HILL ET AL., APPELLANTS, v. CITY OF URBANA, APPELLEE.
No. 95-1924
Supreme Court of Ohio
Submitted November 13, 1996 — Decided June 25, 1997
79 Ohio St.3d 130 | 1997-Ohio-400
APPEAL from the Court of Appeals for Champaign County, No. 94-CA-22.
- Pursuant to
R.C. 2744.02(B)(2) , a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property caused by an act or omission of the political subdivision or any of its employees in connection with the performance of a proprietary function. - The “establishment, maintenance, and operation” of a municipal corporation water supply system encompasses, but is not limited to, the installing of water lines, equipment, and other materials which are a necessary part of the system and such activity is a proprietary function of a political subdivision. (
R.C. 2744.01[G][2][c] , construed and applied.)
{¶ 1} Appellant, Herbert Hill, worked as a general laborer for R.E. Holland Excavating, Inc. (“Holland“). Holland was hired by appellee, the city of Urbana, to assist appellee in improving its water distribution system. Part of the project required the attaching of a new fourteen-inch water line to an existing twenty-inch line. To complete the attachment, it was necessary to install a valve.
{¶ 3} In order to facilitate completion of the valve installation, Gonsalves ordered that the water supply to the existing line be shut off. Because the existing line was a source of supply to the city‘s water tower, Gonsalves was anxious to have the job completed so that the water could be turned back on. As appellant was tightening bolts to connect the valve, he heard Gonsalves tell a city employee to “crack” the valve and “bleed” some water back into the pipe. Upon hearing that instruction, appellant hollered to Gonsalves not to turn on the water. Gonsalves nodded his head at appellant and told a city employee to wait. Appellant then continued to tighten the bolts. Within a few minutes, however, Gonsalves once again ordered a city employee “to crack the valve.” Appellant then stood up in the pit where he was working, turned around to face Gonsalves, and, gesturing with his wrench, stated “don‘t turn the damn water on while I am down here at this dead end.” Gonsalves again indicated to appellant that he (Gonsalves) would wait. Appellant then knelt back down into the pit to continue tightening the bolts. Apparently, the exchanges between appellant and Gonsalves concerning the admonition not to turn on the water took place on three separate occasions.
{¶ 4} Notwithstanding appellant‘s specific requests and instructions, the water was turned on prior to completion of the valve installation. As a result, the water pressure blew the valve off the pipe, striking appellant in the head and shoulders. The Holland supervisor, who was in the pit with appellant, saw appellant lying in a semi-conscious state face down on the bottom of the pit. The water temporarily rose to the level of the supervisor‘s shoulders. Appellant‘s supervisor rescued appellant by rolling him into a lift bucket. Appellant was then lifted out of
{¶ 5} On May 10, 1989, appellant filed an action for negligence against Urbana. Additionally, appellant‘s wife, Carolyn, brought a claim for loss of consortium. On September 8, 1994, the trial court granted summary judgment in favor of Urbana. The trial court held that the “City of Urbana has statutory immunity as to the claims of the Hills [appellants] because of Chapter 2744 of the Ohio Revised Code. The Court finds that the City was engaged in a governmental function at the time of the circumstances of this case.” On appeal, the court of appeals affirmed the judgment of the trial court, holding, among other things, that the trial court properly granted summary judgment in favor of Urbana.
{¶ 6} The cause is now before this court pursuant to the allowance of a discretionary appeal.
Brannon & Deutsch and David M. Deutsch, for appellants.
Green & Green, Thomas M. Green and Jennifer L. Layton, for appellee.
Martin, Browne, Hull & Harper, Robin R. Freeman and Richard F. Heil, Jr., urging affirmance for amicus curiae, R.C. Holland Excavating, Inc.
DOUGLAS, J.
{¶ 7} The question presented by this case is whether the Political Subdivision Tort Liability Act (“Act“), as codified in
{¶ 8} The parties raise several issues for our possible consideration. Implicitly raised is the question of the constitutionality of the doctrine of sovereign
{¶ 9}
“For purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, 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 in connection with a governmental or proprietary function.”
{¶ 10}
“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 any act or omission of the political subdivision or any of its employees in connection with a governmental or proprietary function, as follows * * *.” (Emphasis added.)
