Sciko v. Cleveland Elec. Illum. Co.

• Decision Date: 16 November 1992
• Docket Number: No. 63443,63443
• Citation: 83 Ohio App.3d 660,615 N.E.2d 674
• Parties: SCIKO et al., Appellants, v. CLEVELAND ELECTRIC ILLUMINATING COMPANY et al., Appellees. *
• Court: Ohio Court of Appeals

Page 660

83 Ohio App.3d 660

615 N.E.2d 674

SCIKO et al., Appellants, v. CLEVELAND ELECTRIC ILLUMINATING COMPANY et al., Appellees. ^*

No. 63443.

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

Decided Nov. 16, 1992.

Nicholas M. DeVito and Christopher D. Kuebler, Cleveland, for appellants.

Gregory A. Cada and George R. Hicks, Cleveland, for appellees.

McMANAMON, Judge.

This appeal challenges the purported dismissal of a negligence action on a Civ.R. 12(B)(6) motion as well as the failure to join an indispensable party pursuant to Civ.R. 19.

Robert and Gloria Sciko filed a complaint against the Cleveland Electric Illuminating Company ("CEI") on November 7, 1991 after an allision between Robert Sciko's powerboat and a CEI breakwall located in Eastlake. The action also named three other parties, who were later dismissed by the plaintiffs.

In their first cause of action, the Scikos claimed CEI was negligent in not providing proper lighting on its breakwall and specifically in one or more of the following respects:

"19. * * *

"a. Failure to warn the general public of the dangers and hazards of the breakwall when navigating at night given the improper color displayed;

"b. Failure to adequately mark the breakwall;

"c. Failure to install sufficient numbers of lights;

"d. Failure to install lights with sufficient candle power;

"e. Failure to install lights at more appropriate locations;

"f. Allowing a navigation hazard to exist;

"g. Failure to adequately test, maintain and/or inspect the lighting on the breakwall;

"h. Failure to ascertain whether the lighting scheme complied with the regulations applicable to private aids to navigation;

"i. Failure to ascertain whether the permit which allowed the Defendants to maintain a private aid to navigation on the breakwall complied with the regulations applicable to private aids to navigation;

"j. Failure to provide notice to the general public that the lighting was inadequate, improper or advised mariners to proceed on a dangerous course or one which would likely lead to an allision;

"k. Improper operation of aids to navigation;

"l. Improper management of aids to navigation;

"m. Improper installation of aids to navigation;

"n. Failure to ensure that the aids to navigation were functioning properly, failure to correct deficiencies in the aids to navigation;

"o. The aids to navigation were not adequately functioning or displaying their proper characteristics as required by regulations applicable to private aids to navigation;

"p. Any and all other forms of negligent conduct on the Defendants' part to be proven at the trial of this cause."

In their second cause of action, the Scikos alleged that CEI's acts or omissions were done intentionally or with reckless disregard for the safety of mariners. Count three of the complaint contained Gloria Sciko's claim for loss of consortium.

On December 12, 1991, the trial court granted the plaintiffs' unopposed motion for judicial notice of the general maritime laws of the United States for claims based on admiralty tort jurisdiction and presented pursuant to concurrent state court subject-matter jurisdiction under the "savings to suitors" clause of Section 1333, Title 28, U.S. Code.

Six days later, CEI filed its motion to dismiss, raising three arguments. Initially, CEI contended that it breached no duty because it complied with all legal duties in the erection, operation and maintenance of private aids to navigation prescribed and imposed by the United States Coast Guard.

In support of this argument, CEI attached, as an exhibit, the affidavit of Ronald Boals, General Manager of the Eastlake CEI Plant. Boals averred that the United States Coast Guard directed CEI to change the lights on its breakwall to green so as to conform with the Modified U.S. Aids to Navigation System and the National Association of Lighthouse Authorities requirements. Also attached to the motion was a letter from Captain F.A. Kelley, Chief, Aids to Navigation Branch, by direction of the Commander of the Ninth Coast Guard District, directing CEI to change the color of the light on its breakwall to green; a follow-up letter from the Coast Guard to CEI approving this change; and the official 1991 Coast Guard Light List for the Great Lakes describing the Eastlake breakwall as green.

