[Cite as Barge v. St. Bernard, 195 Ohio App.3d 28, 2011-Ohio-3573.]




                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO


BARGE et al.,                                    :         APPEAL NO. C-100764
                                                           TRIAL NO. A-1005718
       Appellees,                                :

  v.                                             :         O P I N I O N.

CITY OF ST. BERNARD,                             :
       Appellant.                                :


Civil Appeal From: Hamilton County Court of Common Pleas


Judgment Appealed From Is: Affirmed in Part, Reversed and Final Judgment
                           Entered in Part, and Cause Remanded


Date of Judgment Entry on Appeal: July 22, 2011


      Eric C. Deters & Associates, P.S.C., Eric C. Deters, Charles T. Lester Jr., and
Laura Tholke, for appellees.

       Taft, Stettinius & Hollister, L.L.P., Kim K. Burke, and Kristen L. Safier, for
appellant.



        H ILDEBRANDT , Judge.

        {¶ 1}    The defendant-appellant, city of St. Bernard, appeals the judgment of

the Hamilton County Court of Common Pleas denying its motion to dismiss in a case

involving the operation of a landfill.
                        OHIO FIRST DISTRICT COURT OF APPEALS



                               The Former Landfill Site

        {¶ 2} The plaintiffs-appellees, Richard Barge, Thomas Barge, Kathleen

Barge, Robert Craddock, Deborah Craddock, Norma Kennedy, Michael Ramsey,

Stephanie Ramsey, James Rickenbaugh, Mindy Rickenbaugh, Robert Schrenk,

Sandy Schrenk, Jan Shrader, Jackie Shrader, Kathy Sinclair, Gregg Ziegler, and

Molly Ziegler, own homes in the vicinity of Lytle Park in St. Bernard. For a long

period of time ending in 1985, the park had been the site of a landfill operated by the

city.

        {¶ 3} In 2010, the appellees filed a class-action complaint alleging that

dangerous levels of methane and volatile organic compounds (“VOCs”) continued to

emanate from the former landfill property to the detriment of the appellees and

similarly situated homeowners. According to the complaint, the gases had been

emitted at such high levels that they had been determined to be hazardous by the

director of the Ohio Environmental Protection Agency.

        {¶ 4} The appellees alleged that the city was liable for the emanations

because it had accepted “domestic waste, commercial waste, industrial waste, and

demolition waste” and that it had “allowed, or failed to prevent, industrial liquid

waste to be deposited at the landfill.”

        {¶ 5} The appellees set forth causes of action for negligence, trespass, and

nuisance, claiming that the city’s actions or omissions had endangered their “health,

comfort and safety” and had damaged their real property.

        {¶ 6} The city filed a motion to dismiss, asserting that it was immune from

liability under R.C. Chapter 2744. The trial court overruled the motion. In a single

assignment of error, the city now contends that the trial court erred in denying its

motion to dismiss.




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                        OHIO FIRST DISTRICT COURT OF APPEALS


                                 The Motion to Dismiss


       {¶ 7}    In ruling on a motion made under Civ.R. 12(B)(6), the trial court must

accept as true all factual allegations made in the complaint and draw all reasonable

inferences in favor of the nonmoving party.1 The court may dismiss a complaint

under Civ.R. 12(B)(6) only when the plaintiff can prove no set of facts that would

entitle the plaintiff to relief.2 An appellate court’s review of a ruling on a motion to

dismiss under Civ.R. 12(B)(6) is conducted de novo.3

       {¶ 8} To decide whether a political subdivision is immune from liability under

R.C. 2744.02, courts use a three-tiered analysis.4 In the first tier, a general grant of

immunity is provided: “[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.”5

       {¶ 9} In the second tier of the analysis, a court must determine whether any

of the five exceptions to immunity listed in R.C. 2744.02(B) applies.6 If any exception

applies to impose liability, the third tier of the analysis focuses on whether any of the

defenses contained in R.C. 2744.03 applies to reinstate immunity.7

                   Landfill: Governmental or Proprietary Function?


       {¶ 10} We begin with a discussion of the appellees’ negligence claim.




1 Mann v. Cincinnati Enquirer, 1st Dist. No. C-090747, 2010-Ohio-3963, ¶ 11, jurisdictional
motion overruled, 127 Ohio St.3d 1504, 2011-Ohio-19, 939 N.E.2d 1267.
2 O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 327 N.E.2d 753,
syllabus.
3 Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.
4 Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10.
5 R.C. 2744.02(A)(1).
6 Elston at ¶ 11.
7 Id. at ¶ 12.




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                             OHIO FIRST DISTRICT COURT OF APPEALS



          {¶ 11} The functions of a municipality are divided into governmental and

proprietary functions.8 The appellees contend that an exception to immunity exists

under R.C. 2744.02(B)(2), which provides that “[e]xcept as otherwise provided in

sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for

injury, death, or loss to person or property caused by the negligent performance of acts

by their employees with respect to proprietary functions of the political subdivisions.”

The city, on the other hand, argues that the operation of the landfill was a governmental

function and that the exception in R.C. 2744.02(B)(2) therefore does not apply.

