Last updated: March 09. 2014 5:48PM - 5199 Views
Sarah Hawley shawley@civitasmedia.com

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POMEROY — The latest filing in the lawsuit by David and Jamie Deem against the village of Pomeroy and others further details allegations and names another defendant.

A memorandum in opposition to the motions for judgment was filed on March 3 by the Deems’ attorney Michael M. Hollingsworth.

The case, originally filed in Meigs County Common Pleas Court in October, was moved to U.S. District Court-Southern District of Ohio in November.

In the initial filings, there was a listing of “Does Defendant,” which could be identified throughout the process.

According to the latest filing, the plaintiffs, Jamie and David Deem, intend to amend their complaint to add Mary McAngus, former mayor of Pomeroy, in official and personal capacities, and bring claims against defendant Ruth Spaun in her personal capacity.

Additional material factual allegations were also included in the filing that are relevant to the Deem’s claims, according to the documents.

In the proposed Second Amended Verifed Complaint, “the Deems intend to join three recently identified “Does Defendants” in their personal capacities: Defendant Ruth Spaun, her son Defendant Shannon Spaun, and the proposed Defendant Former Mayor Mary McAngus, who conspired with the Hylant Defendants and The Ohio Plan Defendants. The Village and the other Village Defendants who were sued in their official capacities will not be joined in this claim.”

The new material goes on to state:

“The conspiratorial conduct of Defendant Ruth Spain, her son Defendant Shannon Spaun, proposed Defendant Former Mayor Mary McAngus, the Hylant Defendants and The Ohio Plan Defendants in fact was extreme and outrageous. Here are the facts that support the IIED (intentional infliction of emotional distress) claim.”

Additional new material states that then-Mayor John Musser climbed the hill and walked behind the residences. He found the spot where water was bubbling up and flowing down the hill. Musser learned that the Smiths had been told the leak was in a private service line. After speaking with Village Administrator Paul Hellman, Musser concluded that the hill slide was caused by the Water Department’s failure to search for, discover and fix the waster leak prior to the weekend.

Musser also explained, in the days after the slide, that the damages to the museum annex and Butternut Residence were the fault and responsibility of the village. It also states that Musser was not alone in the claim, with other village officials telling the adjustors that the village was responsible for the slide and damages.

The document filed on March 3, further reads:

“From January 1, 2012, until March 15, 2012, proposed Defendant Former Mayor Mary McAngus, Defendant Ruth Spaun, and Defendant Shannon Spaun systematically, day after day, worked to erase the fault of Defendant Shannon Spaun for the leaking water pipeline and the hill slides and even the fact that there had been a leaking water pipeline at all, when in fact there had been two leaks on October 24, 2011, which caused the hill slides.

“They collaborated and conspired with the Hylant Defendants and The Ohio Plan Defendants to place blame for the hill slides on an allegedly historically unstable hillside and very heavy seasonal rainfall.

“Prior to 2012, the Mayor and all but one Council member (Defendant Ruth Spaun) believed the Village was responsible for hill slides and the losses suffered by the Deems.

“After January 1, the conspirators pressed other council members to accept or at least refrain from challenging the revised story regarding how the hill slides had occurred naturally, which had been developed through an “investigation” conducted by the Hylant Defendants and The Ohio Plan Defendants. Even though several letters showed Defendant Laurie O’Malley had been aware of the primary water leak that caused the hill slides early on … She omitted mention of a leaking water pipeline in her final letter denying the Deems’ claim”

The conclusion of the argument states that “the Hylant Defendants and the Ohio Plan Defendants, with the help and assistance of Defendants Ruth Spaun, her son Defendant Shannon Spaun and proposed Defendant Former Mayor Mary McAngus wrongfully usurped the important public function and duty of making the finance decision with respect to the claim of Jaime and David for their enormous, heartbreaking losses. That action was extreme, outrageous, beyond all bounds of decency, intolerable, and illegal.”

Another new claim includes that Shannon Spaun told one or both of the Smiths (owners of the property above the Deems) on Oct. 24, 2011, that the water flowing out of the ground could not have come from a village pipeline because at that location, there only could have been a private service line for which the village was not responsible. That is not true according to the claim.

A second piece of new material included states, that village officials and employees helped or gave actual or tactical approval for Shannon Spaun to dispose of or destroy the corroded, broken piece of pipe removed form the original leak. The claim is brought against village officials and/or employees, including Doe Defendants, in their personal capacities.

“Its (the broken, corroded pipe) existence was acknowledged by Richard Schmizze, P. E. in his November 8, 2011, letter sent to Defendant O’Malley, who in turn acknowledged it in her November 17, 2011, letter. By October 28, 2011, word was circulating through the grapevine in Pomeroy that someone (unnamed) in good standing with City Hall had said a piece of broken pipe removed from the site of the water pipeline break would never be found.”

