[Cite as Cleveland Elec. Illum. Co. v. Cleveland, 2020-Ohio-4469.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

CLEVELAND ELECTRIC 

ILLUMINATING COMPANY, : 

 

 Plaintiff-Appellee, : 

 No. 109144 

 v. : 

 

CITY OF CLEVELAND, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED 

RELEASED AND JOURNALIZED: September 17, 2020 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-18-904996 

 

Appearances: 

Weltman, Weinberg & Reis Co., L.P.A., and Amanda 

Rasbach Yurechko, for appellee. 

Barbara A. Langhenry, Cleveland Director of Law, and 

Craig J. Morice, Assistant Director of Law, for appellant. 

MARY J. BOYLE, P.J.: 

Defendant-appellant, city of Cleveland (“city”), appeals the trial 

court’s denial of its motion for summary judgment. It raises one assignment of error 

for our review: 
The trial court erred by denying the City of Cleveland’s Motion for 

Summary Judgment on the basis of statutory immunity and finding 

that Cleveland Electric Illuminating properly set forth specific facts 

showing that there is a genuine issue for trial. 

Finding no merit to the city’s assignment of error, we affirm the trial 

court’s judgment. 

I. Procedural History and Factual Background 

In October 2018, plaintiff-appellee, Cleveland Electric Illuminating 

Company (“CEI”), filed a complaint against the city for negligence. CEI alleged that 

on November 8, 2017, the city operated equipment near 10531 Bryant Avenue “to 

perform excavation without informing itself of the location of [CEI’s] utilities or, in 

the alternative, negligently excavated despite notice of [CEI’s] lines.” CEI claimed 

that the city’s negligent excavation proximately caused damage to CEI’s property in 

the amount of $38,061.85. In its answer, the city admitted that it operated 

equipment near 10531 Bryant Avenue on November 8, 2017, but it otherwise denied 

CEI’s allegations. 

In July 2019, the city filed a motion for summary judgment, arguing 

that as a political subdivision, it is immune from CEI’s negligence claim. The city 

supported its motion with an affidavit of a city employee, Mark Pottinger. Pottinger 

averred that at 1:30 a.m. on November 8, 2017, he led a crew of the city’s Division of 

Water to repair a leaking water main at 10531 Bryant Avenue. The crew excavated 

a four-feet-by-four-feet hole in the tree lawn using shovels and located the city’s 

connection box. Pottinger observed that the “connection box was cemented against 

a concrete electric duct due to over-poured cement.” The crew used their shovels to 
“chip away” at the over-poured cement to remove the connection box. As the crew 

worked, standing water began to rise in the hole, and Pottinger directed the crew to 

leave the hole. The water level in the hole continued to rise, and within ten minutes, 

“water entered the concrete electric duct and the electric line blew.” After the 

“electric line blew,” Pottinger contacted his dispatcher to determine whether the 

duct belonged to CEI or the city, and his dispatcher told him that the duct belonged 

to CEI. Pottinger averred that “[a]t no point did I or any of my crew physically strike 

or penetrate any underground electric line or duct” during the excavation. 

CEI filed an opposition to the city’s motion for summary judgment, 

arguing that an exception to immunity applied because the city negligently 

performed a proprietary function. CEI supported its motion with a Damage Claim 

Report and an affidavit of Daniel Tanno, a supervisor with the CEI Underground 

Line Department. Tanno averred that he had been employed with CEI for 25 years 

and had worked with the Underground Line Department since 2004, where he daily 

inspected damage to CEI’s underground cable system and determined the cause of 

that damage. His affidavit states that CEI’s underground cables ordinarily do not 

fault when in contact with water unless the protective sleeve on the cable is 

damaged. He averred that in his experience, hand digging with a shovel can damage 

the protective sleeve. 

Tanno’s affidavit states that on November 8, 2017, he and a CEI crew 

responded to reports of power outages near 10531 Bryant Avenue. He observed the 

damage to the duct and cable at that location and averred that “[t]he cap on the duct 
had been chipped away, and the concrete duct broken away from the now exposed 

cable.” He further observed that the protective sleeve over the electrical cable had 

been damaged, which allowed water to reach the conductor and cause the short. He 

averred that the duct required repair and that the cable that faulted needed to be 

replaced. The Damage Claim Report, which Tanno had completed on November 8, 

2017, states that the city “apparently damaged duct & hit cable.” 

