West 11th Street Partnership, Et. Al. v. City of Cleveland
| Decision Date | 08 February 2001 |
| Docket Number | 01-LW-0364,77327 |
| Citation | 2001 Ohio 4233 |
| Parties | WEST 11TH STREET PARTNERSHIP, ET. AL., Plaintiffs-appellees v. CITY OF CLEVELAND, Defendant-appellant |
| Court | Ohio Court of Appeals |
Civil appeal from the Court of Common Pleas Case No. CV-335080
For Plaintiffs-Appellees: THOMAS B. BRALLIAR, JR., ESQ., JEFFERY M. EMBELTON, ESQ., ELI MANOS, ESQ., MANSOUR, GAVIN, GERLACK & MANOS, 2150 Illuminating Building, 55 Public Square, Suite 2150, Cleveland, Ohio 44113-1994
For Defendant-Appellant: CORNELL P. CARTER, ESQ., Law Director City of Cleveland, BY: SHIRLEY A. TOMASELLO, ESQ., Assistant Law Director, Room 106 City Hall, 601 Lakeside Avenue, Cleveland, Ohio 44114
Appellant, City of Cleveland, is appealing the trial court's decision after a bench trial entering judgement in favor of plaintiffs-appellees, West 11th Street Partnership and West Fifth Street Corporation. Appellees are appealing the order of the trial court denying appellees' motion for prejudgment interest. For the following reasons, we affirm.
West 11th Street Limited Partnership owns a construction and demolition debris landfill located in the City of Cleveland. West Fifth Street Corporation is the general partner of West 11th Street Limited Partnership and operator of the landfill. Appellees are suing the City for allowing sewage to leak onto appellees' landfill, which caused noxious odors.
The northeast portion of the landfill is abutted by land owned by the State of Ohio. The northwest corner of the landfill is abutted by homes on Spring Road. West 11th Street lies to the west of the landfill. Colonel Drive, a residential street, abuts the south side of the landfill. Panna Lane and Tom Lane are residential streets located to the south of the landfill.
In 1989, appellees' landfill engineer, Jack McFadden observed sewage flowing from an embankment owned by the State of Ohio onto the landfill. Tests of the seepage confirmed that it was sanitary sewage. On January 15, 1990, McFadden sent a letter to appellant and Northeastern Ohio Regional Sewer District (NEORSD) concerning the seepage. NEORSD stopped the seepage.
In 1992, appellees again discovered sewage seeping from the State's property. Appellees asked appellant to check their sewers. The City's tests showed the City sewers were not leaking onto appellees' land. Later in 1992, the landfill emitted hydrogen sulfide odors and combustible methane gas.
In 1993, the Attorney General of Ohio sued appellees in Cuyahoga County Common Pleas Court to correct the noxious gas fumes. The City of Cleveland was an intervening plaintiff.
The City sued appellees in 1993 in Municipal Housing Court to enjoin the landfill from operating without a permit. The City refused to issue a permit because of the odor coming from the landfill. Appellees answered that the City, the Northeastern Ohio Regional Sewer District and the Ohio Department of Transportation were responsible for the pollution at the landfill. Appellant voluntarily dismissed this suit.
On April 12, 1994, a consent order was reached in the Attorney General's lawsuit. Appellees agreed to operate a leachate treatment system until 2025 to clean the groundwater and eliminate odors from the landfill.
Appellees' experts had three theories on the cause of the emissions. They believed the problem could be caused by: (1) gypsum board deposited in the landfill, (2) slag from steel mills or slag from the State freeway, or (3) sanitary sewage. The report of Chester Engineers in July, 1994 was inconclusive. In May, 1996, the report of Webster Engineering stated that the City sewers caused the gas emissions.
Appellees filed their complaint in this case on May 23, 1997.
Appellees alleged that appellant caused a nuisance upon appellees' land.
Appellant's first assignment of error states:
THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR SUMMARY JUDGMENT, MOTION IN LIMINE AND MOTIONS FOR A DIRECTED VERDICT, AND IN RENDERING A JUDGMENT FOR APPELLEES BECAUSE APPELLEE'S CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS.
A four year statute of limitations applies to trespass to property and certain other torts. R.C. 2305.09. The defendant in this case is a political subdivision, so the more specific statute, R.C. 2744.04(A), applies. See Abdalla v. Olexia (1996), 113 Ohio App. 3d 756; Koncsol v. City of Niles (1995), 105 Ohio App. 3d 535. R.C. 2744.04(A) imposes a two year statute of limitations.
Appellant asserts that appellees first noticed the condition in 1989, 1992 and/or 1993. Appellant argues that this suit, filed in 1997, was filed more than two years after the cause of action accrued.
