Municipal corporations — Tort liability — Negligence in operation of proprietary function — Operation of sewer system.
Per Curiam.
We are not here concerned with the adoption of a plan for a sanitary sewer or for the construction or maintenance of either Graham Road or Marabar Heights sewers, but with the negligence of the defendant in permitting two taps from the Marabar Heights sewer into the Graham Road line and the failure on the part of defendant, after notice thereof, to remedy the situation causing damage to plaintiffs' property. Defendant contends that in so doing it was acting in a governmental capacity and is not liable for the resulting damage. Plaintiffs contend that it was acting in a proprietary capacity and is liable for such acts.
This court is of the opinion that the defendant, in permitting the Marabar Heights sewer lines to be tapped into the Graham Road sewer, was engaged in the operation or management of an existing sewer system, a proprietary function, and is liable for damages resulting from its negligence in such operation. See Hack v. City of Salem, 174 Ohio St. 383.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH and HUNSICKER, JJ., concur.
HUNSICKER, J., of the Ninth Appellate District, sitting by designation in the place and stead of HERBERT, J.
GIBSON, J., concurring.
I concur in the judgment, but for the reasons stated in my concurring opinion in Hack v. City of Salem (1963), 174 Ohio St. 383, I disagree with the method employed in reaching this judgment.