Cook v. Metro. Sewer Dist. of Greater Cincinnati, C-220051

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtMYERS, PRESIDING JUDGE.
Citation2022 Ohio 3245
PartiesRUSSELL M. COOK, Plaintiff-Appellee, v. METROPOLITAN SEWER DISTRICT OF GREATER CINCINNATI, and CITY OF CINCINNATI, Defendants-Appellants, and BOARD OF COUNTY COMMISSIONERS OF HAMILTON COUNTY, OHIO, and JOHN DOE ENTITIES, Defendants.
Docket NumberC-220051
Decision Date16 September 2022

2022-Ohio-3245

RUSSELL M. COOK, Plaintiff-Appellee,
v.

METROPOLITAN SEWER DISTRICT OF GREATER CINCINNATI, and CITY OF CINCINNATI, Defendants-Appellants,

and BOARD OF COUNTY COMMISSIONERS OF HAMILTON COUNTY, OHIO, and JOHN DOE ENTITIES, Defendants.

No. C-220051

Court of Appeals of Ohio, First District, Hamilton

September 16, 2022


Civil Appeal From: Hamilton County Court of Common Pleas Trial No. A-2002391

McIntosh & McIntosh, PLLC, and M. Todd McIntosh, for Plaintiff-Appellee,

Andrew W. Garth, City Solicitor, and Joseph C. Neff, Senior Assistant City Solicitor, for Defendants-Appellants.

1

OPINION

MYERS, PRESIDING JUDGE.

{¶1} Defendants-appellants the city of Cincinnati and the Metropolitan Sewer District of Greater Cincinnati ("MSD"), appeal from the trial court's entry that denied MSD's Civ.R. 12(B)(6) motion to dismiss the complaint filed by plaintiff-appellee Russell Cook and that sua sponte determined that MSD was not immune from liability pursuant to R.C. Chapter 2744. In two assignments of error, the city and MSD challenge both the trial court's denial of the motion to dismiss and its determination regarding immunity.

{¶2} We hold that the trial court erred in sua sponte determining that MSD was not immune from liability because the parties had not raised that issue and did not have an opportunity to address it before it was determined by the trial court. We further hold that our appellate review is limited to challenges to the trial court's immunity determination and that appellants' challenge to the trial court's denial of the motion to dismiss on grounds other than immunity is not otherwise reviewable by this court. We reverse the trial court's immunity determination and remand this case for further proceedings consistent with this opinion.

Factual and Procedural Background

{¶3} Cook filed a complaint against MSD, the city, and the Hamilton County Board of Commissioners seeking to recover for damage to his property caused by sewage flooding from MSD's sewer system. The complaint alleged that in November 2017, MSD attempted to abate the sewage flooding in and onto his property, and that as part of the abatement activities, MSD agreed to place a backflow valve to prevent future flooding. According to the complaint, MSD failed to install the backflow valve, and extensive damage was caused to Cook's property when a second flood occurred.

3

{¶4} MSD filed a Civ.R. 12(B)(6) motion to dismiss, arguing that it is a subdivision of a municipal corporation that lacked the legal capacity to be sued and, consequently, that the complaint failed to state a claim against MSD upon which relief could be granted. Cook filed a memorandum in opposition to the motion to dismiss.

{¶5} The trial court denied the motion to dismiss, stating that "there is evidence that MSD has a history of involvement in legal actions in this jurisdiction refuting the stance that MSD does not have the legal capacity to sue or be sued" and finding that "MSD has the legal capacity to be sued." The trial court additionally undertook a political-subdivision-immunity analysis in its entry, despite the fact that the parties had not raised the issue of immunity. On the issue of immunity, the trial court stated:

Here, Plaintiff's complaint contains allegations of injury or loss to persons or property caused by the alleged negligent performance of acts by their employees. In Bibbs v. Cinergy Corp., supra [1st Dist. Hamilton No. C-010390, 2002 Ohio App.LEXIS 1629 (Apr. 12, 2002)], the First District Court of Appeals held that "under Ohio Revised Code §2744.01(G)(2)(d), the maintenance of a sewer system constitutes a proprietary function which clearly removes the shield of immunity from MSD." Bibbs, 2002 Ohio App. LEXIS 1629 at *10. In accordance with the First District, this Court similarly finds that the maintenance of a sewer system constitutes a proprietary function. As such, the Court does not find MSD immune from liability in this action
4
Next, this Court must determine whether one of the defenses to the immunities listed in Ohio Revised Code §2744.03 are applicable. Here, MSD does not assert the applicability of O.R.C. §2744.03, nor does this Court find that any of the enumerated defenses apply.

{¶6} It is from this entry denying the motion to dismiss and determining that MSD is not immune from liability that MSD and the city appeal.

Immunity

{¶7} For ease of our analysis, we address the second assignment of error first. In the second assignment of error, the city and MSD argue that the trial court erred when it denied immunity under R.C. Chapter 2744. They argue that the issue of immunity was not properly before the court to decide because it had not been raised in their motion to dismiss or by Cook in his memorandum in opposition.

{¶8} Pursuant to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT