Phillips v. Garfield Hts.

• Decision Date: 12 November 1992
• Docket Number: No. 61095,61095
• Citation: 620 N.E.2d 86,85 Ohio App.3d 413
• Parties: PHILLIPS et al., Appellants, v. City of GARFIELD HEIGHTS; City of Cleveland et al., Appellees. *
• Court: Ohio Court of Appeals

Page 413

85 Ohio App.3d 413

620 N.E.2d 86

PHILLIPS et al., Appellants, v. City of GARFIELD HEIGHTS; City of Cleveland et al., Appellees. ^*

No. 61095.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Nov. 12, 1992.

Paul E. Weimer and David P. Weimer, Akron, for appellants.

Christopher A. Holecek, Asst. Director of Law, for appellee City of Cleveland.

George S. Coakly, Cleveland, for appellees Peter Boyas and Boyas Excavating, Inc. JOHN F. CORRIGAN, Judge.

Plaintiffs-appellants, Russell J. Phillips, Sr. et al., appeal from the order of the trial court granting a directed verdict in favor of the city of Cleveland, and from the court's verdict in favor of Boyas Excavating, Inc. and Peter Boyas. Pursuant to R.C. 2505.22, the city of Cleveland, Boyas Excavating and Peter Boyas have filed assignments of error with the court. For the reasons set forth below, we reverse the trial court's order granting a directed verdict in favor of the city of Cleveland, reverse the verdict of the trial court in favor of Boyas Excavating and Peter Boyas, and remand for a new trial.

I

On November 17, 1986, plaintiffs James and Tina Baughman and William Gall commenced a lawsuit in common pleas court against R.B. Development, Northcoast Oil and Gas Recovery, Ridge Park Development Corp., Boyas Excavating, Inc., Peter Boyas, Cleveland Builders Supply and Rockside Reclamation, alleging damages arising from methane gas which invaded plaintiffs' homes from a neighboring landfill. That action was designated case No. 119688. The trial court granted a motion by R.B. Development for partial summary judgment on November 23, 1987. On January 28, 1988, case number 119688 was voluntarily dismissed without prejudice by the plaintiffs.

A similar action was filed on December 19, 1986 by plaintiffs Russell and Sherry Phillips and William and Jean Szucs against the same seven defendants. That action was designated case number 121378. On February 9, 1987, Ann Rohrer, Mary Jane Chanson and Heidi Therese Chanson were added as plaintiffs. On February 10, 1988, case No. 121378 was voluntarily dismissed without prejudice by the plaintiffs.

The instant action was filed on June 21, 1988 by all ten plaintiffs in case Nos. 119688 and 121378. Original defendants in the action were the cities of Cleveland and Garfield Heights, Ohio; Boyas Excavating; Peter Boyas; Cleveland Builders Supply; R.B. Development; Ridge Park Development Corp.; Rockside Reclamation, Inc.; and Cuyahoga County. By the time this matter proceeded to trial, the case had been resolved with regard to all defendants except the city of Cleveland, Boyas Excavating, and Peter Boyas. The only issues remaining for the trial court were the plaintiffs' claims in nuisance and negligence. The only evidentiary matter presented for review concerns plaintiffs' claims against Cleveland, and we will limit our discussion accordingly. The remainder of the matter on appeal concerns the procedures employed by the trial court.

The trial of this matter commenced on October 15, 1990. In furtherance of its claims of nuisance and negligence, the plaintiffs presented witnesses who lived near the landfill and identified Cleveland as the primary user of the landfill. Henry Pearson, a neighbor of the plaintiffs, testified that the landfill operator dumped trash onto one of the plaintiffs' backyards, and dumped within thirty to forty feet of the yards of other plaintiffs. Pearson did not identify Cleveland vehicles doing that specific dumping, but did note that Cleveland was the most frequent user of the landfill. Pearson further testified regarding the migration of methane gas into his home, and into several of the plaintiffs' homes.

Richard Taylor, Commissioner of the Division of Waste Collection and Disposal, was called by the plaintiffs as if on cross-examination. Taylor testified that Cleveland dumped approximately 225,000 to 245,000 tons of solid waste at the landfill each year from 1972 to 1978. Taylor further testified that the city had no control over the landfill and never inspected its operation.

