A Summit County homeowner’s property flooded multiple times in May 2017. She sued the county, alleging that the nearby public road wasn’t maintained, which caused the flooding. She argued the county was responsible for the damage. The county claimed it had immunity from liability, contending that any responsibility would be limited to damage caused on the road.

The homeowner, Roberta Schlegel, said a sinkhole developed in the road adjacent to her property after heavy rains. She said debris from the sinkhole blocked a culvert under the road, preventing water from properly draining and causing her front yard, septic tank, and basement to flood.

Schlegel noted that it cost $6,636 for cleanup and sanitization services and to bag and haul away contaminated items. She also obtained an estimate of $52,503 for repairs to her residence. Other damage included destroyed personal property and lost use of her basement, she stated.

The Summit County Common Pleas Court found that Schlegel wasn’t using the road or injured by a road condition. The court concluded that the county had immunity from responsibility for the damage to her property. Schlegel appealed, and the Ninth District Court of Appeals upheld the trial court decision. The appeals court stated that the county has a duty to maintain the safety of its roads, not of nearby properties.

The Supreme Court of Ohio agreed to hear Schlegel’s appeal.

Homeowner Contends That County Neglected Problem
When the sinkhole formed, Summit County workers initially placed an orange construction barrel over it on the road. After Schlegel’s basement flooded the first time in May 2017, she called the county reporting that the sinkhole was obstructing a culvert under the road, causing flooding. Culverts are large pipes that drain water. A few days later, workers removed the barrel, cleared debris, and placed a metal plate over the sinkhole and a caution cone in the area. Schlegel said her property flooded two more times.

Workers returned at the end of May, making repairs and clearing road debris from the culvert. Schlegel said her basement didn’t flood after this visit. She noted that she has lived on the property for more than 30 years and it never flooded until May 2017.

She argues that when the county fails to maintain a road, the county’s liability isn’t limited to damage caused to the road alone. The relevant statute, R.C. 2744.02, explains that government entities “are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads.” Nowhere does the law say that the government’s responsibility is limited to only damage on the road, Schlegel contends.

She asserts that if the county had properly maintained the road before, during, or immediately after the sinkhole happened, her property wouldn’t have flooded and been damaged. The county isn’t immune from liability, she concludes.

County Responds That Culvert Not Part of Road, and Homeowner Had Poor Drainage System
According to Summit County, experts determined that the flooding wouldn’t have occurred if Schlegel had an appropriate drainage system around her house. The county adds that it began planning in 2016 to replace culverts at the intersection near Schlegel’s property with larger-diameter pipes. The county argues that it has discretion in scheduling its projects, and the culverts near Schlegel were replaced in July 2017.

The county also contends that the road itself wasn’t in disrepair. It collapsed because of the faulty, rusted culvert beneath the road, the county argues. It maintains that a culvert isn’t part of the road’s traveled surface, but is more like a berm or a shoulder. Berms and shoulders are specifically excluded in state law from the meaning of a “public road.”

The county also points to the Supreme Court of Ohio decision in Baker v. Wayne Cty. (2016) and other state appellate court decisions. In the county’s view, the rulings found that government immunity for failing to maintain a road is lifted only for those who were traveling on the road and suffered injury, death, or loss because of government negligence.

Watch Oral Arguments Online
The Supreme Court will hear eight cases during oral arguments next week. Four cases will be heard on July 9. The Court will consider four more, including State v. Schlegel, on July 10. Oral arguments begin at 9 a.m. They will be streamed live online at SupremeCourt.Ohio.gov and on the Ohio Channel, where they are archived.

The Office of Public Information provides detailed previews about each case that are available by clicking on the case names.

Tuesday, July 9
Lawsuit Deadlines
The executor of a deceased man’s estate sued doctors and healthcare providers in 2014, alleging that their negligent medical care caused his death. The healthcare providers countered that the lawsuit missed the deadline for filing medical claims. This “statute of repose” creates a four-year deadline after which a defendant no longer faces possible liability. In Kennedy v. Western Reserve Senior Care, the executor argues that when a defendant leaves the state – as one doctor in this case did – the deadline is extended, or “tolled.” The healthcare providers note that the doctor left the state to find a new job. They maintain that when a defendant leaves the state for a legitimate business reason, the lawsuit deadline cannot be extended.

