Riscatti v. Prime Properties Ltd. Partnership
2012 Ohio 2921
Ohio Ct. App.2012Background
- Explosion occurred August 29, 2009 in the basement of the Riscatti home caused by gasoline vapors from underground storage tanks near Marathon station.
- Drain pipes built by Marathon in 1982 connected underground storage tanks to the Parma sanitary sewer, allegedly discharging gasoline-contaminated groundwater into the sewer main during rain events.
- The City owns the public sewers; since 2008 the County agreed to provide mainline cleaning/televising and maintenance in public rights-of-way.
- The Sewer District provides sewer maintenance to municipalities but only if contracted, and it had no clear control/maintenance obligation in Parma unless such agreement existed.
- Plaintiffs alleged decades-long odor and gasoline exposure, asserting failures by City, County, Sewer District, and Marathon to inspect/repair, contributing to damages.
- Plaintiffs sued numerous entities, asserting negligence and seeking damages; County and Sewer District moved for judgment on the pleadings (statute of limitations) and for summary judgment (sovereign immunity).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Finality of denial on statute-of-limitations defense | Riscatti contends the denial affected a substantial right and is final | County/Sewer District argue denial is not a final, appealable order | Court lacks jurisdiction; first assignment overruled |
| Sovereign immunity as a basis for summary judgment | Plaintiffs argue immunity does not bar claims given alleged negligent maintenance | Defendants claim immunity applies; disputes genuine material facts | Genuine issues of material fact remain; summary judgment improper |
Key Cases Cited
- Summerville v. Forest Park, 128 Ohio St.3d 221 (2010-Ohio-6280) (R.C. 2744 immunities and tolling discussed)
- Sampson v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 418 (2012-Ohio-570) (denial of immunity defenses as final orders under 2744.02(C))
- Hubbell v. Xenia, 115 Ohio St.3d 77 (2007-Ohio-4839) (finality of orders denying immunity against liability)
- Essman v. Portsmouth, 2010-Ohio-4837 (4th Dist.) (maintenance vs design distinction in immunity analysis)
- Zimmerman v. Summit Cty., 1997 WL 22588 (9th Dist.) (relevance of maintenance/operation vs design in immunity)
- Colman v. Portage Cty. Engineer, 2010-Ohio-6255 (11th Dist.) (continuing violation doctrine and distinction from design issues)