In August 2019, the city simultaneously filed a reply in support of its 

motion for summary judgment and a motion to strike Tanno’s affidavit pursuant to 

Civ.R. 12(F). In its motion to strike, the city argued that it noticed Tanno’s 

deposition in June 2019, and that Tanno had not been informed of the deposition 

and failed to appear. The city stated that it sent a letter to CEI’s counsel requesting 

to schedule a new deposition, but CEI did not respond. 

CEI filed an opposition to the city’s motion to strike Tanno’s affidavit, 

conceding that its counsel overlooked the email attaching Tanno’s deposition notice 

and stating that CEI had no record of the city’s letter requesting to reschedule. CEI 

offered potential dates to reschedule the deposition, and contended that the 

deposition notice was improper because it did not provide adequate time to respond, 

that the motion to strike did not comply with Civ.R. 37, and that the city did not 

suffer prejudice. The city filed a reply, arguing that it suffered prejudice and that 

CEI’s opposition motion was untimely. 

On October 17, 2019, the trial court issued two judgment entries: one 

judgment entry denied the city’s motion to strike Tanno’s affidavit, and the other 
judgment entry denied the city’s motion for summary judgment with an attached 

opinion. The opinion states in part that “there are a number of questions of material 

fact pertaining to the negligence analysis,” including, “whether the shovels [the 

city’s] crew used to dig into the tree lawn created or caused the alleged damage; 

whether the crew chipping away at the over-poured cement caused or created the 

damage; whether and to what extent the crew owed a duty to [CEI]; and whether the 

crew breached that duty.” The trial court also found that this “case involves a 

standard of care that is not a matter of common knowledge” and that the city “has 

not provided the [c]ourt with any evidence from which to infer that the [c]ity 

deployed the standard of care appropriate to the situation.” 

The city timely appeals the trial court’s October 17, 2019 judgment 

entry denying its motion for summary judgment.1

II. Law and Analysis 

The city argues in its sole assignment of error that the trial court erred 

in denying its motion for summary judgment. It maintains that it is immune from 

CEI’s negligence claim because it is a political subdivision, and no exceptions to this 

immunity apply. The city relies on Pottinger’s affidavit that neither Pottinger nor 

any member of his crew struck or penetrated any underground electrical line or duct 

during the excavation. The city contends that CEI’s attempt to counter this evidence 

was insufficient to create a genuine factual issue because Tanno’s affidavit presented 

 1 The trial court’s October 17, 2019 judgment entry denying the city’s motion to 

strike Tanno’s affidavit is not at issue in this appeal. 
only an inference of negligence without direct evidence. The city maintains that this 

inference ignores that the duct and cable could have been damaged before the city 

started excavating or that an unknown third party could have caused the damage. 

The city relies on Wise v. Timmons, 64 Ohio St.3d 113, 592 N.E.2d 840 (1992), and 

Jennings Buick, Inc. v. Cincinnati, 63 Ohio St.2d 167, 406 N.E.2d 1385 (1980), for 

the propositions that negligence cannot be “presumed from the mere fact of an 

accident and resulting injury” and that res ipsa loquitur is not an independent 

ground for recovery. 

CEI argues that the city is not immune from CEI’s claim as a matter 

of law because there are genuine issues of material fact as to whether the city’s 

conduct falls under R.C. 2744.02(B)(2)’s immunity exception: negligent 

performance of a proprietary function. CEI maintains that the city did not present 

evidence that it satisfied the duty of care for excavators. CEI further contends that 

Tanno’s affidavit conflicts with Pottinger’s affidavit, and the trial court correctly 

determined that it should not resolve this factual dispute on summary judgment. 

We review an appeal from summary judgment under a de novo 

standard. Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). 

Accordingly, we afford no deference to the trial court’s decision and independently 

review the record to determine whether summary judgment is appropriate. N.E. 

Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 

N.E.2d 534 (8th Dist.1997). Civ.R. 56(C) provides that before summary judgment 

may be granted, a court must determine: 
(1) no genuine issue as to any material fact remains to be litigated, (2) 

the moving party is entitled to judgment as a matter of law, and (3) it 

appears from the evidence that reasonable minds can come to but one 

conclusion, and viewing the evidence most strongly in favor of the 

nonmoving party, that conclusion is adverse to the nonmoving party. 

