply to the negligence of employees in ‘the details of carrying out the act ivity even though there is discretion in making choices.’ ” Id . quoting Id

.Case No. 2-21-19

-23- {¶52} We disagree with landowners’ argument and agree with the trial court that R.C. 2744.03(A)(5) does apply here and would restore immun ity. Any injuries did occur during the exercise of discretion and the use of equi pment in this matter. Further, there is no indication that any of the actions were do ne with a malicious purpose, in bad faith, or in a wanton or reckless manner. The lowest of these standards, reckless, has been defined as “the conscious disrega rd of or indifference

to a known or obvious risk of harm to another that is unreasona ble under the circumstances and is substantially greater than negligent condu ct.” Anderson v.

Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, at paragraph 4 of syllabus. Here, there is no showing of anything greater than negligence. {¶53} For these reasons, even if we assumed that this matter involved a proprietary function invoking an exception to immunity in the s econd tier of the sovereign immunity analysis pursuant to R.C. 2744.02(B)(2), Min ster’s immunity would be restored under R.C. 2744.03(A)(5). Thus landowners’ a rguments to the contrary are not well-taken, and their assignment of error is o verruled. 10 {¶54} Next, we turn to Helms’ claim that the immunity exception under R.C. 2744.02(B)(4) is applicable in this case. The trial court spec ifically rejected this assertion in its judgment entry, finding that there were no phy sical defects within or

10 To the extent that any of Helms’ arguments overlap regarding t his immunity exception, those arguments are rejected as well.Case No. 2-21-19

-24- on the grounds of any building being used in the performance of a governmental function, thus the exception was inapplicable. {¶55} We agree with the trial court. There is no evidence that there was a defect on government grounds or in a government building in thi s matter to invoke R.C. 2744.02(B)(4). Even assuming that it was a Minster employ ee that left the valve open to the line that was thought to be “abandoned,” this was not a “defect” to the “building” or “grounds.” Thus Helms’ arguments are not well-taken, and their assignments of error are overruled. {¶56} In sum, after a de novo review, we find that Minster was entitl ed to summary judgment in this matter on the grounds of sovereign imm unity. Therefore, the assignments of error asserted by the landowners and Helms a re overruled.

Conclusion {¶57} For the foregoing reasons the landowners’ assignment of error a nd Helms’ assignments of error are overruled and the judgment of t he Auglaize County

Common Pleas Court is affirmed. Judgment Affirmed MILLER and WILLAMOWSKI, J.J., concur. /jlr