Riscatti v. Prime Properties Ltd. Partnership
2012 Ohio 2941
Ohio Ct. App.2012Background
- Explosion on August 29, 2009 in the Riscatti home basement caused by gasoline vapors from underground storage tanks and drain pipes connected to a Marathon station sewer main.
- Drain pipes installed in 1982 allegedly allowed groundwater contaminated with gasoline to be discharged into Parma's sanitary sewer main, especially during heavy rain.
- Parma owns the public sewer lines; since May 1, 2008 the County provided mainline cleaning/televising and maintenance services; the Sewer District furnishes maintenance only if contracted.
- Plaintiffs allege odors since 1982 and failure by Parma, the Sewer District, and the County to inspect or address the contamination; the gas station was ordered closed and tanks capped in 2009.
- Plaintiffs sued Marathon entities, Parma, the Sewer District, the County, and others; Parma moved for judgment on the pleadings—challenging statute of limitations and sovereign immunity; trial court denied; Parma appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations governs suit against Parma | Riscatti contends accrual and tolling under 2744.04. | Parma argues time bar under 2744.04. | Appellate lacked jurisdiction to review immunity/limitations denial; no final appealable order. |
| Whether Parma is immune under R.C. 2744.02(B)(2) for alleged maintenance of sewer | Plaintiffs allege negligent maintenance qualifies as a proprietary function. | Parma claims governmental function; immunity applies unless exceptions. | Complaint alleges negligent maintenance (proprietary function); immunity exception applies; judgment affirmed. |
Key Cases Cited
- Sampson v. Cuyahoga Metro. Hous. Auth., 2010-Ohio-1214 (8th Dist.) (discusses finality of immunity-denial orders under 2744.02(C))
- Summerville v. Forest Park, 2010-Ohio-6280 (Ohio Supreme) (role of 2744.04 as a special statute over general limits; immunity context)
- Hubbell v. Xenia, 2007-Ohio-4839 (Ohio Supreme) (finality of immunity-denial orders under 2744.02(C))
- Essman v. Portsmouth, 2010-Ohio-4837 (4th Dist.) (design vs. maintenance distinction for sewer-defendant immunity)
- Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280 (Ohio Supreme) (explanation of 2744.02(C) and policy goals)
- Coleman v. Portage Cty. Engineer, 2010-Ohio-6255 (11th Dist.) (continuing violation doctrine context for immunity/limitations)