Main v. City of Lima

• Decision Date: 29 June 2015
• Docket Number: CASE NO. 1-14-42
• Citation: 2015 Ohio 2572
• Court: Ohio Court of Appeals
• Parties: RICK MAIN, ET AL., PLAINTIFFS-APPELLANTS, v. CITY OF LIMA, ET AL., DEFENDANTS-APPELLEES.

2015 Ohio 2572

RICK MAIN, ET AL., PLAINTIFFS-APPELLANTS, v. CITY OF LIMA, ET AL., DEFENDANTS-APPELLEES.

CASE NO. 1-14-42

COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

June 29, 2015

OPINION

Appeal from Allen County Common Pleas Court

Trial Court No. CV-2014-0293

Judgment Affirmed

APPEARANCES:

Michael J. Zychowicz for Appellants

Jared A. Wagner for Appellee, City of Lima

PRESTON, J.

{¶1} Plaintiffs-appellants, Rick Main ("Rick") and Dorothy Main ("Dorothy") (collectively, the "Mains"), appeal the August 13, 2014 judgment of the Allen County Court of Common Pleas dismissing their complaint against defendant-appellee, City of Lima, Ohio (the "City"), under Civ.R. 12(B)(6), for failure to state a claim upon which relief can be granted. On appeal, the Mains argue that the trial court erred in dismissing their complaint against the City because, in their complaint, they allege facts that invoke an exception to the political-subdivision immunity statute. For the reasons that follow, we affirm.

{¶2} On May 6, 2014, the Mains filed their complaint against the City, defendant-appellee, 1127 Construction Company, Inc. ("1127 Construction"), and four John Doe defendants. (Doc. No. 1). The Mains alleged that Rick was walking along a city sidewalk in a construction area when he was injured:

3. On or about June 29, 2012, [Rick] was walking along a city sidewalk on Baxter Street near the intersection of Baxter and Market Streets in Lima, Ohio.

4. While [Rick] was walking on the sidewalk he stepped on a circular metal plate which was covered by rocks so that it could not be readily seen.

5. The metal plate on which [Rick] stepped was covering a circular hole in the sidewalk.

6. The metal plate was not properly secured and when [Rick] stepped on the plate, the plate moved and [Rick's] right leg entered the hole causing him to fall down and sustain bodily injuries.

COUNT I

7. The City of Lima undertook a construction project whereby they ordered, completed and supervised work being done to the sidewalk and street, near the corner of Baxter and Market Streets in Lima Ohio [sic]. This construction was ongoing at the time [Rick] fell and injured himself.

8. As a part of this project, a metal plate, covering a hole in the sidewalk on Baxter Street was placed on top of the hole and was not secured.

9. The metal plate was not properly secured and when [Rick] stepped on the plate, the plate moved and [Rick's] right leg entered the hole causing him to fall down and sustain bodily injuries.

(Id. at ¶ 3-9). Based on these allegations, the Mains asserted a count of negligence against the City, and Dorothy alleged a count of loss of consortium against the City. (Id. at ¶ 13, 33). The Mains also asserted counts of negligence, and Dorothy also asserted counts of loss of consortium, against 1127 Construction and the John Doe defendants. (Id. at ¶ 21, 29, 33).

{¶3} On June 2, 2014, 1127 Construction filed its answer to the complaint and cross-claim against the City. (Doc. No. 6).

{¶4} On June 16, 2014, the City filed a motion to dismiss the Mains' complaint and 1127 Construction's cross-claim under Civ.R. 12(B)(6). (Doc. No. 10). The City argued that the allegations in the complaint, when taken as true, "are still insufficient, as a matter of law, to abrogate [the City's] statutory immunity as set forth in R.C. 2744 et seq." (Id.). The City also argued that, because it is immune from the Mains' claims, it is also entitled to immunity as to 1127 Construction's cross-claim. (Id.). On July 8, 2014, 1127 Construction filed a memorandum in opposition to the City's motion to dismiss. (Doc. No. 19). On July 15, 2014, the Mains filed a memorandum in opposition to the City's motion to dismiss. (Doc. No. 23). On July 28, 2014, the City filed a reply memorandum in support of its motion to dismiss. (Doc. No. 25).

{¶5} On June 23, 2014, the Mains moved for leave to file an amended complaint to add defendant-appellee, The East Ohio Gas Company ("East Ohio"), as a defendant. (Doc. No. 11). On July 7, 2014, the trial court granted the Mains leave to file an amended complaint. (Doc. No. 17). The Mains filed their amended complaint on July 21, 2014. (Doc. No. 24). The factual allegations excerpted above from the original complaint remained unchanged in the amended complaint. (Id. at ¶ 3-9).

