Legal Memorandum: Municipality's Liability for Employee's Negligence

Issue: Whether a city can be held liable for a homeowner’s damage caused by a water main break in Ohio.

Brown v. City of Akron, Case Nos. 15033, 15066, 1992 Ohio App. LEXIS 1070 (Ct. App. 9th Dist. Mar. 11, 1992) (“A municipality may be liable for its employees’ negligent performance of proprietary functions.  R.C. 2744.02(B)(2).  Once a municipality makes a decision to engage in a proprietary function, it will be held liable, the same as private persons and corporations, for the negligence of its employees in the performance of their activities.  Zents v. Bd. of Commrs. (1984), 9 Ohio St. 3d 204, syllabus; Noll v. Nezbeth (1989), 63 Ohio App. 3d 46, 50.  As stated above, the maintenance and operation of a municipal water supply system is a proprietary function. R.C. 2744.01(G)(2)(c). Therefore, City owed appellees a duty of reasonable or ordinary care.”).

FirstEnergy Corp. v. City of Cleveland, 182 Ohio App. 3d 357, 912 N.E.2d 1156 (Ct. App. 8^th Dist. 2009) (city may be liable for damage caused by water main break if the city’s work constituted the exercise of judgment or discretion, and in exercising its judgment or discretion, the city acted with a malicious purpose, in bad faith, or in a wanton or reckless manner.”).

Williams v. Brewer, No. 93829, 2010 Ohio 5349, 2010 Ohio App. LEXIS 4533 (Ct. App. 8^th Dist. Nov. 4, 2010) (“in this case, employees of the Water Department exercised their discretion in deciding how to perform the repair and connection of the water line and in their selection of the equipment and materials used, including […]