Municipal Liability for Condition of Sewer System
By Daniel J. Kucera, Partner, Chapman & Cutler, Chicago, Illinois
Our final case of 1999 examines an Ohio court decision focusing on the scope of a municipality's liability for the condition of its wastewater collection system. Tyler v. City of Cleveland, 77 N.E. 2d 1175 (Ohio App. 8 Dist. 1998), app. den. 703 N.E. 2d 329 (1998).
A pedestrian sued a city for injuries allegedly sustained when he stepped on a manhole cover in a sidewalk and fell eight feet into the manhole. According to the court, subsequent investigation revealed that the bricks and mortar beneath the manhole cover had deteriorated, causing it to collapse.
The trial court granted summary judgment for the city. However, the court of appeals reversed, holding that fact issues existed as to whether the city had notice of the deterioration of the manhole cover, which would establish negligence; and as to whether the city was chargeable with notice of what reasonable inspection of the manhole would have disclosed.
The court of appeals cited that an Ohio statute defines a proprietary function of a municipality to include the maintenance and operation of a sewer system, and another statute imposes liability for injuries caused by negligence with respect to proprietary functions.
The court of appeals also cited a prior Ohio Supreme Court decision, Doud v. City of Cincinnati, 87 N.E. 2d 243 (1949), in which the court held a city liable for damage to a house which settled due to gradual deterioration of a sewer.
The Doud court stated, "A municipality is not obliged to construct or maintain sewers, 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; and in the performance of such duty the municipality is in the exercise of a ministerial or proprietary function and not a governmental function within the rule of municipal immunity from liability for tort. The municipality becomes liable for damages caused by its negligence in this regard in the same manner and to the same extent as a private person under the same circumstances." Id. at 246.
As to notice, the Doud court stated, "It is true that a municipality is not liable for damages growing out of a dangerous condition which suddenly arises in connection with the use or operation of its streets, sewer or other structures, until it has actual or constructive notice of such condition. But, where there rests upon the municipality, as there did in this case, a duty of inspection of the sewer as an instrumentality under its supervision and control, the municipality becomes chargeable with notice of what reasonable inspection would disclose. The defendant was chargeable at all times with notice of defects which arose in the sewer in question through the slow process of deterioration." Id. at 246.
Although the Tyler case involves a personal injury situation, it and the Doud case could have interesting implications for events such as sewer back-ups resulting from deteriorating sewers.