Riscatti v. Prime Props. Ltd.

• Decision Date: 15 October 2013
• Docket Number: No. 2012–1307.,2012–1307.
• Citation: 137 Ohio St.3d 123,998 N.E.2d 437
• Parties: RISCATTI et al., Appellees, v. PRIME PROPERTIES LIMITED PARTNERSHIP et al.; Cuyahoga County, Appellant.
• Court: Ohio Supreme Court

137 Ohio St.3d 123

998 N.E.2d 437

RISCATTI et al., Appellees,

v.PRIME PROPERTIES LIMITED PARTNERSHIP et al.; Cuyahoga County, Appellant.

No. 2012–1307.

Supreme Court of Ohio.

Submitted June 11, 2013.

Decided Oct. 15, 2013.

Landskroner, Greco, Merriman, L.L.C., Drew Legando, Jack Landskroner, Cleveland, and Tom Merriman, for appellees.

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Charles E. Hannan, Assistant Prosecuting Attorney, for appellant.

Walter, Haverfield, L.L.P., and R. Todd Hunt, Cleveland, urging reversal for amicus curiae, Northeast Ohio Law Directors Association.

O'CONNOR, C.J.

{¶ 1} This appeal arises from claims for damages caused by the continual flow of gasoline from a gas station's infrastructure into a sanitary sewer main located on State Road in Parma. The plaintiffs-appellees (collectively, “the homeowners”) are 100 current or former residents or owners of homes on State Road who seek damages from various private and public entities, including the appellant, Cuyahoga County.¹

{¶ 2} In this appeal, we decide a narrow issue: whether a denial of a public subdivision's dispositive motion asserting a statute-of-limitations defense pursuant to R.C. 2744.04 is a final, appealable order. We conclude that it is not. Accordingly, we affirm.

Relevant Background

{¶ 3} Because this is an appeal from a defendant's motion for judgment on the pleadings, we are required to accept as true all the material allegations of the complaint, as well as the inferences to be drawn therefrom, in favor of the nonmoving parties, the homeowners. Corporex Dev. & Constr. Mgt., Inc. v. Shook, Inc., 106 Ohio St.3d 412, 2005-Ohio-5409, 835 N.E.2d 701, ¶ 2.

{¶ 4} On August 28, 2009, after a heavy rainfall, the smell of gasoline arose in the basement of the home shared by appellees Alessandra Riscatti, Elisabetta Riscatti, and Laszlo Beres. Later that day, while Alessandra was in the basement, flames erupted from the sewer and spread through the house. Alessandra and Laszlo battled the fire while waiting for the Parma Fire Department's arrival; by the time the three residents escaped their home, each had inhaled smoke that contained toxic substances, and Alessandra required treatment for carbon monoxide poisoning and smoke inhalation.

{¶ 5} The fire department extinguished the fire, but the interior of the home and almost all of the personal items within were damaged or destroyed.

{¶ 6} Investigations by the Ohio Bureau of Underground Storage Tank Regulation (“BUSTR”), the Parma Fire Department (“PFD”), the Environmental Protection Agency (“EPA”), and the Northeast Ohio Regional Sewer District revealed gasoline in an observation well, gasoline-contaminated groundwater, and the continuous flow of gasoline from a nearby gas station into the sanitary sewer main on State Road. The gas station was ordered to shut down operations immediately.

{¶ 7} BUSTR ordered an excavation of the tank system and discovered that drain pipes connected an underground storage-tank cavity under the gas station to the sanitary sewer main on State Road and that the connection had been in place since the gas station installed the pipes in 1982. The pipes had been installed in order to keep the tank from floating in case of rising groundwater levels during rain or snowmelt. Over the years, however, the pipes caused continual dumping of gasoline-contaminated groundwater into the sanitary sewer main, and eventually into the sewer lines of homes along State Road.

{¶ 8} The homeowners allege that in early 2008, they and their neighbors, and motorists in the area, contacted PFD to report a strong odor of gasoline inside and outside their homes and along the road. PFD discovered heavy gasoline vapors in the sewer main, and a BUSTR investigator found gasoline visibly leaking from a pump filter and into a catch basin at the gas station. The sewer district confirmed the gas station as the source of the odors in State Road homes but failed to inform the homeowners .

{¶ 9} After that discovery, BUSTR cited the owner of the gas station for failing to periodically inspect the equipment at the station. Despite that citation, and eight prior documented gas leaks dating back to 1989, the owner of the gas station made no effort to determine how the toxins had made it into the homes on State Road.

