Hill v. City of Urbana

Douglas, J. The question presented by this case is whether the Political Subdivision Tort Liability Act (“Act”), as codified in R.C. Chapter 2744, gives immunity to the city of Urbana, appellee, under the facts of this case. No more than just a reading of the statute is required to answer this question in the negative. Accordingly, we reverse the judgment of the court of appeals and remand to the trial court for further proceedings. The parties raise several issues for our possible consideration. Implicitly raised is the question of the constitutionality of the doctrine of sovereign immunity as applied to political subdivisions of this state.1 Explicitly raised are the questions of whether R.C. Chapter 2744 abrogates the common-law public-duty doctrine and the special-duty exception of governmental immunity. Since we find and hold that even under the statute, appellant Hill’s claim is well taken, we need not discuss these implicit and explicit issues. [133] R.C. 2744.02(A)(1) provides: “For purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” R.C. 2744.02(A)(1) is not absolute. By its own terms, R.C. 2744.02(A)(1) is subject to R.C. 2744.02(B), which provides: “Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or any of its employees in connection with a governmental or proprietary function, as follows * * *.” (Emphasis added.) R.C. 2744.02(B)(1) through (5) then list circumstances where a municipal corporation is responsible for torts committed by an employee of the subdivision. Specifically, R.C. 2744.02(B)(2) states that “political subdivisions are hable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.” A “proprietary” function includes “[t]he establishment, maintenance, and operation of a utility, including, but not limited to, a light, gas, power, or heat plant, a railroad, a busline or other transit company, an airport, and a municipal corporation water supply system [.]” (Emphasis added.) R.C. 2744.01(G)(2)(c). Clearly, Urbana was involved in a proprietary function at the time of the accident. See, also, Ranells v. Cleveland (1975), 41 Ohio St.2d 1, 4, 70 O.O.2d 1, 2, 321 N.E.2d 885, 887, fn. 1 (It is clear that a city in the operation of its water department acts in a proprietary capacity.). Further, it is equally apparent that Urbana’s conduct in turning on the water was, at the very least, negligent. Appellant had instructed Gonsalves on three separate occasions not to turn on the water until the job was completed. However, the water was turned on prior to the completion of the installation of the valve and, as a result, appellant was seriously injured. Thus, pursuant to the statute, liability attaches to appellee. The issue has and will be raised that this court is precluded from considering whether Urbana was performing a proprietary function because that specific question was not raised by appellants in the court of appeals. We disagree. This court has held on numerous occasions that the waiver doctrine is discretionary. See, e.g., In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, syllabus. In fact, we specifically held that “[e]ven where waiver is clear, this court reserves [134] the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.” (Emphasis added.) Id. This case concerns the rights and interests of a worker who has been injured by a negligent tortfeasor. Moreover, this case involves not only a particular worker, but it also ultimately concerns the rights and interests of any citizen of this state who may be injured by the negligence of an employee of a political subdivision. Accordingly, we not only have the authority to consider this issue, but we believe we also have the duty to do so. Therefore, we hold that (1) pursuant to R.C. 2744.02(B)(2), a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property caused by an act or omission of the political subdivision or any of its employees in connection with the performance of a proprietary function, and (2) the “establishment, maintenance, and operation” of a municipal corporation water supply system encompasses, but is not limited to, the installing of water lines, equipment, and other materials which are a necessary part of the system and such activity is a proprietary function of a political subdivision. The judgment of the court of appeals is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion. Judgment reversed and cause remanded. Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Lundberg Stratton, J., concurs in part and dissents in part. Moyer, C.J., and Cook, J., separately dissent. Footnotes [1] The author of this opinion continues to adhere to his dissent in Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 323, 662 N.E.2d 287, 296, an opinion in which Justices Resnick and Pfeifer concurred. See, also, Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141, 624 N.E.2d 704, 706 (Pfeifer, J., concurring).