Holimon v. Cincinnati Metro. Hous. Auth.
2021 Ohio 3840
| Ohio Ct. App. | 2021Background
- Holimon (as administratrix of Corey L. Holimon) lived in a privately owned house leased under CMHA’s Housing Choice Voucher program; CMHA paid most rent and assisted in facilitating the lease.
- After moving in, Holimon observed black mold in the shower; her son Corey (with preexisting pulmonary issues) suffered worsening respiratory problems, was hospitalized twice, later transferred to long-term care, and died.
- Holimon sued CMHA and the landlord Sharma for negligence, recklessness, negligence per se, and loss of consortium, alleging mold exposure caused Corey’s death.
- CMHA moved to dismiss under Civ.R. 12(B)(6), invoking political-subdivision immunity under R.C. Chapter 2744; the trial court denied the motion without indicating reliance on extra-record materials.
- The appellate court reviewed the 12(B)(6) ruling de novo, treated the motion as a pure dismissal motion (no conversion to summary judgment), and accepted the complaint’s allegations as true for purposes of the motion.
- The court held CMHA was entitled to immunity: operation of a public housing authority is a governmental function (so R.C. 2744.02(B)(2) inapplicable), and the privately owned residence was not a government building for purposes of R.C. 2744.02(B)(4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CMHA is immune under R.C. 2744 so dismissal was required | Holimon argued her allegations (mold exposure causing death) fall within exceptions to immunity so claims survive | CMHA argued it has an initial grant of immunity as a political subdivision under R.C. 2744.02(A)(1) | Court held CMHA entitled to immunity and dismissal required |
| Whether R.C. 2744.02(B)(2) (negligent performance of proprietary functions) removes immunity | Holimon argued CMHA’s acts in housing program were actionable and not immune | CMHA argued operation of a public housing authority is a governmental, not proprietary, function | Court held (citing Moore) operation of a public housing authority is governmental; (B)(2) does not apply |
| Whether R.C. 2744.02(B)(4) (injury in or on grounds of buildings used in connection with a governmental function) removes immunity | Holimon argued the home, as part of the voucher program, was used in connection with CMHA’s function | CMHA argued the house is privately owned and not a government building; a governmental function at a private facility does not convert it into a government building | Court held (citing Dornal reasoning) the privately owned residence is not a building used in connection with a governmental function; (B)(4) does not apply |
| Whether the trial court’s consideration of Holimon’s affidavit converted the motion to dismiss into summary judgment | Holimon suggested the affidavit turned the motion into summary judgment | CMHA argued the trial court did not rely on the affidavit and gave no notice of conversion | Court found no indication the trial court relied on the affidavit and treated the ruling as a 12(B)(6) decision (de novo review) |
Key Cases Cited
- Moore v. Lorain Metro. Hous. Auth., 905 N.E.2d 606 (Ohio 2009) (operation of a public housing authority is a governmental function)
- ISCO Indus., Inc. v. Great Am. Ins. Co., 148 N.E.3d 1279 (1st Dist. 2019) (standard for reviewing a Civ.R. 12(B)(6) motion)
- Thomas v. Othman, 99 N.E.3d 1189 (1st Dist. 2017) (complaint should not be dismissed under Civ.R. 12(B)(6) unless no set of facts would entitle plaintiff to relief)