The Supreme Court of Ohio ruled today that the state’s “sovereign immunity” statute bars a property owner from pursuing a civil lawsuit against a county for damages caused by repetitive flooding of the owner’s land when the damage results from the county’s failure to upgrade the capacity of one of its storm sewers to handle increases in storm water runoff since the sewer’s initial construction.

In a 6-1 decision authored by Chief Justice Maureen O’Connor, the court held that an exception in the immunity statute that allows a county to be sued for damage caused by negligent “maintenance or upkeep” of a sewer system did not apply in a Portage County case, because the plaintiff’s claims arose from the alleged inadequate design or construction of the sewer rather than a failure by the county to properly maintain the sewer or perform necessary repairs to it.

The case arose from a civil suit filed by Robert and Barbara Coleman of Rootstown in the Portage County Court of Common Pleas.  In their complaint, the Colemans alleged that their property had suffered damage from flooding in 1982, 1989, 2003, 2005 and 2009, and that on each of those occasions the flooding was a result of storm water runoff from drainage ditches adjacent to their land that overflowed because the ditches and a drainage pipe installed by the county to carry stormwater away from their property was too small. 

The complaint stated that the Colemans had notified the county engineer on numerous occasions that the inadequate stormwater system was causing significant damage to their home and property, but the county had refused to take any corrective action. They asked the court to order the county to compensate them for their past damages based on its negligent design, construction and maintenance of the stormwater system, and also sought an injunction ordering the county to upgrade the culvert and storm sewer pipe to prevent flooding of their property after heavy rains.

The Portage County engineer moved to dismiss the complaint, arguing that he was entitled to immunity under Ohio’s political subdivision immunity statute, R.C. Chapter 2744, which generally immunizes cities, counties and other local government units from civil liability for negligent acts during the performance of their governmental and proprietary functions, subject to certain exceptions.  The trial court granted the motion to dismiss all of the Colemans’ claims, holding that “(t)he Portage County Engineer is immune from litigation based upon claims for negligent planning, design, and construction of the water pipleines referred to in the Plaintiffs’ pleadings.”

The Colemans appealed that decision. On review, the Eleventh District Court of Appeals partially affirmed and partially reversed the trial court.  The appellate panel agreed that the county was exempt from liability for the Colemans’ claims based on alleged faulty design, planning or construction of the storm water system.  The court of appeals held, however, that their claims based on an alleged failure by the county to update the system so that it adequately drained their property fell within a statutory exception to immunity for failure to properly “maintain” a sewer system. The court of appeals remanded the case for further proceedings on that portion of the complaint. The county engineer sought and was granted Supreme Court review of the Eleventh District’s adverse ruling.

Writing for the court in today’s decision, Chief Justice O’Connor said the key issue was the distinction in the immunity statute between a subdivision’s  “governmental” and “proprietary” functions. 

She wrote: “R.C. 2744.01(C)(2)(l) identifies as a governmental function ‘the provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system,’ making these responsibilities immune from political-subdivision liability.  By contrast, R.C. 2744.01(G)(1)(d) identifies ‘the maintenance, destruction, operation, and upkeep of a sewer system’ as a proprietary function for which civil liability may attach. ... The question is whether failure to keep a storm-sewer system functional is a ‘design, construction, or reconstruction ...  [of] a sewer system’ and therefore a governmental function that is immunized from tort lawsuits under R.C. 2744.01(C)(2)(l), or sewer ‘maintenance, ... operation, and upkeep’ under R.C. 2744.01(G)(2)(d), a proprietary function for which political-subdivision tort liability is allowed.”

“To the extent that the court of appeals in this case held that the county enjoyed immunity for the claims arising from the Colemans’ assertions that the county was negligent in the design, planning, and construction, we affirm.  But we disagree with the appellate court’s reasoning in holding that the Colemans’ claims of failure to upgrade the sewer system were not barred.”

“Initially, we observe that the General Assembly did not use the term ‘upgrade’ in writing Chapter 2744.  Courts must abstain from inserting words into a statute that were not placed there by the General Assembly.  ... It is not proper for courts to read ‘upgrade’ into the statute. Moreover, the failure to upgrade is different from the failure to maintain or upkeep. To upgrade means ‘[t]o exchange a possession for one of greater value or quality; trade up.’ ... ‘Upkeep,’ however, means ‘[m]aintenance in proper operation, condition, and repair.’ Our courts of appeals have recognized this distinction.”

“As the Second District recently explained (in Guenther v. Springfield Twp. Trustees, 2d Dist. No. 2010-CA-114, 2012-Ohio-203, citing Essman v. Portsmouth, 2010) ‘A complaint is properly characterized as a maintenance, operation, or upkeep issue when “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.” ...  But the complaint presents a design or construction issue if “remedying a problem would require a [political subdivision] to, in essence, redesign or reconstruct the sewer system.”’

“Although creative, the Colemans’ attempt to characterize their claims as ones based on maintenance fails.  For purposes of R.C. Chapter 2744, a claim based on a failure to upgrade is a claim based on a failure of design and construction, for which political subdivisions enjoy immunity, and not a claim based on a failure to properly maintain, for which political-subdivision liability may be extant.”

“In so holding, we are not unmindful that damages suffered by homeowners like the Colemans can be devastating to property and possessions, as well as physical and mental health. But the same is true for many other claims for which immunity attaches. And we recognize that property owners have little control over the quality of storm and sewer systems to which their homes are attached. But absent amendment to R.C. Chapter 2744 or other legislative action, relief does not lie in suits against political subdivisions based on a failure to upgrade the sewer system.”

Chief Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown.  Justice Paul E. Pfeifer dissented without opinion.

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2011-0199.  Coleman v. Portage Cty. Engineer, Slip Opinion No. 2012-Ohio-3881.
Portage App. No. 2010-P-00016, 191 Ohio App.3d 32, 2010-Ohio-6255.  Judgment reversed.
O’Connor, C.J., and Lundberg Stratton, O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Pfeifer, J., dissents and would affirm the judgment of the court of appeals.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-3881.pdf

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