{¶ 10} The homeowners assert that they had smelled and complained of gasoline odors in their homes since 1982 but that PFD, the EPA, BUSTR, the sewer district, and the owners and operators of the gas station all assured them that the gas odors were not coming from the gas station, but from natural sources. As a result, the homeowners allege, they were exposed to toxic gasoline vapors, without knowing the danger or origin, from 1982 until the flames burst into the Riscattis' basement in 2009.

{¶ 11} The homeowners brought suit against various defendants, including the county.² Their amended complaints aver that the county's failure to properly maintain and operate the sewer system constituted a tort for which it lacked immunity according to R.C. 2744.01(G)(2)(d) and 2744.02.

{¶ 12} Before discovery was conducted, the county filed several dispositive motions. The first motion sought judgment on the pleadings on the theory that the homeowners' causes of action had not been filed within the two-year statute of limitations applicable to political subdivisions. R.C. 2744.04(A). The trial court denied the motion.

{¶ 13} The trial court also considered a second dispositive motion, brought by the county pursuant to both Civ.R. 12(C) and 56, that is not directly at issue in this appeal. In that motion, the county sought judgment in its favor based on “issues of immunity and causation,” including the theory that the county was immune by operation of R.C. 2744.01(C)(2)( l ) and 2744.02, which confer immunity on a political subdivision against liability based on its design of a sewer system. The court denied the motion to the extent that the immunity claim was based on Civ.R. 12(C), but the court held its decision on summary judgment in abeyance until discovery was complete.

{¶ 14} The county immediately appealed both judgments. The Eighth District Court of Appeals held that it did not have jurisdiction to consider the statute-of-limitations claim due to the lack of a final, appealable order. The county appealed to this court and now insists that the denial of that motion is a final, appealable order over which the appellate court had jurisdiction. We turn now to that question.

Analysis

Ohio's Political Subdivision Tort Liability Act, R.C. Chapter 2744

{¶ 15} R.C. Chapter 2744, Ohio's Political Subdivision Tort Liability Act, was enacted in response to the judicial abrogation of the common-law immunity of political subdivisions. Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 558, 733 N.E.2d 1141 (2000). R.C. Chapter 2744 generally shields political subdivisions from tort liability in order to preserve their fiscal integrity. See, e.g., Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 23;R.C. 2744.02(A)(1). ³

{¶ 16} We previously have recognized that the General Assembly made clear the purpose, and importance, of this statutory scheme:

“[T]he protections afforded to political subdivisions and employees of political subdivisions by this act are urgently needed in order to ensure the continued orderly operation of local governments and the continued ability of local governments to provide public peace, health, and safety services to their residents.” Am.Sub.H.B. No. 176, Section 8, 141 Ohio Laws, Part I, 1733.

Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 38.

{¶ 17} In so doing, we also recognized that immunity determinations are vitally important to the parties' interests, and to judicial economy:

“ ‘[D]etermination of whether a political subdivision is immune from liability is usually pivotal to the ultimate outcome of a lawsuit. Early resolution of the issue of whether a political subdivision is immune from liability pursuant to R.C. Chapter 2744 is beneficial to both of the parties. If the appellate court holds that the political subdivision is immune, the litigation can come to an early end, with the same outcome that otherwise would have been reached only after trial, resulting in a savings to all parties of costs and attorney fees. Alternatively, if the appellate court holds that immunity does not apply, that early finding will encourage the political subdivision to settle promptly with the victim rather than pursue a lengthy trial and appeals. Under either scenario, both the plaintiff and the political subdivision may save the time, effort, and expense of a trial and appeal, which could take years.’ ” (Emphasis sic.) [Hubbell, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878] at ¶ 25, quoting Burger v. Cleveland Hts. (1999), 87 Ohio St.3d 188, 199–200, 718 N.E.2d 912 (Lundberg Stratton, J., dissenting).

Id. at ¶ 39.

Final, appealable orders and R.C. Chapter 2744

{¶ 18} “An appellate court can review only final orders, and without a final order, an appellate court has no jurisdiction.” Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490, ¶ 10. Given the legislative intent in enacting the political-subdivision-immunity statute and the important prudential considerations the statute serves, it is not surprising that the General Assembly enacted R.C. 2744.02(C),⁴ which provides that an order denying a political subdivision the benefit of immunity is a final order that may be appealed immediately. R.C. 2744.02(C); Supportive Solutions, L.L.C., at ¶ 11;see also Sullivan v. Anderson Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88, syllabus.

{¶ 19} Consistent with the legislative intent behind R.C. Chapter 2744, we have interpreted R.C. 2744.02(C) broadly. We have held that R.C. 2744.02(C)'s scope extends to the denial of...