DSS Servs., L.L.C. v. Eitel's Towing, L.L.C.
2019 Ohio 3158
Ohio Ct. App.2019Background
- DSS Services' dump truck overturned while delivering gravel on private property in Pleasant Township; the Fire Department contained leaking fluids and authorized Eitel's Towing to right the truck.
- Eitel's righting/towing allegedly damaged the truck, then towed it to its lot and refused release without payment; DSS sued Pleasant Township and Eitel's for negligence and conversion.
- Pleasant Township moved for judgment on the pleadings asserting immunity under the Political Subdivision Tort Liability Act (R.C. Chapter 2744); trial court denied the motion.
- DSS additionally sought leave to file an amended complaint, but the appellate court treated the denial-of-immunity ruling as based on the original complaint (appeal not moot).
- The key legal dispute: whether township immunity is displaced by R.C. 2744.02(B)(2) (negligent performance of proprietary functions) or otherwise, and whether conversion (an intentional tort) is excepted from immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the appeal moot because DSS obtained leave to amend? | DSS argued the trial court granted leave and thus the motion ruling was moot. | Township argued the court only ruled on motions for judgment on the pleadings. | Not moot: the court did not grant leave in the July 5 entry; appeal proceeds. |
| Is the township immune from DSS's negligence claim under R.C. Chapter 2744? | DSS: The righting/towing was a proprietary function (accident recovery/towing), so R.C. 2744.02(B)(2) applies. | Township: Actions were governmental fire services; immunity applies. | Denial of judgment on the pleadings affirmed as to negligence — material facts remain whether conduct was governmental or proprietary. |
| Did Eitel's act as an independent contractor (negating R.C. 2744.02(B)(2))? | DSS: Complaint alleges Eitel's acted under township control; need not plead negation of immunity at pleading stage. | Township: Eitel's is a separate private contractor. | Material fact dispute exists about control/employee status; judgment on the pleadings improper for township. |
| Is the conversion claim barred by political-subdivision immunity? | DSS contended conversion could proceed (argued intent not required). | Township: Conversion is an intentional tort; immunity remains because R.C. 2744.02(B)(2) covers negligence only. | Judgment on the pleadings should have been granted for township as to conversion — conversion is intentional, so exception does not apply. |
Key Cases Cited
- Morris v. Morris, 189 Ohio App.3d 608 (Ohio App. 2010) (amended complaint supersedes prior complaint)
- York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143 (1991) (plaintiff need not prove case at pleading stage)
- Ohio Mfrs.' Assn. v. Ohioans for Drug Price Relief Act, 147 Ohio St.3d 42 (Ohio 2016) (standard for Civ.R. 12(C) judgment on the pleadings)
- Argabrite v. Neer, 149 Ohio St.3d 349 (Ohio 2016) (political-subdivision immunity is an affirmative defense)
- Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio St.3d 357 (Ohio 2013) (three-tier test under R.C. Chapter 2744)
- Doe v. Marlington Local School Dist. Bd. of Edn., 122 Ohio St.3d 12 (Ohio 2009) (first-tier immunity and R.C. 2744.02(B) exceptions)
- Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551 (Ohio 2000) (focus on specific activity to classify governmental vs. proprietary functions)
- Inland Prods., Inc. v. Columbus, 193 Ohio App.3d 740 (Ohio App. 2011) (function classification may depend on case facts)
- Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465 (Ohio App. 2011) (plaintiff need not plead absence of immunity; evaluate specific challenged action)