HARRIS FARMS, LLC, Plaintiff-Appellee, vs. MADISON TOWNSHIP TRUSTEES, et al., Defendants-Appellants.
Case No. 17CA3817
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
10-3-18
[Cite as Harris Farms, L.L.C. v. Madison Twp. Trustees, 2018-Ohio-4123.]
ABELE, J.
CIVIL CASE FROM COMMON PLEAS COURT
Jeffrey C. Turner, Dawn M. Frick, and Katherine L. Epling, Dayton, Ohio, and Margaret Miller, Portsmouth, Ohio for appellants.
Stephen C. Rodeheffer, Portsmouth, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
ABELE, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that denied a
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT DETERMINED THAT THE MAINTENANCE OF THE DRAINAGE DITCH IS A PROPRIETARY FUNCTION AND, THEREBY, THE MADISON
TOWNSHIP TRUSTEES ARE NOT ENTITLED TO IMMUNITY UNDER R.C. 2744.01 ”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT DID NOT FIND THAT THE DEFENSE SET FORTH IN
R.C. 2744.03(A)(5) APPLIED TO REINSTATE IMMUNITY FROM LIABILITY TO THE MADISON TOWNSHIP TRUSTEES, DONALD LAMBERT, TRUSTEE, JAMES PRESTON, TRUSTEE, AND CHRISTOPHER RASE, TRUSTEE, BECAUSE THE ALLEGATIONS IN THE COMPLAINT ESTABLISHED THAT THE DEFENDANTS [SIC] ACTIONS RESULTED FROM THE EXERCISE OF JUDGMENT OR DISCRETION IN WHETHER TO ACQUIRE, OR HOW TO USE, EQUIPMENT, SUPPLIES, MATERIALS, PERSONNEL, FACILITIES, AND OTHER RESOURCES UNLESS THE JUDGMENT OR DISCRETION WAS EXERCISED WITH MALICIOUS PURPOSE, IN BAD FAITH, OR IN A WANTON OR RECKLESS MANNER.”
{¶ 2} On March 1, 2017, appellee filed a complaint and alleged that approximately ten years earlier, appellants excavated part of the roadway in front of appellee‘s property in order to perform maintenance on a drainage ditch that lies between the roadway and appellee‘s property. Appellee asserted that the excavation “diminished or removed the lateral support that the roadway was supplying to” appellee‘s property and, that as a result, appellee‘s “property began slipping towards” the roadway. Appellee complained about the slippage, and appellants attempted to alleviate the problem. However, the attempted correction did not work and appellee‘s property continues to slip.
{¶ 3} Appellee asserted that appellants “are charged with the responsibility of maintaining” the road and possess a “duty * * * to maintain lateral support for [appellee]‘s contiguous land.” Appellee claimed that appellants refused to remedy the problem and thus (1) requested damages, and (2) requested the court to issue a mandatory injunction to order
{¶ 4} Appellants answered and denied liability. Shortly thereafter, appellants filed a motion for judgment on the pleadings that claimed, in part, that appellants are entitled to statutory immunity under
{¶ 5} Appellee, however, asserted that
{¶ 6} Appellants responded that the maintenance of the drainage ditch is not a propriety function and, that even if it were, appellee‘s complaint does not allege that any of appellants’ employees were negligent. Appellants further disputed appellee‘s assertion that the discretionary defense does not apply to appellants’ decision regarding the drainage ditch.
{¶ 7} On November 14, 2017, the trial court denied appellants’ motion. The court determined that “the negligent maintenance of the storm water drainage system that resulted in flooding is a proprietary function.” This appeal followed.2
{¶ 8} Appellants’ two assignments of error assert that the trial court erred by denying its motion for judgment on the pleadings. For ease of discussion, we consider them together.
{¶ 10} In its second assignment of error, appellants contend that the trial court erred by determining that the discretionary defense set forth in
{¶ 11} Appellee counters, however, that appellants failed to establish that appellee cannot prove a set of facts that would entitle it to relief. Appellee points out that its complaint does not conclusively reveal the nature of the drainage ditch at issue. Appellee thus contends that the pleadings fail to show, beyond doubt, that appellee cannot prove a set of facts that would remove appellants’ general grant of immunity.
