Barge v. City of St. Bernard
958 N.E.2d 636
Ohio Ct. App.2011Background
- Residents living near Lytle Park in St. Bernard, Ohio, sued over emissions from a former city landfill that operated until 1985.
- Plaintiffs filed a 2010 class-action alleging dangerous methane and VOC emissions from the landfill remained hazardous.
- Alleged waste at the landfill included demolition, industrial liquid, and hazardous waste from non-household sources.
- Plaintiffs claimed city negligence, trespass, and nuisance due to the emissions and resulting health/property risks.
- City moved to dismiss claiming immunity under R.C. Chapter 2744; trial court overruled the motion.
- Court of Appeals held: negligence claim survives immunity analysis; trespass and nuisance claims barred; remanded for further proceedings on negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether landfill operation was a governmental function under RC 2744.02(A). | Barge contends the landfill’s operation involved non-household and hazardous waste, placing it outside solid-waste governmental function. | City argues landfill operation is a governmental function within 2744.01(C)(2)(k). | No; facts alleged place the landfill outside governmental function, under a proprietary function. |
| Whether any RC 2744.02(B) exception applies to impose liability for negligence. | Alleged non-household, hazardous, demolition, and liquid wastes show an exception to immunity. | No applicable exception; wastes were not solid waste as defined. | Immunity not satisfied; question remains for third-tier analysis on negligence. |
| Whether trespass and nuisance claims survive immunity analysis. | Trespass and nuisance should be actionable despite immunity. | Exceptions to immunity apply only to negligent conduct; trespass and nuisance are not so protected. | Trespass and nuisance claims barred; reversed as to those claims. |
Key Cases Cited
- O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (Ohio Supreme Court, 1975) (synthesis on Civ.R. 12(B)(6) standards and immunity)
- Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845 (Ohio Supreme Court, 2007) (three-tier immunity analysis under RC 2744.02)
- Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44 (Ohio Supreme Court, 2004) (definitive guide to tiered immunity analysis)