[Cite as Carswell v. Akron , 2019-Ohio-4444.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) LISA CARSWELL, et al. Appellees

v. CITY OF AKRON, et al. Appellants C.A. No. 29321

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2018-05-2026

DECISION AND JOURNAL ENTRY Dated: October 30, 2019

SCHAFER, Judge. {¶1} Defendant-Appellant, City of Akron, appeals the decision of the Summit County Court of Common Pleas denying its motion for j udgment on the pleadings asserting statutory immunity. For the reasons that follow, this Court affirms.

I. {¶1} On August 25, 2017, Plaintiff-Appellee, Li sa Carswell’s, son sustained a fatal gunshot wound to the head while seated in the back of a police cruiser. The claims in this matter

arise from the circumstances surrounding his death. On May 10, 2018, Ms. Carswell filed a complaint for wrongful death both in her capacity as administrator of her son’s estate and individually, as his mother. The complaint asserted six claims against the City, captioned as follows: count one, wrongful death; count two, lo ss of consortium; count three, survival action; count four, spoliation of eviden ce; count seven, state civil rights; count eight, liability for punitive damages. The complaint also asserted claims against the Akron Police Department and2

named as defendants, in both their individual and official capacities, thirteen officers of the Akron Police Department; however, none of these cl aims or parties are at issue in the present appeal. {¶2} Counsel for the City filed a notice of appearance on June 11, 2018, and also

noticed removal of the matter to the federal district court. The district court remanded for lack of jurisdiction. Upon remand, the City filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C). Ms. Carswell opposed the motion. {¶3} On January 23, 2019, the trial court issued an order granting the motion, in part, and denying the motion on the claims at issue in this appeal. In declining to grant judgment based on political subdivision immunity, the trial cour t held that the facts of the complaint were “sufficiently pled to overcome a motion for judgment on the pleadin gs, such that an exception may apply to remove [the City]’s immunity.” {¶4} The City appealed the trial court’s denial of the its motion raising one assignment

of error for our review.

II. Assignment of Error The trial court erred by denying the City[]’s motion for judgment on the pleadings based on the doctrine of political subdivision immunity[.] {¶5} The City contends that it is immune unde r R.C. Chapter 2744 and that the trial court erred in denying its motion for judgment on the pleadings. {¶6} Civ.R. 12(C) provides that, “[a]fter the plead ings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” A motion for judgment on the pleadings pursuant to Civ.R. 12( C) is properly characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief may be granted; therefore, the3

same standard applie s to both motions. Business Data Sys., Inc. v. Figetakis , 9th Dist. Summit No. 22783, 2006-Ohio-1036, ¶ 7. “Civ.R. 12(C) pres ents an onerous burden for litigants and consequently, a trial court must be circumspect in its analysis of Civ.R. 12(C) motions.” Id . at ¶ 10. The trial court must limit its inquiry to the material allegations in the pleadings—accepting those allegations and all reasonable inferences as true—and, if it is clear from the pleadings that plaintiff could prove no set of facts which woul d entitle him to relief, judgment on the pleadings is appropriate as a matter of law. Gawloski v. Miller Brewing Co. , 96 Ohio App.3d 160, 163 (9th Dist.1994). {¶7} Because a Civ.R. 12(C) motion presents only questions of law, our review of the

decision is de novo. White v. King , 147 Ohio St.3d 74, 2016-Ohio-2770, ¶ 13 (2016). “A de novo review requires an independent review of the trial court’s d ecision without any deference to

the trial court’s determination.” State v. Consilio , 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4. Ordinarily, “a judgment overruling a motion for judgment on the pleadings is not a final appealable order.” Thompson v. Buckeye Joint Vocational School Dist. , 5th Dist. Tuscarawas No. 2015 AP 08 0047, 2016-Ohio-2804, ¶ 13. Howeve r, R.C. 2744.02(C) provides that “[a]n order that denies a political subdi vision * * * the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.” There is no dispute the City is a political subdivision of the state of Ohio. Because the denial of the motion effectively denied the City the benefit of the pol itical subdivision immunity, it is a final order. Hubbell v. City of Xenia , 115 Ohio St.3d 77, 2007-Ohio-4839, ¶ 2. Our review is limited to the alleged errors in the portion of the trial court’s decision which denied the political subdivision the benefit of immunity; and this Court lacks jurisdiction to a ddress any other interlocutory4

