COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73592 THE MILLER PLUMBING & : HEATING CO. : JOURNAL ENTRY PLAINTIFF-APPELLANT : AND v. : OPINION VILLAGE OF CHAGRIN FALLS, : ET AL. : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-292425. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: John T. McLandrich, Esq. Deborah W. Yue, Esq. Mazanec, Raskin & Ryder Co., L.P.A. 100 Franklin's Row 34305 Solon Road Cleveland, OH 44139 For Defendants-Appellees: Joseph W. Diemert, Jr., Esq. Thomas M. Hanculak, Esq. Bradric T. Bryan, Esq. Joseph W. Diemert, Jr. & Associates Co., L.P.A. 1360 S.O.M. Center Road Cleveland, OH 44124-2189 John S. Rea, Esq. Meyers, Hentemann, Schneider & Rea 21231 Superior Building Cleveland, OH 44114 TIMOTHY E. McMONAGLE, P.J.: Plaintiff-appellant, The Miller Plumbing & Heating Co., appeals the decision of the Cuyahoga County Court of Common Pleas -2- which granted summary judgment to defendants-appellees, the Village of Chagrin Falls and CT Consultants, Inc. For the reasons that follow, we affirm. The following undisputed facts give rise to this appeal. Appellant is a business located on Bell Street in the Village of Chagrin Falls, Ohio and is situated on a block bounded by Bell, Cleveland, Washington and Philomethian Streets (the Block ). Appellee the Village of Chagrin Falls (the Village ) is a chartered Ohio municipal village. Appellee CT Consultants, Inc. ( CT Consultants ) is the engineering and architectural firm that prepared the plans and specifications for the sewer project at issue in this case. CT Consultants, through its executive vice- president, Thomas Colpetzer, has served as the Village's Engineer since 1988. Prior to June 10, 1994, the Block was serviced entirely by a private storm sewer system that ran roughly parallel to Bell Street (the Bell Street Sewer ). Part of the Bell Street Sewer system was a 66-inch tall, 90-inch wide culvert located under Philomethian Street. The culvert had a capacity of 249 cubic feet of water per second and provided an outflow for flood waters in the area of appellant's business. On June 10, 1994, the Village began construction of a new storm sewer project. The general purpose of the project was to reduce the storm water flow to the Bell Street Sewer system by intercepting upstream flows in the vicinity of the Block and diverting them to the Chagrin River by a more direct route. This -3- would, in turn, reduce flooding to certain areas of the Village, including appellant's property. The project involved the construction of a new storm sewer line along Bell Street which would service the Block and handle the water diverted from the Philomethian Street culvert. The project also involved the installation of a new 24-inch sewer pipe, with a capacity of only 23.13 cubic feet of water per second, in place of the 66-inch culvert under Philomethian Street. CT Consultants designed the sewer project to proceed sequentially in Phases 1, 2, 3 and 4. At some point in the project, however, the Village changed the original phasing. The change required that Phase 3 of the project be completed before Phases 1 and 2, meaning that the new 24-inch pipe on Philomethian Street would be installed before the new storm sewer line along Bell Street was installed. The decision to change the phasing and install the 24-inch pipe before the new sewer line was completed was made by Robert McKay, the Village's Chief Administrative Officer. According to McKay, the project phasing was changed because the Village wanted construction on Philomethian Street completed before the Chagrin Falls Middle School opened for the 1994 school year so that the school buses could get in and out of the school without difficulty. Upon learning that the Philomethian Street culvert was to be replaced by a much smaller pipe before the new sewer line on Bell Street was completed, Dan E. Miller, appellant's president, requested of McKay that the Village not proceed with the -4- installation of the smaller pipe until installation of the new storm sewer line, which had originally been designated as Phase 1 of the project, was completed. Miller warned McKay that replacing the 66-inch culvert at Philomethian Street with a 24-inch pipe before the new sewer line was completed would subject appellant to a greatly increased risk of flooding. In response to this request, McKay told Miller that he should hope it doesn't rain. The Village declined to alter the schedule for the project and the new pipe was installed and the old culvert removed on July 31, 1994. On August 13, 1994, before the new storm sewer line on Bell Street was completed, the