Background
Richard and Linda Lesko sued the Greene County Board of Commissioners and Mark Chandler, director of the county sanitary engineering department, after sewage entered their Beavercreek home in October 2023. County crews later found tree roots obstructing the sewer main and determined that the roots caused the intrusion.
The affected sewer segment was on the department’s “root list,” which called for annual inspections. Although an inspection in September 2020 found no roots, the county did not conduct similar inspections in 2021, 2022, or 2023. The trial court denied the Board’s and Chandler’s motions for summary judgment based on statutory immunity, and both appealed.
The Court’s Holding
The Second District affirmed the denial of immunity to the Board. Maintaining, inspecting, and removing obstructions from a sewer system are proprietary functions, so the exception in R.C. 2744.02(B)(2) could subject the Board to liability for its employees’ negligence. The court held that R.C. 2744.03(A)(5) did not restore immunity because the failure to perform inspections required by the department’s annual-inspection policy was not a qualifying discretionary allocation of resources or a positive exercise of official judgment.
The court concluded that whether the Board had actual or constructive notice generally fell outside the permissible scope of this interlocutory immunity appeal. It added that, even if review were available, the sewer segment’s placement on the root list created genuine factual issues concerning constructive notice.
The court reversed as to Chandler, holding that he was immune under R.C. 2744.03(A)(6). Chandler had entered the director position only three or four months before the backup, acted within the scope of his employment, and at most may have been negligent; the evidence did not show malicious purpose, bad faith, wantonness, or recklessness. The court affirmed in part, reversed in part, and remanded the matter to the trial court for further proceedings consistent with its opinion.
Key Takeaways
- A political subdivision may face liability for negligent sewer maintenance because operating and maintaining a sewer system is a proprietary function under Ohio law.
- Failing to carry out routine inspections required by an existing maintenance policy is not the type of high-level discretionary decision protected by R.C. 2744.03(A)(5).
- A political-subdivision employee remains immune for conduct amounting, at most, to negligence; loss of employee immunity requires conduct fitting a statutory exception, such as wanton or reckless behavior.
Why It Matters
The decision distinguishes routine sewer maintenance from protected governmental policymaking. A county cannot obtain discretionary-function immunity merely by characterizing an omitted inspection as a choice involving personnel, equipment, or funding.
It also underscores the separate immunity standards governing a political subdivision and its employees. The negligence action may proceed against the Board on remand, while Chandler is immune from personal liability.