[Cite as Ivory v. Austintown Twp., 2011-Ohio-3171.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

JOSEPH IVORY, ) 

 ) CASE NO. 10 MA 106 

 PLAINTIFF-APPELLANT, ) 

 ) 

 - VS - ) OPINION 

 ) 

TOWNSHIP OF AUSTINTOWN OHIO, ) 

et al., ) 

 ) 

 DEFENDANTS-APPELLEE. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas 

Court, Case No. 08 CV 2515. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellant: Attorney Peter C. Klimis 

Attorney James E. Lanzo 

4126 Youngstown-Poland Road 

Youngstown, OH 44514 

For Defendants-Appellee: Attorney James F. Mathews 

Baker, Dublikar, Beck, Wiley 

& Mathews 

400 South Main Street 

Canton, OH 44720 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: June 15, 2011 
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DeGenaro, J. 

{¶1} Plaintiff-Appellant, Joseph Ivory appeals the June 14, 2010 decision of the 

Mahoning County Court of Common Pleas granting Defendant-Appellee, Township of 

Austintown's motion for summary judgment. Ivory argues that the trial court incorrectly 

found Austintown was immune from liability under R.C. 2744, the Political Subdivision 

Tort Liability Act. 

{¶2} Upon review, Ivory's assignment of error is meritless. Austintown is entitled 

to immunity under R.C. 2744.02(B)(1), because it was engaged in a governmental 

function, as defined by R.C. 2744.01(C)(2)(l), when it installed a new sewer abutting 

Ivory's property, and thus none of the exceptions to immunity codified in R.C. 

2744.02(B)(2) apply. Accordingly, the decision of the trial court is affirmed. 

Facts and Procedural History 

{¶3} Ivory owns a single-story house in Austintown, Ohio with a basement level 

garage and living space. 

{¶4} On June 24, 2006, Austintown experienced "heavy rains." Ivory testified 

that surface water came rushing down the road onto his driveway, into his garage and 

basement, and that three feet of water went through his property. According to Ivory, an 

open drainage ditch had abutted his property. Two weeks prior to the storm, Austintown 

replaced it with a pipe and catch basin, which Ivory claims was unable to collect all the 

storm water and caused his home to flood. 

{¶5} Ivory filed suit alleging Austintown negligently maintained its sewers when it 

covered the drainage ditch and installed the pipe and catch basin. Following discovery, 

Austintown moved for summary judgment, asserting it was immune from liability, which 

the trial court granted, finding Austintown was immune under R.C. 2744.02(A)(1) and that 

none of the exceptions to immunity codified in R.C. 2744.02(B) applied. 

Governmental Immunity on Summary Judgment 

{¶6} In his sole assignment of error Ivory asserts: 

{¶7} "The trial court erred when it sustained Appellee's motion for summary 
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judgment." 

{¶8} Ivory asserts Austintown, a political subdivision generally protected from 

liability under R.C. 2744.02(A), does not have immunity in this case under two exceptions 

codified in R.C. 2744.02(B)(2) & (B)(3). First, it negligently performed a proprietary 

function, and second, it negligently maintained public roads. Austintown counters, 

arguing its immunity remains intact because the township was engaged in a governmental 

function and the case does not involve the maintenance of public roads. 

{¶9} When reviewing a trial court's decision to grant summary judgment, an 

appellate court applies the same standard used by the trial court and, therefore, engages 

in a de novo review. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 

829, 586 N.E.2d 1121. A motion for summary judgment is proper if the court, upon 

viewing the evidence in a light most favorable to the non-moving party, determines that: 

(1) there are no genuine issues as to any material facts; (2) the movant is entitled to a 

judgment as a matter of law; and (3) the evidence is such that reasonable minds can 

come to but one conclusion and that conclusion is adverse to the opposing party. Civ.R. 

56(C); Byrd v. Smith (2006), 110 Ohio St. 3d 24, 2006-Ohio-3455, 850 N.E.2d 47, at ¶10. 

Further, "the moving party bears the initial responsibility of informing the trial court of the 

basis for the motion, and identifying those portions of the record which demonstrate the 

absence of a genuine issue of fact on a material element of the nonmoving party's claim." 

Dresher v. Burt (1996), 75 Ohio St.3d 280, 296, 662 N.E.2d 264. The nonmoving party 

has the reciprocal burden of specificity and cannot rest on the mere allegations or denials 

in the pleadings. Id. at 293. 

