[Cite as Riscatti v. Prime Properties Ltd. Partnership, 2012-Ohio-2921.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 97270 and 97274




                      ALESSANDRA RISCATTI, ET AL.
                                                             PLAINTIFFS-APPELLEES

                                                      vs.


                        PRIME PROPERTIES LIMITED
                           PARTNERSHIP, ET AL.

                                                             DEFENDANTS-APPELLANTS




                                             JUDGMENT:
                                              AFFIRMED


                                      Civil Appeals from the
                               Cuyahoga County Common Pleas Court
                               Case Nos. CV-714827 and CV-735966

        BEFORE:            Boyle, J., Stewart, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                            June 28, 2012
ATTORNEYS FOR APPELLANTS

For Cuyahoga County

William D. Mason
Cuyahoga County Prosecutor
Michael A. Dolan
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

For Northeast Ohio Regional Sewer District

Regina M. Massetti
Julie Blair
Northeast Ohio Regional Sewer District
3800 Euclid Avenue
Cleveland, Ohio 44115


ATTORNEYS FOR APPELLEES

For Alessandra Riscatti, et al.

Drew Legando
Jack Landskroner
Landskroner, Grieco, Madden, LLC
1360 West Ninth Street, Suite 200
Cleveland, Ohio 44113-1254

Stephanie Brooks
Steve Baughman Jensen
Allen M. Stewart
Allen Stewart, P.C.
325 North St. Paul Street
Suite 2750
Dallas, Texas 75201
Thomas C. Merriman
1360 West 9th Street
Suite 200
12th Floor
Cleveland, Ohio 44113

Chris Nidel
Nidel Law, P.L.L.C.
2002 Massachusetts Avenue, N.W.
Suite 3
Washington, D.C. 20036

For High Point Marathon, Ltd.

Waheeba Abu-Zahrieh
P.O. Box 360214
Strongsville, Ohio 44136

For City of Parma

Timothy G. Dobeck
Law Director/Chief Prosecutor
City of Parma
6611 Ridge Road
Parma, Ohio 44129

For Petroleum Underground Storage Tank

Mike DeWine
Ohio Attorney General
Cheryl R. Hawkinson
Assistant Attorney General
Executive Agencies
30 East Broad Street, 26th Floor
Columbus, Ohio 43215-3428

For Prime Properties Limited Partnership

Michael R. Blumenthal
David B. Maxman
Waxman Blumenthal, LLC
29225 Chagrin Boulevard
Suite 350
Cleveland, Ohio 44122

For Speedway Superamerica LLC, et al.

Robert B. Casarona
Christine M. Garritano
Roetzel & Andress, LPA
1375 East Ninth Street
One Cleveland Center, 9th Floor
Cleveland, Ohio 44114

Shane A. Farolino
Roetzel & Andress, LPA
222 South Main Street
Suite 400
Akron, Ohio 44308


For United Petroleum Marketing LLC, et al.

Charles A. Nemer
McCarthy, Lebit, Crystal & Liffman
101 West Prospect Avenue
Suite 1800
Cleveland, Ohio 44115
MARY J. BOYLE, J.:

             {¶1} This court sua sponte consolidated the appeals by defendants-appellants

Cuyahoga County and Northeast Ohio Regional Sewer District (“Sewer District”).1

             {¶2} Cuyahoga County and the Sewer District (collectively referred to as

“defendants”) appeal from a trial court’s judgment denying their motion for judgment on

the pleadings regarding their statute of limitations defense and the trial court’s judgment

denying their motion for summary judgment with respect to the issue of sovereign

immunity.         They raise two assignments of error for our review:

             “[1.] The trial court erred in denying defendants-appellants’ [Civ.R. 12] motions as

the statute of limitations set forth in [R.C.] 2744.04 bars plaintiff’s [sic] claims.

             “[2.] The trial court erred in denying ‘in part’ defendants-appellants’ motion for

summary judgment as the appellant [sic] is immune from liability under [R.C.] 2744.02

and the appellee’s [sic] failed to meet their evidentiary burden under [Civ.R. 56].”

             {¶3} Finding no merit to their arguments, we affirm the decision of the trial

court.

                             Procedural History and Factual Background

             {¶4} Plaintiffs-appellees are current and former residents who live or lived on

State Road in Parma. On August 29, 2009, an explosion occurred in the basement of the


        The city of Parma (“City”) has also appealed, but its appeal will remain separate and not be
         1


consolidated with the County’s and the Sewer District’s appeal. See Riscatti v. Prime Properties, 8th
Dist. No. 97254 (the City’s appeal).
home of plaintiffs Alessandra and Elisabetta Riscatti and Laszlo Beres (“Riscattis”).

According to the complaint, “flames exploded from the sanitary sewer in the basement.”

An investigation revealed that the explosion was caused by concentrated gasoline vapors

that originated from drain pipes connected to underground storage tanks beneath a

Marathon gas station near the Riscattis’ home. The drain pipes, built by Marathon in

1982, were connected to the sanitary sewer main and designed to keep the underground

tank from floating if the ground-water table rose in response to rain or snow melt.              As

the water level within the cavity rose, the drain pipes flushed the excess contents of the

underground storage cavity into the sanitary sewer main.                      Thus, groundwater

contaminated with gasoline from the storage tanks would repeatedly be discharged into

the sewer main, especially during heavy rains.

