R.C. 2744.03(A)(5) Interpretation

The Court considered R.C. 2744.03(A)(5) in two cases: Ohio Bell Tel. Co. v. DiGiola-Suburban Excavating, LLC, Cuyahoga App. Nos. 89708 and 89907, 2008 Ohio 1409, and FirstEnergy Corp. v. Cleveland, Cuyahoga App. No. 90784, 179 Ohio App. 3d 280, 2008 Ohio 5468, 901 N.E.2d 822. In Ohio Bell, several utility companies sued the city, alleging that its water department acted negligently when stopping a water leak because it failed to shut off water to the correct water main and caused damage to the companies' equipment. The Court found that the lack of allegation that the city acted with a malicious purpose, in bad faith, or in a wanton or reckless manner entitled the city to governmental immunity as a matter of law. Id. at P41-42. Similarly, in FirstEnergy, the company alleged that the city's water department negligently excavated and damaged the company's underground utilities and equipment. This court stated: "FirstEnergy's complaint made no allegation that the city's employees acted with 'malicious purpose, in bad faith, or in a wanton or reckless manner.' Moreover, at no point in its opposition to summary judgment did FirstEnergy offer any evidence of reckless or malicious conduct. Its expert could only state that 'the City of Cleveland should have been more timely in shutting-down the water leaks,' that it 'should have equipped its trucks with line valve maps and compressors,' and that it 'should have closed off the main beyond the seven valves to shut-off as quickly as possible.' See Brief in Opposition to Summary Judgment, Ex. 5. None of these statements goes beyond the ordinary negligence standard of care, and thus fall outside the heightened care standards necessary to impose liability under R.C. 2744.03(A)(5). Consistent with Ohio Bell, we conclude that the city was entitled to sovereign immunity as a matter of law on the negligence claims for incidents three and four." FirstEnergy at P 19.