James Green, a civil engineer, testified as an expert on behalf of the plaintiffs. Green reviewed the operation of the landfill and testified that the landfill had never operated according to industry standards from its inception. Furthermore, Green testified that the landfill was never properly "closed" so as to minimize methane gas migration. Green testified that the methane migration into plaintiffs' homes was caused by improper operation of the landfill from 1972 to 1978, including dynamite blasting, lack of a clay liner for the landfill and lack of venting the gas, and by improper closure of the landfill in 1978, including the failure to install a methane collection system. Finally, Green testified that it was an industry standard at all relevant times that a hauler of solid waste not use a site that was improperly operated.

Plaintiffs introduced exhibits from the Garfield Heights Fire Department and Ohio Environmental Protection Agency indicating that explosive levels of methane gas existed in their homes and neighborhoods from 1986 through the trial date.

At the close of the plaintiffs' case each of the defendants moved for directed verdicts. These motions were denied by the trial court.

In defense of this matter, Cleveland presented the testimony of Daniel Merritt and Harry Whitley. Each of these witnesses was employed as a waste hauler for Cleveland. Both testified that the waste haulers using the landfill had no discretion as to where to dump their loads. Further, both testified that the landfill operator controlled where the trucks could travel. Finally, Merritt testified that, due to the size of the landfill, it was physically impossible for any waste hauler to dump waste within three hundred feet of the adjoining residences.

At the close of the case, all three defendants renewed their motions for directed verdicts. The trial court granted Cleveland's motion, but denied the others.

The matter was then presented to the jury upon certain interrogatories prepared by both parties and accepted by the trial court. Objections were made by both parties concerning other interrogatories not submitted by the court.

Finally, by agreement of the parties and the trial court, no verdict forms were given to the jury. The trial court reached its verdict by interpreting the jury's answers to the interrogatories. The trial court found in favor of defendants on all counts. Plaintiffs then filed a motion for new trial, JNOV, and for relief from judgment, all of which were denied. This appeal timely follows.

II

For their first assignment of error, plaintiffs contend that the trial court erred in granting a directed verdict in favor of Cleveland.

Directed verdicts are governed by Civ.R. 50(A)(4), which provides in pertinent part that:

"When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."

When a motion for a directed verdict is made, what is being tested is a question of law, that is, the legal sufficiency of the evidence to take the case to the jury. This does not involve weighing the evidence or trying the credibility of witnesses. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 68, 23 O.O.3d 115, 116, 430 N.E.2d 935, 937. It is the duty of the trial court to submit an essential issue to the jury when there is sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. O'Day v. Webb (1972), 29 Ohio St.2d 215, 220, 58 O.O.2d 424, 427, 280 N.E.2d 896, 899.

While negligence actions always involve mixed questions of law and fact, the existence of a duty is, in the first instance, a question of law for the court. Cements v. Heston (1985), 20 Ohio App.3d 132, 134-135, 20 OBR 166, 167-169, 485 N.E.2d 287, 289-291.

In the case sub judice, the trial court ruled as a matter of law that Cleveland has a duty of reasonable care to the plaintiffs, but that on the facts presented there was no showing that the duty had been breached because Cleveland had "no control" over operation of the landfill. A finding of negligence would be required under either the negligence or nuisance theory, except if "absolute" nuisance were proven.

Plaintiffs presented evidence that Cleveland was the primary user of the landfill, and that the landfill was improperly operated. Specifically, plaintiffs demonstrated that the landfill had no clay liner, no methane collection or control system, and no reasonable "buffer zone," and used improper blasting to clear areas for the landfill. Plaintiffs further presented evidence that the landfill never operated in accordance with industry standards. None of these facts are controverted by the city. Cleveland established only that the landfill was licensed and that it had "no control" over the operation of the landfill. The question remains for a jury to determine whether Cleveland's reliance on the mere fact that the landfill was licensed and its continued dumping were reasonable, in light of the substandard operation of the landfill. A further question remains whether, if Cleveland was negligent in its continued dumping at the landfill, its negligence substantially contributed to any current nuisance. The directed verdict was clearly inappropriate in light of these remaining questions.

For these reasons, we find that plaintiffs' first assignment of error is well taken.

III

For their second assignment of error, plaintiffs contend that the trial court erred in entering a general verdict based upon the jury's answers to...