A
STANDARD OF REVIEW
{¶ 12} Appellate courts conduct a de novo review of trial court decisions concerning a
B
CIV.R. 12(C)
{¶ 13}
{¶ 14} We further note that under the Ohio Rules of Civil Procedure, a complaint need only contain “a short and plain statement of the claim showing that the party is entitled to relief.”
{¶ 15} Moreover, a plaintiff is not required to plead the legal theory of the case at the pleading stage and need only give reasonable notice of the claim. State ex rel. Harris v. Toledo, 74 Ohio St.3d 36, 656 N.E.2d 334 (1995); see York, 60 Ohio St.3d at 145 (stating that complaint need not contain more than “brief and sketchy allegations of fact to survive a motion to dismiss
{¶ 16} The foregoing “simplified notice-pleading standard relies on liberal discovery rules and summary-judgment motions to define disputed facts and to dispose of nonmeritorious claims.” Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008-Ohio-7042, 903 N.E.2d 1284 (4th Dist.), ¶ 5. In fact, “‘[b]ecause it is so easy for the pleader to satisfy the standard of
{¶ 17} We further note that a plaintiff‘s complaint need not “specifically allege facts to disprove [an] affirmative defense.” Kerr at ¶ 13. Doing so would contravene the concept of notice-pleading. Id. Consequently, “‘the assertion of an affirmative defense does not place a burden on the non-moving party to affirmatively demonstrate or plead the absence of, or any exception to, immunity.‘” Parmertor v. Chardon Local Schools, 2016-Ohio-761, 47 N.E.3d 942, (11th Dist.), ¶ 7, appeal not allowed, 146 Ohio St.3d 1470, 2016-Ohio-5108, 54 N.E.3d 1269, quoting Ganzhorn v. R & T Fence Co., 11th Dist. Portage No. 2010–P–0059, 2011-Ohio-6851, 2011 WL 6938590, ¶ 13; Mangelluzzi v. Morley, 2015-Ohio-3143, 40 N.E.3d 588 (8th Dist.), ¶ 13 (stating that when “reviewing a motion for judgment on the pleadings, a complainant‘s failure to allege specific facts to disprove possible affirmative defenses of the defendant should not be fatal to the complaint“). Indeed, “‘complaints need not anticipate and attempt to plead around defenses.‘” Savoy v. Univ. of Akron, 10th Dist. Franklin No. 11AP–183, 2012–Ohio–1962, ¶ 8, quoting United States v. N. Trust Co., 372 F.3d 886, 888 (7th Cir.2004). Cf. Todd Dev. Co. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 24 (noting that “[a] plaintiff or counterclaimant moving for summary judgment does not bear the initial burden of addressing the nonmoving party‘s affirmative defenses“). “Effectively, adoption of such a standard would require a plaintiff to anticipate affirmative defenses and exceptions at the inception of the litigation.” Kravetz v. Streetsboro Bd. of Edn., 11th Dist. Portage No. 2011-P-0025, 2012-Ohio-1455, 2012 WL 1106731, ¶ 42.
