In the case of State ex rel. Slacas v. KCI Technologies, Inc., 2022-Ohio-4573, the appellate court held that negligently “upgrading” a sewer system may amount to “maintenance,” but does not amount to “design and construction” for the purposes of determining liability under R.C. Chapter 2744.
In this case, homeowners argued that the county negligently designed, constructed, and maintained a county sewer system by refusing to upgrade the sewer system which resulted in flood damage to various homes within the county. The county argued that failing to upgrade the sewer system — as the homeowners allege should have been done — may constitute “design and construction” defects but does not constitute “maintenance” defects. The appellate court agreed with both parties, in part.
In support of its decision in favor of the county, the appellate court explained that any redesign and/or reconstruction of the sewer system constitutes “[t]he provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system,” which is defined as a “governmental function” under R.C. 2744.01(C)(2)(l), and, therefore, the county is immune from liability arising from such negligent acts pursuant to R.C. 2744.02(A)(1).
In support of its decision in favor of the homeowners, the appellate court explained that failing to upgrade the sewer system constitutes “[t]he maintenance, destruction, operation, and upkeep of a sewer system,” which is defined as a “proprietary function” under R.C. 2744.01(G)(2)(d), and, therefore, the county is not immune from liability for such negligent acts pursuant to R.C. 2744.02(B)(2).
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.