           {¶5} The City owns the public sanitary sewer lines. But as of May 1, 2008, the

County agreed to provide mainline cleaning and televising services to the sewer lines, and

to provide maintenance of the sewer lines in the public rights of way.

           {¶6} The Sewer District provides sewer maintenance to various municipalities in

the region, but only if the municipality contracts with the Sewer District. The Sewer

District filed a motion to dismiss, asserting that the City never entered into an agreement

with the Sewer District, and thus, the Sewer District never had control or maintenance

responsibilities over the sewer lines in Parma.2



         The trial court denied the Sewer District’s motion to dismiss.   The Sewer District has not
       2


raised this issue on appeal.
       {¶7} Several of the plaintiffs allege that they have smelled gasoline over the

years, and some claim to have smelled gasoline in their homes since 1982. Plaintiffs

assert that they repeatedly complained of the smell to various entities, including the City,

the Sewer District, and the County, but claim they were told that the odors in their home

were not caused by gasoline from the Marathon gas station. According to plaintiffs,

they were told that the odors were caused by “cooking, natural gas, or sewage gas.”

Despite plaintiffs’ complaints, plaintiffs contend that the various entities “made no effort

to determine whether * * * toxic substances originating from the [Marathon station] were

penetrating plaintiffs’ homes.” The gas station was ordered to shut down operations on

September 1, 2009, and the storage tanks were capped.

       {¶8} Plaintiffs brought suit against the owners and operators of the Marathon gas

station (including Marathon Oil Company and Prime Properties Limited Partnership), the

Sewer District, the City, the County, and various other entities, alleging that “reasonable

inspection would have uncovered that the sanitary sewer system was transmitting

[gasoline] to dozens of private homes.”      The various entities filed several motions,

including motions to dismiss and/or motions for judgment on the pleading, asserting

multiple defenses.     Plaintiffs allege in their complaint that defendants’ failure to

undertake reasonable inspection caused their damages.

       {¶9} The County moved for judgment on the pleadings, claiming the statute of

limitations had run.    It further moved for summary judgment based on sovereign

immunity. The Sewer District joined in the County’s motions. The trial court denied
both of the motions. It is from these judgments that defendants appeal, claiming the trial

court erred in doing so.

                                    Statute of Limitations

       {¶10} In their first assignment of error, defendants argue that the trial court erred

when it denied their motion for judgment on the pleadings based on their statute of

limitations defense.

       {¶11} Before we review the merits of this assignment of error, however, we must

first determine whether we have jurisdiction to do so.       Appellate courts have jurisdiction

to review the final orders of inferior courts within their districts. Ohio Constitution,

Article IV, Section 3(B)(2); R.C. 2501.02.      If an order is not final and appealable, then

an appellate court has no jurisdiction to review the matter and it must be dismissed.      See

Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).

In the event that the parties involved in the appeal do not raise this jurisdictional issue, an

appellate court must raise it sua sponte. See Chef Italiano Corp. v. Kent State Univ., 44

Ohio St.3d 86, 541 N.E.2d 64 (1989), syllabus; Whitaker-Merrell Co. v. Geupel Constr.

Co., 29 Ohio St.2d 184, 186, 280 N.E.2d 922 (1972).

       {¶12} An appellate court has jurisdiction to review, affirm, modify, set aside, or

reverse judgments or final orders. R.C. 2501.01. R.C. 2505.02(B) provides that

              [a]n order is a final order that may be reviewed, affirmed, modified,
       or reversed, with or without retrial, when it is one of the following:

             (1) An order that affects a substantial right in an action that in effect
       determines the action and prevents a judgment;
             (2) An order that affects a substantial right made in a special
       proceeding or upon a summary application in an action after judgment;

                (3) An order that vacates or sets aside a judgment or grants a new
       trial;

                (4) An order that grants or denies a provisional remedy * * *;

             (5) An order that determines that an action may or may not be
       maintained as a class action[.]

       {¶13} Generally, a denial of a motion to dismiss is not a final appealable order.

Pannunizio v. Hubbard, 11th Dist. No. 2003-T-0143, 2004-Ohio-3930, ¶ 5.             That is

because “the denial of a motion to dismiss does not determine the primary action or

prevent a judgment.” Huntington Natl. Bank v. Ewing Lumber Co., Inc., 10th Dist. No.

82AP-785, 1983 WL 3450, *1 (Apr. 5, 1983). “A motion for judgment on the pleadings

is the same as a motion to dismiss filed after the pleadings are closed.” Accelerated Sys.

Integration v. Hausser & Taylor, LLP, 8th Dist. No. 88207, 2007-Ohio-2113, ¶ 33.

       {¶14} R.C. 2505.02(B)(1) is the only possibility for a final appealable order in this

case, as none of the other subsections could apply.           Thus, the question we must

determine is whether the trial court’s denial of defendants’ motion for judgment on the

pleadings based on the statute of limitations affected a substantial right of the defendants

such that the denial was a final appealable order.   We find that it did not.

       {¶15} In addressing whether a judgment denying a motion to dismiss based on the

argument that the statute of limitations had expired, the late Chief Justice Thomas J.

Moyer explained (when he was a judge at the Tenth Appellate District):
              The rights protected by statutes of limitations are not irreparably lost
       absent immediate review, but, rather, the prejudice caused by a delayed trial
       and stale evidence may be best assessed after a trial. Our analysis above
       and Ohio law supports the conclusion * * * that the statute of limitations
       seeks to avoid unnecessary, prejudicial, and delayed trials, but does not
       accord an absolute right to be free from trial.

