Under the doctrine of political subdivision immunity, a political subdivision often has immunity against claims that arise while the political subdivision is acting under its authority. Statutes exist to provide political subdivisions with this protection. These same statutes often provide exceptions to political subdivision immunity and defenses against these exceptions.

In City of Trotwood v. South Central Construction, LLC, 2011 Ohio App. LEXIS 206, the Second Appellate District found that a city was not liable under political subdivision immunity for basement flooding where a contractor left a sewer lateral uncapped during the demolition of a high school.

In Trotwood, a contractor working on the demolition of a high school was required under the contract to cap a sewer lateral at the site. City inspectors visited the site and reminded the contractor to cap the sewer line. The contractor capped the sewer lateral inside the building, but did not cap the sewer lateral outside the building. A substantial rain fell and the pit where the lateral was located filled with rain and entered the sewer. The excess water caused the sewer to back-up and flood many basements in a residential neighborhood.

The residents affected by the sewer back-up filed suit against the city and others for damages as a result of the back-up. The trial court found that the city was not liable based on political subdivision immunity and the residents appealed.

The Ohio Revised Code outlines a three-part test to determine whether a political subdivision is immune from liability. First, the statute proscribes the general rule that a political subdivision is not liable for damages for loss of property caused by an act of the political subdivision or its employees in connection with a governmental or proprietary function. Second, the statute provides multiple exceptions that will make a political subdivision liable for governmental or proprietary functions. Third, the statute provides multiple defenses that can restore immunity to a political subdivision when one of the exceptions applies.

In their suit against the city, the residents claimed that the city was negligent in the performance of a proprietary function by negligently failing to inspect the capped utilities and negligently failed to maintain its sewer system.

The residents characterized the city inspectors visiting the site and reminding the contractor to cap the sewer line as negligent inspection. The Court noted that this is more akin to a non-inspection than to negligent inspection. But, regardless, the Court determined that this distinction did not change the analysis.

The residents agreed that immunity generally applied to the city, but they argued that the city’s “negligent failure to conduct a reasonable inspection” was a proprietary function and met one of the exceptions to the general rule. Under the statute, one of the exceptions to the general rule provides that a political subdivision is liable “for injury, death, or loss to person or property cause by the negligent performance of acts by their employees with respect to proprietary functions.”

The Court, however, noted that the provision or non-provision of inspection services is identified in the statute as a governmental function, not a proprietary function. In other words, a political subdivision is not liable for the governmental function of determining whether it should or should not inspect under a given set of circumstances.

The residents attempted to argue that there was a difference between the governmental function of making the decision to provide inspection services and the actual act of inspecting, which they considered a proprietary function. The Court, however, stated that the legislature enacted the statute intending to make all inspections conducted by a city a governmental function—not subject to the exception at issue.

Next, the Court turned to the residents’ argument that the city negligently maintained its sewer system. The maintenance of a sewer system is a proprietary function. The Court, however, determined that the contractor negligently capped a city sewer line and that the city knew nothing of the issue until after the rain overloaded the city’s sewer and resulted in the flooding. The city located the source of the problem and fixed it. And, the city’s camera inspection of the system showed that the sewer lines were not blocked or in disrepair. The city, therefore, did not negligently maintain its sewer system.

The residents also argued that the city had a duty to maintain the lateral because it was put to public use, i.e., used by a school. The Court stated that the city was not responsible because the city was not a party to the contract to perform the work and did not have control over the work performed.