Commercial Activity Tax
A nationwide kidney dialysis provider paid the state commercial activity tax (CAT) for patients who received treatment at its Ohio facilities. It then sought a partial refund for a two-year period, claiming that it performed three separate services for its Ohio customers and only the dialysis treatments occurred in Ohio. The Board of Tax Appeals upheld the tax commissioner’s denial of a $394,000 refund for lab testing and administrative functions that the company performed elsewhere. In Total Renal Care Inc. v. Harris, the Court will consider whether the CAT for healthcare services is based on where the work is performed or where the customer receives the services.

Right To Confront Witness
In August 2020, a man drove to meet his ex-girlfriend in downtown Cincinnati. The woman and her new boyfriend approached the car. The ex-boyfriend shot the new boyfriend, who later died from the wound. Police quickly arrived, and an officer recorded on a body camera his interview with the ex-girlfriend, who said her ex-boyfriend was the shooter. She didn’t testify at the trial, but the body camera video was admitted, and the ex-boyfriend was convicted. In State v. Wilcox, the ex-boyfriend argues that his claim of self-defense was unfairly tainted by the video and that his constitutional right to confront witnesses against him was violated.

Disbarment Challenge
A previously suspended Cuyahoga County attorney faces permanent disbarment for dishonesty, neglecting client matters, and failing to cooperate with the disciplinary process. After the Court suspended the attorney in 2011, she worked in local courts until 2019. The Office of Disciplinary Counsel, which investigated the misconduct allegations, maintains that when she returned to operating a solo practice in 2019, she reverted to her old ways of taking client payments and not following through with the work. In Disciplinary Counsel v. Ranke, the attorney urges the Court to instead consider an indefinite suspension, arguing disbarment isn’t appropriate for the professional conduct rules she violated.

Wednesday, July 10
Attorney Fees - Workers’ Compensation Cases
A Cleveland-area mechanic sought additional workers’ compensation after suffering a second shoulder injury while working for the regional transit authority. After the Ohio Industrial Commission declined his claim, he appealed to the common pleas court and prevailed. A state law allows an injured worker who successfully appeals to receive up to $4,200 in attorney fees. The transit authority appealed, and the appeals court sided with the mechanic. He asked for $27,118 in attorney fees for successfully defending his case in the appeals court. In Bureau of Workers’ Compensation v. Shields, the Court will examine whether the worker can recoup the attorney fees for the costs of the appeals court case or if the law caps his total payments to $4,200 for all legal proceedings.

Attorney Fees - Deceptive Trade Practices Claims
In 2017, two investors purchased multifamily property in Cincinnati and hired a company to renovate and repair the property. The company didn’t complete the work, and the owners sold the property at a loss. The jury awarded $30,604 in damages to the property owners for a breach of contract and $0 for a violation of the Deceptive Trade Practices Act. Under the act, attorney fees can be awarded to defendants who prevail on a deceptive trade practice claim. In Goomai and Hajbi v. H&E Enterprise and Ohad, the renovation company contends that because the property owners received no monetary damages, they aren’t entitled to attorney fees. The property owners disagree, asserting that as the prevailing party, they can receive attorney fees regardless of the amount awarded on the deceptive trade practices claim.

Frivolous Lawsuits
In Columbus Bar Association v. Villarreal, a one-year suspension with six months stayed is recommended for a Columbus attorney for filing frivolous claims in court and for other misconduct. In three of the four misconduct allegations, the attorney represented a business owner who was seeking payment for construction work he completed on different projects. Courts in three counties found the attorney and business owner in contempt for filing frivolous lawsuits. The Board of Professional Conduct recommended the six-month actual timeout from practicing law for the attorney. However, the attorney and the bar association that investigated the misconduct believe that a fully stayed 18-month suspension is adequate to protect the public.