               Prior to the adoption of the Ohio Civil Rules, it was well-settled that
       no final appealable order existed upon the overruling or sustaining of a
       demurrer to pleadings, since such an order, without more, left the action
       still pending in the lower court. Accordingly, Hughes v. Everett
       (App.1955), 129 N.E.2d 531, 71 Ohio Law Abs. 61, and Trunk v. Hertz
       Corp. (App.1964), 200 N.E.2d 894, 95 Ohio Law Abs. 364 [32 O.O.2d
       264], held that the overruling of a demurrer based on the running of the
       statute of limitations was not a final appealable order.

State v. Torco Termite Pest Control, 27 Ohio App.3d 233, 235-236, 500 N.E.2d

401 (10th Dist.1985).

       {¶16} In Hughes v. Zordich, 7th Dist. No. 99 C.A. 167, 2001 WL 1740069 (Apr.

25, 2001), the court addressed the appealability of a denial of a motion to dismiss based

upon the statute of limitations. After acknowledging the constitutional limitations on the

jurisdiction of appellate courts and reviewing the definition of a “final order” set forth in

R.C. 2505.02(B), the court concluded that the trial court’s order did not fit into any of the

categories listed in the statute: “Such a ruling does not determine the action or prevent a

judgment. * * * [S]hould [the appellant] not prevail at trial, she will then have occasion to

appeal that judgment.” Id. at *2.

       {¶17} The fact that defendants are political subdivisions does not change this

analysis.   Although R.C. 2744.02(C) provides that an order denying “a political

subdivision * * * the benefit of an alleged immunity from liability * * * is a final order,”
it says nothing about the statute of limitations defense or any other defense for that

matter.   In Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878,

syllabus, the Ohio Supreme Court held that “[w]hen a trial court denies a motion in which

a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that

order denies the benefit of an alleged immunity and is therefore a final, appealable order

pursuant to R.C. 2744.02(C).” But an appeal from such a decision is limited to the

review of alleged errors in the portion of the trial court’s decision that denied the political

subdivision the benefit of immunity.     See, e.g., CAC Bldg. Properties v. Cleveland, 8th

Dist. No. 91991, 2009-Ohio-1786, ¶ 9, fn. 1; Carter v. Complete Gen. Constr. Co., 10th

Dist. No. 08AP-309, 2008-Ohio-6308, ¶ 8.

       {¶18} Thus, we conclude that an order denying a political subdivision’s motion

based on the statute of limitations defense is not an order denying that political

subdivision “the benefit of alleged immunity.” See also Essman v. Portsmouth, 4th Dist.

No. 08CA3244, 2009-Ohio-3367 (because trial court’s decision denying political

subdivision’s motion based on its statute of limitations defense did not deny the political

subdivision the benefit of R.C. Chapter 2744 immunity, appellate court lacked

jurisdiction to consider it because it was not a final appealable order); Guenther v.

Springfield Twp. Trustees, 2d Dist. No. 2010-CA-114, 2012-Ohio-203 (citing Essman for

the same proposition).

       {¶19} We recognize that the trial court in this case added the Civ.R. 54(B)

language, “no just cause for delay,” in its judgment denying defendants’ motion for
judgment on the pleadings. But “the mere addition of Civ.R. 54(B) language to what is

not a final order does not transform that entry into a final appealable order.” Sason v.

Shepherd, 11th Dist. No. 2007-L-199, 2008-Ohio-173, ¶ 3, citing Wisintainer v. Elcen

Power Strut Co., 67 Ohio St.3d 352, 354, 617 N.E.2d 1136 (1993) (“the phrase ‘no just

reason for delay’ is not a mystical incantation which transforms a nonfinal order into a

final appealable order”). Consequently, the trial court’s invocation of the Civ.R. 54(B)

language does not convert the judgment into a final order.

       {¶20} Accordingly, this court lacks jurisdiction to consider the trial court’s denial

of defendants’ motion for judgment on the pleadings based on the statute of limitations

defense.   The defendants’ first assignment of error is overruled.

                              Summary Judgment Standard

       {¶21} In their second assignment of error, defendants argue that the trial court

erred when it denied their summary judgment motion based on sovereign immunity.

       {¶22} An appellate court reviews a trial court’s decision on a motion for summary

judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d

241 (1996). Summary judgment is appropriate when, construing the evidence most

strongly in favor of the nonmoving party (1) there is no genuine issue of material fact, (2)

the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can

come to but one conclusion, that conclusion being adverse to the nonmoving party.

Civ.R. 56(C); State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191,

672 N.E.2d 654 (1996).
       {¶23} At the outset, we note that plaintiffs contend that the trial court did not rule

on the County’s and the Sewer District’s summary judgment motion, holding it in

abeyance until discovery was completed.           But any order that denies a political

subdivision the benefit of alleged immunity is a final appealable order, even if the order

does not address the issue, as the case here. See DiGiorgio v. Cleveland, 196 Ohio

App.3d 575, 2011-Ohio-5824, 964 N.E.2d 495; Hubbell, 115 Ohio St.3d 77.

Accordingly, we find no procedural irregularity in addressing defendants’ alleged

immunity.

