RICK MAIN, ET AL., PLAINTIFFS-APPELLANTS, v. CITY OF LIMA, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 1-14-42
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
June 29, 2015
[Cite as Main v. Lima, 2015-Ohio-2572.]
Appeal from Allen County Common Pleas Court Trial Court No. CV-2014-0293 Judgment Affirmed
Michael J. Zychowicz for Appellants
Jared A. Wagner for Appellee, City of Lima
{¶1} Plaintiffs-appellants, Rick Main (“Rick“) and Dorothy Main (“Dorothy“) (collectively, the “Mains“), appeal the August 13, 2014 judgment of the Allen County Court of Common Pleas dismissing their complaint against defendant-appellee, City of Lima, Ohio (the “City“), under
{¶2} On May 6, 2014, the Mains filed their complaint against the City, defendant-appellee, 1127 Construction Company, Inc. (“1127 Construction“), and four John Doe defendants. (Doc. No. 1). The Mains alleged that Rick was walking along a city sidewalk in a construction area when he was injured:
3. On or about June 29, 2012, [Rick] was walking along a city sidewalk on Baxter Street near the intersection of Baxter and Market Streets in Lima, Ohio.
4. While [Rick] was walking on the sidewalk he stepped on a circular metal plate which was covered by rocks so that it could not be readily seen.
5. The metal plate on which [Rick] stepped was covering a circular hole in the sidewalk.
6. The metal plate was not properly secured and when [Rick] stepped on the plate, the plate moved and [Rick‘s] right leg entered the hole causing him to fall down and sustain bodily injuries. COUNT I
7. The City of Lima undertook a construction project whereby they ordered, completed and supervised work being done to the sidewalk and street, near the corner of Baxter and Market Streets in Lima Ohio [sic]. This construction was ongoing at the time [Rick] fell and injured himself.
8. As a part of this project, a metal plate, covering a hole in the sidewalk on Baxter Street was placed on top of the hole and was not secured.
9. The metal plate was not properly secured and when [Rick] stepped on the plate, the plate moved and [Rick‘s] right leg entered the hole causing him to fall down and sustain bodily injuries.
(Id. at ¶ 3-9). Based on these allegations, the Mains asserted a count of negligence against the City, and Dorothy alleged a count of loss of consortium against the City. (Id. at ¶ 13, 33). The Mains also asserted counts of negligence, and Dorothy also asserted counts of loss of consortium, against 1127 Construction and the John Doe defendants. (Id. at ¶ 21, 29, 33).
{¶4} On June 16, 2014, the City filed a motion to dismiss the Mains’ complaint and 1127 Construction‘s cross-claim under
{¶5} On June 23, 2014, the Mains moved for leave to file an amended complaint to add defendant-appellee, The East Ohio Gas Company (“East Ohio“), as a defendant. (Doc. No. 11). On July 7, 2014, the trial court granted the Mains leave to file an amended complaint. (Doc. No. 17). The Mains filed their amended complaint on July 21, 2014. (Doc. No. 24). The factual allegations excerpted above from the original complaint remained unchanged in the amended complaint. (Id. at ¶ 3-9).
{¶7} On August 13, 2014, 1127 Construction filed its answer to the amended complaint. (Doc. No. 32).
{¶8} Also on August 13, 2014, the trial court granted the City‘s motion to dismiss, dismissed the amended complaint as to the City and 1127 Construction‘s cross-claim against the City, and determined “that there is no just reason for delay.” (Doc. No. 33).
{¶9} On September 10, 2014, the Mains filed a notice of appeal.1 (Doc. No. 39). They raise one assignment of error for our review.
Assignment of Error
The trial court erred in granting Appellee‘s
{¶10} In their assignment of error, the Mains argue that the trial court erred in granting the City‘s
{¶11} “An appellate court reviews de novo the trial court‘s decision to grant or deny a
{¶12}
{¶13} Statutory immunity, including political-subdivision immunity, is an affirmative defense. 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). Ohio is a notice-pleading state, so “a
{¶14} Because affirmative defenses typically rely on matters outside the complaint, they normally cannot be raised successfully in a
{¶15} It is the law of this court that the affirmative defense of immunity under
{¶16} In this case, the parties do not dispute that the City is a political subdivision generally immune from liability. Rather, their dispute lies in the second tier of the analysis. Specifically, the parties dispute whether the Mains’ amended complaint alleges a set of facts under which the Mains might plausibly demonstrate that the exception found in
{¶17}
{¶18} A “proprietary function” includes, among other functions, “The establishment, maintenance, and operation of a utility, including, but not limited to, * * * a municipal corporation water supply system * * *,” and, “The maintenance, destruction, operation, and upkeep of a sewer system * * *.”