Chagrin Valley experienced a severe rainfall. As a result of the rain, the Bell Street Sewer overflowed, and various sections of the Block, including appellant's premises, experienced severe flooding. The flooding on appellant's property was exacerbated by a garbage can which became lodged in the 24-inch replacement pipe under Philomethian Street. On July 17, 1995, appellant1 filed a three-count Complaint, alleging that the Village was negligent in replacing the Philomethian Street culvert with a 24-inch pipe before completing the new sewer line on Bell Street, thereby reducing the capacity of the culvert before its upstream flow was diverted to the new Bell Street line; that CT Consultants was negligent in designing a sewer 1The original plaintiffs were appellant, James P. Frankito d/b/a James Phillip Custom Decorating Co., Mary L. Horth d/b/a Bluestone Co., Thomas T. Johns d/b/a TradeRep, Jim Maji d/b/a The Lamp Lighter, and Dan Miller d/b/a Their Place. Only appellant filed a Notice of Appeal. -5- system that called for replacement of the 66-inch culvert with a 24-inch pipe with a greatly reduced water flow capacity; and that the contractor, D.B. Bentley Excavating Inc., was negligent for replacing the Philomethian Street culvert with a smaller pipe before completing construction of the new sewer line. Appellant subsequently dismissed D.B. Bentley Excavating, Inc. without prejudice. On May 9, 1996, the Village filed a motion for summary judgment. The Village attached the following documents to its brief in support of its motion: 1) Ordinance No. 1994-41 dated June 13, 1994 authorizing the mayor of Chagrin Falls to renew the contract with CT Consultants and Thomas Colpetzer, P.E., for engineering services to be provided to the Village for an indefinite term commencing June 1, 1994; 2) an article from the Chagrin Valley Times dated August 4, 1994 regarding the sewer project; 3) project specifications from CT Consultants which indicate that one of the project requirements was to complete the work on Philomethian Street by August 20, 1994 to accommodate school bus traffic; 4) various rainfall charts regarding the rainfall on August 13, 1994; and 5) a letter dated March 14, 1994 from the mayor of the Village to David Kern, Assistant Director of the Ohio Public Works Commission, regarding a funding application for the sewer project. None of the exhibits attached to the Village's brief were of the type authorized by Rule 56(C) or properly authenticated by reference in a properly framed affidavit. On September 4, 1996, appellant filed its brief opposing the -6- Village's motion for summary judgment. Appellant did not move to strike or otherwise object to the Village's unauthorized documentary evidence. On September 26, 1996, the Village filed a reply brief to appellant's brief opposing its motion. The Village attached more unauthenticated rainfall charts to its reply brief. Appellant did not move to strike these exhibits. On July 31, 1994, CT Consultants filed its motion for summary judgment. Appellant filed an opposing brief on September 4, 1996. The trial court subsequently granted appellees' motions, finding that the Village and CT Consultants were immune from liability pursuant to the provisions of the Political Subdivision Tort Liability Act, which is codified at R.C. 2744. Appellant timely appealed, assigning the following assignments of error for our review: I. WHETHER THE TRIAL COURT ERRED IN GRANTING SOVEREIGN IMMUNITY TO THE VILLAGE OF CHAGRIN FALLS FOR ITS DECISION TO DESTROY THE PHILOMETHIAN STREET CULVERT PRIOR TO COMPLETING THE ALTERNATE SEWER LINE. II. WHETHER THE TRIAL COURT ERRED IN GRANTING INDEPENDENT CONTRACTOR CT CONSULTANTS, INC. SOVEREIGN IMMUNITY. III. WHETHER THE TRIAL COURT ERRED IN GRANTING CT CONSULTANTS, INC.'S MOTION FOR SUMMARY JUDGMENT WHERE QUESTIONS OF FACT EXIST AS TO CT CONSULTANTS, INC.'S NEGLIGENCE. In its first and second assignments of error, appellant argues that the trial court erred in finding that the doctrine of sovereign immunity applied to the lawsuit. In its third assignment of error, appellant argues that the trial court erred in granting summary judgment to CT Consultants because there were issues of -7- fact regarding its negligence. Because all of these assignments of error involve the trial court's grant of summary judgment, this court applies the same standard of review to each of them. In reviewing a motion for summary judgment, an appellate court conducts a denovo review of the trial court's decision. A court reviewing the granting of a summary judgment must follow the standards set forth in Civ.R. 56(C) ***. Aglinsky v. Cleveland Builders Supply Co. (1990), 68 Ohio App.3d 810, 814. Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The burden of establishing that no genuine issue to any material fact remains to be litigated is on the party moving for summary judgment. Turnerv. Turner (1993), 67 Ohio St.3d 337, 340; Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 120. Once a party moves for summary judgment and has supported the motion with sufficient and acceptable evidence, the party opposing the motion has a reciprocal burden to respond by affidavit or as otherwise provided in Civ.R. 56(C), setting forth specific facts explaining that a genuine issue of material fact exists for trial. Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52. -8- Rule 56(C) sets forth the evidence that may properly be considered by the trial court in ruling on a motion for summary judgment. The rule states, in pertinent part: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. In this case, the documents attached to the Village's brief in support of its motion for summary judgment and the rainfall charts attached to its reply brief do not fall into any of the categories set forth above. Moreover, there was no affidavit from a representative of the Village indicating that based on personal knowledge, the documents filed with the motion were genuine. Thus, the documents were not admissible as evidence. Brown v. Ohio Casualty Ins. Co. (1978), 63 Ohio App.2d 87, 90. The Village also attached inadmissible evidence to its brief on appeal. Exhibit A to the Village's brief contains a copy of Section 8 of an unidentified municipal charter, presumably from the Village. Exhibit G is a copy of Article VI of a similarly unidentified municipal charter, again presumably from the Village. Appellant also attached as exhibits to its appeal brief the same unauthenticated documents submitted to the trial court in support of its motion for summary judgment. Appellant filed a motion to strike these exhibits to the Village's brief, arguing that they were not part of the record. Appellant's motion is granted with respect to Exhibit A and Exhibit -9- G. Not only are these documents unauthenticated by an affidavit, they were never submitted to the trial court and, therefore, are not part of the record. Appellant's motion is denied, however, with respect to the unverified documents submitted to the trial court by the Village. A review of the record indicates that appellant did not object in the trial court to the Village's use of unverified documents to support its motion for summary judgment. Failure to move to strike or otherwise object to documentary evidence submitted by a party in support of, or in opposition to, a motion for summary judgment waives any error in considering that evidence under Civ.R. 56(C). Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 83. Accordingly, the documents are now part of the record. With these standards and ruling in mind, we consider appellant's assignments of error. The trial court, in granting the Village's motion for summary judgment, held that the Village is immune from liability pursuant to R.C. 2744.02. R.C. 2744.02(A)(1) provides that a political subdivision is generally not liable for injury, death or loss to persons or property incurred in connection with the performance of a governmental or proprietary function of that political subdivision. This provision is generally referred to as the blanket immunity provision. -10- A political subdivision includes a municipal village, see R.C. 2744.01(F); consequently, the Village of Chagrin Falls is a political subdivision for purposes of R.C. Chapter 2744. The broad grant of immunity provided in R.C. 2744.02(A)(1) is subject to five exceptions contained in R.C. 2744.02, of which R.C. 2744.02(B)(2) is relevant to this case. This section provides: [P]olitical subdivisions are liable for injury, death or loss to persons or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions. Thus, in order for liability to attach to a political subdivision under R.C. 2744.02(B)(2), the negligent act must be characterized as proprietary. Blankenship v. Enright (1990), 67 Ohio App.3d 303, 310. Governmental and proprietary functions are defined in R.C. 2744.01. R.C. 2744.01(C)(a)(l) states that a governmental function includes [t]he provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system. R.C. 2744.01(G)(1) states that a proprietary function includes, but is not limited to, [t]he maintenance, destruction, operation, and upkeep of a sewer system. The threshold question, therefore, in determining