                                     R.C. Chapter 2744

       {¶24} The Supreme Court set forth a three-tiered analysis to determine whether a

political subdivision is immune from tort liability: the first tier is to establish immunity

under R.C. 2744.02(A)(1); the second tier is to analyze whether any of the exceptions to

immunity under R.C. 2744.02(B) apply; if so, then under the third tier, the political

subdivision has the burden of showing that one of the defenses of R.C. 2744.03 applies.

Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998); Hubbard v. Canton

City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶ 10-12.

If a defense applies, then immunity is reinstated. Id.

       {¶25} R.C. 2744.02(A)(1) provides a general grant of immunity as follows: “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.”

      {¶26} R.C. 2744.02(B) lists five exceptions to the general immunity granted to

political subdivisions under R.C. 2744.02(A)(1).      See Ryll v. Columbus Fireworks

Display Co., 95 Ohio St.3d 467, 470, 2002-Ohio-2584, 769 N.E.2d 372, ¶ 25.            The

subsection pertinent to this case, R.C. 2744.02(B)(2), subjects a political subdivision to

liability for “the negligent performance of acts by their employees with respect to

proprietary functions of the political subdivisions.” A “proprietary function” includes

“[t]he maintenance, destruction, operation, and upkeep of a sewer system.”           R.C.

2744.01(G)(2)(d).

      {¶27} Under R.C. 2744.02(B)(2), however, a political subdivision cannot be held

liable for the negligent performance of acts by their employees with respect to a

governmental function.     A “governmental function” includes “[t]he provision or

nonprovision, planning or design, construction or reconstruction of * * * a sewer system.”

 R.C. 2744.01(C)(2)(l).

      {¶28} In the present case, the parties do not dispute the fact that defendants are

political subdivisions and therefore entitled to the general grant of immunity under R.C.

2744.02(A)(1).   Instead, the dispute centers upon whether, under the second prong of the

analysis, an exception to defendants’ blanket immunity applies; specifically, whether R.C.

2744.02(B)(2) applies.
       {¶29}    Plaintiffs   argue   that   their   claims   challenge   the   “post-design,

post-construction negligent conduct of defendants, which failed to inspect the sewer and

to take steps to repair the problem [that] caused the plaintiffs’ damage.”         Plaintiffs

assert that the governmental entities “had a duty to maintain, operate, and upkeep the

sanitary sewer system and or to destroy the offending drain pipes.”      They further allege

that the governmental entities’ negligent failures to inspect the sewer, combined with

their failure to repair or destroy the offending drain pipes that allowed the contamination,

caused the plaintiffs’ injuries.   Thus, plaintiffs argue that defendants were not immune

from liability under R.C. 2744.02 because they negligently performed a proprietary

function, specifically the maintenance of the sewer system, under R.C. 2744.02(B)(2).

       {¶30} Defendants, on the other hand, argue that plaintiffs’ “theory of liability —

that the publicly available sanitary sewerage system vented noxious gases onto plaintiffs’

property and into their homes, challenges the design, not the operation, of the system.”

Thus, defendants contend that they are immune from liability for acts that relate to a

governmental function.

       {¶31} In support of their summary judgment motion, defendants presented an

affidavit of William Schneider, the County’s chief sanitary engineer, who stated that the

Parma sewer system was a gravity-based system.        He averred that gravity-based systems

are designed to facilitate the discharge of household sanitary waste into the public

sanitary sewer system.       Noxious sewer gases are then vented into the environment

through soil stacks in each resident’s home (soil stacks are vent pipes that rise through
each house and extend several feet above the roof).      Defendants contend that plaintiffs

are claiming it is this design — this gravity-based system — that caused their injuries.

          {¶32} Ohio courts have long recognized that a city can be liable for the negligent

maintenance of its sewers. See Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250, 148

N.E. 846 (1925). In Mitchell Mfg., the Supreme Court held “that the construction and

institution of a sewer system is a governmental matter, and that there is no liability for

mere failure to construct sewers.     However, * * * the operation and upkeep of sewers is

not a governmental function, but is a ministerial or proprietary function of the city.” Id.

at 255.

          {¶33} The Supreme Court announced a similar rule in Doud v. Cincinnati, 152

Ohio St. 132, 137, 87 N.E.2d 243 (1949), stating:

                 A municipality is not obliged to construct or maintain sewers, but
          when it does construct or maintain them it becomes its duty to keep them in
          repair and free from conditions which will cause damage to private property
          * * *. The municipality becomes liable for damages caused by its
          negligence in this regard in the same manner and to the same extent as a
          private person under the same circumstances.

          {¶34} “Determining whether an allegation of negligence relates to the

maintenance, operation, or upkeep of a sewer system or, instead, the design, construction,

or reconstruction of a sewer system is not always a simple inquiry.” Essman v.

Portsmouth, 4th Dist. No. 09CA3325, 2010-Ohio-4837, ¶ 32. A complaint is properly

characterized as a maintenance, operation, or upkeep issue when “remedying the sewer

problem would involve little discretion but, instead, would be a matter of routine

maintenance, inspection, repair, removal of obstructions, or general repair of
deterioration.”     (Citations omitted.)       Id.    But a complaint presents a design or

construction issue if “remedying a problem would require a [political subdivision] to, in

essence, redesign or reconstruct the sewer system.”         (Citations omitted.) Id. at ¶ 32-33.

