[Cite as Ohio Bell Tel. Co. v. Cleveland, 2024-Ohio-1475.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

OHIO BELL TELEPHONE COMPANY, :

Plaintiff-Appellee, :

No. 113116

v. :

CITY OF CLEVELAND, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: April 18, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-21-949811

Appearances:

Mark Griffin, Cleveland Director of Law, and Jerome A. 

Payne, Jr., Assistant Director of Law, for appellant. 

W.H. Hunt Legal Group, LLC, William H. Hunt, and 

Nicholas A. Gulish, for appellee. 

EILEEN T. GALLAGHER, J.:

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

appeals from the denial of a motion for summary judgment on its claim for sovereign 

immunity and claims the following errors:
1. It was reversible error for the lower court to hold that there were 

material issues of fact when it denied the city of Cleveland’s motion for 

summary judgment based on statutory immunity. 

2. It was reversible error for the lower court when it failed to reinstate 

immunity as a matter of law. 

We affirm the trial court’s judgment. 

I. Facts and Procedural History

In September 2019, plaintiff-appellee, the Ohio Bell Telephone 

Company (“Ohio Bell”) discovered that its underground cable had been damaged at 

1405 Huron Road, Cleveland. Upon investigation, Ohio Bell discovered that the 

Cleveland Water Department had repaired an underground water line at that 

location from April 30, 2019, to May 2, 2019. Following its investigation, Ohio Bell 

filed a complaint against the city to recover losses resulting from the damaged cable. 

The city filed a motion for summary judgment, arguing it was immune 

from liability pursuant to R.C. Chapter 2744. The city conceded that its repair of the 

water line in the vicinity of Ohio Bell’s cable was a proprietary function, which is an 

exception to the immunity provided under R.C. 2744.02(B)(2), but it argued there 

was no evidence that the city was negligent or that it damaged Ohio Bell’s cable. The 

city further asserted that even if it were negligent, it was immune from liability 

pursuant to a defense provided in R.C. 2744.03(A)(5). The trial court denied the 

motion for summary judgment, and this appeal followed.
II. Law and Analysis

A. Standard of Review

Appellate review of summary judgments is de novo. Grafton v. Ohio 

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to Civ.R. 56(C), 

summary judgment is appropriate when (1) there is no genuine issue of material 

fact; (2) the moving party is entitled to judgment as a matter of law; and (3) 

reasonable minds can come to but one conclusion and that conclusion is adverse to 

the nonmoving party, said party being entitled to have the evidence construed most 

strongly in his or her favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 

653 N.E.2d 1196 (1995), paragraph three of the syllabus; Zivich v. Mentor Soccer 

Club, 82 Ohio St.3d 367, 696 N.E.2d 201 (1998). The party moving for summary 

judgment bears the burden of showing that there is no genuine issue of material fact 

and that he or she is entitled to judgment as a matter of law. Dresher v. Burt, 75 

Ohio St.3d 280, 662 N.E.2d 264 (1996).

B. Sovereign Immunity

In the first assignment of error, Cleveland argues the trial court erred 

in finding there were genuine issues of material fact that preclude its claim for 

immunity under R.C. Chapter 2744. In the second assignment of error, the city 

argues the trial court erred by failing to reinstate immunity pursuant to R.C. 

2744.03(A)(5). We discuss these assigned errors together.

The Political Subdivision Tort Liability Act, codified in R.C. Chapter 

2744, sets forth a three-tier analysis for determining whether a political subdivision 
is immune from liability for injury or loss to property. Colbert v. Cleveland, 99 Ohio 

St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7. In the first tier of the analysis, the 

court applies the general rule provided in R.C. 2744.02(A)(1), which states that 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 second tier of the analysis places the burden on the plaintiff to 

overcome this statutory immunity by showing that one of the five exceptions 

contained in R.C. 2744.02(B) applies. Powell v. Cleveland, 2022-Ohio-4286, 202 

N.E.3d 794, ¶ 10 (8th Dist.). If any of the exceptions enumerated in R.C. 2744.02(B) 

applies, the court proceeds to the third tier of the analysis and determines whether 

any of the defenses enumerated in R.C. 2744.03 applies to provide the political 

subdivision a defense against liability. Colbert at ¶ 9. If none of the five exceptions 

applies, the immunity analysis ends without proceeding to the third tier. Rankin v. 

Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio2567, 889 N.E.2d 521, ¶ 32.

The immunity provided in R.C. 2744.02(A)(1) applies to political 

subdivisions engaged in a governmental or proprietary function. R.C. 