The argument is made that the village employees and/or officials who destroyed or hid the corroded, broken pipe would not have immunity and the willful destruction of evidence constitutes bad faith, recklessness and wanton misconduct under the Ohio Revised Code.

The filing also argues that the immunity claimed by the village is waived in the case of negligence in a political subdivision’s proprietary functions. The negligence claim in this case concerns the maintenance and operation of the Village Water Department.

The Deems allege eight instances of negligent conduct by the village as stated in the amended verified claim.

An argument further responds to the claim by the village that the lack of maintenance, failure to repair leaking water pipeline in a timely fashion and failure to deal with the aftermath of the hill slides caused by negligence were protected “flood control measures,” an immune governmental function rather than its failure to maintain its water supply system.

According to the new filing, Ohio case law does not support that contention, stating that “flood control measures” require positive action, not inaction. It goes on to state that normal maintenance does not constitute flood control measures.

That argument concludes by stating, “The Village and its officials and employees never engaged in flood control measures. There was no flood. The Village was negligent and did nothing.”

A separate argument is that the acts and omission of the village’s officials and employees were not discretionary. Discretion is a defense that can be used by the village, according to the filing. The argument states that defense is unavailable to the village since it was engaged in ordinary maintenance (and lack of maintenance).

“With respect to the judgment discretion involved in the defenses, the Ohio courts of appeals have held that ordinary maintenance does not rise to the level of judgment and discretion that would give rise to those defenses.”

The argument goes on to state that assuming the defense is applicable, which it is not, Defendant Shannon Spaun and other Water Department employees or village officials acted “with malicious purpose, in bad faith, or in wanton or reckless manner.”

It also acknowledges that Shannon Spaun, in his personal capacity, is not immune as an employee of the village as a result of his wanton and reckless misconduct and because he acted in bad faith on Oct. 21, 2011.

The argument reads, “When defendant Shannon Spaun walked away from the leaking water pipeline on the late afternoon of Friday, October 21, 2011, he knew or reasonably should have known as a Water Department employee of 20 years of the dangers of a water pipeline located at the top of a steep hill left leaking over the weekend. His conduct was both wanton and reckless”

As defined by the courts, wanton misconduct is “the failure to exercise any care toward those whom a duty of care is owed in circumstances in which there is great probability that harm will result.” Reckless conduct is “characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.”

The lawsuit was filed by the Deems against the Village of Pomeroy and several others connected to the village two years following the original slip.

In papers filed, David and Jamie Deem, owners of the home located at 148 Butternut Ave., began a civil suit with regard to damages to their property from two hill slides in October and November of 2011.

The Deem’s property was damaged extensively as a result of the slides, necessitating a move from the location.

The documents state that the residence is over 100 years old and had been owned by Jamie Deem since 1985. The home also held great sentimental value to the couple as it was the home of their late daughter from the time of her birth until her passing in 2008.

The Deem’s property was not the only property damaged in the slides, with damage also done to the Meigs County Museum Annex. According to the court documents, the Village’s insurance through the Ohio Plan and Hylant Administrative Services paid for the damages to the annex in full. No payments have been received by the Deems, according to the paperwork.

The original document explains eight claims against those named in the suit.

The suit was filed against the Village of Pomeroy, also Mayor Jackie Welker and Council Members Ruth Spaun, Phil Ohlinger, Luke Ortman, Robert Payne, Drew Reed and Victor Young, each in their official capacity. Also named as defendants in the action are water department employee Shannon Spaun, in his official and individual capacities, Jane Doe, Janet Doe and John Doe in their official and individual capacities, Hylant Administrative Services, LLC (HAS Claims Services), The Ohio Plan, and Laurie A. O’Malley Senior Claims Adjustor, individually and as an employee of Hylant Administrative Services.

The references to Jane Doe, Janet Doe and John Doe are current or former mayors, council members, officials or employees who may have been involved and can be identified at a later time.

According to the 35-page court document, the Deems are asking for economic and non-economic compensatory damages, to include without limitation, the costs of removing excess dirt, mud and debris from the Butternut Residence property, stabilizing the hillside, and permanently repairing the hillside, the costs of restoring and repairing their home, their out-of-pocket expenses for moving, storage and other matters, lost time from work, mental anguish and suffering, and other no-economic damages, and if permitted, punitive damages, reasonable attorney’s fees, litigation expenses and court costs.

The Deems are also asking that a Writ of Restitution be issued requiring the village, mayor and village council to purchase the residence at the fair market value prior to the slides.

NOTE: At the time of hill slides, Welker was not the Mayor of Pomeroy, instead, a member of council; additionally, current council members Dru Reed, Robert Payne and Luke Ortman were not members of council. Pete Barnhart, Jim Sisson and Welker were serving in those seats at the time.

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