{¶ 18} Accordingly, “a plaintiff need not affirmatively dispose of the immunity question altogether at the pleading stage.” Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-Ohio-677, 949 N.E.2d 552 (10th Dist.), ¶ 8, citing Fink v. Twentieth Century Homes, Inc., 8th Dist. Cuyahoga No. 94519, 2010-Ohio-5486, 2010 WL 4520482, ¶ 29. Instead, a plaintiff “must merely allege a set of facts that would plausibly allow [the plaintiff] to recover.” Fink at ¶ 29, citing Gallo v. Westfield Natl. Ins. Co., 8th Dist. Cuyahoga No. 91893, 2009-Ohio-1094, 2009 WL 625522; see also Stevenson v. ABM, Inc., 9th Dist. No. 07CA0009–M, 2008-Ohio-3214, 2008 WL 2582990 (affirming trial court‘s denial of motion to dismiss when reviewing court could not ascertain from the complaint whether activity involved governmental or proprietary function); Carr v. Armstrong, 5th Dist. No. 98CA0032, 1998 WL 549369 (Aug. 24, 1998) (affirming denial of a
{¶ 19} In the case sub judice, appellants assert that the pleadings conclusively demonstrate that appellants are entitled to the general grant of immunity and that the pleadings fail to show that any of the exceptions to immunity apply. Appellee, on the other hand, contends that the pleadings do not conclusively demonstrate that appellants are entitled to immunity. Instead, appellee argues that the pleadings indicate that appellee may be able to prove a set of facts that might subject appellants to liability under
C
R.C. CHAPTER 2744
{¶ 20}
{¶ 21} Second,
{¶ 22} In the case sub judice, appellee contends that even if appellants are entitled to the general grant of immunity, appellee can prove a set of facts that might support holding appellants liable under
{¶ 23}
Subject to sections
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:* * * *
(2) Except as otherwise provided in sections
3314.07 and3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.
{¶ 24} Appellants, however, contend that appellee cannot prove any set of facts to remove appellants’ general grant of immunity under
{¶ 25} Appellants further assert that even if appellee could prove a set of facts to show that an immunity exception applies, appellee cannot prove a set of facts to illustrate that appellee‘s injury did not result from appellants’ exercise of discretion.
{¶ 26} Appellee asserts, however, that it might be able to prove a set of facts to establish that the maintenance of the drainage ditch constitutes a proprietary function for which appellants may be held liable under
{¶ 27} As we explain below, we agree with appellee. Even if the pleadings conclusively demonstrate that appellants are entitled to the general grant of immunity, the pleadings fail to conclusively illustrate that the maintenance of the drainage ditch involved a governmental function and that appellee cannot prove a set of facts consistent with its theory of liability.
{¶ 28}
(C)(1) “Governmental function” means a function of a political subdivision that is specified in division (C)(2) of this section or that satisfies any of the following:
(a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement;
(b) A function that is for the common good of all citizens of the state;
(c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function.
(2) A “governmental function” includes, but is not limited to, the following:
* * * *
(l) The provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system;
* * * *
(r) Flood control measures;
{¶ 29} Under
{¶ 30} We agree with appellee that the pleadings do not conclusively indicate that the maintenance of the drainage ditch constitutes a governmental function. The limited facts that one can discern from the pleadings, when construed most strongly in appellee‘s favor, do not show that the maintenance of the drainage ditch involved “[t]he provision or nonprovision, planning or design, construction, or reconstruction of a public improvement, including, but not limited to, a sewer system,” or “flood control measures.” The pleadings do not conclusively indicate whether the drainage ditch is part of a sewer system. Of course, later and more developed facts might reveal that it is. Furthermore, nothing in the pleadings conclusively shows that the drainage ditch constitutes a “flood control measure.” Even if either of the foregoing is a reasonable inference, the
{¶ 31} Furthermore, even though appellee‘s complaint does not explicitly allege that appellants or its employees were negligent, we believe that a liberal construction of appellee‘s complaint permits that inference. The tenor of appellee‘s complaint suggests that appellants negligently failed to alleviate the slippage.