2744.02(A)(1). It is undisputed that the city’s repair of the water line was a 

proprietary function. Thus, the city is entitled to the broad immunity under the first 

tier of the analysis. However, in the second tier of the analysis, R.C. 2744(B)(2) 
provides that political subdivisions may be held liable for its negligent performance 

of a proprietary function. In other words, Cleveland is liable for damage to Ohio 

Bell’s property if the damage was caused by the negligent acts of its employees who 

were involved a proprietary function. And since the city concedes that the repairs 

conducted on the water line constituted a proprietary function, the city is liable if its 

employees negligently damaged Ohio Bell’s property while performing the repairs. 

1. Negligence

To establish a claim for negligence, the plaintiff must show the 

existence of a duty, a breach of that duty, and that the breach of that duty was the 

proximate cause of an injury. Menifee v. Ohio Welding Prods. Inc., 15 Ohio St.3d 

75, 77, 472 N.E.2d 707 (1984). 

Cleveland argues there is no evidence that its employees were 

negligent or that they damaged Ohio Bell’s property. In support of its argument, it 

cites the testimony of two city employees who worked at the site. Kyle Gembus 

(“Gembus”), the project foreman, testified at deposition that he did not recall seeing 

any damage to any utilities when they repaired the water line located at 1405 Huron 

Road, Cleveland in late April and early May 2019. (Gembus depo. at 27.) Joshua 

Pecek (“Pecek”), the hydraulic unit leader on the project, testified that the 

underground utilities, including Ohio Bell’s, were marked in accordance with the 

Ohio Utility Protection Service system (“OUPS”) prior to beginning the excavation. 

(Tr. 13-14.) He nevertheless stated that he did not encounter any utilities while 

excavating the site. (Pecek depo. at 11.) Photographs of the work site show that the 
city’s employees were digging in dirt after removal of the asphalt, and one of the 

photographs depicts a ridge in the dirt. When asked if the ridge covered a conduit, 

Pecek replied that he did not know because he recalled “it being all dirt.” (Pecek 

depo. at 16.)

The city argues the mere occurrence of an injury does not give rise to 

a presumption of negligence. Indeed, we have held that negligence may not be 

presumed from the proof of injury alone. Riveredge Dentistry Partnership v. 

Cleveland, 8th Dist. Cuyahoga No. 110275, 2021-Ohio-3817, ¶ 24. To survive 

summary judgment, the plaintiff must establish a prima facie case of negligence, i.e, 

duty, breach, and proximate cause of damage, that creates a genuine issue of 

material fact for trial. Menifee at 77; Kinasz v. Diplomat Healthcare, 8th Dist. 

Cuyahoga No. 103758, 2016-Ohio-2949, ¶ 21-22. 

Ohio Bell argues it can establish the city’s negligence through the 

doctrine of res ipsa loquitur. Res ipsa loquitur means “[t]he thing speaks for itself.” 

Black’s Law Dictionary 1305 (6th Ed.1990). It is a rule of evidence that allows the 

trier of fact to infer negligence on the part of the defendant from the circumstances 

surrounding the plaintiff’s injury. Hake v. George Wiedemann Brewing Co., 

23 Ohio St.2d 65, 66, 262 N.E.2d 703 (1970), citing Fink v. New York C. Rd. Co., 

144 Ohio St. 1, 56 N.E.2d 456 (1944). “The doctrine of res ipsa loquitur does not 

alter the nature of the plaintiff’s claim in a negligence action; it is merely a method 

of proving the defendant’s negligence through the use of circumstantial evidence.” 

Jennings Buick, Inc. v. Cincinnati, 63 Ohio St.2d 167, 170, 406 N.E.2d 1385 (1980). 
To warrant application of the rule a plaintiff must adduce evidence in 

support of two conclusions: (1) That the instrumentality causing the 

injury was, at the time of the injury, or at the time of the creation of the 

condition causing the injury, under the exclusive management and 

control of the defendant; and (2) that the injury occurred under such 

circumstances that in the ordinary course of events it would not have 

occurred if ordinary care had been observed.

Hake at 66-67. Where the evidence establishes two equally efficient probable causes 

of the injury, one of which is not attributable to the defendant’s negligence, the rule 

of res ipsa loquitor does not apply. Jennings Buick at 171. However, 

a plaintiff seeking to invoke the doctrine of res ipsa loquitur in a 

negligence action need not eliminate all reasonable non-negligent 

causes of his injury. It is sufficient if there is evidence from which 

reasonable men can believe that it is more probable than not that the 

injury was the proximate result of a negligent act or omission.