          {¶35} After reviewing the record before us, we conclude that plaintiffs’ complaint

alleges the negligent performance of a proprietary function, not a governmental function.

 Plaintiffs allege that defendants’ failure to inspect and discover the hazardous gasoline

caused their injuries.     Plaintiffs are not alleging that the design of the sanitary sewer

system caused their injuries.        Thus, an exception to immunity applies under R.C.

2744.01(G)(2)(d) because of defendants’ alleged negligence in performing a proprietary

function.

          {¶36} We further conclude that genuine issues of material fact remain, including

questions as to whether defendants’ employees negligently failed to inspect the sanitary

sewer lines, whether defendants were aware or should have been aware of the residents’

complaints, and whether defendants knew or should have known of the alleged

documented gasoline leaks that had occurred at the Marathon station.                If so, then they

had a duty to inspect the sanitary sewer lines to determine if there was an issue with

gasoline being leaked from the Marathon gas station into the main sanitary sewer line. It

is our view that the trial court did not err when it denied defendants’ summary judgment

motion based on genuine issues of material fact remaining as to whether defendants’

employees negligently performed their duty to inspect.3


       Although the Sewer District has not raised this issue as an assignment of error, we note that if
      3
        {¶37} Defendants argue that plaintiffs’ claims fail as a matter of law because there

is no evidence that the sanitary sewer system was malfunctioning in any way. But this

case is not analogous to those cases cited by defendants that find the plaintiffs’ complaint

actually challenges the design of a sewer system, even though it purports to challenge the

maintenance of it. See Essman, 2010-Ohio-4837, and Zimmerman v. Summit Cty., 9th

Dist. No. 17610, 1997 WL 22588 (Jan. 15, 1997).

        {¶38} In Essman, 2010-Ohio-4837, the homeowners alleged that the city

negligently operated the sewer system by failing to monitor the water levels in the system

so as to prevent sewage intrusions onto homeowners’ properties. The sewer system was

not designed to have water monitors.              The court held that the homeowners’ true

complaint (the sewer system should have had water monitors) related to the original

design of the sewer system, a governmental function. Id. at ¶ 47.               The court reasoned

that the city would be required to perform extensive redesigning or reconstructing of the

sewer system to correct the problem. Id. at ¶ 46.

        {¶39} In Zimmerman, the homeowner alleged that the county negligently

maintained and operated the sewer system by dumping sewage into a stream that flowed

across their property. The court disagreed with the homeowner’s characterization of the

issue as negligent maintenance and operation. Id. at *3.                The court found that the

county’s decision to pump sewage and rain water into the stream was a response to the



the Sewer District never had control or maintenance responsibilities over Parma’s sewer lines, then it
should be dismissed from the case.
sewer system’s inability as designed and constructed to handle the volume of materials

that currently passed through it.   Id. The court held that this was not a problem that the

county could remedy through routine maintenance; rather, it would require extensive

redesigning and reconstructing of the system to meet current demands.      Id.

       {¶40} In the present case, however, the sanitary sewer lines were designed to vent

noxious sewer gases, not dangerous gasoline or gasoline vapors. Gasoline entering

plaintiffs’ homes was not caused by defendants constructing or designing the sewer

system.    Further, to correct the problem, defendants would not have been required to

redesign or reconstruct the sewer system.     Upon inspecting the sewer lines, defendants

could have easily discovered that gasoline from the storage tanks was leaking into the

main sewer line, which is exactly what happened. Within just days of the explosion, the

cause was determined. And within days of the explosion, the offending storage tanks

were capped and the gas station ordered to shut down.

       {¶41} Defendants further argue that there are no material questions of fact

remaining because it was not responsible for the maintenance of the residents’ private

sewer lines (the sewer lines that connect from the main sewer line to each residence).   If

the gasoline had not been in the main lines, however, it would not have reached the

plaintiffs’ homes through their private sewer lines. Defendants’ second assignment of

error is overruled.

       Judgment affirmed.

       It is ordered that appellees recover from appellants 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 Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

MELODY J. STEWART, P.J., CONCURS;
KENNETH A. ROCCO, J., DISSENTS WITH SEPARATE OPINION


KENNETH A. ROCCO, J., DISSENTING:

      {¶42} I respectfully dissent from the majority opinion’s disposition of these

appeals. In my view, the majority opinion reads both R.C. Chapter 2744 and the Ohio

Supreme Court’s decisions with respect to that chapter too narrowly. I believe the trial

court’s denial of the defendants’ motion for judgment on the pleadings with respect to its

statute of limitations defense constitutes a final order, because it denied the defendants

“the benefit of an alleged immunity.” Furthermore, I believe the trial court’s decision

was wrong. Consequently, I would reverse the trial court’s decision on that basis and

would enter judgment for the defendants on the appellees’ complaints.

      {¶43} I base my beliefs on the wording of the statutes and on the language the

Ohio Supreme Court uses to interpret those statutes.

      {¶44} R.C. 2744.02(C) states:
       {¶45} “An order that denies a political subdivision or an employee of a political

subdivision the benefit of an alleged immunity from liability as provided in this chapter or

any other provision of the law is a final order.” (Emphasis added.)

