Guido Cianchetti v. Akron Wrecking Co. and City of Akron

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

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, the City of Akron was not involved in a governmental function, and thus, the doctrine of sovereign immunity is inapplicable. We disagree.

The City of Akron undertook the demolition of the condemned property pursuant to a directive from the Director of Public Health of the City of Akron. The building was found to be a hazard to the health and safety of the public by the Director of Public Health, and the City accordingly engaged the services of Akron Wrecking Co. for the demolition of said building. Plaintiff claims that in doing so, the City was engaged in a proprietary function, and is liable, therefore, for the damage allegedly caused.

The test for determining the governmental or proprietary nature of an activity is set forth in Wooster v. Arbenz, supra, at 284-285:

"***In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself. If, on the other hand, there is no obligation on the part of the municipality to perform them, but it does in fact do so for the comfort and convenience of its citizens, for which the city is directly compensated by levying assessments upon property, or where it is indirectly benefited by growth and prosperity of the city and its inhabitants, and the city has an election whether to do or omit to do those acts, the function is private and proprietary.

"Another familiar test is whether the act is for the common good of all the people of the state, or whether it relates to special corporate benefit or profit. In the former class may be mentioned the police, fire, and health departments, and in the latter class utilities to supply water, light, and public markets.***."

Without question, we find that the removal of a building condemned by the director of public health as a health and safety hazard is a governmental function of the municipality.

Accordingly, the assignment of error is rejected.

ASSIGNMENT OF ERROR 3

"The lower court erred to the prejudice of plaintiff-appellant and committed plain error by not reading or considering appellant's motion and memorandum filed in opposition to defendant City of Akron's motion for summary judgment and plaintiff-appellant's motion to strike."

We have read the assignment of error and the arguments presented in support thereof, and find the same to be based upon mere speculation, and, therefore, without merit.

ASSIGNMENT OF ERROR 5

"The lower court abused its discretion and committed error prejudicial to plaintiff in granting defendant City of Akron's motion for leave to file motion for summary judgment after a pretrial had been set."

Civ R. 56(A) provides that:

"For party seeking affirmative relief. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of the time permitted under these rules for a responsive motion or pleading by the adverse party, or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. If the action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court." (Emphasis added).

Leave of court was granted. Such is within the sound discretion of the trial court. The assignment of error is overruled.

ASSIGNMENTS OF ERROR

"2. The lower court (Morgan, J.) committed prejudicial error rising to the level of plain error in entering a judgment of dismissal for the reasons that there was an affidavit of disqualification pending

...