Guido Cianchetti v. Akron Wrecking Co. and City of Akron, 82-LW-2889

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: PER CURIAM
• Parties: GUIDO CIANCHETTI, Plaintiff-Appellant, v. AKRON WRECKING CO. and CITY OF AKRON, et al., Defendants-Appellees. C.A.
• Docket Number: 10701,82-LW-2889
• Decision Date: 15 December 1982

GUIDO CIANCHETTI, Plaintiff-Appellant,
v.
AKRON WRECKING CO. and CITY OF AKRON, et al., Defendants-Appellees.

No. 10701.

82-LW-2889 (9th)

Court of Appeals of Ohio, Ninth District, Summit

December 15, 1982

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. CV 80 1 0048.

GUIDO CIANCHETTI, Pro Se, 1036 W. Exchange St., Akron, OH 44302 for Plaintiff, Self.

JAMES OLDS, Attorney at Law, 49 S. Main St., Akron, OH 44308 for Defendants.

STEPHANIE PAPPAS, Asst. Director of Law, 304 Municipal Bldg., Akron, OH 44308 for Defendants.

DECISION AND JOURNAL ENTRY

PER CURIAM

This cause was heard November 29, 1982, upon the record in the trial court, including the transcript of proceedings, and the briefs. It was argued by counsel for the parties and submitted to the court. We have reviewed each assignment of error and make the following disposition:

Plaintiff-appellant, Guido Cianchetti, appeals from the order granting summary judgment to the City of Arkon, and from the order dismissing plaintiff-appellant's claim against Akron Wrecking Co. for failure to prosecute. We affirm in part and reverse in part.

FACTS

On January 7, 1980, plaintiff-appellant filed a complaint for compensatory and punitive damages against Akron Wrecking Co., the City of Akron, and two individuals, Roy Jeffers and John Doe, aka "Sleepy." Said complaint alleged that the defendants caused damage to plaintiff's property on January 5, 1978, during the demolition of an adjacent condemned building.

On May 11, 1981, the trial court granted the motion of the City of Akron for summary judgment on the basis of municipal sovereign immunity.

An appeal to this court from that order was dismissed on December 9, 1981, for lack of a final, appealable order; plaintiff filed an affidavit of disqualification against the judge of the court below. At or about this time, plaintiff, for the first time, engaged the services of counsel.

On april 28, 1982, plaintiff's counsel was notified that a trial on the merits would be held the next day. Plaintiff was not personally notified and did not appear. Counsel appeared as scheduled but stated that he was not prepared to go forward with the case.

On April 30, 1982, the court entered an order dismissing plaintiff's case for failure to prosecute.

Plaintiff-appellant raises six claims of error, three of which (assignments of error 1, 3, and 5) relate solely to the court's order granting summary judgment in favor of the City of Akron, and three of which (assignments of error 2, 4, and 6) relate solely to the court's order dismissing with prejudice plaintiff-appellant's claim against the Akron Wrecking Company. We consider first those claims of error predicated upon the grant of summary judgment to the City of Akron.

ASSIGNMENT OF ERROR 1

"The lower court erred in granting summary judgment for the defendant-appellee City of Akron for the reason that the defense and the doctrine of sovereign immunity for political subdivisions in Ohio is unconstitutional, illegal capricious, arbitrary and violates the equal protection clause and due process clause of the Fourteenth Amendment to the United States Constitution."

Plaintiff urges this court to judicially abolish the doctrine of municipal immunity, arguing that the doctrine is an unjust, antiquated concept, with no place in a modern day society.

We note that the first syllabus of Schenkolewski v. Metroparks System (1981), 67 Ohio St. 2d 31, can be read as permitting us to do so:

"The common law doctrine of governmental or sovereign immunity may, consistent with Section 16, Article I of the Ohio Constitution, be abolished or altered by the judicial branch of government.***." (Citations omitted)

We do not, however, believe it to be the function of this court to abrogate the long established common law rule in Ohio, supported by a long line of precedential case law, that a municipal corporation is immune from tort liability when performing functions which are governmental in character. See, e.g., State v. Franklin Bank (1840), 10 Ohio 91; Western College of Homeopathic Medicine v. Cleveland (1861), 12 Ohio St. 375; Frederick v. Columbus (1898), 58 Ohio St. 538; Aldrich v. Youngstown (1922), 106 Ohio St. 342; Wooster v. Arbenz (1927), 116 Ohio St. 281; Tolliver v. Newark (1945), 145 Ohio St. 517; Broughton v. Cleveland (1957), 167 Ohio St. 29; Hack v. Salem (1963), 174 Ohio St. 383; Haas v. Akron (1977), 51 Ohio St. 2d 135; and Schenkolewski v. Metroparks System, supra. We, therefore, decline to take the course urged upon us by plaintiff.

Plaintiff also contends that the doctrine of sovereign immunity is violative of the equal protection clause of the United States and Ohio Constitutions. We find this argument to be without merit. Krause, Admr., v. State (1972), 31 Ohio St. 2d 132.

Alternately, plaintiff argues that in the case at bar,...