2007 Ohio 5111 | Ohio Ct. App. | 2007
Lead Opinion
{¶ 1} Appellant, Danielle Moore, appeals from the judgment of the Lorain County Court of Common Pleas granting summary judgment in favor of Appellees, Lorain Metropolitan Housing Authority, et al. This Court reverses.
{¶ 3} On August 17, 2004, Appellant filed a complaint against LMHA, LMHA's Executive Director, Homer Verdin, and John Does, alleging the wrongful death of her two minor children. More specifically, Appellant alleged that LMHA was negligent in removing the only working smoke detector from the apartment without replacing it with a functional smoke detector. Appellant alleged that because LMHA failed to provide a functional smoke detector, Mr. Macarthy was not awakened in time to rescue Dezirae and D'Angelo. On August 8, 2006, the trial court granted summary judgment in favor of LMHA. Appellant timely appealed the trial court's order, raising two assignments of error for our review.
"THE TRIAL COURT IMPROPERLY APPLIED THE REVISED CODE § 2744 ANALYSIS."
{¶ 4} In her first assignment of error, Appellant contends that the trial court improperly applied R.C. 2744 to the within matter. We agree. *3
{¶ 5} This Court reviews an award of summary judgment de novo.Grafton v. Ohio Edison Co. (1996),
{¶ 6} Pursuant to Civil Rule 56(C), summary judgment is proper if:
"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),
50 Ohio St.2d 317 ,327 .
{¶ 7} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996),
{¶ 8} In determining whether a political subdivision is immune from liability, this Court must engage in a three-tier analysis. Cater v.Cleveland (1998),
"[e]xcept 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."
{¶ 9} The second tier involves the five exceptions set forth in R.C.
Proprietary or Governmental Function
{¶ 10} In its decision granting summary judgment in favor of LMHA, the trial court held that "the provision of low-income housing is a governmental function[.]" The trial court cited no case law in support of this conclusion. Upon review of relevant Ohio case law, we find conflicting decisions regarding whether the operation of a public housing project is a governmental function. We begin our analysis by examining the definitional provisions of governmental and proprietary functions set forth in R.C.
"`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."
{¶ 11} Ownership and operation of a public housing facility is not specifically identified in R.C.
{¶ 12} Proprietary functions of political subdivisions are defined in R.C.
*6"a function of a political subdivision that is specified in division (G)(2) of this section or that satisfies both of the following:
"(a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section;
"(b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons."
Ownership and operation of a public housing facility is not identified in R.C.
{¶ 13} LMHA relies on Rhoades v. Cuyahoga Metro. Hous. Auth, 8th Dist. No. 84439,
{¶ 14} McCloud involved an action commenced by a shooting victim against, among others, Eric Nimmer, a Cleveland police officer, and the City of Cleveland for negligence in its training of police officers. McCloud was accidentally shot by Nimmer while Nimmer was visiting him at his home, a metropolitan housing unit. The trial court granted summary judgment in favor of Nimmer and Cleveland. On appeal, McCloud argued that Cleveland should be held liable for Nimmer's actions because he was shot while at his residence, a unit *7
of the Cleveland Metropolitan Housing Authority. McCloud,
{¶ 15} The only analysis the Eighth District undertook inMcCloud with regard to governmental versus proprietary functions was its discussion of the city's act of training police officers. Id. at 536-38. The McCloud court concluded that the city's act of training police officers constituted a governmental function because police services are specifically defined as a governmental function under R.C.
{¶ 16} Appellant relies on the Second District Court of Appeals' decision in Parker v. Dayton Metro. Hous. Auth. (May 31, 1996), 2d Dist. No. 15556, to support her assertion that the provision of public housing is a proprietary function. *8 Parker involved an appeal from a grant of summary judgment in favor of a public housing authority in an action brought by one of its tenants for injuries suffered by her minor child when he fell from an open window in her apartment. Parker filed claims for negligence, recklessness and willful and wanton misconduct of the housing authority for its failure to make repairs on or alterations to the window from which her son fell. Parker alleged that the housing authority knew the window was in need of repair and was accessible to small children.
{¶ 17} The trial court found that the operation of a public housing facility is a governmental function for which the housing authority could not be held liable under R.C.
"Maintenance of a public housing facility is voluntary but it is not a function that is imposed on the state as an obligation of sovereignty. Its benefits are conferred only on the limited part of the population that uses it. The activity promotes the public peace, health, safety, and welfare; however, it is a function which involves activities that are customarily engaged in by nongovernmental persons, in this *9 instance private landlords who rent residential premises to tenants." Id.
However, the Parker court ultimately affirmed summary judgment, finding that the housing authority had discretion to forego installation of window screens and could not be held liable for this discretionary decision.
{¶ 18} Subsequently, the Sixth District Court of Appeals examined this issue in Jones v. Lucas Metro. Hous. Auth. (Aug. 29, 1997), 6th Dist. No. L-96-212. Jones involved a complaint brought by tenants of a subsidized housing complex who were burglarized shortly after asking the housing authority to change the locks on their apartment. The Sixth District, relying on Country Club Hills Homeowners Assn. v. JeffersonMetro. Hous. Auth. (1981),
"LMHA is a landlord. As such, it is involved in an activity which is customarily engaged in by nongovernmental persons. Moreover, even though LMHA may be a governmental entity, being a landlord is not one of the statutorily defined governmental functions. Consequently, I agree with the opinion of the Second District Court of Appeals which held that, `* * * ownership of and operation of a residential public housing facility is not a governmental activity but a proprietary function * * *' subject to the same liability for civil *10 wrongs as any other landlord." Id., at *6 (Sherck, J. concurring), quoting Parker, supra.
{¶ 19} LMHA contends that public housing facilities are mandated by the General Assembly. However, R.C.
"(A) Whenever the director of development has determined that there is need for a housing authority in any portion of any county that comprises two or more political subdivisions or portions of two or more political subdivisions but is less than all the territory within the county, a metropolitan housing authority shall be declared to exist, and the territorial limits of the authority shall be defined, by a letter from the director. The director shall issue a determination from the department of development declaring that there is need for a housing authority within those territorial limits after finding either of the following[.]" (Emphasis added.)
{¶ 20} The statute cited by LMHA, R.C.
{¶ 21} We are also persuaded by the Second District Court of Appeals decision in Parker. In contrast to the Parker decision, theMcCloud and Rhoades courts did not rely on the definitions set forth in R.C.
R.C.
{¶ 22} Appellant argues that the only exception to political subdivision immunity applicable in this case arises out of R.C.
"(5) In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to person or property when civil liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections
2743.02 and5591.37 of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, because that section provides for a criminal penalty, because of a general authorization in that section that a political *12 subdivision may sue and be sued, or because that section uses the term `shall' in a provision pertaining to a political subdivision."
{¶ 23} Appellant contends that LMHA was her landlord and as such, it was subject to the requirements set forth in R.C.
{¶ 24} This Court has implicitly found R.C.
{¶ 25} R.C.
{¶ 26} Homer Verdin, Executive Director of LMHA, testified that a smoke detector was installed in the apartment on October 22, 1998. Mr. Verdin testified that LMHA is required to meet building codes, housing codes and HUD regulations. Mr. Verdin agreed that LMHA is required by state and federal law to provide smoke detectors. He explained that LMHA is obligated to make sure there is an operable smoke detector present. Mr. Verdin stated that LMHA contracted with The Inspection Group, a private company, who performed the required HUD inspections for them.
{¶ 27} Mr. Verdin testified that LMHA protocols for work orders in LMHA housing units required residents or maintenance personnel to call the work order center in order to have work performed. Mr. Verdin acknowledged, however, that situations arise wherein maintenance work is performed without a work order.
{¶ 28} Michael Burnley, a maintenance worker for LMHA, also provided deposition testimony. Mr. Burnley also agreed that he occasionally performed *14 work without a work order. Mr. Burnley testified that he accompanied The Inspection Group employee when he conducted the yearly HUD safety inspections at the Oberlin housing facility in October of 2003. The inspection of the apartment was conducted on October 6, 2003 and The Inspection Group generated a report regarding this inspection on October 8, 2003. Mr. Burnley testified that he remembered testing the smoke detector in the apartment and that it worked. He did not recall having any conversations with Appellant regarding the smoke detector not working. He also conducted a follow-up inspection of the apartment. Mr. Burnley could not recall all the work he did during the follow-up inspection and had not seen a document that identified the work he performed during the follow-up inspection.
{¶ 29} Appellant testified that on the day of the fire, there was no smoke detector present in the apartment. Specifically, Appellant testified as follows:
"Q: When did they take it out?
