[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 judgment on the pleadings asserting statutory 

immunity. For the reasons that follow, this Court affirms. 

I. 

{¶1} On August 25, 2017, Plaintiff-Appellee, Lisa 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, loss of consortium; count three, survival action; 

count four, spoliation of evidence; count seven, state civil rights; count eight, liability for 

punitive damages. The complaint also asserted claims against the Akron Police Department and 
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named as defendants, in both their individual and official capacities, thirteen officers of the 

Akron Police Department; however, none of these claims 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 court held that the facts of the complaint were 

“sufficiently pled to overcome a motion for judgment on the pleadings, 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 under 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 pleadings 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, the 
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same standard applies to both motions. Business Data Sys., Inc. v. Figetakis, 9th Dist. Summit 

No. 22783, 2006-Ohio-1036, ¶ 7. “Civ.R. 12(C) presents 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 would 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 decision 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. However, R.C. 2744.02(C) provides that “[a]n 

order that denies 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.” 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 political 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 address any other interlocutory 
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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 analysis to determine whether a political 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 proprietary 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 under 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 proprietary 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 that all claims against it related to governmental 

functions and, therefore, it was immune from liability without exception. 
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{¶10} The trial court disagreed with the City’s summary conclusion that R.C. 

2744.02(B)(2) was the only plausible, yet still inapplicable, 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 are 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 would 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 “relevant” exception, and “erred in finding that [Ms. 

Carswell] ple[d] sufficient facts to reinstate liability 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 the City’s claimed immunity. As discussed 

above, the trial court merely made a provisional determination that the pleadings did not 

conclusively demonstrate that the City was immune 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 motion, “our review is limited to whether the complaint fails to 
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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 point 

to “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-subdivision immunity, is an affirmative 

defense,” which must be asserted 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 statement 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 pleading 
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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 prove 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 plaintiff to demonstrate an exception to immunity at the pleading 

stage would be tantamount to “requiring a plaintiff to overcome 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 political 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 subdivision 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 affirmative 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 merit. 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 required to “anticipate a political subdivision[’s] 
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defenses and plead specific facts to counteract a possible affirmative 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 complaint1, 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 would allow her to overcome 

the affirmative defense of immunity and entitle her to relief. Because the City failed to 

demonstrate that the pleadings conclusively 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 overruled. 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. 
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 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 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(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 Directors of Law, for Appellant. 

LAURA L. MILLS, Attorney at Law, for Appellee.