The Sixth Appellate District recently applied the Ohio Supreme Court’s 2012 rule on government immunity for failure to upgrade an existing sewer.1 In Hirt v. Crestline Paving & Excavating, Inc., 2013 Ohio 200 (Ohio Ct. App., Sandusky County, Jan. 25, 2013), a group of three homeowners sued a township and a contractor claiming that flooding and sewer backups occurred on their property due to the negligent construction, design, operation and maintenance of the sewer system. The homeowners also claimed that this continual flooding was a "taking" of their property by the government.

The township had employed the contractor for the construction of a sanitary sewer in the homeowners’ neighborhood. Before this construction, none of the homeowners had experienced water or sewage problems. Following the construction of the sanitary sewer, the homeowners reported flooding in their homes of 2-6 feet of water and sewage.

Noting the Supreme Court’s rule from Coleman, the appellate court stated that the township would be immune from liability on the claims of negligent design and construction because the design and construction of a sewer system is a "governmental function." However, under the same rule, the township would not be immune from liability for negligent maintenance and repair of the sewer system.

The homeowners did not identify any particular part of the sanitary sewer that was broken and had not been repaired and simply argued that upgrades or changes could be made to prevent their properties from being flooded. Applying the rule from Coleman, the court held that the "failure to upgrade" the sewer system is different from the failure to maintain or repair the system. The court held that the township’s failure to upgrade the sewer system capacity is an immune governmental function under R.C. 2744.01 and therefore, the township was not liable for those claims.

In addition, the court held that some of the homeowners’ claims could not be brought because the four-year statute of limitations had passed. The homeowners alleged that the contractor had cut an existing drain system during the construction of the sewer system, which was completed in 2001, and that this had caused the flooding in 2005. However, one of the homeowners had admitted to water entering the basement, the lifting of the basement flooring, moisture on the foundation walls, and to making complaints to the contractor in 2000 and 2001.

Despite this, the homeowners argued that their claim had not accrued for statute of limitation purposes until 2005. Even though these homeowners may not have actually known about the flooding problem until 2005, the court held that they reasonably should have known of the problem in 2001 and therefore, their claim accrued in 2001. Because of this, some of the claims were barred by the four-year statute of limitations.

Finally, the court addressed the homeowners’ claims that the continual flooding constituted a "government taking" of their property and found that several of the claims would need to be argued at trial.

First, the homeowners’ expert witness had testified that he "believed" the drain system that was cut by the contractor had caused the flooding on some of the homeowners’ property. However, the township’s expert witness testified that it was not the cause of the flooding. Due to this conflict, the appellate court found that this was an issue to be determined at trial.

Next, the court examined the testimony from the township’s expert witness regarding another homeowner’s property. There, the expert had testified that it was the high groundwater elevation and lack of drainage pipes that were the cause of the flooding at that property. The homeowners did not give the court evidence to counter this testimony, so the court found in favor of the township on that portion of the claims.

Last, as to another property, the township argued that there was no evidence of design, construction or maintenance issues with the sanitary sewer system. However, because the township did not prove that the sewer lines were not the cause of the homeowners’ flooding, the court held that this was an issue to be examined at trial. Accordingly, the township was immune from some of the homeowners’ claims while other claims remained to be decided at trial.