{¶ 32} Moreover, we do not agree with appellants that appellee‘s complaint must contain facts that specifically dispute appellants’ affirmative defense of statutory immunity. E.g., Kerr, supra. Furthermore, appellee‘s complaint does not involve one of those “carefully circumscribed cases” that requires a plaintiff to “plead operative facts with particularity.” E.g., York, supra. Additionally, to our knowledge, the Ohio Supreme Court has not imposed any heightened pleading standard in cases involving
{¶ 33} In light of the early stage of the proceedings, we also are unable to determine from the face of the pleadings that appellants’ conduct with respect to the drainage ditch involved the type of discretion that would reinstate its immunity under
The
R.C. 2744.03(A)(5) discretionary defense extends only to activities that involve weighing alternatives or making decisions that involve a “high degree of official judgment or discretion.” Enghauser Mfg. Co. v. Eriksson Engineering Ltd., 6 Ohio St.3d 31, 451 N.E.2d 228 (1983), paragraph two of the syllabus. Thus, political subdivisions are immune from liability for “‘certain acts which go to the essence of governing,’ i.e., conduct characterized by a high degree of discretion and judgment in making public policy choices.” Butler v. Jordan, 92 Ohio St.3d 354, 375, 750 N.E.2d 554 (2001) (Cook, J., concurring), quoting Enghauser Mfg. Co., 6 Ohio St.3d at 35. In other words, “immunity attaches only to the broad type of discretion involving public policy made with ‘the creative exercise of political judgment.‘” McVey v. Cincinnati, 109 Ohio App.3d 159, 163, 671 N.E.2d 1288 (1995), quoting Bolding v. Dublin Loc. Sch. Dist., 10th Dist. No. 94APE09–1307, 1995 WL 360227 (June 15, 1995).The “exercise of judgment and discretion” contemplated by
R.C. 2744.03(A)(5) thus does not apply to every decision that a political subdivision makes. Mathews v. Waverly, 4th Dist. No. 08CA787, 2010-Ohio-347, 2010 WL 364455, ¶ 45. As we explained in Hall v. Fort Frye Loc. Sch. Dist. Bd. Of Educ., 111 Ohio App.3d 690, 699, 676 N.E.2d 1241 (1996):“Immunity operates to protect political subdivisions from liability based upon discretionary judgments concerning the allocation of scarce resources; it is not intended to protect conduct which requires very little discretion or independent judgment. The law of immunity is designed to foster freedom and discretion in the development of public policy while still ensuring that implementation of political subdivision responsibilities is conducted in a reasonable manner.”
{¶ 34} Ohio courts have consistently held that the decision to provide maintenance and repair to a sewer system does not involve the exercise of discretion that would reinstate immunity under
{¶ 35} We explained:
[I]f it is proven that [a]ppellant negligently maintained its * * * sewer system, the maintenance of which is a proprietary function, because that function is mandatory and did not involve the exercise of judgment or discretion, [a]ppellant‘s immunity from liability would not be re-instated under
R.C. 2744.03(A)(5) .
Id. at ¶ 36; accord Nelson v. Cleveland, 8th Dist. Cuyahoga No. 98548, 2013-Ohio-493, 2013 WL 588718 (“Decisions involving the proper maintenance of the sewer * * * system is a proprietary act, which is mandatory and not discretionary. These decisions do not involve a high degree of discretion. Rather, they involve routine inspection and maintenance.“).
{¶ 36} In the case at bar, the pleadings do not conclusively illustrate that the maintenance of the drainage ditch involved a high degree of discretion such that
{¶ 37} We agree with appellants, however, to the limited extent that the trial court fully determined that “the negligent maintenance of the storm water drainage system that resulted in flooding is a proprietary function.” As we have explained in this opinion, the pleadings do not conclusively demonstrate whether appellee‘s complaint concerns a governmental or proprietary function. Instead, that is a matter that remains to be determined once the parties develop the facts.
{¶ 38} Moreover, we do not disagree with appellants that, as a general proposition, the question of a political subdivision‘s immunity is a question of law. E.g., Pelletier v. Campbell, — Ohio St.3d —, 2018-Ohio-2121, — N.E.2d —, ¶ 12. We also do not disagree that early resolution of the immunity question is an important consideration. Id., citing Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 17 (noting importance of determining
{¶ 39} In the case sub judice, we have already pointed out that the facts, at this stage of the proceeding, are not adequately developed to allow any determination regarding the legal question of whether appellants are entitled to immunity. Although we recognize that the question of a political subdivision‘s statutory immunity generally presents a question of law, we do not believe that simply examining the pleadings allow us to resolve the immunity question.
E
CONCLUSION
{¶ 40} Accordingly, based upon the foregoing reasons, we overrule appellants’ second assignment of error. We partially overrule and partially sustain appellant‘s first assignment of
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion. Appellee shall recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to
Hoover, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.