In our first case for the month of January, we look at whether a township was immune from liability for allegedly failing to properly maintain a road. The case, from the Court of Appeals for Mahoning County, reiterates the law regarding sovereign immunity where a political subdivision is performing a governmental function. Our second case comes from the Court of Appeals for Cuyahoga County where a homeowner sought to recover from a contractor as a result of the contractor’s failure to contact OUPS. No utilities were damaged, but the owner was forced to tear down a building that was built directly over underground utility lines.

Ohio Appellate Court Reaffirms Power of Statutory Immunity in Negligence Suit Against Township

Sovereign immunity protects political subdivisions from lawsuits when the political subdivision is performing a governmental function. In a unanimous decision reversing the trial court, Bonace v. Springfield Township, 2008-Ohio-6384, the Court of Appeals for Mahoning County concluded that statutory immunity defeated the plaintiffs’ claims of negligent maintenance of a township road.

During the summer of 2005, the Plaintiff was involved in a single-car accident on a township road in Springfield Township, in which her car “fell off” the side of the road, landed in a ditch, and rolled several times into a cornfield. Shortly thereafter, the Plaintiff filed a complaint against Springfield Township alleging negligent maintenance of the road, failure to warn of inadequacies with the road, failure to provide adequate pitch, grade, berm, and width, and failure to keep the road free from nuisance.

At the trial court level, the Township filed a motion for summary judgment on the grounds of sovereign immunity. According to O.R.C. Chapter 2744, a political subdivision is immune from liability sustained while performing a governmental function, unless it meets one of the many statutory exceptions. The trial court denied the motion, from which the Township filed an interlocutory appeal of the trial court’s ruling.

The lone issue addressed by the appellate court was whether sovereign immunity protected the Township from liability.

On appeal, the court explained that the immunity question “involves a three-tiered analysis.” The first tier involves the “general premise that a political subdivision is not liable for damages caused by any act or omission in connection with a governmental or proprietary function.” There was no dispute that the Township was a political subdivision, or that the maintenance and repairing of roads constituted a governmental function under R.C. 2744.01(C) (1) and (2)(e).

Moving on to tier two of the immunity analysis, the appellate court explored whether any of the exceptions to immunity in R.C. 2744.02(B) applied. Because the plaintiff conceded that her allegations concerned solely governmental functions, the only relevant exception states that a political subdivision is liable for “negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads.” The only portion of the exception applicable to this case proved to be the “in repair” language, as there was no allegation of obstructions in the road.

The appellate court concluded that the Township was not negligent for the following reasons:

  • Existence of an excessive side slope was “not a failure to repair” as the “in repair” language creates no duty on the part of a public owner to “change allegedly absurd designs such as extreme and unnecessary side slopes that were. . . constructed into a road;”
  • Failing to make a berm and remove a ditch cannot fall under the “in repair” exception because the definition of “public road” does not include berms and ditches; and
  • The crumbling area outside the white edge line of the road also constitutes part of the shoulder and berm, thereby rendering any claims relating to this area outside the scope of the “in repair” exception.

Because none of the statutory exceptions applied, the third and final tier of the sovereign immunity analysis was inapplicable (i.e. whether any of the defenses in R.C. 2744.03 apply to shield a political subdivision from liability). Therefore, sovereign immunity protected the Township from liability.

Property Owner Sues Contractor for Garage Built Over Utility Line

When it comes to locating underground utilities, the issue is not always determining who is responsible for damaging utility lines. In Thomas Opincar, et. al. v. F. J. Spanulo Construction, 2008 Ohio App. LEXIS 5233, the Court of Appeals of Ohio was asked to determine who was responsible for failing to notify the Ohio Utility Protection Service where a garage was built directly over a gas line.

In Spanulo, a homeowner hired a contractor to construct a garage addition on the homeowner’s property. After the contractor constructed the addition, the gas company contacted the homeowner and informed him that the garage was constructed on top of a gas line. The gas company informed the homeowner that he needed to tear down the garage. The homeowner tore down the garage, but blamed the contractor for failing to call the Ohio Utility Protection Service (OUPS) before excavating and constructing the garage.

The homeowner sued the contractor to recover costs associated with the garage project. The homeowner claimed that the contractor failed to perform in a workmanlike manner when it failed to contact OUPS prior to performing its work. The court turned to the Ohio Revised Code to determine what obligations existed where underground utilities are involved in a private project.

The duties of parties on private construction projects in Ohio are outlined under section 3781 of the Ohio Revised Code. The duties of this code section are as follows:

  • O.R.C. 3781.27: The developer and their designer must notify OUPS of the proposed excavation. The developer and designer must provide the location of underground utilities on the plans and provide this information to the contractor prior to construction.  
  • O.R.C. 3781.28: The contractor must notify OUPS prior to excavation.
  • O.R.C. 3781.30: This section provides the standard of care that contractors are to use after construction begins.

The plans prepared by the homeowner’s architect did not have the location of the gas line and the homeowner did not submit the plans to OUPS as required by O.R.C. 3781.27. There was no evidence that the contractor failed to perform the work according to the contract or failed to perform the work in a workmanlike manner. Also, there was no evidence that the contractor was negligent in any way.

The purpose of the statutes is to protect underground utilities from damage. In this case, there was no damage to underground utilities.

The homeowner sought to blame the contractor for failing to determine that the garage was built over a utility line. The homeowner, however, cannot avoid his statutory duty as developer and claim that the contractor is responsible for determining this conflict. The contractor did not select the location of the garage and it did not design the project. The court held that the contractor was not responsible for locating the underground utilities where the owner, acting as a developer, determined the location of the garage and designed the garage directly over underground utilities.