rulings the trial court made. Owens v. Haynes , 9th Dist. Summit No. 27027, 2014-Ohio-1503, ¶ 8, quoting Makowski v. Kohler , 9th Dist. Summit No. 25219, 2011-Ohio-2382, ¶ 7-8. {¶8} Ohio’s Political Subdivision Tort Liability Act, which governs political subdivision liability and immunity, is codified in Chapter 2744 of the Revised Code. A court engages in a three-tiered analys is to determine whether a politi cal subdivision is immune from liability for damages in a civil action. Moss v. Lorain Cty. Bd. of Mental Retardation , 9th Dist. Lorain No. 13CA010335, 2014-Ohio-969, ¶ 10. The first tier establishes generally that “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 * * * in connection with a governmental or pr oprietary function.” R.C. 2744.02(A)(1); Moss at ¶ 10. In the second tier, we consider the applicability of any of the five exceptions to immunity listed in R.C. 2744.02(B)(1)-(5). If any of those exceptions apply, we move to the third tier to consider whether immunity can be restored based on the defenses enumerated in R.C. 2744.03. Id

. {¶9} Relevant to this appeal, the City claimed in the motion for judgment on the pleadings that it was immune from liability u nder R.C. 2744.02(A) as to all counts of the complaint excluding the claim for spoliation of evidence. Presumably referencing R.C. 2744.02(B)(2), the City asserted that “[t]he only exception that could possibly apply in this case is the one relating to the performance of a propr ietary function.” R.C. 2744.02(B)(2) provides an exception to a political subdivision’s immunity when the injury is “caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.” On that basis, the City argued th at all claims against it related to governmental functions and, therefore, it was immune from liability without exception.5

{¶10} The trial court disagreed with the City’s summary conclusion that R.C. 2744.02(B)(2) was the only plausible, yet still ina pplicable, exception to immunity. The trial court focused on another exception, asserted by Ms. Carswell in her brief in opposition, and found that the “automobile exception” of R.C. 2744.02(B)(1) could potentially apply. R.C. 2744.02(B)(1) provides that “political subdivisions ar e liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority.” However, the trial court ultimately concluded that it was unable to determine, based on the pleadings, whether political subdivision immunity would preclude Ms. Carswell from proving any set of facts in support her claims that woul d entitle her to relief. {¶11} In its merit brief on appeal, the City contends that the automobile exception of R.C. 2744.02(B)(1) does not provide an exception to immunity based on the claims alleged in this matter because Ms. Carswell “not only failed to properly allege in her [c]omplaint that the Defendants negligently operated a motor vehicle, but also failed to allege that such negligence

caused the death of [her son].” (Emphasis sic.) The City argues that the trial court improperly determined that R.C. 2744.02(B)(1) is the “relev ant” exception, and “erred in finding that [Ms. Carswell] ple[d] sufficient facts to reinstate lia bility on the [City]” based on that exception. {¶12} The trial court did not reach a conclusion as to whether the automobile exception of R.C. 2744.02(B)(1) provided an exception to th e City’s claimed immunity. As discussed above, the trial court merely made a provisional de termination that the pleadings did not conclusively demonstrate that the City was imm une without an exception. We need not reach the issue of the applicability of R.C. 2744.02(B)(1) because, regardless of the basis cited by the trial court for denying the moti on, “our review is limited to wh ether the complaint fails to6

establish that [Ms. Carswell] could prove any set of facts entitling [her] to the requested relief[.]” Rogers v. Akron City School Sys. , 9th Dist. Summit No. 23416, 2008-Ohio-2962, ¶ 16. To show that the trial court erred by denying its motion for judgment on the pleadings, the City must pointto “factual allegations in the complaint that show, beyond a doubt, that it is entitled to politicalsubdivision immunity due to the inapplicability of the R.C. 2744.02(B)(2) exception.” DSS Services, LLC v. Eitel’s Towing, LLC , 10th Dist. Franklin No. 18AP-567, 2019-Ohio-3158, ¶ 27. {¶13} “Statutory immunity, including political-s ubdivision immunity, is an affirmative defense,” which must be assert ed in a responsive pleading. 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). Although a political subdivision may utilize Civ.R. 12(C) to seek dismissal of a complaint on the basis of statutory immunity, a motion for judgment on the pleadings is an appropriate means “to obtain an adjudication of the validity of the affirmative defense [only if] that validity can be determined solely from the allegations in the pleadings.” Epperly v. Medina City Bd. of Edn. , 64 Ohio App.3d 74, 75-76, (9th Dist.1989). However, “the assertion of an affirmative defense does not place a burden on the non-moving party to affirmatively demonstrate or plead the absence of, or any exception to, immunity.”