{¶19} The face of the Mains’ amended complaint obviously and conclusively establishes that the City is immune because it engaged in a governmental function, for which it cannot be liable under the
{¶20} Under
{¶21} In support of their position, the Mains cite three cases, all of which are distinguishable. The Mains rely heavily on Scott, in which the plaintiff alleged that “while walking on a sidewalk * * *, he stepped on an ‘improperly attached’ manhole cover, causing his leg to drop into the manhole.” 192 Ohio App.3d 465, 2011-Ohio-677, at ¶ 2, 11. The plaintiff also “alleged that the city ‘negligently allowed the manhole cover to become improperly anchored where a pedestrian * * * would be likely to injure himself.‘” Id. The Tenth District Court of Appeals inferred that the plaintiff alleged “negligence with respect to the city‘s maintenance of the underlying support for the manhole cover” and held that the trial court erred by granting the city‘s motion to dismiss because “it is not beyond doubt that [the plaintiff] could prove a set of facts, consistent with his complaint, establishing liability on the part of the city for negligence with respect to a proprietary function.” Id. at ¶ 16, 18.
{¶23} Finally, the Mains cite Parker v. Distel Construction, Inc., in which the plaintiff “fell into an approximately twenty-five inch hole. The hole is located at the side of [the political subdivision‘s] water meter * * *.” 4th Dist. Jackson No. 10CA18, 2011-Ohio-4727, ¶ 2. On appeal, the political subdivision argued “that the
{¶24} Unlike the allegations in Scott, Fedarko, and Parker, the Mains’ allegations in their amended complaint relate only to an improperly secured “circular metal plate” covering a “circular hole in the sidewalk.” The Mains’ amended complaint refers only to a sidewalk and a street. Unlike in Scott, Fedarko, and Parker, the Mains make no allegations concerning a manhole, a manhole cover, a water-meter vault, a water-meter-vault lid, or a sewer system. In Scott, for example, the plaintiff‘s allegation that the manhole cover was improperly attached was critical, because it allowed the Tenth District to infer “negligence relating to the underlying portion of the sewer supporting the manhole cover.” (Emphasis added.) 192 Ohio App.3d 465, 2011-Ohio-677, at ¶ 16. Judging by the allegations in the Mains’ amended complaint and reasonable inferences based on those allegations, the alleged defect concerns only the sidewalk, not a proprietary function.
{¶25} For the reasons above, we overrule the Mains’ assignment of error.
Judgment Affirmed
WILLAMOWSKI, J., concurs in Judgment Only.
RICK MAIN, ET AL., PLAINTIFFS-APPELLANTS, v. CITY OF LIMA, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 1-14-42
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
ROGERS, P.J., dissents.
{¶27} The holding of the majority, allowing statutory immunity to be considered on a
{¶28} To reach its holding, the majority rejects notice pleading and relies on an affirmative defense that has not been pled as required by
{¶29} As I have previously expressed in my separate concurrences in Finn v. James A. Rhodes State College, 191 Ohio App.3d 634, 2010-Ohio-6265 (3d
{¶30}
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1.
Additionally,
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, want of consideration for a negotiable instrument, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
{¶31} The clear, unambiguous, and unequivocal requirement of this language is that any affirmative defense, and any defense that constitutes an avoidance of liability, must be specifically pleaded as an affirmative defense.
{¶32} I further note that the Supreme Court of Ohio has defined an affirmative defense as:
a new matter which, assuming the complaint to be true, constitutes a defense to it * * * [and] “any defensive matter in the nature of a confession and avoidance. It admits that the plaintiff has a claim (the ‘confession‘) but asserts some legal reason why the plaintiff cannot have any recovery on that claim (the ‘avoidance‘).”
State ex rel. The Plain Dealer Publishing Co. v. City of Cleveland, 75 Ohio St.3d 31, 33 (1996), citing Davis v. Cincinnati, Inc., 81 Ohio App.3d 116, 119 (9th Dist.1991), Black‘s Law Dictionary 60 (6th Ed.1990), 1 Klein, Brown & Murtaugh, Baldwin‘s Ohio Civil Practice 33, T. 13.03 (1988). Logically, because the affirmative defense includes the confession, it is incompatible with the
{¶33} I believe the trial court and the majority in this court have ignored the obvious distinction between the “failure to state a claim upon which relief can be granted” and matters “constituting an avoidance or affirmative defense.” See
{¶34}
{¶36} Moreover, statutes and other relevant circumstances are seldom contained in a complaint. Obviously, if the trial court may only consider the
{¶37} “A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint.” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992). In order for a trial court to grant a motion to dismiss for failure to state a claim upon which relief may be granted, “it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” O‘Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. In resolving a
{¶38} While a court cannot adjudicate the merits of an affirmative defense of political subdivision immunity by way of a
{¶39} In essence, the majority recognizes that “normally” affirmative defenses should not be asserted in a
{¶40} If amendments are to be made to the Ohio Rules of Civil Procedure, they must be made through the proper procedure. In 1968, the citizens of Ohio passed the Modern Courts Amendment to Article IV of the Ohio Constitution. See O‘Connor, The Ohio Modern Courts Amendment: 45 Years of Progress, 76 Alb.L.Rev. 1963, 1964 (2013). Pursuant to this amendment, the Supreme Court of Ohio created the Commission on the Rules of Practice and Procedure, which reviews and recommends amendments to the Rules of Civil Procedure. These proposed amendments go through two separate rounds of public comments before the Supreme Court can approve the amendments. The General Assembly then has the opportunity to enact a concurrent resolution of disapproval for all, or a portion of, the amendments the Supreme Court has proposed.
