719 N.E.2d 592 | Ohio Ct. App. | 1998
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *55 Plaintiff-appellant, Katherine W. Franklin, appeals from a decision of the Franklin County Court of Common Pleas granting summary judgment in favor of the defendant-appellee, city of Columbus. Because we find that the trial court improperly granted summary judgment, we reverse.
On August 19, 1996, Franklin filed a complaint in the Franklin County Court of Common Pleas seeking damages from the city as a result of the alleged negligence of the city's Division of Water in falling to terminate service to Franklin's rental property located at 279 North 22nd Street, Columbus, Ohio. In particular, Franklin, a resident of Washington, D.C., alleged that in March 1995, she notified the Division of Water that her tenant had been evicted from the property and that the water account should be placed in Franklin's name. Franklin also alleged that in June 1995, she requested the Division of Water to *56 turn off the water service to the rental property because it was vacant and that, unbeknownst to her until later, the Division failed to honor this request. Franklin further alleged that flooding later occurred at the property as a result of leaks and/or breaks in the water line and that the flooding caused damage to the property. In her prayer for relief, Franklin requested approximately $100,000 in compensatory damages, approximately $300,000 in punitive damages, attorney fees, and costs.
On October 3, 1996, the city filed its answer, denying the material allegations of Franklin's complaint. On May 27, 1997, the city filed a motion for summary judgment. On June 13, 1997, Franklin filed a motion to strike the city's motion for summary judgment on the basis that the motion had been filed without leave of court as required by Civ. R. 56. On July 24, 1997, the trial court denied Franklin's motion to strike. Thereafter, Franklin filed her memorandum in opposition to the city's motion for summary judgment. On August 15, 1997, the trial court granted the city's motion for summary judgment holding, inter alia, that Franklin failed to show that the city owed her a duty to turn off the water to her property. In particular, the trial court held that Franklin failed to establish the elements of a "special duty" as required under Sawicki v. Ottawa Hills (1988),
1. "The trial court erred in overruling plaintiffs motion to strike defendant's motion for summary judgment."
2. "The trial court committed reversible error in granting the motion of defendant for summary judgment."
3. "The decision of the trial court was against the manifest weight of the evidence."
4. "Plaintiff was denied her constitutional rights to a fair and impartial trial."
In her first assignment of error, appellant argues that the Ohio Rules of Civil Procedure precluded the city from filing its motion for summary judgment without first seeking leave of court to do so. In particular, appellant notes that Civ. R. 56 states that once an "action has been set for pretrial or trial, a motion for summary judgment may be made only with leave of court." In this case, the case schedule generated by the clerk of courts when appellant's complaint was filed on August 19, 1996, set a pretrial date of August 4, 1997, and a trial date of September 2, 1997. Appellant argues that since the dates for the pretrial and trial were established, appellee was not permitted to file a motion for summary judgment unless it specifically sought leave of court to do so. We disagree. *57
As correctly noted by the trial court in its decision denying appellant's motion to strike, a party is automatically granted leave to file a motion for summary judgment pursuant to Loc. R. 53.01 of the Court of Common Pleas of Franklin County, General Division. In particular, Loc. R. 53.01 provides that "[p]ursuant to Civ. R. 56(A), leave is hereby granted in all civil cases to file summary judgment motions between the time of filing [of the action] and the dispositive motion date, unless the Trial Judge decides otherwise by setting a different date." Thus, contrary to appellant's assertion, Loc. R. 53.01 neither "modifies" nor "abrogates" Civ. R. 56 but, rather, automatically provides a party with the leave required by Civ. R. 56 to file a summary judgment motion.
Here, the dispositive motion filing deadline was May 26, 1997, a legal holiday (Memorial Day) observed by the court and its clerk's office. Therefore, pursuant to Civ. R. 6(A), the city could, and did, timely file its motion for summary judgment on the following day (May 27, 1997), and no additional request for leave to file was necessary. Accordingly, we find that the trial court did not err in denying Franklin's motion to strike appellee's motion for summary judgment. Appellant's first assignment of error is not well taken.
Appellant's second assignment of error alleges that the trial court improperly granted appellee's motion for summary judgment. In particular, appellant contends that the trial court improperly weighed the evidence against the appellant in holding that the city did not owe her a duty to turn off the water to her property. While we agree with the appellant that the trial court improperly granted summary judgment on appellant's negligence claim, we do not believe that the trial court incorrectly weighed the evidence per se. Rather, we reverse the decision below because the trial court applied the incorrect legal standards governing municipal liability and, in particular, the public duty and special duty rules.
Civ. R. 56(C) states that summary judgment shall be rendered forthwith if:
"the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."