{¶6} On August 8, 2014, the City filed a motion to dismiss the Mains' amended complaint. (Doc. No. 29). In it, the City incorporated the arguments it made in its June 16, 2014 motion to dismiss the complaint and its July 28, 2014 reply memorandum, noting that "[t]he only substantive difference between the Amended Complaint and the initial complaint is the addition in the Amended Complaint of [East Ohio] as a defendant in place of a John Doe defendant." (Id.).

{¶7} On August 13, 2014, 1127 Construction filed its answer to the amended complaint. (Doc. No. 32).

{¶8} Also on August 13, 2014, the trial court granted the City's motion to dismiss, dismissed the amended complaint as to the City and 1127 Construction's cross-claim against the City, and determined "that there is no just reason for delay." (Doc. No. 33).

{¶9} On September 10, 2014, the Mains filed a notice of appeal.¹ (Doc. No. 39). They raise one assignment of error for our review.

Assignment of Error

The trial court erred in granting Appellee's Civ.R. 12(B)(6) motion (Judgment Entry, generally).

{¶10} In their assignment of error, the Mains argue that the trial court erred in granting the City's Civ.R. 12(B)(6) motion. Specifically, the Mains contendthat they allege facts in their amended complaint that invoke an exception to political-subdivision immunity under R.C. 2744.02(B)(2).

{¶11} "An appellate court reviews de novo the trial court's decision to grant or deny a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted." Doe v. Bath Local School Dist., 3d Dist. Allen No. 1-14-12, 2014-Ohio-4992, ¶ 4, citing Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5. In reviewing the trial court's decision, "we accept all factual allegations in the complaint as true." Miller v. Van Wert Cty. Bd. of Mental Retardation & Dev. Disabilities, 3d Dist. Van Wert No. 15-08-11, 2009-Ohio-5082, ¶ 7, citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). "Additionally, we must construe any reasonable inferences in favor of the party opposing the motion to dismiss." Bath Local School Dist. at ¶ 4, citing Arnett v. Precision Strip, Inc., 3d Dist. Auglaize No. 2-11-25, 2012-Ohio-2693, ¶ 9. See also Miller at ¶ 7, citing LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, ¶ 14. To sustain a trial court's dismissal under Civ.R. 12(B)(6), "'it must appear beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.'" Miller at ¶ 7, quoting LeRoy at ¶ 14. See also Bath Local School Dist. at ¶ 4, quoting LeRoy at ¶ 14.

{¶12} R.C. Chapter 2744 governs political subdivision liability and immunity. Miller at ¶ 14. "To determine whether a political subdivision isentitled to immunity under Chapter 2744, a reviewing court must engage in a three-tiered analysis." Id., citing Hubbard v. Canton City School Bd. Of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, ¶ 10, citing Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998). "The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function." Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio St.3d 357, 2013-Ohio-989, ¶ 15, citing Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, ¶ 7. See also Miller at ¶ 14, citing R.C. 2744.02(A)(1) and Hubbard at ¶ 10. "The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability." Riffle at ¶ 15, citing Colbert at ¶ 8. See also Miller at ¶ 14, citing Hubbard at ¶ 12, citing Cater at 28. "If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply" to provide "the political subdivision a defense against liability." Riffle at ¶ 15, citing Colbert at ¶ 9. See also Miller at ¶ 14, citing Cater at 28.

{¶13} Statutory immunity, including political-subdivision immunity, is an affirmative defense. Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, ¶ 17, citing Turner v. Cent. Local School Dist., 85 Ohio St.3d 95, 98 (1999). Ohio is a notice-pleading state, so "aplaintiff need not affirmatively dispose of the immunity question altogether at the pleading stage." Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-Ohio-677, ¶ 8 (10th Dist.), citing York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144-145 (1991) and Fink v. Twentieth Century Homes, Inc., 8th Dist. Cuyahoga No. 94519, 2010-Ohio-5486, ¶ 29. Indeed, "'complaints need not anticipate and attempt to plead around defenses.'" Savoy v. Univ. of Akron, 10th Dist. Franklin No. 11AP-183, 2012-Ohio-1962, ¶ 8, quoting United States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir.2004). "[A] plaintiff must merely allege a set of facts that, if proven, would plausibly allow for recovery." Scott at ¶ 8, citing Fink at ¶ 29.

{¶14} Because affirmative defenses typically rely on matters outside the complaint, they normally cannot be raised successfully in a Civ.R. 12(B)(6) motion.² See Cristino v. Bur. of Workers' Comp., 10th Dist. Franklin No. 12AP-60, 2012-Ohio-4420, ¶ 21, citing Reasoner v. Columbus, 10th Dist. Franklin No. 02AP-831, 2003-Ohio-670, ¶ 12. "If, however, the existence of an affirmative defense is obvious from the face of the complaint, a court may grant a Civ.R.12(B)...