       {¶46} The “chapter” includes R.C. 2744.04, which provides:

             (A) An action against a political subdivision to recover damages for

      injury, death, or loss to person or property allegedly caused by any act or

      omission in connection with a governmental or proprietary function,

      whether brought as an original action, cross-claim, counterclaim, third-party

      claim, or claim for subrogation, shall be brought within two years after the

      cause of action accrues, or within any applicable shorter period of time for

      bringing the action provided by the Revised Code. The period of limitation

      contained in this division shall be tolled pursuant to section 2305.16 of the

      Revised Code. This division applies to actions brought against political

      subdivisions by all persons, governmental entities, and the state. (Emphasis

      added.)

      The chapter also contains R.C. 2744.09, which states in pertinent part:

             This chapter does not apply to, and shall not be construed to apply to, the
      following:

             ***

             (B) Civil actions by an employee, or the collective bargaining representative

      of an employee, against his political subdivision relative to any matter that arises
      out of the employment relationship between the employee and the political

      subdivision.

       {¶47} In Sampson v. Cuyahoga Metro. Hous. Auth., 8th Dist. No. 93441,

2010-Ohio-1214, this court found no lack of jurisdiction that prevented a review. I

cannot see the distinction between a denial of immunity based upon a trial court’s

decision that the “defense” contained in R.C. 2744.09 does not apply and a trial court’s

decision that a “defense” contained in R.C. 2744.04 does not apply. Both are decisions

that deny “the benefit of an alleged immunity from liability as provided in this chapter.”

       {¶48} Moreover, in reviewing this court’s decision in Sampson, the Ohio Supreme

Court made no distinction between the “exceptions” and the “defenses” to immunity in

considering the applicability of R.C. 2744.02(C) to the action. Sampson, 131 Ohio St.3d

418, 2012-Ohio-570, - N.E.2d -, ¶ 7. Without question, Sampson determined that a

denial of immunity based upon R.C. 2744.09(B) fell within the scope of a final

appealable order for purposes of immediate review.         R.C. 2505.02 did not enter the

analysis.

       {¶49} This court previously has held that R.C. 2744.04 is a special statute that

applies to tort actions brought against political subdivisions and that prevails over more

general statutes of limitations. Dominion Resource Servs. v. Cleve. Division of Water,

8th Dist. No. 90641, 2008-Ohio-4855, ¶ 6; Read v. Fairview Park, 146 Ohio App.3d 15,

764 N.E.2d 1079 (8th Dist.2001); Fifth Third Bank v. Cope, 162 Ohio App.3d 838,
2005-Ohio-4626, 835 N.E.2d 779 (12th Dist.); see also Summerville v. Forest Park, 128

Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522.

      {¶50} Because R.C. 2744.04 is not only a special statute but also is a part of the

political subdivision “chapter,” I conclude that it falls within the exception to R.C.

2505.02 that is set forth in R.C. 2744.02(C). The following language in Summerville v.

Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 2 and ¶ 38-40

lends support to such a conclusion:

      R.C. Chapter 2744 governs political-subdivision immunity. Pursuant to
      R.C. 2744.02(C), orders denying employees of a political subdivision
      immunity from liability under any provision of law are final, appealable
      orders. * * *

      ***

              * * * The General Assembly enacted R.C. Chapter 2744, stating
      that “the protections afforded to political subdivisions and employees of
      political subdivisions by this act are urgently needed in order to ensure the
      continued orderly operation of local governments and the continued ability
      of local governments to provide public peace, health, and safety services to
      their residents.” Am.Sub.H.B. No. 176, Section 8, 141 Ohio Laws, Part I,
      1733. We noted in Hubbell, 115 Ohio St.3d 77, 2007-Ohio-4839, 873
      N.E.2d 878, that “‘[t]he manifest statutory purpose of R.C. Chapter 2744 is
      the preservation of the fiscal integrity of political subdivisions.’” Id. at ¶ 23,
      quoting Wilson v. Stark Cty. Dept. of Human Servs. (1994), 70 Ohio St.3d
      450, 453, 639 N.E.2d 105.

              We also note that judicial economy is better served by a plain
      reading of R.C. 2744.02(C). Id. at ¶ 24. “‘[D]etermination of whether a
      political subdivision is immune from liability is usually pivotal to the
      ultimate outcome of a lawsuit. Early resolution of the issue of whether a
      political subdivision is immune from liability pursuant to R.C. Chapter
      2744 is beneficial to both of the parties. If the appellate court holds that the
      political subdivision is immune, the litigation can come to an early end,
      with the same outcome that otherwise would have been reached only after
      trial, resulting in a savings to all parties of costs and attorney fees.
      Alternatively, if the appellate court holds that immunity does not apply, that
      early finding will encourage the political subdivision to settle promptly with
      the victim rather than pursue a lengthy trial and appeals. Under either
      scenario, both the plaintiff and the political subdivision may save the time,
      effort, and expense of a trial and appeal, which could take years.’”
      (Emphasis sic.) Id. at ¶ 25, quoting Burger v. Cleveland Hts. (1999), 87
      Ohio St.3d 188, 199-200, 718 N.E.2d 912 (Lundberg Stratton, J.,
      dissenting). “‘As the General Assembly envisioned, the determination of
      immunity could be made prior to investing the time, effort, and expense of
      the courts, attorneys, parties, and witnesses * * *.’” Id. at ¶ 26, quoting
      Burger at 200 (Lundberg Stratton, J., dissenting).

