YOUNGSTOWN — A court has found New Middletown officials are immune from liability for flooding in 2018 in a village resident’s basement.

That’s because the village did not know a neighbor had installed storm-drainage pipes into the village storm-sewer system decades earlier.

The 7th District Court of Appeals decision reverses a ruling by Judge Anthony D’Apolito of Mahoning County Common Pleas Court and his magistrate, James Melone, that denied summary judgment to the village. Summary judgment is a ruling in a party’s favor without the need for a trial.

The ruling ends the homeowner’s lawsuit unless he tries to appeal it to the Ohio Supreme Court.

WATER DAMAGE

J. Dale James of Main Street filed the suit Oct. 14, 2020, regarding a rental property he owns on Main Street. The basement of the property flooded in July 2018.

James had contacted the village over the flooding, and the village sent the village administrator, street department supervisor and an engineer. They found a blockage in pipes extending under property owned by neighbors.

The neighbors had installed pipes into New Middletown’s storm sewer system without New Middletown’s knowledge sometime around 1975, according to the ruling. The pipes were blocked by roots.

James tried to fix the problem by plugging the drain, but the flooding continued, causing additional damage. The property “continued to flood after every heavy rain.”

So, the village obtained an easement to enter the neighbors’ property in June 2019 and repaired the pipes. The lawsuit was filed about a year later, alleging the village was negligent for failing to maintain the storm-sewage system, thus causing the damage to James’ property.

TRIAL COURT

The village asked D’Apolito’s magistrate Melone for summary judgment, claiming statutory immunity as a political subdivision, but the court denied the motion.

The court found there was a “genuine issue of material fact” as to whether the village lost its political subdivision immunity “due to the negligent conduct” of village employees who operate the storm sewer system.

The trial court found “New Middletown presumably owned the pipes connected to the pipes installed by (the neighbors) and that a jury could find New Middletown’s failure to maintain the sewer system negligent,” the ruling states.

APPELLATE RULING

The appeals court panel, however, in a decision written by Judge Gene Donofrio and affirmed by judges Cheryl Date and Carol Robb, found that the village “is immune from liability for a negligence claim because it is a political subdivision entitled to the presumption of immunity, placing the burden of proving an exception to that immunity on James.”

The ruling states that the village was not negligent, citing a 1949 Ohio Supreme Court ruling indicating that a “political subdivision does not have a duty regarding pipes it did not construct or maintain, but ‘when it does construct or maintain them it becomes its duty to keep them in repair and free from conditions which will cause damage to private property.'”

James also failed to provide evidence that the village was ever “put on notice of a defect” prior to the flooding of 2018, the ruling adds.

“James did not provide any evidence that, prior to the flooding, New Middletown constructed or maintained the pipes at issue, which ran between drainage pipe and the sewer lines connected to James’ property or the pipes that surrounded the (neighbor’s) property,” the ruling states.

Village Administrator Charles Foster stated at the time of the flooding that he was “not aware of a storm sewer or piping on or around the (neighbors’) property,” that he “learned of this piping in July 2018, when James called him to come look at his property,” the ruling states.

When Foster was asked if the village had ever inspected the pipes causing the flooding, Foster said: “We’re not allowed to go past the right of way.” What was done “from that right of way to their home is their business.”

Foster also stated that despite the village not owning the pipe that caused the damage, the village “acted out of ‘good faith’ to help remedy the drainage issue,” the ruling states.

The neighbor “corroborated the fact that he bought and installed the pipe across his property in approximately 1975” and “may have checked with the Mahoning County Engineers before he installed the pipe,” the ruling stated, quoted from a deposition the neighbor gave during the litigation.

erunyan@vindy.com