whether the blanket immunity protection offered by R.C. 2744.02(A)(1) applies to the Village is whether the Village was performing a governmentalor proprietary function when it installed the new 24-inch sewer pipe in place of the 66-inch culvert under Philomethian Street. -11- Appellant does not contest that the Village is immune with respect to the design and construction of the new sewer project. Rather, appellant argues that the Village is not immune with respect to the destruction of the 66-inch culvert, which appellant argues was a proprietary function. Appellant argues that the conduct of the Village went beyond planning, designing, and constructing a new sewer system to include destruction of the 66- inch culvert despite the fact that the timing of that destruction would increase the risk of flooding on appellant's property. The Village responds that its action in removing the 66-inch storm sewer pipe under Philomethian Street and replacing it with a 24-inch pipe was an essential element of the design and construction of the sewer project and, therefore, it falls within the definition of a governmental function for which the Village is immune. We agree. The Village's act of replacing the culvert under Philomethian Street with a new 24-inch pipe was clearly a part of the planning, design, construction and reconstruction involved with the new sewer project. Thomas Colpetzer, the Village Engineer, testified in his deposition that new concrete storm sewers could not be constructed on Philomethian Street without the removal of the culvert. The new sewer line intersected with the culvert at a 90-degree angle and could not be put in place unless the pipe under Philomethian Street was removed. Appellant mischaracterizes the necessary removal of the culvert as the destruction of a sewer system in order to find -12- that the Village was engaged in a proprietary function. In reality, however, the Village did not destroy a sewer system; it merely replaced the old culvert with a new pipe as part of the overall scheme of the construction of the new system. Accordingly, because the Village was engaged in a governmental function, the blanket immunity provision of R.C. 2744.02 protects the Village from liability. Appellee also argues that it is immune from liability pursuant to R.C. 2744.03(A)(3), which grants immunity to a political subdivision where the act or failure to act by an employee was within the discretion of the employee as to policy-making, planning, or enforcement powers by virtue of the duties and responsibili ties of the office or position of the employee. Appellee argues that the decisions regarding how to phase the construction work and the time-table for completing that work were within the discretion of the Village's Chief Administrative Officer, Robert McKay; and, thus, the Village cannot be held liable for damages resulting from such policy-making decisions. Appellant responds that because R.C. 2744.02(B) makes the Village liable for the destruction of the sewer system, R.C. 2744.03(A)(3) cannot immunize the Village's conduct merely by asserting that the public official responsible for the decision was exercising discretionary authority. We need not decide this issue. As previously discussed, the Village is immune from liability pursuant to R.C. 2744.02(B). This being so, R.C. 2744.03(A)(3), which deals with defenses and -13- immunities that can be asserted by a political subdivision after one of the exceptions listed in R.C. 2744.02(B) is found to apply, does not even come into play. Farra v. City of Dayton, et al. (1989), 62 Ohio App.3d 487, 497. Appellant's first assignment of error is overruled. In its second assignment of error, appellant argues that the trial court erred in finding that CT Consultants was also immune from liability. The Political Subdivision Tort Liability Act provides protection from liability for negligence to political subdivisions and their employees, except under limited circumstances. The trial court held that CT Consultants, by and through its designated representative Thomas Colpetzer, P.E., was appointed as the Village Engineer and, therefore, was immune from liability as an employee of the Village pursuant to R.C. 2744.01(B). Appellant argues, however, that CT Consultants is a corporation and an independent contractor of the Village and, therefore, does not fall within the definition of employee contained in R.C. 2744.01(B). R.C. 2744.01(B) states: Employee means an officer, agent, employee, or servant, whether or not compensated or full-time or part-time, who is authorized to act and is acting within