{¶10} "The determination as to whether a political subdivision is immune from suit 

is purely a question of law properly determined by a court prior to trial and preferably on a 

motion for summary judgment." Schaffer v. Board of Cty. Comrs. of Carroll Cty. (Dec. 7, 

1998), 7th Dist. No. 672, at *4 (citations omitted). 

{¶11} In Cater v. City of Cleveland (1998), 83 Ohio St.3d 24, 697 N.E.2d 610, the 

Ohio Supreme Court set forth a three-tiered analysis for determining whether a political 

subdivision is immune from liability. First, R.C. 2744.02(A)(1) is a broad grant of immunity 

to political subdivisions for "injury, death, or loss to persons or property allegedly caused 
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by any act or omission of the political subdivision or an employee of the political 

subdivision in connection with a governmental or proprietary function." Once immunity is 

established the second tier of analysis requires the Court to determine whether any of the 

five enumerated exceptions in R.C. 2744.02(B)(1)-(5) apply. Id. at 28. If one of the five 

exceptions to immunity applies then the political subdivision is not entitled to immunity. Id. 

Under the third tier of analysis, the court reinstates immunity if the political subdivision 

can successfully argue that one of the defenses contained in R.C. 2744.03 applies. Id. 

{¶12} Both parties correctly agree that Austintown is a political subdivision entitled 

to the broad grant of immunity under R.C. 2744.02(A)(1). At issue is whether either the 

exception for the negligent performance of a proprietary function or the negligent failure to 

maintain public roads applies. R.C. 2744.02(B)(2) or (3). 

Proprietary Function - R.C. 2744.02(B)(2) 

{¶13} Under 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 of the political subdivisions." This 

exception to immunity necessitates first determining whether the political subdivision was 

engaged in a proprietary or governmental function. 

{¶14} When a political subdivision works on its sewers it can be engaged in either 

a governmental or proprietary function, depending on the nature of the work. "Functions 

which can be categorized as either governmental or proprietary are listed in the 

definitional section of the statute, R.C. 2744.01" and aid the court in determining what 

kind of action the political subdivision was engaged in and whether it is entitled to 

immunity. Spitzer v. Mid Continent Constr. Co., 8th Dist. No. 89177, 2007-Ohio-6067, at 

¶18 (quoting, Franks v. Sandusky Bd. of Trustees (Mar. 31, 1992), 6th Dist. No. S-91-18). 

Governmental functions include "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)(2)(l). Proprietary functions include "the maintenance, 

destruction, operation, and upkeep of a sewer system." R.C. 2744.01(G)(1)(D). Given the 

overlapping nature of these definitions, "[d]etermining whether an allegation of negligence 

relates to the maintenance, operation, or upkeep of a sewer system or, instead, the 
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design, construction, or reconstruction of a sewer system is not always a simple inquiry." 

Essman v. Portsmouth, 4th Dist. No. 09CA3325, 2010-Ohio-4837 at ¶32. 

{¶15} In Essman, property owners alleged the city negligently maintained its 

sewers when the sewer system repeatedly backed up, flooding their homes with raw 

sewage. Portsmouth asserted immunity under R.C. 2744.02(A)(1) or 2744.03(A)(5) while 

the homeowners asserted the city was liable under R.C. 2744.02(B)(2). The Court 

synthesized the various cases concerning sewers and the application of R.C. 

2744.02(B)(2) and set out general guidelines for determining whether a town's actions are 

governmental or proprietary. The Court found that a proprietary function was involved 

when: (1) "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;" or (2) a city or municipality decided to tap sewer lines into an 

existing sewer system. Id. at ¶32 (citations omitted). The Court found a governmental 

function was involved when: (1) "remedying a problem would require a city to, in essence, 

redesign or reconstruct the sewer system;" or (2) "a sewer system operates as it was 

designed." Id. at ¶32-33 (citations omitted). Based on this analysis the Fourth District 

held that Portsmouth could be subject to liability under 2744.02(B)(2) for negligently 

operating its wet gates but ultimately reinstated immunity under R.C. 2744.03(A)(5), which 

extends to activities that involve weighing alternatives or making decisions requiring a 

high degree of official judgment or discretion. 

