Henry v. City of Akron, s. 11999

• Decision Date: 23 October 1985
• Docket Number: 12014,Nos. 11999,s. 11999
• Citation: 27 Ohio App.3d 369,501 N.E.2d 659,27 OBR 465
• Parties: , 27 O.B.R. 465 HENRY et al., Appellees and Cross-Appellants, v. CITY OF AKRON, Appellant and Cross-Appellee.
• Court: Ohio Court of Appeals

Page 369

27 Ohio App.3d 369

501 N.E.2d 659, 27 O.B.R. 465

HENRY et al., Appellees and Cross-Appellants, v. CITY OF AKRON, Appellant and Cross-Appellee.

Nos. 11999, 12014.

Court of Appeals of Ohio, Ninth District, Summit County.

Oct. 23, 1985.

Syllabus by the Court

1. In the absence of statutory authorization, neither punitive damages nor attorney fees can be awarded against a municipal corporation. (Enghauser Mfg. Co. v. Eriksson Engineering Ltd. [1983], 6 Ohio St.3d 31, 451 N.E.2d 228 applied.)

2. A plaintiff may recover profits lost as a result of a municipal corporation's tortious conduct if such damages may naturally be expected to follow from the wrongful act and if the damages are reasonably ascertainable.

3. In a civil jury trial, where the defendant claims surprise upon the plaintiffs' calling of a particular expert witness, the defendant may request a continuance in order to depose the witness.

4. A party whose home has been destroyed by an explosion of methane gas which escaped from a municipal landfill may receive an appropriation award from a municipal corporation, as well as an award, in a separate action, for loss of use of the property between the time of the explosion and the party's entrance into his replacement home.

Paul E. Weimer, Akron, for the Henrys.

R.E. Rubinstein, Cleveland, for Prudential Ins. Co.

Max Rothal, Asst. City Prosecutor, for the City of Akron.

BAIRD, Judge.

This cause came on before the court upon the cross-appeal of the David Henry family and the appeal of the city of Akron from the trial court's order awarding the Henry family $165,500 against the city of Akron. We affirm.

This case arose out of the explosion of methane gas which had escaped from the Hardy Road landfill operated by the city of Akron. The explosion completely destroyed the Henry home. The city admitted liability for the explosion; a trial was held to determine the extent of the family's damages. In addition, the city of Akron filed an appropriation action in which the value of the Henry property was disputed. In that action, the jury awarded the Henrys $57,200. This verdict is not contested here.

In the matter of damages resulting from the explosion, the jury awarded the Henrys a total of $165,500. Of this award, $38,500 was to reimburse the family for personal property lost in the explosion and subsequent fire. This award is not in dispute; however, the city appeals the remainder of the judgment. The Henrys dispute the trial court's dismissal of their claim for attorney fees and punitive damages.

The Henrys' Cross-Assignments of Error

"I. The trial court erred in refusing to allow the jury to consider reasonable attorney fees and costs as a component of plaintiffs' compensatory damages.

"II. The trial court erred in striking plaintiffs' claim for punitive damages."

The trial court's action amounted to the dismissal of plaintiffs' claim for attorney fees and punitive damages. In order to affirm the dismissal of these claims, "it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. * * * " O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753 [71 O.O.2d 223], syllabus. We find that the trial court correctly ruled that neither attorney fees nor punitive damages could be awarded against a municipal corporation.

Historically, the common-law doctrine of municipal immunity precluded liability on the part of a municipal corporation for its negligent conduct of governmental functions. However, this concept was abrogated by the Ohio Supreme Court in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 442 N.E.2d 749, and its progeny, e.g., Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 451 N.E.2d 228. The rationale behind the "abolition" ¹ of common-law municipal immunity is the inequity of forcing an innocent victim to bear the expense of injury due to the negligence of a municipal corporation, Enghauser, supra, at 34, 451 N.E.2d 228; Haverlack, supra, 2 Ohio St.3d at 30, 442 N.E.2d 749. A municipality is better able to absorb the cost of an injury it causes than the individual victim. Haverlack, supra, 2 Ohio St.3d at 30, 442 N.E.2d 749.

Neither Enghauser nor Haverlack defines the parameters of the newfound right of a private litigant against a municipality. The Ohio Supreme Court has not ruled on the issue of whether attorney fees or punitive damages may be awarded against a municipal corporation. However, under R.C. Chapter 2743, by which the state of Ohio waived sovereign immunity, the Supreme Court has ruled that punitive damages are not recoverable against the state, unless specifically authorized by statute. Drain v. Kosydar (1978), 54 Ohio St.2d 49, 55-56, 371 N.E.2d 1253 [8 O.O.2d 657]. See, also, Berke v. Dept. of Pub. Welfare (1976), 52 Ohio App.2d 271, 273-274, 369 N.E.2d 1056 [6 O.O.3d 280]. In Drain, supra, at 55-56, 371 N.E.2d 1253, the court ruled that the rationale of Ranells v. Cleveland (1975), 41 Ohio St.2d 1, 321 N.E.2d 885 [70 O.O.2d 1], applies with equal force in the instance where punitive damages are sought against the state.

