Carswell v. AkronCarswell v. Akron
Dated: October 30, 2019
SCHAFER, Judge.
{¶1} Defendant-Appellant, City of Akron, appeals the decision of the Summit County Court of Common Pleas denying its motion for judgment on the pleadings asserting statutory immunity. For the reasons that follow, this Court affirms.
I.
{¶1} On August 25, 2017, Plaintiff-Appellee, Lisa Carswell‘s, son sustained a fatal gunshot wound to the head while seated in the back of a police cruiser. The claims in this matter arise from the circumstances surrounding his death. On May 10, 2018, Ms. Carswell filed a complaint for wrongful death both in her capacity as administrator of her son‘s estate and individually, as his mother. The complaint asserted six claims against the City, captioned as follows: count one, wrongful death; count two, loss of consortium; count three, survival action; count four, spoliation of evidence; count seven, state civil rights; count eight, liability for punitive damages. The complaint also asserted claims against the Akron Police Department and
{¶2} Counsel for the City filed a notice of appearance on June 11, 2018, and also noticed removal of the matter to the federal district court. The district court remanded for lack of jurisdiction. Upon remand, the City filed a motion for judgment on the pleadings pursuant to
{¶3} On January 23, 2019, the trial court issued an order granting the motion, in part, and denying the motion on the claims at issue in this appeal. In declining to grant judgment based on political subdivision immunity, the trial court held that the facts of the complaint were “sufficiently pled to overcome a motion for judgment on the pleadings, such that an exception may apply to remove [the City]‘s immunity.”
{¶4} The City appealed the trial court‘s denial of the its motion raising one assignment of error for our review.
II.
Assignment of Error
The trial court erred by denying the City[]‘s motion for judgment on the pleadings based on the doctrine of political subdivision immunity[.]
{¶5} The City contends that it is immune under
{¶6}
{¶7} Because a
{¶8} Ohio‘s Political Subdivision Tort Liability Act, which governs political subdivision liability and immunity, is codified in
{¶9} Relevant to this appeal, the City claimed in the motion for judgment on the pleadings that it was immune from liability under
{¶11} In its merit brief on appeal, the City contends that the automobile exception of
{¶12} The trial court did not reach a conclusion as to whether the automobile exception of
{¶13} “Statutory immunity, including political-subdivision immunity, is an affirmative defense,” which must be asserted in a responsive pleading. Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, ¶ 17, citing Turner v. Cent. Local School Dist., 85 Ohio St.3d 95, 98 (1999). Although a political subdivision may utilize
{¶14} A plaintiff is under no obligation to prove his case in the initial pleadings and ““need not affirmatively dispose of the immunity question altogether at the pleading stage.“” Chunyo v. Gauntner, 9th Dist. Summit No. 28346, 2017-Ohio-5555, ¶ 10, quoting Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-Ohio-677, ¶ 8 (10th Dist.) (concluding that requiring a plaintiff to demonstrate an exception to immunity at the pleading stage would be tantamount to “requiring a plaintiff to overcome a motion for summary judgment at the pleading stage.“). “If the plaintiff were required to prove his or her case in the complaint, many valid claims would be dismissed because of the plaintiff‘s lack of access to relevant evidence.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145 (1991). Furthermore, while it stands to reason that in most instances a political subdivision will raise the affirmative defense of immunity, to require a plaintiff to plead in anticipation of that defense would essentially disregard the possibility that a political subdivision might waive the immunity defense. See Supportive Solutions at ¶ 19 (“[A] political subdivision waives its statutory-immunity defense, just like other affirmative defenses, if it does not timely assert it.“) Plainly stated, a plaintiff does not have to plead or prove the absence of an affirmative defense in order to avoid judgment on the pleadings. See Chaffee Chiropractic Clinic, Inc. v. Stiffler, 9th Dist. Wayne No. 16AP0033, 2017-Ohio-7790, ¶ 13.
{¶15} The City‘s contention that Ms. Carswell failed to plead or demonstrate an exception to their claimed immunity is without merit. Per our review of the record, it appears that Ms. Carswell‘s complaint did not specifically contemplate the affirmative defense of political subdivision immunity, nor was she required to “anticipate a political subdivision[‘s]
{¶16} This Court concludes that the City failed to show beyond a doubt that the pleadings show that Ms. Carswell could prove no set of facts that would allow her to overcome the affirmative defense of immunity and entitle her to relief. Because the City failed to demonstrate that the pleadings conclusively established the applicability of political subdivision immunity without exception, we cannot conclude that the trial court erred by declining to enter judgment based upon the pleadings. The City‘s assignment of error is overruled.
III.
{¶17} The City‘s assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
TEODOSIO, P. J.
CARR, J.
CONCUR.
APPEARANCES:
EVE V. BELFANCE, Director of Law, and MICHAEL J. DEFIBAUGH and JOHN CHRISTOPHER REECE, Assistant Directors of Law, for Appellant.
LAURA L. MILLS, Attorney at Law, for Appellee.