Id. at 172, citing Adam Hat Stores, Inc. v. Kansas City, 316 S.W.2d 594 (Mo.1958). 

Whether sufficient evidence has been adduced to warrant application 

of the rule is a question of law to be determined on a case-by-case basis. Hake at 67; 

Jennings Buick at 171.

The city argues the doctrine of res ipsa loquitur is inapplicable because 

the injury occurred within a public roadway that is not under its exclusive 

management and control. The city contends the area remained accessible to the 

public for four and half months between the time it completed its work and the time 

Ohio Bell discovered the damage. However, the Ohio Supreme Court rejected a 

similar argument raised by the city of Cincinnati in Jennings Buick. In that case, 

the plaintiff sued the city for structural damage to its buildings as a result of a water 

main break in front of its premises. The city argued that the water main that it 
installed was not within its exclusive control and management because it was not in 

its actual possession. Id. at 173. In rejecting that argument, the court observed: 

[A] showing of exclusive management and control is necessary only 

insofar as it supplies the logical basis for the inference that the 

negligence which caused the injury was that of the defendant, and not 

that of a third party. In the instance of this underground water main, 

however, it is extremely unlikely that acts or omissions of a third party 

may have occasioned the bursting of the water main and the appellee’s 

resulting damages.

* * *

These facts would seem to reasonably preclude, in most instances, 

anyone else from being in control or tampering with these mains. 

Underground water mains are, under most circumstances, not 

accessible to the general public. We hold that the element of exclusive 

management and control of this instrumentality has been met.

Id. The court found it unlikely that a third party could have caused the water main 

to break since it was buried underground. The water main may have been in a public 

roadway and not within the city’s actual possession, but the public did not have 

access to it underground. The same holds true here. 

The city used a jackhammer to break up the roadway. It also used a 

backhoe to remove asphalt. Ohio Bell’s cable could have been cut by the 

jackhammer. Indeed, Ronald Potter (“Potter”), a construction technician with Ohio 

Bell, averred, in an affidavit submitted in opposition to the city’s motion for 

summary judgment, that the damage to Ohio Bell’s cable “was consistent with 

damage caused by a jackhammer.” (Potter aff. ¶ 8.) After the city completed its 

work, it filled the excavated hole and repaved the road thereby preventing public 

access to the underground facilities. 
The city nevertheless asserts that another contractor or utility 

excavating in the same location could have caused the damage. In Cusumano v. 

Pepsi-Cola Bottling Co., 9 Ohio App.2d 105, 109, 223 N.E.2d 477 (8th Dist.1967), 

we explained:

“Where the allegations of a petition show that the defendant did not 

have custody, possession, control or management of the 

instrumentality at the time of the injury, or for an indeterminate period 

of time prior to the injury, the doctrine of res ipsa loquitur is not 

available to the plaintiff against the defendant, unless the plaintiff 

alleges and shows that the the [sic] instrumentality was not 

mishandled or altered subsequent to the time it left the defendant’s 

custody, possession, control and management.”

(Emphasis added in Cusumano.) Id. at 111-112, quoting Huggins v. John Morrell & 

Co., 176 Ohio St. 171, 198 N.E.2d 448 (1964). Thus, “actual management and control 

of the injury-producing instrumentality by the defendant is usually required[.]” Id., 

citing Koktavy v. United Fireworks Mfg. Co., 160 Ohio St. 461, 117 N.E.2d 16 (1954). 

[B]ut if the instrumentality has been out of the defendant’s possession 

for no more than a reasonable period of time, under the facts and 

circumstances of the case, and the plaintiff can show that the 

instrumentality has not been mishandled or tampered with, and there 

is no probability that any other intervening force has had an effect on 

the instrumentality, then the doctrine of res ipsa loquitur will be 

applicable.

Cusumano at syllabus. See also Schafer v. Wells, 171 Ohio St. 506, 172 N.E.2d 708 

(1961); Huggins at 171; and Renneckar v. Canton Terminal Restaurant, Inc., 148 

Ohio St. 119, 73 N.E.2d 498 (1947). 

Cleveland’s water department was the last known contractor to have 

excavated the site before Ohio Bell’s cable failed. There is no evidence of any other 
permits or OUPS tickets being requested during the four-and-a-half-month period 

that elapsed between the time the city excavated the site and the time Ohio Bell’s 

cable began to fail. Four and half months is a reasonable time period. Potter 

explained that the cable continued to function for a period of time after the city 

completed its work because they were “not cut all the way through and it could take 

significant time for water to seep into the remaining still functioning lines and 

damage them[.]” (Potter aff. ¶ 9.) Therefore, in the absence of any evidence that a 

third party handled or tampered with Ohio Bell’s cable between the time the city 

excavated the site and the time the cable failed, the first prong of the res ipsa loquitur 

test is satisfied.