Ganzhorn v. R & T Fence Co. , 11th Dist. Portage No. 2010-P-0059, 2011-Ohio-6851, ¶ 13. Pursuant to Civ.R. 8(A), a plaintiff must plead a short and plain statemen t of the claims showing that he is entitled to relief, and “the complaint must [] set forth operative facts to give the opposing party ‘fair notice of the nature of the action.’” Vagas v. City of Hudson , 9th Dist. Summit No. 24713, 2009-Ohio-6794, ¶ 10, quoting Mogus v. Scottsdale Ins. Co. , 9th Dist. Wayne Nos. 03CA0074, 04CA0002, 2004-Ohio-5177, ¶ 15. There is no “heightened pleading7

requirement” that would require Ms. Carswell to allege specific exceptions to immunity when bringing suit against a political subdivision. Rogers at ¶ 17. {¶14} A plaintiff is under no obligation to prov e his case in the initial pleadings and “‘need not affirmatively dispose of the immunity question altogether at the pleading stage.’” Chunyo v. Gauntner , 9th Dist. Summit No. 28346, 2017-Ohio-5555, ¶ 10, quoting Scott v. Columbus Dept. of Pub. Utils. , 192 Ohio App.3d 465, 2011-Ohio-677, ¶ 8 (10th Dist.) (concluding that requiring a pl aintiff to demonstrate an exception to immunity at the pleading stage would be tantamount to “r equiring a plaintiff to overcom e a motion for summary judgment at the pleading stage.”). “If the plaintiff were required to prove his or her case in the complaint, many valid claims would be dismissed because of the plaintiff’s lack of access to relevant

evidence.” York v. Ohio State Hwy. Patrol , 60 Ohio St.3d 143, 145 (1991). Furthermore, while it stands to reason that in most instances a po litical subdivision will raise the affirmative defense of immunity, to require a plaintiff to plead in anticipation of that defense would essentially disregard the possibility that a political subdi vision might waive the immunity defense. See Supportive Solutions at ¶ 19 (“[A] political subdivision waives its statutory-immunity defense, just like other affirmative defenses, if it does not timely assert it.”) Plainly stated, a plaintiff does not have to plead or prove the absence of an a ffirmative defense in order to avoid judgment on the pleadings. See Chaffee Chiropractice Clinic, Inc. v. Stiffler , 9th Dist. Wayne No. 16AP0033, 2017-Ohio-7790, ¶ 13. {¶15} The City’s contention that Ms. Carswell failed to plead or demonstrate an exception to their claimed immunity is without mer it. Per our review of the record, it appears that Ms. Carswell’s complaint did not specifically contemplate the affirmative defense of political subdivision immunity, nor was she requi red to “anticipate a political subdivision[’s]8

defenses and plead specific f acts to counteract a possible affi rmative defense of sovereign immunity.” Hitchcock v. Akron City Schools Bd. of Education , 9th Dist. Summit No. 23632, 2008-Ohio-2668, ¶ 13. Further, the record is unclear as to whether the City even raised the affirmative defense of immunity in an answer to the complaint 1 , as was a prerequisite to asserting it in the motion for judgment on the pleadings. See Supportive Solutions at ¶ 17-19. The pleadings in this matter simply do not provide the relevant factual allegations that would be necessary to determine whether the City is entitled to R.C. Chapter 2744.02 immunity. See Clardy v. Medina Twp. Bd. of Trustees , 9th Dist. Medina No. 17CA0075-M, 2018-Ohio-2545, ¶

11. {¶16} This Court concludes that the City failed to show beyond a doubt that the pleadings show that Ms. Carswell could prove no set of facts that woul d allow her to overcome the affirmative defense of immunity and entitle her to relief. Because the City failed to demonstrate that the pleadings co nclusively established the applicability of political subdivision immunity without exception, we cannot conclude that the trial court erred by declining to enter judgment based upon the pleadings. The City’s assignment of error is overruled.

III. {¶17} The City’s assignment of error is ove rruled. The judgment of the Summit County

Court of Common Pleas is affirmed. Judgment affirmed.

1 Although the transcript of the docket from the district court indicates that the City filed an answer to the complaint while the matter was removed to that court, the trial court record does not include a responsive pleading from the City.9

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 Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent 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 (C). 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 Appellant.

JULIE A. SCHAFER FOR THE COURT

TEODOSIO, P. J. CARR, J. CONCUR.

APPEARANCES: EVE V. BELFANCE, Director of Law, and MICHAEL J. DEFIBAUGH and JOHN CHRISTOPHER REECE, Assistant Di rectors of Law, for Appellant. LAURA L. MILLS, Attorney at Law, for Appellee.