               These policy considerations apply equally whether the immunity in
      question is based on R.C. Chapter 2744 or another provision of the law,
      including federal qualified immunity. Indeed, federal courts have applied a
      similar rationale in holding that orders denying a public official the benefit
      of qualified immunity are final and appealable. See, e.g., Mitchell v.
      Forsyth (1985), 472 U.S. 511, 525-530, 105 S.Ct. 2806, 86 L.Ed.2d 411.
      Qualified immunity “is an immunity from suit rather than a mere defense to
      liability; * * * it is effectively lost if a case is erroneously permitted to go to
      trial.” (Emphasis sic.) Id. at 526. Qualified immunity provides immunity not
      only from liability but from the “consequences” of a suit, including “‘the
      general costs of subjecting officials to the risks of trial-distraction of
      officials from their governmental duties, inhibition of discretionary action,
      and deterrence of able people from public service.’” Id., quoting Harlow v.
      Fitzgerald (1982), 457 U.S. 800, 816, 102 S.Ct. 2727, 73 L.Ed.2d 396.
      Failure to give effect to the language of R.C. 2744.02(C) by barring
      immediate appeal of denials of qualified immunity for alleged violations of
      Section 1983 would defeat the purpose for which the immunity exists.

                                                Conclusion

              Pursuant to R.C. 2744.02(C), an order that denies an employee of a
      political subdivision immunity from liability under any provision of law is a
      final order. * * * (Underscoring added.)

      {¶51} With the foregoing language, compare Supportive Solutions Training

Academy v. Electronic Classroom of Tomorrow, 8th Dist. Nos. 95022 and 95287,

2012-Ohio-1185 (denial of motion simply to amend complaint to include affirmative
defense of sovereign immunity not a final order), and Duncan v. Cuy. Community

College, 8th Dist. No. 97222, 2012-Ohio-1949 (pursuant to R.C. 2744.09(A), denial of

political subdivision’s motion for judgment on pleadings on plaintiff’s breach of contract

claim not final).

       {¶52} The majority opinion relies upon Guenther v. Springfield Twp. Trustees, 2d

Dist. No. 2010-CA-114, 2012-Ohio-203, in determining that the order in this case is not

final and appealable, but Guenther fails to mention the Ohio Supreme Court’s decisions

in either Summerville or Mynes v. Brooks, 124 Ohio St.3d 83, 2009-Ohio-1971, 909

N.E.2d 511. In addition, the majority opinion’s reliance upon Essman v. Portsmouth,

4th Dist. No. 08CA3244, 2009-Ohio-3367, is problematic because Essman predates

Mynes, Summerville, and Sampson, and, too, the trial court in Essman made no Civ.R.

54(B) certification.

       {¶53} In this case, appellees alleged in their amended complaints that defendants

were negligent.     According to R.C. 2744.04, therefore, appellees were required to

commence their actions against the defendants within two years after their cause of action

“accrued.”    Because they did not, I believe the trial court erred in denying the

defendants’ motion for judgment in their favor on the pleadings.

       {¶54} According to the amended complaints, offensive odors caused by gasoline

leaking from the “Tank System” into the State Road sewer line began to enter appellees’

homes through their connections to that line in 1982. Parma did nothing at that time; the

city only “repeatedly” assured them that the smells they experienced “were not caused by
the Tank System,” and “repeatedly advised [them] the gasoline odor came from other

sources.”   Subsequently, appellees complained to the other defendants as well, but

received the same answers Parma gave them.

       {¶55} Appellees sought in this way to plead that all the defendants’ negligence,

i.e., their failure to “maintain” the State Road sewer line, was not fixed in time, but,

rather, constituted a “continuing tort,” as considered in Sexton v. Mason, 117 Ohio St.3d

275, 2008-Ohio-858, 883 N.E.2d 1013.         Appellees’ effort, however, contorted the

applicable analysis.

       {¶56} In Sexton, the Ohio Supreme Court did not consider the tort of negligence;

rather, the court distinguished between a continuing trespass and a completed trespass,

stating as follows:

              The defendant’s ongoing conduct or retention of control is the key to
       distinguishing a continuing trespass from a permanent trespass. We hold
       that a continuing trespass in this context occurs when there is some
       continuing or ongoing allegedly tortious activity attributable to the
       defendant. A permanent trespass occurs when the defendant’s allegedly
       tortious act has been fully accomplished. (Emphasis added.)

       {¶57} The court in Sexton noted that a trespass “typically occurs when a defendant

enters another person’s land * * * .” (Emphasis added.)       The Sexton court reasoned

that a “continuing trespass” thus exists when “force” is “continued by the act” of the

“defendant actor.” This reasoning is in conformity with the common law definition of a

“trespass” as being an “invasion.” Black’s Law Dictionary (4th Ed.1951).

       {¶58} A continuing trespass thus “occurs when there is some continuing or

ongoing tortious activity attributable to the defendant.” Id. “Conversely, a permanent
trespass occurs when the defendant’s tortious act has been fully accomplished. * * *

Thus, the determinative question centers upon the nature of the defendant’s tortious

conduct, not upon the nature of the damage caused by that conduct.” Id. (Emphasis

added.) The Sexton court quoted the following as the applicable analysis:

             A trespass under Ohio law is a continuing trespass only if the trespass itself,
      and not the ongoing injury or harm caused by a past, completed misdeed, is
      continuing. Ongoing conduct is the key to a continuing trespass. Id., citing Sexton
      v. Mason (12th Dist. No. CA2006-02-026), 2007-Ohio-38, at ¶ 17.