In Ranells, the Ohio Supreme Court held that, in the absence of a statute particularly authorizing such recovery, punitive damages could not be assessed against a municipality. Adopting the reasoning of numerous other states, ² the court, at 7-8, emphasized that:

"It must be continually emphasized that punitive damages are assessed over and above that amount adequate to compensate an injured party. As such, they are nothing less than a windfall to any plaintiff who receives them. When their reason for being--to punish or deter--ceases to exist, the entire rationale supporting them collapses. * * * "

The court noted that the deterrent effect attributed to punitive damages added little justification for their award against municipalities. It is assumed that a public official will do his duty; if discipline of a wrongdoing employee is indicated, appropriate measures are available through the electorate or through elected officials responsible to the electorate. Ranells, supra, 41 Ohio St.2d at 6-7, 321 N.E.2d 885, citing Chappell v. Springfield (Mo.1968), 423 S.W.2d 810, 814. Furthermore, the court indicated that permitting the award of punitive damages against municipal corporations would contravene public policy in that the people bearing the burden of the punishment are the public; the very persons who are to benefit from the public example to be set. Ranells, supra, 41 Ohio St.2d at 6, 321 N.E.2d 885, citing Fisher v. Miami (Fla.App.1964), 160 So.2d 57, 59, affirmed (1965), 172 So.2d 455.

In the Drain case, the Ohio Supreme Court extended the Ranells doctrine, prohibiting the assessment of punitive damages against municipalities, to the benefit of the state. The fact that the Supreme Court adopted the reasoning of Ranells after the statutory abrogation of sovereign immunity strongly indicates that the rationale of Ranells has survived in the context of the judicial abrogation of municipal immunity. Therefore, we hold that punitive damages cannot be awarded against a municipal corporation.

As to the trial court's dismissal of plaintiffs' claim for attorney fees, we find that the trial court properly ruled that attorney fees may not be recovered from a municipal corporation. A plaintiff is entitled to attorney fees only where punitive damages are awarded. Davis v. Tunison (1959), 168 Ohio St. 471, 155 N.E.2d 904 [7 O.O.2d 296], paragraph three of the syllabus; Langhorst v. Riethmiller (1977), 52 Ohio App.2d 137, 142, 368 N.E.2d 328 [6 O.O.3d 101]; Columbus Finance v. Howard (1975), 42 Ohio St.2d 178, 183, 327 N.E.2d 654 [71 O.O.2d 174]; Kapcsos v. Hammond (1983), 13 Ohio App.3d 140, 142, 468 N.E.2d 325. See, also, Stuart v. Natl. Indemn. Co. (1982), 7 Ohio App.3d 63, 70, 454 N.E.2d 158. Since punitive damages are inappropriate against a municipal tortfeasor, absent statutory authorization, it follows that attorney fees also may not be awarded unless authorized. ³ The Henrys' cross-assignments of error are overruled.

The City's Assignments of Error I and II

"I. The trial court's award for lost profits was contrary to law.

"II. The jury's $18,000 award for lost profits was unsupported by the evidence and based on mere speculation where the evidence indicates that plaintiffs-appellees earned net profits of $4,188.10 in one year and failed to mitigate damages."

The city claims error as to the award of lost profits, arguing that such award was contrary to both the law and the evidence offered at trial. We disagree.

A plaintiff may recover profits lost as a result of a defendant's tortious conduct if such damages may naturally be expected to follow from the wrongful act and if the damages are reasonably ascertainable. Zimmerman v. Isaly Dairy Co. (1956), 165 Ohio St. 354, 135 N.E.2d 338 [59 O.O. 465]; LoSchiavo v. Northern Ohio Traction & Light Co. (1922), 106 Ohio St. 61, 138 N.E. 372; Bishop v. East Ohio Gas Co. (App.1943), 41 Ohio Law Abs. 353, reversed on other grounds (1944), 143 Ohio St. 541, 56 N.E.2d 164; 25 Corpus Juris Secundum (1966) 752, 1226, Damages, Sections 44, 143. Under this statement of the law, David Henry is entitled to his lost profits resulting from the damage to his chimney sweeping business. He had conducted business for the eighteen months preceding the explosion and fire. His lost profits were caused by the explosion and the resultant (1) destruction of his business records (necessary to secure the "follow-up" patronage essential to a service establishment), (2) disruption of telephone service to plaintiff's home and business, and (3) injury to David Henry, both physical and emotional, which hindered his ability to conduct business or mitigate the losses from the damage to his business. Furthermore, the zoning regulations prohibiting business use of the plaintiffs' lot does not...