Sims v. ClevelandSims v. Cleveland
JOHNETTA SIMS, PLAINTIFF-APPELLANT vs. CITY OF CLEVELAND, DEFENDANT-APPELLEE
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-671962
RELEASED: September 10, 2009
JOURNALIZED:
Daniel A. Starett
Seaman Garson, LLC
614 West Superior Avenue
Suite 1600
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert J. Triozzi
Director of Law
William F. Gibson
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue - Room 106
Cleveland, Ohio 44114-1077
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant Johnetta Sims (“Sims”) appeals the decision of the trial court that granted appellee City of Cleveland‘s (“the City”) motion to dismiss based on sovereign immunity. After a review of the record and pertinent law, we affirm.
{¶ 2} The following facts give rise to this appeal.
{¶ 3} Sims alleged that, on October 4, 2006, she exited her vehicle on East 134th Street, in Cleveland, and stepped into a hole in the tree lawn, resulting in significant injuries. On September 29, 2008, Sims filed suit against the City alleging that it was negligent in digging and maintaining the hole in the tree lawn. On October 14, 2008, the City filed an answer, asserting several affirmative defenses that included sovereign immunity.
{¶ 4} On November 13, 2008, the City filed its motion to dismiss arguing that Sims‘s claims were precluded by sovereign immunity. On November 19, 2008, Sims filed a brief in opposition. On December 31, 2008, the trial court granted the City‘s motion and concluded that Sims‘s claims were barred by sovereign immunity pursuant to
{¶ 5} Sims appeals, asserting two assignments of error for our review. As both assignments of error relate to the trial court‘s granting of the motion to dismiss pursuant to sovereign immunity, we will address them together.
“Pursuant to
Rev. Code ¶2744.02 , Defendant-Appellee City of Cleveland has failed to establish that the acts giving rise to the Plaintiff-Appellant‘s Complaint were the result of a propriety or governmental function.”“Pursuant to
Rev. Code _2744.02 , Defendant-Appellee City of Cleveland has failed to establish that the facts alleged in the Complaint do not qualify for one of the exceptions to the doctrine of sovereign immunity.”
{¶ 6} Sims argues that the City has the burden of demonstrating that it is entitled to sovereign immunity. Sims contends this issue was not appropriate for a motion to dismiss because this issue requires the court to look at evidence outside of the pleadings. The City argues that it is presumed to be immune from liability, unless the appellant can demonstrate a statutorily defined exception applies. For the following reasons we agree with the City.
{¶ 7} An appellate court reviews the trial court‘s decision on a motion to dismiss de novo. Mackey v. Luskin, Cuyahoga App. No. 88874, 2007-Ohio-5844, at ¶13. Therefore, we are not bound to defer to the determination of the trial court. Garofalo v. Chicago Title Ins. Co. (1995), 104 Ohio App.3d 95, 104, 661 N.E.2d 218. This court must review the complaint and reevaluate whether dismissal was appropriate. Id.
{¶ 8} Before the trial court can grant a motion to dismiss “it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recover.” Garofolo, supra, citing York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 573 N.E.2d 1063. The trial court is required to presume all factual allegations in the complaint as true and to make all reasonable inferences in favor of the nonmoving party. Perez v. Cleveland (1993), 66 Ohio St.3d 397, 613 N.E.2d 199; Walsh v. Village of Mayfield, Cuyahoga App. No. 92309, 2009-Ohio-2377, at ¶8.
{¶ 9} When reviewing the City‘s motion to dismiss, we will assume the allegations surrounding Sims‘s injuries as outlined in the complaint to be true. The complaint alleged Sims fell in a hole created by the City, which negligently maintained it and failed to warn individuals of its danger. Even assuming these facts as true, Sims cannot maintain a claim entitling her to relief.
{¶ 10} In Greene Cty. Agricultural Soc. v. Liming (2000), 89 Ohio St.3d 551, 557, 2000-Ohio-486, 733 N.E.2d 1141, the Ohio Supreme Court outlined a three-tier analysis required for determining sovereign immunity when it stated:
“
R.C. Chapter 2744 sets out the method of analysis, which can be viewed as involving three tiers, for determining a political subdivision‘s immunity from liability. First,R.C. 2744.02(A)(1) sets out a general rule that political subdivisions are not liable in damages. In setting out this rule,R.C. 2744.02(A)(1) classifies the functions of political subdivisions into governmental and proprietary functions and states that the general rule of immunity is not absolute, but is limited by the provisions ofR.C. 2744.02(B) , which details when a political subdivison is not immune. Thus, the relevant point of analysis (thesecond tier) then becomes whether any of the exceptions in R.C. 2744.02(B) apply. Furthermore, if any ofR.C. 2744.02(B) ‘s exceptions are found to apply, a consideration of the application ofR.C. 2744.03 becomes relevant, as the third tier of analysis.”
{¶ 11} In order to meet the first tier, the defendant must establish that it is a political subdivision. Young v. Genie Industries United States, Cuyahoga App. No. 89665, 2008-Ohio-929, at ¶13, citing Elston v. Howland Local Schools, 113 Ohio St.3d 314, 317, 2007-Ohio-2070, 865 N.E.2d 845.
{¶ 12} Under the first tier of the analysis, it is presumed that if the defendant is a political subdivision immunity applies. Immunity is construed broadly and limited only by the specific statutory exceptions enumerated in
{¶ 14}
{¶ 15} Sims argues that the City has failed to demonstrate that none of the exceptions to sovereign immunity are applicable. However,
{¶ 16} Sims fails to state which exception to sovereign immunity would be applicable in this case. Instead, she argues that because the City failed to warn individuals of the dangerous hole in the tree lawn, its conduct was wanton or reckless as specified in
{¶ 17} Taking all of Sims‘s allegations in the complaint as true, she has still failed to state a claim on which relief can be granted. The City is immune from liability absent a showing from Sims that one of the five enumerated exceptions apply, which Sims has failed to do
{¶ 19} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, PRESIDING JUDGE
PATRICIA A. BLACKMON, J., and
LARRY A. JONES J., CONCUR