Second, CEI posited that, since it followed the dictates and regulations prescribed by the United States Coast Guard, the Scikos should have sued the Coast Guard. On this basis, CEI argued the action should be dismissed for failure to join a necessary/indispensable party pursuant to Civ.R. 19(A)(1), (A)(2)(b) and (B).

Finally, CEI argued that, since the Coast Guard was a necessary party and a state court lacks jurisdiction in suits against that entity (Section 1, Title 14, U.S.Code), the suit should be dismissed pursuant to Civ.R. 12(B)(2).

The plaintiffs responded with a brief in opposition to CEI's motion to dismiss/summary judgment. CEI filed a reply brief, followed by plaintiffs' surreply. On February 25, 1992, the trial court granted CEI's motion to dismiss. It is from this order that plaintiffs timely appeal.

As a preliminary matter, we note that, in support of its motion to dismiss, CEI attached evidentiary documents outside the pleadings. Civ.R. 12(B) provides that when a motion to dismiss for failure to state a claim for relief contains matters outside the pleadings, the motion may be converted into one for summary judgment provided all parties are given reasonable opportunity to present all materials pertinent to such a motion.

In the plaintiffs' brief in opposition to CEI's motion to dismiss/summary judgment, they also attached evidentiary materials outside the pleadings patently addressing CEI's motion as one for summary judgment. Moreover, both parties on appeal conceded that the motion was converted into one for summary judgment.

Thus, although the trial court's judgment entry indicated it granted CEI's motion to dismiss, we conclude the court actually granted summary judgment. In State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 563 N.E.2d 713, the Supreme Court stated that "[t]he fact that [a court] had before it matters outside the pleadings suggests that it actually granted a Civ.R. 56 motion for summary judgment, rather than dismissed a complaint pursuant to Civ.R. 12(B)(6)." Id. at 97, 563 N.E.2d at 716.

We further find that both parties had actual notice of this conversion as evidenced by the plaintiffs' brief in opposition addressing CEI's motion as one for summary judgment, and both appellate briefs which concede this conversion. Accordingly, we shall review the motion under this standard.

In their first assignment of error, the plaintiffs argue that the court erred in dismissing the complaint on the ground that it failed to state a claim for relief. In the alternative, they argue the court erred in finding there were no genuine issues of material fact in granting summary judgment. Since the motion was converted, we will address only the latter argument.

In reviewing a motion for summary judgment, "the burden is upon the party moving for summary judgment to establish that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law." AAAA Ent., Inc. v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 553 N.E.2d 597, paragraph two of syllabus. "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus.

Civ.R. 56(E) also provides:

" * * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

The question presented for our review is whether there exists a genuine issue of material fact as to CEI's negligence in failing to provide proper lighting on its breakwall. Plaintiffs argue that (1) the light on the breakwall should not have been green, but should have been red or white as prescribed by what they claim are the applicable federal regulations; (2) CEI failed to challenge the lighting scheme ordered by the Coast Guard; and (3) CEI had a duty to install markings on the breakwall in addition to the Coast Guard mandate.

CEI relies on a July 27, 1987 letter from the Coast Guard to CEI's lead project engineer, which states:

"This letter is in reference to your private aids to navigation at the Avon Lake CEI Plant, Eastlake CEI Plant and Ashtabula CEI Plant.

"Having reviewed the files for all three lights, these lights must be changed to green to conform with the Modified U.S. Aids to Navigation System and the IALA (International Association of Lighthouse Authorities) requirements. The flash characteristics may remain the same.

" * * *

"Enclosed is a Private Aids to Navigation Application to submit upon completion of the characteristic changes. Also enclosed is information on regulations governing the establishment and maintenance of private aids to navigation, along with sources for obtaining aids to navigation equipment.

"If you have any questions, or need any further assistance, Petty Officer Curtis Savage of my staff will be glad to assist you.

"Thank you for complying with our regulatory requirements.

"Sincerely,

"ss/F.A. Kelley/ss

F.A. KELLEY

Captain, U.S. Coast Guard

Chief, Aids to Navigation Branch

By direction of Commander,

Ninth Coast Guard District"

CEI also attached to its motion a January 20, 1988 letter from Captain L.B. Tyo, Chief, Aids to Navigation Branch, to CEI, stating...