{¶16} The determination of whether Austintown's actions were proprietary or 

governmental is more difficult because the record does not contain any information 

concerning the construction, design, or maintenance of the sewer in question. Both 

parties agree on the essential facts. Prior to the June 2006 storm Austintown covered a 

sewer drainage ditch abutting Ivory's property and installed a pipe and catch basin. But 

neither party has presented any testimony indicating why the pipe and catch basin were 

installed or whether it operated correctly during the storm. Instead, Ivory merely asserts 

its construction constituted maintenance while Austintown asserts that the pipe and catch 

drain was a new sewer design and construction. Austintown also points to Ivory's 

deposition testimony: 
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{¶17} "Q. Essentially your claim is that by eliminating the ditch and installing just 

the one catch basin as well as the piping in the enclosed ditch, that that design or 

configuration that the township put in simply did not have the capacity to handle the rain 

during this June 24 event? 

{¶18} "A. Uh-huh." 

{¶19} The legal question is whether the installation of the pipe and catch basin 

constituted maintenance of a sewer, a proprietary function, or the provision, design or 

construction of a sewer, a governmental function. Integral to Ivory's claim is the assertion 

that the old drainage ditch was a sufficient sewer system while the new pipe and catch 

drain is not. This is a tacit admission that the flooding problem can only be remedied by 

the removal or redesign of the pipe and catch basin. Viewing the evidence in a light most 

favorable to Ivory, when Austintown covered the drainage ditch and installed the pipe and 

catch basin, it had provided/redesigned/constructed a new sewer, not maintained it. 

Because sewer design and construction is a governmental, not proprietary, function, R.C. 

2744.02(B)(2) does not apply and Austintown's immunity remains intact. See also R.C. 

2744.01(C)(2)(r) (flood control measures are governmental functions.) 

Maintain Public Roads - R.C. 2744.02(B)(3) 

{¶20} Under R.C. 2744.02(B)(3) "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. 

2744.01(H) defines "public road" as: "public roads, highways, streets, avenues, alleys and 

bridges within a political subdivision. 'Public roads' does not include berms, shoulders, 

rights-of-way, or traffic control devices unless the traffic control devices are mandated by 

the Ohio manual of uniform traffic control devices." The purpose behind 2744.02(B)(3) is 

to ensure the safety of the public on roads and it is generally applicable only when a 

condition causes the road to become unsafe for travel. See Ross v. Board of Educ. of 

Solon City School Dist. (July 2, 1992), 8th Dist. Nos. 62978, 63020 at 3 (construing a 

previous version of 2744.02(B)(3)). 

{¶21} Ivory asserts this exception applies because "drainage ditch[es] and catch 

basins * * * are used to prevent water from accumulating on the roadway." But 
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2744.03(B)(3) is a narrow exception which applies to traveled portions of the street and 

which explicitly does not contemplate shoulders or berms as part of "public roads." See 

Wooten v. CSX RR. (2005), 164 Ohio App.3d 428, 443, 842 N.E.2d 603 at ¶50 ("the 

focus should be on whether a condition exists within the political subdivision's control that 

creates a danger for ordinary traffic on the regularly travelled [sic] portion of the road.") 

The Twelfth District, analyzing R.C. 2744.03(B)(3)'s applicability where a pedestrian 

tripped and fell in a culvert, noted the Supreme Court, when construing R.C. 723.01, 

found that a "catch basin and drainage slope were not part of the paved or traveled 

portion of the street, did not render the street unsafe for customary vehicular or 

pedestrian travel, and did not cause injury to a person using the street in an expected and 

ordinary manner." Neudecker v. Butler Cty. Engineer's Office (2001), 146 Ohio App.3d 

614, 619, 767 N.E.2d 776 (quoting Lovick v. Marion (1975), 43 Ohio St.2d 171, 174 331 

N.E.2d 445). The Twelfth District held that the public road exception to immunity did not 

apply to a culvert. Id. 

{¶22} Because the catch basin and pipe in question is not a part of the paved or 

traveled portion of the street, it is not a public road as defined in R.C. 2744.01(H) and the 

exception contained in R.C. 2744.02(B)(3) simply does not apply. Given the narrow 

scope of the exception in 2744.02(B)(3), Austintown's immunity under 2744.02(A)(1) 

remains intact. 

{¶23} In conclusion, neither of the exceptions in R.C. 2744.02(B)(2) or (3) apply, 

and Austintown's immunity remains intact. Accordingly, Ivory's sole assignment of error is 

meritless, and the judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

Vukovich, J., concurs.