the scope of his employment for a political subdivision. Employee does not include an independent contractor. Employee includes any elected or appointed official of a political subdivision. Appellant argues that in Wilson v. Stark Cty. Dept. Of Human Svcs. (1994), 74 Ohio St.3d 450, 453, the Ohio Supreme Court construed R.C. 2744.01(B) to limit the term employee to an -14- individual natural person. In Wilson, the Ohio Supreme Court stated: The General Assembly defined `employee' as an individual natural person. The rule of noscitur a sociis, `it is known from its associates,' aids us in interpreting the language. The rule follows from the premise that `the coupling of words denotes an intention that they should be understood in the same general sense.' Appellant asserts that CT Corporation, as a corporate entity, is not an individual natural person and, thus, pursuant to Wilson, falls outside the definition of employee set forth in R.C. 2744.01(B). We agree. We find, however, that even if CT Consultants does not fall within the strict definition of employee contained in R.C. 2744.01(B), it is still immune from liability pursuant to R.C. Chapter 2744. In Wilson, supra, the Ohio Supreme Court reasoned that because a county department of human services was not a natural person, the department did not fall within the definition of employee contained in R.C. 2744.01(B). Nevertheless, the Supreme Court determined that the department was immune under R.C. Chapter 2744, because it is an instrumentality through which the county, a political subdivision, carries out governmental functions. In reaching that conclusion, the Supreme Court stated: A claim against a county department of human services, then, is in effect a claim against the county itself. To allow such a claim arising from the performance of a governmental function would frustrate the purpose of the statute. The burdens imposed by litigation and damage awards ultimately fall upon the same county resources regardless of whether the nominal defendant is the county board of commissioners or the county department of human services. -15- It is therefore unnecessary to decide whether county departments of human services are in themselves political subdivision; when performing their usual and proper functions, they are, for the purposes of R.C. Chapter 2744, integral parts of their counties. Where a county is immune under R.C. 2744.02 in its operation of a human services department, that immunity extends to the human resources department itself. Therefore, the Supreme Court held that the defendant departments of human services were entitled to summary judgment. Id. at 453. Here, there is no doubt that the Village hired CT Consultants, and appointed its designated representative, Thomas Colpetzer, P.E., to act as the Village Engineer, an office authorized by Section 733.80 of the Ohio Revised Code and through which the Village carries out governmental functions. Colpetzer testified that as Village Engineer, he was ultimately responsible for the design of the new storm sewer project and for all engineering decisions related thereto. Accordingly, appellant's claim against CT Consultants is actually a claim against the Village Engineer and, in essence, a claim against the Village itself. Thus, although CT Consultants is the nominal defendant, the Village is the real party in interest. Accordingly, the immunity extended to the Village regarding construction of the new sewer project also extends to CT Consultants as the Village Engineer, the instrumentality through which the Village carried out the governmental function. We find, therefore, that although the trial court erred in finding that CT Consultants was immune from liability as an employee of the Village, the trial court did not err in granting CT -16- Consultants' motion for summary judgment. Appellant's second assignment of error is overruled. In its third assignment of error, appellant argues that because CT Consultants is not immune from liability, the trial court erred in granting its motion for summary judgment when there were questions of fact regarding its negligence. We disagree. As explained above, the immunity extended to the Village also extends to CT Consultants as the Village Engineer. Accordingly, it was not necessary for the trial court to consider whether there were any questions of fact regarding CT Consultant's alleged negligence. Appellant's third assignment of error is overruled. -17- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE PRESIDING JUDGE PATTON, J. and SPELLACY, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .