Background
Between February 2023 and October 2024, East Ohio Gas alleged that city of Cleveland employees negligently struck and damaged its underground natural gas lines on 15 separate occasions while performing water system repair work at various locations. East Ohio Gas filed suit seeking recovery of repair costs. The City moved for partial summary judgment on 11 of the 15 claims, asserting that it was entitled to statutory governmental immunity under R.C. § 2744.02 and discretionary-function immunity under R.C. § 2744.03(A)(5). The City submitted affidavits from water department unit leaders, field notes, and photographs describing the work performed at each location and the field conditions encountered. East Ohio Gas opposed the motion with an affidavit from its senior claims agent and authenticated documentary evidence, including city records, OUPS markings documentation, and investigation reports.
The trial court denied the City’s motion for summary judgment on September 12, 2025, finding that genuine issues of material fact remained as to each of the 11 claims at issue. The City appealed, arguing that East Ohio Gas either waived its opposition to certain claims or failed to present sufficient evidence to overcome immunity as a matter of law.
The Court’s Holding
The Court of Appeals affirmed the trial court’s denial of summary judgment. Applying Ohio’s three-tier political-subdivision immunity analysis, the court held that while the City’s operation and maintenance of its water supply system constitutes a proprietary function (tier one), the negligence exception under R.C. § 2744.02(B)(2) applies when a political subdivision’s employees negligently perform acts in connection with that function. On the de novo review of the summary judgment record, the court found that East Ohio Gas presented sufficient evidence through claims agent Joe Dent’s affidavit and authenticated documents to create genuine disputes of material fact regarding whether city employees breached the standard of care applicable to underground excavation work. The competing affidavits and documentary materials—including OUPS markings, tolerance zones, field conditions, and points of contact—presented factual questions unsuitable for resolution on summary judgment alone.
At the third tier, the court rejected the City’s discretionary-function immunity defense under R.C. § 2744.03(A)(5). The court held that the defense protects high-level policy decisions and resource-allocation choices, not routine operational decisions made by field employees in the day-to-day performance of proprietary functions. The City’s decisions concerning how to physically locate leaks, set up excavations, use test rods, remove obstructions, and operate equipment within or near marked tolerance zones were operational decisions unsuitable for discretionary immunity. The court noted that to hold otherwise would render the negligence exception in R.C. § 2744.02(B)(2) meaningless, contrary to the General Assembly’s intent.
Key Takeaways
- Political subdivisions performing proprietary functions (such as water system operation and repair) can be held liable for negligent performance despite general governmental immunity, and damage to utility lines during excavation work presents fact questions for trial rather than legal conclusions.
- Discretionary-function immunity applies only to policy-level decisions and resource-allocation choices, not to routine operational decisions made by field employees; the City bore the burden of establishing the applicability of this defense and failed to identify policy-level or resource-allocation decisions in its submissions.
- A party’s failure to separately address each claim in a summary judgment opposition does not constitute waiver if the opposition is supported by C.R. 56 evidence directed to the immunity issues as a whole; the moving party retains the initial burden under summary judgment law regardless.
- Expert testimony is not a categorical prerequisite to establishing negligence in utility damage cases; the affidavit of a claims agent authenticated with city records and field documentation may suffice to create genuine factual disputes about the standard of care.
Why It Matters
This decision significantly limits the reach of governmental immunity for municipalities facing claims for damage to underground utility lines. By distinguishing between policy-level discretionary decisions and routine operational decisions, the court has clarified that cities cannot routinely escape liability for negligent excavation work simply by invoking immunity doctrines. Municipalities performing water, sewer, and other utility work remain subject to negligence liability for the manner in which field crews perform excavation—even when those crews must make judgment calls in the field. The decision also underscores that a government entity’s own records and documentation can be used to establish negligence and pierce immunity claims.
For utility companies like East Ohio Gas, the decision validates the approach of gathering OUPS documentation, locating records, field photographs, and investigative materials to overcome immunity defenses without necessarily requiring expert testimony at the summary judgment stage. The remand for further proceedings ensures that disputes over whether city employees breached the standard of care will proceed to discovery and trial, where the fact-finder can evaluate the competing narratives about marked utility lines, excavation procedures, and field conditions encountered during water main repair operations.
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