      {¶59} Because this language focuses on the nature of the tortious conduct and the

conduct at issue constituted a trespass, the court contemplated continuing action, not

inaction. Proceeding with the foregoing foundation for its decision, Sexton held that a

“discovery rule” applied with respect to damage to property from a trespass. Id., citing

Harris v. Liston, 86 Ohio St.3d 203, 714 N.E.2d 377 (1999). Thus, allegations in a

complaint that allege continuing damage are insufficient. The complaint must “allege

continuing activity” by the defendant. Sexton; compare State ex rel. Doner v. Doty, 130

Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235.

      {¶60} In this case, appellees alleged that toxic substances began entering their

homes from the “Tank System” in 1982. The complaint stated that appellees noticed the

gasoline smells at that time.     The “trespass” onto their properties, therefore, had

commenced.     The gasoline originated from the gas station’s pipes, over which the

defendants had no control, and entered the pipes of appellees’ homes, over which the

defendants had no control. Once the defendants declined to address the alleged problem,

appellees’ cause of action against them had accrued. See, e.g., Luthy v. Dover, 5th Dist.
No. 2011AP030011, 2011-Ohio-4604, ¶ 22 (respondeat superior claim against city barred

by application of R.C. 2744.04 because homeowners’ cause of action accrued when

basement flooded; theory of “permanent trespass” rejected).

       {¶61} Under these circumstances, if, as appellees argued, R.C. 2744.01(G)(2)(d)

applied and created an exception to the defendants’ immunity pursuant to R.C.

2744.02(B)(2), the defendants’ liability for negligence thus occurred as early as 1982;

appellees were put on notice at that time that none of the defendants was willing to

“maintain” the State Road sewer lines to address the offensive smells.           Bauer v.

Brunswick, 9th Dist. No. 11CA0003-M, 2011-Ohio-4877, ¶ 14; Luthy. In other words,

R.C. 2744.04 was triggered. The trespass of the gasoline, originating from the “Tank

System,” apparently continued.

       {¶62} In an effort to overcome the application of R.C. 2744.04 to their claim

against the political subdivisions, appellees therefore conflated the two separate torts of

negligence and trespass. Assuming that the defendants had a duty to investigate the

source of the smells, once they declined to do so, the tort they committed as appellees

alleged in their complaints, i.e., negligence, was complete. See Essman, 4th Dist. No.

09CA3325, 2010-Ohio-4837. Continuing to advise appellees that the gasoline odors did

not come through the sewer lines neither constituted a “trespass” as that word is defined

in law, nor constituted an “activity” that protected appellees from application of the

discovery rule.    State ex rel. Stamper v. Richmond Hts., 8th Dist. No. 94721,

2011-Ohio-4877.
        {¶63} As of the first date that defendants declined to take action, their negligence

accrued. Appellees were on notice to take the initiative themselves to discover the

source of the trespass. Bauer, 9th Dist. No. 11CA0003-M, 2011-Ohio-4877; see also

Luthy, 5th Dist. No. 2011AP030011, 2011-Ohio-4604, ¶ 22-24. Appellees could have

hired, and, indeed, they would have been prudent to hire, a plumbing company, or

contacted the Ohio Environmental Protection Agency, to ascertain whether their sewer

lines contained gasoline.

        {¶64} According to the complaints, therefore, the defendants’ inaction, which

dated more than two years before the explosion, may have been negligent, but it did not

constitute a “continuing violation” for purposes of evading the application of R.C.

2744.04. Stamper, ¶ 27, citing State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d

449, 2010-Ohio-606, 923 N.E.2d 588; Luthy.4 Consequently, I believe the trial court

erred in denying the defendants’ Civ.R. 12(C) motion for judgment on the pleadings.5



        No better example of the “continuing violation” doctrine exists in this case, however, but the
        4


ongoing negligent failure of the owner-operator of the “Tank System” to inspect and replace the faulty
gasoline tanks.

          In so stating, I must disagree with the reasoning set forth by the court in Coleman v. Portage
        5


Cty. Engineer, 191 Ohio App.3d 32, 2010-Ohio-6255, 944 N.E.2d 756, ¶ 63 (11th Dist). The
Coleman court based its analysis on two other decisions that considered the “continuing violation
doctrine,” viz., Kuhnle Bros., Inc. v. Geauga, 103 F.3d 516 (6th Cir.1997) and Painesville Mini
Storage, Inc. v. Painesville, 11th Dist. No. 2008-L-092, 2009-Ohio-3656.
         However, the Coleman court misapplied those cases. In Kuhnle Bros., the county had
passed legislation that affected the plaintiffs on a continuing basis, while in Painesville Mini Storage,
the court rejected the plaintiffs’ claim of “continuing violation.” The Coleman court also failed to
consider when the plaintiffs first were aware of the underlying injury so as to apply R.C. 2744.04, or
whether the underlying injury had been caused by the political subdivision’s continuing actions rather
than its inaction. Moreover, Coleman failed to analyze the situation presented in light of Nicholl and
          {¶65} Based upon my analysis, I would sustain the defendants’ first assignment of

error, thus rendering their second assignment of error moot. App.R. 12(A)(1)(c). I

would reverse the trial court order that denied the defendants’ motion for judgment on the

pleadings based upon R.C. 2744.04, and would enter judgment for the defendants on

appellees’ complaints.




Sexton.