          {¶ 12} Deciding the issue requires the untangling of a number of statutory

provisions.      Under R.C. 2744.01(C)(2), the term “governmental function” includes

“[t]he collection and disposal of solid wastes, as defined in section 3734.01 of the

Revised Code, including, but not limited to, the operation of solid waste disposal

facilities, as ‘facilities’ is defined in that section, and the collection and management of

hazardous waste generated by households. As used in division (C)(2)(k) of this section,

‘hazardous waste generated by households’ means solid waste originally generated by

individual households that is listed specifically as hazardous waste in or exhibits one or

more characteristics of hazardous waste as defined by rules adopted under section

3734.12 of the Revised Code, but that is excluded from regulation as a hazardous waste

by those rules.”9

          {¶ 13} R.C. 3734.01(E), in turn, defines “solid wastes” as “such unwanted

residual solid or semisolid material as results from industrial, commercial, agricultural,

and community operations, excluding earth or material from construction, mining, or

demolition operations, or other waste materials of the type that normally would be

included in demolition debris, nontoxic fly ash and bottom ash, including at least ash


8   R.C. 2744.02(A)(1).
9   R.C. 2744.01(C)(2)(k).


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                        OHIO FIRST DISTRICT COURT OF APPEALS



that results from the combustion of coal and ash that results from the combustion of

coal in combination with scrap tires where scrap tires comprise not more than fifty

percent of heat input in any month, spent nontoxic foundry sand, and slag and other

substances that are not harmful or inimical to public health, and includes, but is not

limited to, garbage, scrap tires, combustible and noncombustible material, street dirt,

and debris. ‘Solid wastes’ does not include any material that is an infectious waste or a

hazardous waste.”

       {¶ 14} Also, hazardous wastes are excluded from the definition of “solid

wastes.” “Hazardous waste” is defined in R.C. 3734.01(J) as “any waste or combination

of wastes in solid, liquid, semisolid, or contained gaseous form that in the

determination of the director, because of its quantity, concentration, or physical or

chemical characteristics, may do either of the following: (1) [c]ause or significantly

contribute to an increase in mortality or an increase in serious irreversible or

incapacitating reversible illness; (2) [p]ose a substantial present or potential hazard to

human health or safety or to the environment when improperly stored, treated,

transported, disposed of, or otherwise managed.”

       {¶ 15} Thus, under R.C. 3734.01, commercial and industrial wastes are

included in the definition of “solid wastes,” but demolition waste is excluded. And

though liquid waste is not specifically addressed, it appears self-evident that such

wastes are not included in the definition of solid wastes. Finally, hazardous waste is

excluded unless it is produced by individual households.

       {¶ 16} In this case, the appellees alleged facts that would place the landfill

outside the definition of a governmental function. The appellees alleged that the city

had accepted both demolition waste and industrial liquid waste at the landfill. The

allegations also indicated that the materials stored at the landfill were hazardous in that




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                             OHIO FIRST DISTRICT COURT OF APPEALS



they produced methane and VOCs in amounts that threatened the safety and health of

the surrounding residents. According to the complaint, the production of such gases

had been identified as hazardous by the director of the Ohio Environmental Protection

Agency. And though the collection and disposal of “hazardous waste generated by

households” is defined as a governmental function, the allegations in the appellees’

complaint indicate that the wastes stored at the landfill came from sources other than

households.

           {¶ 17} Thus, the appellees alleged that the city accepted three types of waste

that were not classified as “solid waste” under R.C. 2744.01(C)(2)(k): demolition waste,

liquid industrial waste, and hazardous waste.                 For this reason, the appellees’

allegations, accepted as true, would place the operation of the landfill outside the ambit

of R.C. 2744.01(C)(2)(k) and would place it within the definition of a proprietary

function.

           {¶ 18} The city does not assert that any of the defenses under R.C. 2744.03

apply to this case. Thus, we conclude that the appellees have alleged sufficient facts

to withstand a motion to dismiss on the issue of immunity with respect to their

negligence claim.

                                     Trespass and Nuisance


           {¶ 19} Next we address the appellees’ claims for trespass and nuisance. As this

court has held, “[t]he exceptions of R.C. 2744.02(B)(1) through (B)(4) are limited to

negligent conduct.”10         Because trespass is an intentional tort, the exceptions to

immunity under the statute do not apply.11 And this court has recently held that R.C.




10   See Bucey v. Carlisle, 1st Dist. No. C-090252, 2010-Ohio-2262, ¶ 27.
11   See Sisler v. Lancaster, 5th Dist. No. 09-CA-47, 2010-Ohio-3039, ¶ 26.


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                            OHIO FIRST DISTRICT COURT OF APPEALS



2744.02 no longer imposes liability on a municipality for nuisance.12 The trial court

therefore erred in denying the motion to dismiss the trespass and nuisance claims.

                                           Conclusion


          {¶ 20} The judgment of the trial court is affirmed with respect to the

appellees’ negligence claim, and the case is remanded for further proceedings. The

judgment is reversed with respect to the claims for trespass and nuisance, and

judgment is hereby entered in favor of the city on those claims.

                                                                       Judgment accordingly.



DINKELACKER, P.J., and CUNNINGHAM, J., concur.




12   Vonderhaar v. Cincinnati, 191 Ohio App.3d 229, 2010-Ohio-6289, 945 N.E.2d 603, ¶ 31.


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