Accordingly, summary judgment is appropriate only where (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Tokles Son, Inc.v. Midwestern Indemn. Co. (1992),
As noted above, the trial court relied upon the public duty doctrine and its corresponding special duty exception in granting summary judgment for the city. In particular, the trial court held that since Franklin could not establish that the city owed her a special duty, she could not satisfy the duty element of a negligence cause of action. On appeal, the city defends the decision of the trial court solely on appellant's failure to establish a special duty.
Originating in English common law, the public duty rule states that when a duty imposed by law upon a public official is owed to the public in general, the inadequate or negligent performance of that duty gives rise to only a public, as opposed to private, injury. Sawicki, supra,
Application of the public duty rule may be avoided, however, if a person can show that the "special duty" exception applies. A special duty is shown if (1) the government entity assumed an affirmative duty to act on behalf of the injured party through either words or promises, (2) the governmental agents possessed knowledge that inaction could lead to harm, (3) there was some form of direct contact between the agents and the injured party, and (4) the injured party justifiably relied upon the government entity's affirmative undertaking. Sawicki, supra,
In Sawicki at 232-233,
"[A] mere telephoned call for assistance does not sufficiently remove the caller from the class of the general population. Regardless of the police dispatcher's response, it does not represent a commitment of particular police resources to that individual. A special duty to protect each and every member of the public who calls for assistance is, quite simply, not any different than a police department's general statutory obligations." (Emphasis sic.) Id. at 233,
Significantly, however, the events giving rise to the cause of action in Sawicki preceded the enactment of the Ohio Political Subdivision Tort Liability Act ("the Act"), R.C.
Under the Act, a three-part scheme governs the liability of a political subdivision. First, there is a general grant of immunity under which "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision." R.C.
Given the all-encompassing nature of the Act, this court has consistently and repeatedly held that its passage abrogated the common-law public duty rule and its corresponding special duty exception in the context of political subdivision liability. SeeHensley v. The New Albany Co. Ohio Gen. Partnership (Dec. 31, 1997), Franklin App. No. 97APE02-189, unreported, 1997 WL 798776;Colling v. Franklin Cty. Children Serv. (1993),
Here, Franklin's cause of action accrued after the enactment of the Act. Therefore, the statutory provisions govern the city's liability, not the common-law public duty doctrine. Therefore, the trial court's decision granting summary judgment based upon appellant's failure to establish a special duty on the part of the city was in error. See Hedrick, supra (trial court's decision granting summary judgment for the city based upon the failure of the plaintiffs to show that city owed them a special duty to maintain a culvert was in error because failure to maintain a culvert was an actionable proprietary function under the provisions of the Act); Zimmerman v. Summit Cty., (Jan. 15, 1997), Summit App. No. 17610, unreported, 1997 WL 22588 ("Since plaintiffs' cause of action accrued after the effective date of the immunity statute, defendant could not raise the public duty doctrine as a defense, and the trial court could not grant defendant summary judgment on that basis").
We further note that even if the public duty doctrine were applicable in this case, the trial court incorrectly applied it. In essence, the trial court found that the conduct of the city fell within the public duty rule because Franklin failed to otherwise show a special duty. The logical implication of this approach is that all conduct of a city is presumed to fall within the public duty rule until and unless the plaintiff shows a special duty. But this approach turns the public duty doctrine on its head. As noted above, the special duty rule is an exception to the public duty doctrine. Thus, the obligation of a plaintiff to show a special duty is implicated only if the conduct at issue first is found to relate to a duty imposed by law that is owed to the public in general. See Sawicki,
Moreover, we find that the trial court's requirement that Franklin show a special duty in order to recover against the city in this case is inconsistent with the Ohio Supreme Court's recent decision in Hill v. Urbana (1997),
The Ohio Supreme Court reversed, holding that plaintiff had established a right to recover under the Act. In particular, the court noted that pursuant to R.C.
Similarly, appellant here has established a right to recovery under the provisions of the Act independently of any showing of a special duty and despite failing to specifically plead it. Like in Hill, appellant seeks recovery on a negligence theory based upon the city's failure to act as requested in connection with its operation of a water system, a proprietary function pursuant to *62
R.C.
We also reject the city's contention raised below that Franklin is precluded from recovering as a matter of law pursuant to the comparative negligence statute, R.C.
For these reasons, the city was not entitled to judgment as a matter of law, and the trial court erred in granting summary judgment on appellant's negligence claim. See Dresher v. Burt
(1996),
Appellant's second assignment is well taken in part and not well taken in part. Because our resolution of appellant's second assignment of error is dispositive of this matter, appellant's third and fourth assignments of error are rendered moot and will not be addressed. See App. R. 12(A)(1)(c).
For the foregoing reasons, appellant's first assignment of error is overruled, her second assignment of error is sustained in part and overruled in part, and her third and fourth assignments of error are rendered moot. The judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent with this opinion.
Judgment reversed and cause remanded.
PEGGY BRYANT and PETREE, JJ., concur.
"(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4)." *64