{¶ 11}
{¶ 12} Clearly, Urbana was involved in a proprietary function at the time of the accident. See, also, Ranells v. Cleveland (1975), 41 Ohio St.2d 1, 4, 70 O.O.2d 1, 2, 321 N.E.2d 885, 887, fn. 1 (It is clear that a city in the operation of its water department acts in a proprietary capacity.). Further, it is equally apparent that Urbana‘s conduct in turning on the water was, at the very least, negligent. Appellant had instructed Gonsalves on three separate occasions not to turn on the water until the job was completed. However, the water was turned on prior to the completion of the installation of the valve and, as a result, appellant was seriously injured. Thus, pursuant to the statute, liability attaches to appellee.
{¶ 13} The issue has and will be raised that this court is precluded from considering whether Urbana was performing a proprietary function because that specific question was not raised by appellants in the court of appeals. We disagree.
{¶ 14} This court has held on numerous occasions that the waiver doctrine is discretionary. See, e.g., In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, syllabus. In fact, we specifically held that “[e]ven where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.” (Emphasis added.) Id.
{¶ 15} This case concerns the rights and interests of a worker who has been injured by a negligent tortfeasor. Moreover, this case involves not only a particular worker, but it also ultimately concerns the rights and interests of any citizen of this state who may be injured by the negligence of an employee of a political
{¶ 16} Therefore, we hold that (1) pursuant to
{¶ 17} The judgment of the court of appeals is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
LUNDBERG STRATTON, J., concurs in part and dissents in part.
MOYER, C.J., and COOK, J., separately dissent.
LUNDBERG STRATTON, J., concurring in part and dissenting in part.
{¶ 18} I agree with the majority‘s interpretation of the
{¶ 19} In searching through the lower court records, I find that although he alleged negligence, the plaintiff in his complaint did not plead the statutory exception to immunity,
{¶ 20} On appeal to the court of appeals, Hill argued that a “special-duty” exception to the public-duty doctrine precluded Urbana from asserting statutory immunity as a defense to liability. Hill claimed that the special-duty exception to the public-duty doctrine is a common-law theory independent of statutory immunity, which would allow Hill to recover against Urbana under negligence standards. Alternatively, Hill argued that, pursuant to
{¶ 21} It was not until his appeal to this court that Hill raised the argument that Urbana was liable for his injuries pursuant to one of the exceptions to statutory immunity set out in
{¶ 22} Therefore, I join in Chief Justice Moyer‘s dissent on the issue of waiver.
MOYER, C.J., dissenting.
{¶ 23} I respectfully dissent.
{¶ 24} Today the majority casts away any notion of reasonable certainty that we will not use our considerable powers to pronounce on issues not raised by the parties in the trial courts. Clearly, the facts of this case illustrate the pitfalls of expanding the discretionary aspect of the waiver doctrine based only upon a standard of whether the “rights and interests involved warrant it.”
{¶ 25} Subsequent to the incident that caused Hill‘s injury, as described in the majority opinion, Hill and his wife, Carolyn, filed an action for negligence and loss of consortium against Urbana in the Champaign County Court of Common Pleas. At trial, Hill asserted two arguments. He first claimed that Urbana was liable because the city assumed a special duty to act to insure his safety. In addition, Hill argued that Urbana was subject to suit because Gonsalves exercised his supervision over the project in a wanton and reckless manner, thereby leading to his injury. At no time did Hill claim that Urbana was liable under any of the statutory exceptions to immunity outlined in
{¶ 26} The trial court accepted that view and granted summary judgment to Urbana, finding, inter alia, that the city was engaged in a governmental function at the time of the incident. Hill did not appeal that finding to the court of appeals. Rather, he posited the same two arguments to the appellate court that he had asserted in the trial court. It was not until he filed his reply brief that Hill raised the issue of Urbana‘s liability under
{¶ 27} Hill then argued to this court that Urbana was subject to suit because the city‘s actions fell within at least one of the exceptions enumerated in
I
{¶ 28} It is well settled that we will generally not consider issues in a civil action that are not presented for consideration to the trial court. State ex rel. Zollner v. Indus. Comm. (1993), 66 Ohio St.3d 276, 278, 611 N.E.2d 830, 832; Miller v. Wikel Mfg. Co. (1989), 46 Ohio St.3d 78, 78-79, 545 N.E.2d 76, 79; Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1980), 62 Ohio St.2d 221, 226, 16 O.O.3d 251, 254, 404 N.E.2d 759, 763, fn. 5; State ex rel. Hamblin v. Brooklyn (1993), 67 Ohio St.3d 152, 154, 616 N.E.2d 883, 885. Similarly, we will not consider a claimed error which was not raised and assigned as error in the appellate court. Foran v. Fisher Foods, Inc. (1985), 17 Ohio St.3d 193, 194, 17 OBR 430, 431, 478 N.E.2d 998, 999; State v. Williams (1977), 51 Ohio St.2d 112, 117, 5 O.O.3d 98, 101, 364 N.E.2d 1364, 1367, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156; State ex rel. Babcock v. Perkins (1956), 165 Ohio St. 185, 59 O.O. 258, 134 N.E.2d 839, paragraph three of the syllabus. Hill is therefore precluded from raising the applicability of the statutory exceptions to immunity to Urbana here, and is specifically estopped from raising the applicability of