As previously stated, the second prong of the res ipsa loquitur test 

requires proof that “the injury occurred under such circumstances that in the 

ordinary course of events it would not have occurred if ordinary care had been 

observed.” Jennings, 63 Ohio St.2d at 170, 406 N.E.2d 1385. 

The city argues only an expert could identify the instrument used to 

cut Ohio Bell’s cable. However, expert testimony is not necessary when the subject 

is within the ordinary knowledge of a lay person. Buehner v. Cheselka, 8th Dist. 

Cuyahoga No. 111165, 2022-Ohio-2687, ¶ 36. This is not a case where the cable 

gradually degraded or rotted or where it is unclear how the cable was damaged. 

Photographs of Ohio Bell’s cable clearly show that it was cut by something, most 

likely a jackhammer. At the very least, Ohio Bell has established a genuine issue of 
material as to the cause of its injury. Therefore, Ohio Bell has established a prima 

facie case of negligence through the doctrine of res ipsa loquitur.

2. Defense to Liability Inapplicable

The city argues that even if Ohio Bell establishes that it (the city) was 

negligent, the city has a defense that reinstates immunity pursuant to R.C. 

2744.03(A)(5). That section provides:

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, 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.

The city argues its employees exercised judgment and discretion “by 

undertaking various precautionary measures, including marking underground 

utilities, implementing safety measures, employing a jackhammer according to 

established protocols, documenting the process through photographs, and engaging 

in hand excavation to reach the valve.” (Appellant’s brief p. 15.) However, “a 

political subdivision cannot simply assert that all of its decisions are ‘discretionary’ 

in order to obtain protection under R.C. 2744.03(A)(5).” Ohio Bell Tel. Co. v. 

Cleveland, 8th Dist. Cuyahoga No. 98683, 2013-Ohio-270, ¶ 14, citing Hacker v. 

Cincinnati, 130 Ohio App.3d 764, 770, 721 N.E.2d 416 (1st Dist.1998). There is a 

difference between a political subdivision’s discretionary decisions, for which there 

is immunity, and the employee’ implementation of those decisions, for which there 

is not. “‘[I]mmunity attaches only to the broad type of discretion involving public 
policy made with “the creative exercise of political judgment.”’” Ohio Bell Tel. at 

¶ 14, quoting McVey v. Cincinnati, 109 Ohio App.3d 159, 163, 671 N.E.2d 1288 (1st 

Dist.1995), quoting Bolding v. Dublin Local School Dist., 10th Dist. Franklin No.

4APE09-1307, 1995 Ohio App. LEXIS 2455 (June 15, 1995). 

“[O]nce the decision has been made to engage in a certain activity or 

function, the state may be held liable, in the same manner as private 

parties, for the negligence of the actions of its employees and agents in 

the performance of such activities.”

Id. at ¶ 12, quoiting Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-

Ohio-2070, 865 N.E.2d 845, ¶ 28. In other words, “‘[i]mmunity does not apply to 

the negligence of employees in “the details of carrying out the activity even though 

there is discretion in making choices.”’” Ohio Bell at ¶ 15, quoting McVey v. 

Cincinnati, 109 Ohio App.3d 159, 671 N.E.2d 1288 (1st Dist.1995), quoting Bolding 

v. Dublin Loc. School Dist., 10th Dist. Franklin No. 94APE09-1307, 1995 Ohio App.

LEXIS 2455 (June 15, 1995). 

The city exercised a policy decision to employ its resources to repair a 

valve on the water line at the site. The city’s employees implemented that decision 

by actually carrying out the work. Its employees’ judgment as to where to place the 

jackhammer or how to break up the road in order to access its underground water 

line is not the sort of decision to which immunity applies. Therefore, the defense 

provided in R.C. 2744.03(A)(5) is inapplicable. 

Ohio Bell presented a prima facie case of negligence through the 

doctrine of res ipsa loquitur, and no defense applies to reinstate immunity under 
R.C. 2744.03(A)(5). Therefore, the first and second assignments of error are 

overruled.

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 issue out of this court directing the 

common pleas 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.

EILEEN T. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and

MICHAEL JOHN RYAN, J., CONCUR