Brown v. S. Ohio Corr. Facility

• Decision Date: 12 December 1991
• Docket Number: No. 90-03870,90-03870
• Citation: 62 Ohio Misc.2d 337,598 N.E.2d 909
• Parties: BROWN v. SOUTHERN OHIO CORRECTIONAL FACILITY.
• Court: Ohio Court of Claims

Page 337

62 Ohio Misc.2d 337

598 N.E.2d 909

BROWN v. SOUTHERN OHIO CORRECTIONAL FACILITY.

No. 90-03870.

Court of Claims of Ohio.

Decided Dec. 12, 1991.

Richard F. Swope, Reynoldsburg, for plaintiff.

Lee I. Fisher, Atty. Gen., and Christopher C. Keller, Asst. Atty. Gen., for defendant.

FRED J. SHOEMAKER, Judge.

This cause presents the question whether the state may be liable for the noxious emanations from a waste water treatment facility operated upon its lands.

The evidence presented at trial indicates that in September 1968, the Board of Commissioners of Scioto County and the state of Ohio agreed that the county would construct a waste water treatment facility upon land located near Lucasville and owned by the state of Ohio. At that time, the state was completing construction of the nearby Southern Ohio Correctional Facility ("SOCF"), defendant herein. The agreement provided that the county's waste treatment facility would, for an agreed fee, receive and process all of the waste water generated by SOCF.

On October 14, 1969, the state and the board of commissioners formally entered into a lease of the land for the purpose of "construction, operation and maintenance of a sewage treatment plant." The lease was originally for a term of fifteen years, while the contract to process waste from SOCF was apparently extended from time to time.

On January 25, 1978, plaintiff, Barbara G. Brown, and her husband purchased a home and land located approximately one thousand feet from the treatment facility. The Brown family took possession and occupied the residence in March of that year. Prior to the sale, and for a short time thereafter, no odor was apparent to plaintiff's family.

Later that year, plaintiff and her family began to notice a particular odor whenever the wind blew from a certain direction, and especially after rain. At that time, they speculated that the odor emanated from their own in-ground septic tank. They examined the tank and found no defect that would explain the odor. Later, as the odor continued, it was conjectured that perhaps the leach bed surrounding the septic tank was creating the smell. Further examinations eliminated this source as well.

During the summer of 1979, the odor intensified and became continuous. It was described as the smell of an open sewer. During 1981 and 1982, the odor intensified even more. Plaintiff and her family found it uncomfortable to remain outside near their home.

The smell became worst of all during the period of time from 1983 through 1984. During this time, the odor intensified further and was noticeable even during the cold weather months. The smell apparently became all-pervasive, penetrating into their air-conditioned home during the warmer months.

On August 30, 1985, plaintiff, along with her husband and several neighbors, initiated an action in the Common Pleas Court of Scioto County. That court has yet to act upon the plaintiffs' complaint. On January 16, 1986, plaintiff filed a complaint in this court, seeking damages on several theories, and asserted that defendant SOCF created odors "which are so strong that it has made it impossible for the plaintiffs to live in their residences without discomfort, danger to their health and reduction of their property values."

The complaint alleged that the board of commissioners acted as an agent for SOCF and that SOCF ratified all of the board's acts. Plaintiffs alleged several theories for recovery, including negligence in the construction, maintenance and operation of the facility. Plaintiffs also contended that the facility constituted a nuisance and that defendant inflicted extreme emotional distress upon plaintiffs. Finally, plaintiffs asserted that defendant's actions constituted a taking of their property without compensation. As relief, plaintiffs sought $1,000,000 in damages plus various preliminary and permanent injunctions.

Plaintiffs later voluntarily dismissed their action, but refiled it within one year on March 30, 1990. Eventually, plaintiff's neighbors voluntarily dismissed themselves from the case. Jack and Barbara Brown ended their marriage and, pursuant to their property settlement, Jack Brown no longer has an interest in the residence at issue. He was therefore dismissed as a party to the action. Barbara G. Brown remains as the sole plaintiff in this action.

I

A principal legal issue, raised at various points in the proceedings by defendant, is whether the applicable statute of limitations bars all or parts of plaintiff's theories of recovery. R.C. 2743.16(A) requires that causes of action shall be "commenced no later than two years after the date of accrual of the cause of action * * *." Generally, a cause of action accrues and the statute of limitations begins to run whenever plaintiff has been harmed and has discovered sufficient information to conclude that the harm derived from defendant's actions.

Plaintiff's complaint was originally filed on January 16, 1986. The facts at trial indicated that plaintiff was aware of the source of the offending smell as early as 1979, and certainly no later than 1981. Thus, plaintiff's causes of action premised upon an alleged taking, as well as acts or omissions allegedly done negligently, would appear to have accrued more than two years prior to the filing of her first complaint. Those theories of recovery are therefore barred as untimely commenced.

The parties have tended to focus upon the nuisance aspects of the complaint in arguing the statute of limitations issue. There is authority for the proposition that, ordinarily, a statute of limitations does not run against a nuisance that is continuous, or when a nuisance has gradually become worse with the passing of time. This is based upon the theory that every continuation of a nuisance constitutes a new nuisance. See, e.g., 72 Ohio Jurisprudence 3d (1987), Nuisances, Section 26, at 412-414, and those inapposite cases cited in footnotes 10 through 18.

However, the law on this particular issue is plain and is set forth in R.C. 2743.16(A), as follows: "Subject to division (B) of this section, civil actions against the state permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no later than two years after the date of accrual of the cause of action * * *." (Emphasis added.) Without doubt, the present action is maintainable, if at all, only within the strictures of R.C. 2743.01 through 2743.20. Consequently, the two-year statute of limitations set forth must apply to plaintiff's nuisance claims as well. Those claims predicated upon fumes occurring more than two years prior to the January 16, 1986 filing date are, therefore, not actionable. Likewise, whatever damages plaintiff claims must derive from defendant's acts or omissions occurring within two years from the date this action was commenced.

II

A major issue presented, both before and during the trial of the case, is whether acts or omissions by the county board of commissioners may be imputed to defendant. The evidence at trial, as previously mentioned, indicated that defendant did not begin to operate the facility until June 1, 1985. Prior to that time, the facility had been constructed, maintained and operated by the board of commissioners.

It was plaintiff's contention that the board of commissioners acted as agent for defendant, or, at the very least, that defendant ratified the board's actions. A review of the lease indicates that it is a rather standard, if simplified, form of this kind of agreement. It allows of no greater interpretation than that the state leased the subject parcel to the board of county commissioners for the agreed-upon rentals. The leasehold was complete with no material reservation of any rights that would impact upon the board's ability to fully possess and enjoy its leasehold.

The contract between the state and the board provided that defendant was permitted to connect to the facility for the processing of all of its waste in exchange for the agreed-upon fee. The agreement between them allowed the state to inspect the facility, but did not grant any power to affect the facility's operation should an inspection discover inadequacies. Nor did the agreement provide that the state would inspect the premises, but only that the state reserved the right to do so.

As payment for the waste treatment services, the state agreed to "pay for the maintenance, operation, labor and technical supervision costs of the aforesaid waste water treatment plant * *...