State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 

654 (1996). 

Civ.R. 56(C) also provides an exclusive list of materials that parties 

may use to support a motion for summary judgment: 

Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact, if any, timely 

filed in the action, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to judgment as a matter of 

law. No evidence or stipulation may be considered except as stated in 

this rule. 

The moving party carries an initial burden of setting forth specific 

facts that demonstrate his or her entitlement to summary judgment. Dresher v. 

Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to 

meet this burden, summary judgment is not appropriate, but if the movant does 

meet this burden, summary judgment will be appropriate only if the nonmovant fails 

to establish the existence of a genuine issue of material fact. Id. at 293. 

To determine whether a political subdivision is immune from tort 

liability pursuant to R.C. Chapter 2744, Ohio courts conduct a three-tiered analysis: 

The first tier is the general rule that a political subdivision is immune 

from liability incurred in performing either a governmental function or 

proprietary function. R.C. 2744.02(A)(1). However, that immunity is 

not absolute. R.C. 2744.02(B) * * *. 
The second tier of the analysis requires a court to determine whether 

any of the five exceptions to immunity listed in R.C. 2744.02(B) apply 

to expose the political subdivision to liability. * * * 

If any of the exceptions to immunity in R.C. 2744.02(B) do apply and 

no defense in that section protects the political subdivision from 

liability, then the third tier of analysis requires a court to determine 

whether any of the defenses in R.C. 2744.03 apply, thereby providing 

the political subdivision a defense against liability. 

Lyons v. Teamhealth Midwest Cleveland, 8th Dist. Cuyahoga No. 96336, 2011-

Ohio-5501, ¶ 23-25. 

As to the first tier, as set forth in R.C. 2744.02(A)(1), the general rule 

in Ohio is that political subdivisions are not liable for damages in civil actions: 

For the purposes of this chapter, the functions of political subdivisions 

are hereby classified as governmental functions and proprietary 

functions. Except as provided in division (B) of this section, 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 function. 

The parties agree that the city is a political subdivision pursuant to 

R.C. 2744.01(F). Therefore, the city is generally immune from liability for tort 

claims unless one of the five exceptions in R.C. 2744.02(B) applies. 

CEI argues that the second exception in R.C. 2744.02(B) applies here: 

the negligent performance of proprietary functions. R.C. 2744.02(B)(2). “[B]efore 

R.C. 2744.02(B)(2) will remove a political subdivision’s immunity, the plaintiff must 

establish: (1) the elements required to sustain a negligence action — duty, breach, 

proximate cause, and damages; and (2) that the negligence arose out of a 

‘proprietary function.’” Pierce v. Gallipolis, 2015-Ohio-2995, 39 N.E.3d 858, ¶ 20 
(4th Dist.). “Proprietary functions” include “[t]he establishment, maintenance, 

and operation of * * * a municipal corporation water supply system[.]” 

R.C. 2744.01(G)(2)(c). The parties agree that the city’s excavation on November 8, 

2017, was to maintain its municipal water supply system and was a proprietary 

function as defined in R.C. 2744.01(G)(2)(c). Thus, the issue here is whether there 

are genuine issues of material fact regarding the elements required to sustain a 

negligence action or whether the city is entitled to immunity as a matter of law. 

We find that genuine issues of material fact exist regarding whether 

the city breached its duty to CEI. The city had a duty to inform itself of existing 

utility lines before excavating: ‘“In Ohio, a nondelegable duty is imposed upon an 

excavator to inform himself as to whether utility lines exist below ground so that he 

may avoid damaging them.”’ Ohio Bell Tel. Co. v. Kassouf Co., 2015-Ohio-3030, 37 

N.E.3d 174, ¶ 14 (8th Dist.), quoting N.E. Ohio Natural Gas Corp. v. Stout 

Excavating, 156 Ohio App.3d 144, 2004-Ohio-600, 804 N.E.2d 1040, ¶ 7 (9th 

Dist.). Pottinger’s affidavit in support of the city’s motion for summary judgment 

does not state whether the city investigated to learn what utility lines existed below 

ground before he and his crew began to excavate at 10531 Bryant Avenue. By 

Pottinger’s own admission, he called his dispatcher to learn whether the electrical 