{¶ 29} By applying the standard enunciated in In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, the majority claims the right to decide this case based on issues not presented to this court, on the grounds that the “rights and interests involved may warrant it.” The majority therefore implicitly recognizes the myriad of omissions present in Hill‘s case, but does not apply the proper analysis in deciding whether Hill waived his newfound claims by failing to raise them in the trial and appellate courts. In re M.D. was a criminal case where the defendant-appellant raised the issue of constitutionality of a rape statute for the first time on appeal. In re M.D. at 150, 527 N.E.2d at 287. In analyzing the issue of waiver there, we exercised our discretion after reviewing the doctrine, as it applies to criminal cases. Given the critical distinctions between civil and criminal actions (among those being the penal nature of sanctions imposed on criminal defendants), this court has never applied the plain-error doctrine adopted for criminal appeals to appeals in civil actions. Applying the doctrine in criminal actions often raises
{¶ 30} Even application of the majority‘s new standard cannot compel an outcome favorable to the plaintiff. The majority states that deviation from the waiver doctrine is warranted because this case “concerns the rights and interests of any citizen of this state who may be injured by the negligence of an employee of a political subdivision.” Were we to apply the waiver doctrine here, we would no more restrict the ability of any person to recover under
{¶ 31} While the majority is correct in stating that the waiver doctrine is not absolute, absent from the majority‘s analysis is any reference to case law analyzing the waiver doctrine as it applies to civil cases. There are two bases upon which we have applied the waiver doctrine in civil appeals. The first is enumerated in Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 617 N.E.2d 1075. In Belvedere, we presented one analytical framework for deciding when we may consider legal issues not raised in the trial or appellate courts. We stated there that “[w]hen an issue of law that was not argued below is implicit in another issue that was argued and is presented by an appeal, we may consider and resolve that implicit issue. To put it another way, if we must resolve a legal issue that was not raised below in order to reach a legal issue that was raised, we will do so.” Id. at 279, 617 N.E.2d at 1079. Pursuant to Belvedere, we would consider Hill‘s new claim that Urbana‘s acts at the time of the accident
{¶ 32} Hill asserts two propositions before this court that were properly argued in the court of appeals. He first argues that the public-duty doctrine applies to this case. Therefore, the issue that appellant failed to raise below (Urbana‘s liability under
{¶ 33} Hill also contends that Urbana is liable under
{¶ 34}
“The political subdivision is immune from liability if the injury, death, or loss to persons or property resulted from the exercise of judgment or discretion in determining 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.” (Emphasis added.)
{¶ 35} Hill argues the applicability of
{¶ 36} Therefore, Hill cannot establish Urbana‘s liability under
{¶ 37} Therefore, a claim that a subdivision is liable under
{¶ 38} Throughout this case, however, Urbana has never had the opportunity to assert
II
{¶ 39} Analysis of waiver in Belvedere and the sister doctrine of plain error indicates that we may exercise discretion only within the narrowest of confines. While part of this court‘s role is to decide cases in a way that expresses the law in an orderly and predictable manner, Belvedere, 67 Ohio St.3d at 279, 617 N.E.2d at 1079-1080, that role is balanced with other interests of the judiciary and the legal system. Judges, attorneys, parties, and other citizens expect and deserve a system of appellate procedure that provides fairness, certainty, and finality. To that end, our law has, until today, reflected a long-standing doctrine that appellate courts will not consider issues not raised in the trial court or assigned as error. Exceptions to the waiver doctrine should be crafted with considerable caution in order to protect and maintain a credible appellate system. Courts have long required orderly procedure in the judicial system “to avoid unnecessary delay” and to prevent parties from taking advantage of favorable outcomes or eluding unfavorable ones. See State v. Childs (1968), 14 Ohio St.2d 56, 62, 43 O.O.2d 119, 123, 236 N.E.2d 545, 549, citing Douglas v. Alabama (1965), 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934.