"A: It was on a Saturday, on Sweetest Day, which would make it the 17th.
* * *
"Q: Who took it out?
"A: Mike [Burnley] came in with a man. And * * * he * * * asked about things that were needed to be done in the house. And the first thing I mentioned was about the smoke detector. And the guy checked it, and then he asked Mike if he had one out on the truck. Mike went outside and looked on the truck and said he didn't have one. And then the guy said that he will replace it later. *15
"Q: And again under oath, your testimony is that this was done on October 17, 2005, is that correct, Sweetest Day, I thought that's what you said?
"A: October 17th of 2003.
"Q: 2003. I'm sorry."
Appellant later testified that no one ever replaced the smoke detector.
{¶ 30} Derrick Macarthy also testified. Mr. Macarthy testified that on the night of October 17, 2003, he relaxed on the couch while Appellant ran errands. He testified that all the children were in bed at this time. He testified that he had not consumed any alcoholic beverages nor taken any drugs on October 17, 2003. Mr. Macarthy eventually fell asleep. Mr. Macarthy testified that he was awakened by the fire. Upon seeing the fire, he grabbed his two oldest children, who were standing by the couch, and took them to the neighbor's house. He testified that he "tried to go back in the house, the flames were right there behind the door that [he] just came out of." Mr. Macarthy testified that he is certain that he did not hear a smoke alarm.
{¶ 31} All the firefighters that testified stated that they did not hear a smoke alarm at any time during their fire suppression efforts. Steven John Chapman, an Oberlin fireman who responded to the fire, testified that he did not hear a smoke alarm when he entered the apartment. He testified that there have been other times that he has responded to house fires where he heard the smoke alarm upon entering the home. Benedict John Ryba, another Oberlin fireman that responded to *16 the scene, testified that he did not hear a smoke alarm. Like Mr. Chapman, he also testified that he has heard smoke alarms when responding to other house fires.
{¶ 32} Dennis Kirin, Oberlin Fire Chief, similarly testified that he did not hear a smoke alarm when he entered the apartment. He also stated that he recalled other instances where he heard smoke alarms during his fire suppression efforts. Mr. Kirin testified that during his inspection of the apartment after the fire, he found some plastic debris on the floor that could possibly have been the smoke detector. However, because of the significant fire damage, he could not confirm that it was actually a piece of the smoke detector. He did not find anything during his investigation that "resembled any remnants of the mechanical or electronic portion of what might be considered a detector." Mr. Kirin also stated that he located the carbon monoxide detector and that it was fully intact. Mr. Kirin testified that in the investigation report, he indicated that he could not determine whether there had been a smoke detector at the apartment. He explained that "after we did the investigation of the interior and we did as much debris searching and removal that we could, we could not ascertain positively that there was a smoke detector in the debris."
{¶ 33} Viewing the testimony in the light most favorable to Appellant, the nonmoving party, we find that Appellant met her reciprocal burden by offering specific evidence to demonstrate a genuine issue of material fact as to whether LMHA complied with statutory requirements that it provide a working smoke *17
detector. Dresher,
"THE TRIAL COURT ERRED IN ITS DETERMINATION OF FACTS, RELYING UPON THE CREDIBILITY OF WITNESSES, HEARSAY AND EVIDENCE WHICH WAS IMPROPER PURSUANT TO RULE 56(C) OF THE OHIO RULES OF CIVIL PROCEDURE."
{¶ 34} In light of our disposition of Appellant's first assignment of error, Appellant's second assignment of error is rendered moot.
Judgment reversed and cause remanded.*18
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, 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(E). 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 Appellees.
WHITMORE, J. CONCURS
Dissenting Opinion
{¶ 36} I respectfully dissent. I believe that the operation of the Lorain Metropolitan Housing Authority is clearly a governmental function. It is created by the legislative branch of the government. It only exists because of the government's declaration that it may exist. It is operated by a political subdivision *19 if the subdivision chooses to operate it on a voluntary basis, pursuant to legislative requirements. It functions to promote health, safety, and welfare of its citizens. Because it exists, it functions for the common good of all citizens by providing housing for those that would otherwise be living on the streets.
{¶ 37} Therefore, I would affirm the trial court's decision finding the Lorain Metropolitan Housing Authority to be protected by governmental immunity. *1