Appellees argue that the cause of action continually accrued by the doctrine of continuous trespass. Trespass occurs if one intentionally fails to remove from the land a thing which he is under a duty to remove. Boll v. Griffith (1987), 41 Ohio App.3d 356; Valley Railway Co. v. Franz (1885),43 Ohio St. 623; Nieman v. NLO, Inc. (C.A.6 1997), 108 F.3d 1546. Appellees' complaint alleged sufficient facts to allege a trespass. Appellees argued trespass in response to appellant's summary judgment motion, and at the trial.
There was evidence the trespass was continuing. The plaintiffs' experts testified that the cause of the emissions was the continuous and repeated exfiltration of sewage, and the quantity of sewage deposited over the years. This is not a case where the entire injury was caused by one act of the defendant. See Frisch v. Monfort Supply Co. (1997), Hamilton App. No. C- 960522, unreported; Mitchell Energy Corp. v. Bartlett (Tex. App. 1997), 958 S.W.2d 430. The continuing trespass doctrine does not apply if the injury was permanent and not practically abatable. Nieman, supra; Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704; Hartland v. McCullough Constr. (July 14, 2000) Ottawa App. No. 97-CVC-190, unreported; Mitchell Energy, supra. In this case, the emissions were abatable by ceasing the flow of sewage onto the land and cleaning the groundwater.
Appellant states that R.C. 2744.04 precludes the application of the continuous trespass doctrine. R.C. 2744.04, as enacted by Am. Sub. H.B. 350, states that the period of limitation shall be tolled pursuant to R.C. 2305.16. R.C. 2305.16 tolls the statute of limitations for minors and those lacking capacity. Appellant argues that the statute does not mention tolling for continuous trespass, so the legislature intended that the continuous trespass doctrine would not apply. See generally Alden v. Summit Cty. (1996), 112 Ohio App.3d 460.
Am. Sub. H.B. 350 was found unconstitutional in toto. State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451. The pre-H.B. 350 version of the statute does not mention any situation where tolling will or will not be permitted. Additionally, the continuous tort doctrine determines when the cause of action accrues, and is not really a tolling mechanism. The continuous tort doctrine is not of the same class as tolling for incompetency, so the mention of a tolling mechanism does not preclude application of the continuous tort doctrine. See Alden, supra.The language of R.C. 2744.04 does not preclude application of the continuous trespass doctrine.
The case law cited by appellant does not hold that a political subdivision cannot commit a continuous trespass. These cases hold that the plaintiff can only recover for injuries occurring within two years of filing suit. See Brown v. S. Ohio Corr. Facility (1991), 62 Ohio Misc.2d 337; Pope v. Ohio Dept. of Transportation (1998), 91 Ohio Misc.2d 230; Bays v. Kent State University (1997), 86 Ohio Misc.2d 69. Appellees can at least recover for injuries incurred from May 23, 1995.
Furthermore, a cause of action for trespass underground does not accrue until the wrongdoer is discovered. R.C. 2305.09. Appellant argues that the language of R.C. 2744.04 prohibits the application of R.C. 2305.09.
The provision of R.C. 2305.09 concerning accrual of a cause of action for trespass underground does not conflict with R.C. 2744.04. As mentioned above, R.C. 2744.04 does not discuss when a cause of action accrues. R.C. 2305.09 and 2744.04 must be interpreted so that effect is given to both. See State v. Patterson(1998), 81 Ohio St. 3d 524. Case law indicates that the discovery rule can apply to an action against a political subdivision. See Hollo v. Cleveland Municipal Court (April 24, 1994), Cuyahoga App. No. 65116, unreported; Kaderly v. Blumer (Oct. 15, 1996) Stark App.No. 1996CA00022, unreported.
Appellant asserts that reasonable minds can only conclude that appellees knew or should have known in 1990, 1992 or 1993 that the City caused the injury. There was evidence that appellees did not know, and could not have known, that the noxious gases were caused by effluent from the City's sewers, until May, 1996. The trial court's determination as to when appellees discovered the identity of the trespasser was supported by competent, credible evidence and cannot be reversed. See State ex. rel. BSW Dev. Group v. Dayton (1998), 83 Ohio St.3d 338, 344.
Accordingly, this assignment of error is overruled.
Appellant's second assignment of error states:
AS A MATTER OF LAW, THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DETERMINING THAT APPELLANT WAS NEGLIGENT AND THE DIRECT AND PROXIMATE CAUSE OF APPELLEES' DAMAGES, AND IN HOLDING APPELLANT LIABLE FOR DAMAGES DONE BY AN ENTITY THAT WAS NOT MADE A DEFENDANT IN THE LAWSUIT.
The City argues that (1) The evidence did not show the City was negligent; (2) The City was immune from liability; (3) The City could not be subject to joint and several liability; and (4) appellees failed to join a necessary party. We will first...
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