{¶ 40} No standard, whether it is that articulated in Belvedere or that of the majority, should permit us to consider an argument not raised below which is appended to a different issue that the party was not procedurally able to raise. Such a result is illogical and illustrates the need for caution in emphasizing the discretionary nature of the waiver doctrine. Belvedere allows us to consider only whether precise issues of law, raised before this court but not raised below, are implicit within precise issues of law that were properly argued at all stages of the appellate process. It does not permit us to consider an issue not raised below simply because it may be implicit within a general issue that forms the context of the case. In addition, if we apply the majority‘s standard, what framework are we to use in deciding whether the “rights and interests involved” in a case warrant our exercise of discretion in applying the waiver doctrine? Without a standard analytical process that provides some basis for exercising or declining to exercise discretion, the scope of the waiver doctrine is left to anyone‘s best guess.
{¶ 41} Further, our result today, based upon a very broad standard, does not serve our stated role of deciding cases in a way that reflects orderly and predictable
{¶ 42} Having applied the waiver doctrine in two recent cases, how do we support consistency in our decisions when we do not apply the doctrine here and instead state another standard? Here, the attorney for Hill not only failed to object to the trial court‘s finding that Urbana was engaged in a governmental function at the time of the incident, thereby waiving the issue for appeal, but counsel actually expressed agreement with that position in Hill‘s brief to the trial court.
{¶ 43} This is not an extremely rare case with exceptional circumstances. The sole issue here is the plaintiff‘s participation in the “error” at the trial court and his failure to raise issues of possible error on appeal. By not claiming that Urbana was liable under one of the exceptions enumerated in
{¶ 44} The exercise of discretion in this case, however, implicitly relieves parties in civil litigation and their counsel of this responsibility. Among the errors Hill and his counsel seek to elude are the failure to argue (in the alternative) the existence of a proprietary function at trial, failure to object to the trial court‘s finding of a governmental function, failure to appeal the finding of a governmental function, and failure to assert a claim of statutory liability in the merit brief to the court of appeals. “Requiring a non-erring party to bear the burden of his opponent‘s errors may not be reasonable in many circumstances and in fact may [itself] constitute a miscarriage of justice.” Deppe v. Tripp (C.A.7, 1988), 863 F.2d 1356, 1361. No court, particularly this court, should relieve parties of their responsibility to raise all possible claims at every stage in the appellate process, particularly where, as here, a party can easily claim liability of another party but simply fails to do so. The rights of opposing parties and the interests of preserving a reliable, credible, and effective appellate system require no less.
{¶ 45} For the foregoing reasons, I respectfully dissent.
COOK, J., dissenting.
{¶ 46} Although I agree with much of the dissenting opinion written by Chief Justice Moyer,3 I adhere to my view that the plain error doctrine should be reserved for use in criminal cases and held wholly inapplicable to civil cases.
{¶ 47} The majority holds that the doctrine should be applied “where the rights and interests involved may warrant it.” How, then, are we, as courts, to rank rights and interests? By discarding the criminal and constitutional dimensions that grounded the court‘s plain-error analysis in In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286,4 the majority leaves judges with standardless discretion to weigh
{¶ 48} The standard announced in Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 679 N.E.2d 1099, syllabus, is, by its language, more cautious, but still provides no real boundaries for its application. The Goldfuss court held that plain error may be recognized in civil cases where the fairness, integrity, or public reputation of the judicial process necessitates its application. Neither Goldfuss nor the cases upon which it relies, however, found the plain-error doctrine applicable or provided a meaningful example of appropriate circumstances for its application. Instead, this court legitimizes plain error in civil cases—eschewing the uniformity, predictability and equal treatment of individuals that a complete ban would foster—based on the possibility that there is a scenario where its application would be judicious. As discussed in my concurring opinion in Goldfuss at 125, 679 N.E.2d at 1106, however, that scenario is more imaginary than real.
{¶ 49} Because this court has imported the doctrine of plain error into the civil arena despite its absence from our Civil Rules and fundamental inapplicability to the civil judicial process, and for the reasons cited in my concurrence in Goldfuss, I respectfully dissent.
Notes
See, also, Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141, 624 N.E.2d 704, 706 (Pfeifer, J., concurring).
“The waiver doctrine in State v. Awan (1986), 22 Ohio St.3d 120, 22 OBR 199, 489 N.E.2d 277, is discretionary. Even where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.”
In re M.D. involved only review of constitutional issues not raised to the trial court and argued on appeal in a criminal case. There is no suggestion that the holding in In re M.D. was meant to apply to civil cases or to issues of no constitutional moment. The majority‘s deletion from the In re M.D. syllabus of any reference to State v. Awan, supra, and its use of italics after the conjunction “or” to imply that waiver may be excepted “where the rights and interests involved may warrant it,” irrespective of whether the challenge involves constitutional issues, are misleading.