{¶42} Even if this judicially created “exception” exists, I would find that the complaint does not “obviously” or “conclusively” establish that the City is entitled to political subdivision immunity. It must be reiterated that Ohio is a notice-pleading state. Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008-Ohio-7042, ¶ 5 (4th Dist.). Consequently, “Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity.” City of Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, ¶ 29. Further, “a plaintiff ‘is
{¶43} A plaintiff is not required to anticipate all possible defenses, let alone affirmative defenses. See Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.2012) (“What a complaint must plead is enough to show that the claim for relief is plausible. Complaints need not anticipate defenses and attempt to defeat them.“); see also Owner Operator Indep. Drivers Assn., Inc. v. Comercia Bank, 540 F.Supp.2d 925, 929 (S.D. Ohio 2008) (“Ordinarily, dismissing claims * * * under Rule 12(b)(6) is disfavored because plaintiffs have no duty to plead facts negating an affirmative defense * * *.“). Therefore, a plaintiff is not required to include in the complaint all circumstances which might negate potential affirmative defenses; and which can also be waived by failure to plead them. See Reed v. Multi-Cty. Juvenile Sys., 7th Dist. Columbiana No. 09 CO 27, 2010-Ohio-6602, ¶ 94 (finding that employees waived immunity defense by failing to raise it in their answer and amended answer); O‘Brien v. City of Olmstead Falls, 8th Dist. Cuyahoga Nos. 89966, 90336, 2008-Ohio-2658, ¶ 13 (finding that under
{¶44} Here, the Mains alleged that a circular hole in a city sidewalk caused Rick to fall, causing him injuries. It is possible that this hole in the sidewalk was an access point to the water supply system, which would be a proprietary function and an exception to the political subdivision immunity statute. This set of facts would be consistent with what was pleaded in the complaint and was sufficient to put the City on notice of the Mains’ allegations.
{¶45} The majority holds that the Mains’ complaint was properly dismissed because it did not state “manhole cover” anywhere within its complaint. (Majority Opin., ¶ 24). However, the complaint describes a “manhole cover” without explicitly stating it was a “manhole cover.” While I agree that the complaint could have been worded better, it does not “obviously” or “conclusively” establish that the hole in the sidewalk that Rick fell into was not a manhole cover and became unattached due to the negligent upkeep of the City‘s sewer system. Indeed, the
{¶46} The obvious advantage to the City in relying on a
{¶47} Under the current standard of review, we construe all reasonable inferences in favor of the party opposing the motion to dismiss. I think it is reasonable to infer that something described as a circular metal plate is a “manhole cover,” and I also think it is reasonable to infer that such plate became unattached due to some sort of negligent upkeep of the City‘s water system. It does not appear beyond doubt that the Mains cannot prove these facts at a later stage in the proceedings. Nor do I think it was necessary for the Mains to anticipate an affirmative defense in its complaint that could have very well been waived by the City.
{¶48} Lastly, I note that the majority has raised the issue of this court‘s precedent, and similar holdings of other courts. To that I respond that my oath of office commits me to support the Constitution of the United States, and the Constitution of the State of Ohio. Nowhere in my oath have I committed to
{¶49} In conclusion, it is my position that an affirmative defense cannot be raised by a
/jlr
Notes
(Emphasis added.) Id. at 637-638.A plaintiff whose allegations show that there is an airtight defense has pleaded himself out of court, and the judge may dismiss the suit on the pleadings under Rule 12(c). This comes to the same thing as a dismissal under Rule 12(b)(6), and opinions, including some by this court, often use the two interchangeably. But in principle a complaint that alleges an impenetrable defense to what would otherwise be a good claim should be dismissed (on proper motion) under Rule 12(c), not Rule 12(b)(6). After all, the defendants may waive or forfeit their defense, and then the case should proceed.