Two recent decisions from the Midwest region address the scope of immunity available to governmental units and government contractors sued in tort for personal injuries and property damage that arise out of public construction projects. The first decision from Ohio considers under what circumstances a political subdivision can maintain its immunity to tort claims where an independent contractor fails to follow construction specifications furnished by the political subdivision and such failure results in damage to private property. The second decision from Wisconsin analyzes what criteria a government contractor needs to satisfy to assert a governmental immunity defense to a personal injury claim. The decisions underscore the importance of understanding the multi-faceted and fact-specific analysis that go into determining whether immunity requirements are satisfied.

City of Trotwood v. South Central Construction LLC

In City of Trotwood v. South Central Construction LLC,¹ the Court of Appeals of Ohio analyzed whether residents’ tort claims against a city and school district were barred by Ohio’s political-subdivision immunity statute. A school district hired a contractor to demolish an old high school to make way for a new one. The contractor was required to “fill the open ends of abandoned sewers or drains encountered in excavation with concrete or masonry, as per Local and State Codes.” Following demolition and in violation of its contract, the contractor left a sewer line uncapped which resulted in the flooding of homes adjacent to the high school.

The city and school district filed a declaratory action seeking a liability determination. They claimed that they were entitled to political-subdivision immunity under R.C. Chapter 2744.²In response, the residents argued that inspection and maintenance of the sewer system constitute proprietary functions rather than governmental functions and that immunity is therefore not available as a defense. The residents also argued that immunity did not apply because capping sewers is an inherently dangerous activity for which liability cannot be delegated to an independent contractor. The trial court rejected both arguments and granted summary judgment in favor of the city and school district. The appellate court affirmed.

The appellate court applied Ohio’s three-tiered immunity test under R.C. 2744 to assess the  propriety of the city’s and school district’s immunity defense. The first tier states that a political subdivision is generally not liable in damages for property damage caused by an act of the subdivision or one of its employees in connection with a governmental or proprietary function. The second tier asks whether an exception to the general rule should apply. If the political subdivision loses immunity under the second tier, the third tier asks whether a political subdivision can restore immunity by demonstrating that certain defenses apply.

The court concluded that the city and school district satisfied the first and second tiers, and that the third tier was not implicated. The court rejected the residents’ argument that the city and school district were not immune from suit because they fell under the exception to immunity contained in R.C. 2744.02(B)(2). That section renders a political subdivision liable “for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions.” With respect to sewer inspections, the court noted that Ohio courts have consistently held that governmental inspections of all types constitute a governmental rather than a proprietary function. With respect to maintenance of the sewer system, the court found that although maintenance is indeed a proprietary function, neither the city nor the school district actually performed “maintenance” work because they delegated the capping of sewers to an independent contractor. Neither the city nor the school district maintained control over the contractor’s manner or mode of performing its work. As a result, the court found that neither could be held liable in tort for property damage arising out of the contractor’s negligently performed work. This is because the exception to immunity contained in R.C. 2744.02(B)(2) does not apply where the conduct for which liability is sought is performed by an independent contractor over whom the political subdivision exercises no control over the manner of the contracted-for work.The court further concluded that the capping of sewers is not an inherently dangerous activity such that the city and school district could not delegate the duty to safely perform the work to a third party. In rendering its decision, the court noted that work on a construction site is generally considered to be inherently dangerous. However, the court stated that not every activity on a construction site is inherently dangerous. As a matter of law, the court held that razing buildings is inherently dangerous, but capping sewers is not.

Bronfeld v. Pember Companies

In Bronfeld v. Pember Companies,³ the Wisconsin Court of Appeals held that a subcontractor who placed barricades and safety signs on a municipal road construction project was immune from personal injury claims because the subcontractor was an “agent” of the local government who followed reasonably specific governmental instructions. The subcontractor was able to successfully defend against the claims by asserting a governmental immunity defense.

In 2007, the City of River Falls prepared contracts and specifications for a road construction project. The City engaged Monarch Paving as the general contractor for the project. Monarch hired Pember Companies, Inc. as a subcontractor to install new sidewalks and crosswalks. Monarch’s contract with the City incorporated a voluminous project manual prepared by the City, and Pember’s subcontract incorporated by reference the terms of Monarch’s contract. The manual required that project work be performed in accordance with the Wisconsin Manual on Uniform Traffic Control Devices and a traffic control plan submitted to and approved by the City. The manual also contained instructions for traffic control and the placement of barricades and signs during construction.

Pember began its concrete work in late summer 2007. It placed Type III barricades to cordon off its work as required by the approved traffic control plan, and affixed a “sidewalk closed” sign on a Type II barricade at the edge of the sidewalk leading to a closed crosswalk. On October 4, 2007, the plaintiff, Beverly Bronfeld, tripped over the leg of a Type III barricade positioned by Pember and sustained injuries. She filed suit against Pember and its insurer, alleging that Pember negligently erected barricades and safety signs and failed to maintain a safe site for the public.

Pember moved for summary judgment, arguing that as an agent of the City, it was entitled togovernmental immunity under Wis. Stat. 893.80(4). The trial court granted the motion and Bronfeld appealed. On appeal, Bronfeld argued that her claim involved a “highway defect” under Wis. Stat. 893.83(1), which provides an exception to the general grant of governmental immunity under Wis. Stat. 893.80(4). Bronfeld also argued that Pember was not entitled to assert a governmental immunity defense because it was not acting as an agent of the City. The Court of Appeals rejected both arguments. With respect to the first, the court concluded that the statutory exception for damages occasioned by insufficiency or want of repairs was not applicable because it only applies to a small area of negligent conduct relating to highways, namely structural and construction components of the road bed and surface. The court found that the placement of barricades and signs did not fall within this narrow category. The court also concluded that the exception did not apply because the roadway must be a “traveled” portion of highway, and a closed portion of roadway by definition cannot constitute a “traveled” highway.

The court’s treatment of whether Pember was acting as an agent of the City and could therefore assert a governmental immunity defense was more detailed. The court began its analysis by noting that if an employee of the City had placed the barricades and signs at issue instead of delegating that task to a contractor, the City would have been immune from suit under Wis. Stat. 893.80(4). The court then acknowledged that the Wisconsin Court of Appeals had previously extended the statute to apply to government contractors who act as agents for government authorities who retain ultimate authority for projects.4 For a government contractor to be entitled to immunity, three criteria must be satisfied: (1) the government authority must approve reasonably precise specifications; (2) the contractor must conform its work to the specifications; and (3) the contractor must warn the supervising authority about possible dangers associated with the specifications that are known to the contractor but not the government officials. The appellate court concluded that each element was fulfilled. The specifications furnished by the City in its project manual were reasonably precise, even though the manual only provided “approximate” locations for sign and barricade placement at each stage of construction. According to the court, the specifications did not have to spell out every minute detail to qualify as “reasonably precise.” The second element was met because Pember produced pictures of the accident site demonstrating compliance with the City’s specifications. The third element was not implicated because no evidence was presented that Pember knew that the specified use of barricades and signs posed any danger.

¹ 192 Ohio. App. 3d 69 (Ohio Ct. App. 2011).