line that “blew” was the city’s or CEI’s only after the damage. Factual questions 

therefore remain whether the city breached its duty to inform itself of existing utility 

lines. The city is therefore not entitled to judgment as a matter of law that it is 

immune from CEI’s claim. 
Although the factual issue regarding breach is dispositive of the city’s 

motion for summary judgment, there is also a genuine dispute of material fact as to 

whether the city’s digging into the tree lawn or “chipping away” at the cement 

proximately caused $38,061.85 worth of damage to CEI’s equipment. The city and 

CEI submit contradictory affidavits, the city presenting direct evidence, and CEI 

relying on circumstantial evidence. Pottinger averred that “[a]t no point did I or any 

of my crew physically strike or penetrate any underground electric line or duct” 

during the excavation. However, Tanno implied that he is an expert in evaluating 

damage to CEI’s equipment and raised an inference that the city’s “chipping away” 

at the concrete damaged CEI’s equipment. On a motion for summary judgment, we 

do not weigh the credibility of the evidence. Knox v. Hetrick, 8th Dist. Cuyahoga 

No. 91102, 2009-Ohio-1359, ¶ 47. The factual issue must be decided by the trier of 

fact. Id.

We disagree with the city’s argument that the inference raised by 

Tanno’s affidavit is insufficient to create a factual issue. Circumstantial evidence 

and direct evidence have the same probative value. State v. Jenks, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991), paragraph one of the syllabus. “The law does not 

require every fact and circumstance which makes up a case of negligence to be 

proved by direct and positive evidence[.]” McComis v. Baker, 40 Ohio App.2d 332, 

336, 319 N.E.2d 391 (2d Dist.1974). Furthermore, on a motion for summary 

judgment, a reasonable inference based on established facts is sufficient to present 

a genuine issue of material fact. Hampton v. Trimble, 101 Ohio App.3d 282, 287, 
655 N.E.2d 432 (2d Dist.1995). We must construe all inferences in the light most 

favorable to the party opposing the motion — here, CEI. Thomas v. Univ. Hosps. of 

Cleveland, 8th Dist. Cuyahoga No. 90550, 2008-Ohio-6471, ¶ 22. The city’s 

argument that the damage could have existed before the city’s work or that an 

unknown third party could have caused the damage both disregards our mandate to 

construe inferences in the light most favorable to CEI and highlights that factual 

questions still exist regarding who damaged CEI’s equipment, and how. 

The city’s reliance on Wise, 64 Ohio St.3d 113, 592 N.E.2d 840, and 

Jennings Buick, 63 Ohio St.2d 167, 406 N.E.2d 1385, is misplaced. In Wise, the 

Ohio Supreme Court found that the trial court erred in granting the plaintiff’s 

motion for directed verdict on his negligence claim where the only evidence was the 

occurrence of a car accident. Wise at 115. The court reasoned that the evidence was 

insufficient to establish negligence as a matter of law, but the facts “permit an 

inference of negligence,” and the question should be resolved by a jury. Id. at 116. 

The court further held that although res ipsa loquitur, an evidentiary rule that allows 

a jury to draw an inference of negligence from circumstantial evidence, could not be 

used to support a directed verdict, a jury may use the rule to infer negligence. Id. at 

117. Additionally, the fact that res ipsa loquitur is not an independent ground for 

recovery is irrelevant to our analysis of whether CEI raises a genuine issue of fact. 

In Jennings Buick, the Ohio Supreme Court explained that res ipsa loquitur does 

not need to be plead in a complaint, but rather, “it is merely a method of proving the 
defendant’s negligence through the use of circumstantial evidence.” Jennings Buick 

at 170. CEI’s circumstantial evidence is thus proper to consider. 

We find that there are genuine issues of material fact as to (1) whether 

the city breached its duty to inform itself of existing utility lines before excavating 

and (2) whether the city’s digging into the tree lawn or “chipping away” at the 

cement caused the damage to CEI’s equipment. Reasonable minds can come to 

more than one conclusion as to whether the city is immune from CEI’s negligence 

claim, and the city is not entitled to a judgment of immunity as a matter of law. We 

therefore overrule the city’s sole assignment of error. 

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

MARY J. BOYLE, PRESIDING JUDGE 

PATRICIA ANN BLACKMON, J., and 

LARRY A. JONES, SR., J., CONCUR