[Cite as Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530.] 

RISCATTI ET AL., APPELLEES, v. PRIME PROPERTIES LIMITED PARTNERSHIP 

ET AL.; CUYAHOGA COUNTY, APPELLANT. 

[Cite as Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 

2013-Ohio-4530.] 

Final, appealable orders—Political-subdivision tort immunity—R.C. 

2744.02(C)—Denial of motion for judgment on pleadings based on 

statute of limitations not appealable. 

(No. 2012-1307—Submitted June 11, 2013—Decided October 15, 2013.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

Nos. 97270 and 97274, 2012-Ohio-2921. 

____________________ 

 O’CONNOR, C.J.

{¶ 1} This appeal arises from claims for damages caused by the 

continual flow of gasoline from a gas station’s infrastructure into a sanitary sewer 

main located on State Road in Parma. The plaintiffs-appellees (collectively, “the 

homeowners”) are 100 current or former residents or owners of homes on State 

Road who seek damages from various private and public entities, including the 

appellant, Cuyahoga County.1

 

{¶ 2} In this appeal, we decide a narrow issue: whether a denial of a 

public subdivision’s dispositive motion asserting a statute-of-limitations defense 

pursuant to R.C. 2744.04 is a final, appealable order. We conclude that it is not. 

Accordingly, we affirm. 

 

1. Although this opinion refers to only three homeowners by name, two cases, now consolidated, 

were brought by a total of 100 plaintiffs who are or were homeowners or residents of State Road 

in Parma. The defendants include Marathon Oil Company (which allegedly formerly owned the 

gas station), Prime Properties Limited Partnership (which allegedly operated it), the Northeast 

Ohio Regional Sewer District (which allegedly provides sewer maintenance to some 

municipalities), the city of Parma (which allegedly owns the sewer lines), and the county. 
SUPREME COURT OF OHIO

2

RELEVANT BACKGROUND

{¶ 3} Because this is an appeal from a defendant’s motion for judgment 

on the pleadings, we are required to accept as true all the material allegations of 

the complaint, as well as the inferences to be drawn therefrom, in favor of the 

nonmoving parties, the homeowners. Corporex Dev. & Constr. Mgt., Inc. v. 

Shook, Inc., 106 Ohio St.3d 412, 2005-Ohio-5409, 835 N.E.2d 701, ¶ 2. 

{¶ 4} On August 28, 2009, after a heavy rainfall, the smell of gasoline 

arose in the basement of the home shared by appellees Alessandra Riscatti, 

Elisabetta Riscatti, and Laszlo Beres. Later that day, while Alessandra was in the 

basement, flames erupted from the sewer and spread through the house. 

Alessandra and Laszlo battled the fire while waiting for the Parma Fire 

Department’s arrival; by the time the three residents escaped their home, each had 

inhaled smoke that contained toxic substances, and Alessandra required treatment 

for carbon monoxide poisoning and smoke inhalation.

{¶ 5} The fire department extinguished the fire, but the interior of the 

home and almost all of the personal items within were damaged or destroyed. 

{¶ 6} Investigations by the Ohio Bureau of Underground Storage Tank 

Regulation (“BUSTR”), the Parma Fire Department (“PFD”), the Environmental 

Protection Agency (“EPA”), and the Northeast Ohio Regional Sewer District 

revealed gasoline in an observation well, gasoline-contaminated groundwater, and 

the continuous flow of gasoline from a nearby gas station into the sanitary sewer 

main on State Road. The gas station was ordered to shut down operations 

immediately. 

{¶ 7} BUSTR ordered an excavation of the tank system and discovered 

that drain pipes connected an underground storage-tank cavity under the gas 

station to the sanitary sewer main on State Road and that the connection had been 

in place since the gas station installed the pipes in 1982. The pipes had been 

installed in order to keep the tank from floating in case of rising groundwater 
January Term, 2013 

3

levels during rain or snowmelt. Over the years, however, the pipes caused 

continual dumping of gasoline-contaminated groundwater into the sanitary sewer 

main, and eventually into the sewer lines of homes along State Road.

{¶ 8} The homeowners allege that in early 2008, they and their 

neighbors, and motorists in the area, contacted PFD to report a strong odor of 

gasoline inside and outside their homes and along the road. PFD discovered 

heavy gasoline vapors in the sewer main, and a BUSTR investigator found 

gasoline visibly leaking from a pump filter and into a catch basin at the gas 

station. The sewer district confirmed the gas station as the source of the odors in 

State Road homes but failed to inform the homeowners. 

{¶ 9} After that discovery, BUSTR cited the owner of the gas station for 

failing to periodically inspect the equipment at the station. Despite that citation, 

and eight prior documented gas leaks dating back to 1989, the owner of the gas 

station made no effort to determine how the toxins had made it into the homes on 

State Road. 

{¶ 10} The homeowners assert that they had smelled and complained of 

gasoline odors in their homes since 1982 but that PFD, the EPA, BUSTR, the 

sewer district, and the owners and operators of the gas station all assured them 

that the gas odors were not coming from the gas station, but from natural sources. 

As a result, the homeowners allege, they were exposed to toxic gasoline vapors, 

without knowing the danger or origin, from 1982 until the flames burst into the 

Riscattis’ basement in 2009. 

{¶ 11} The homeowners brought suit against various defendants, 

including the county.2

 Their amended complaints aver that the county’s failure to 

properly maintain and operate the sewer system constituted a tort for which it 

lacked immunity according to R.C. 2744.01(G)(2)(d) and 2744.02. 

 

2. The homeowners’ claims against other defendants are not at issue in this appeal, and we do not 

discuss them or intimate any opinion about them. 
SUPREME COURT OF OHIO

4

{¶ 12} Before discovery was conducted, the county filed several 

dispositive motions. The first motion sought judgment on the pleadings on the 

theory that the homeowners’ causes of action had not been filed within the twoyear statute of limitations applicable to political subdivisions. R.C. 2744.04(A). 

The trial court denied the motion. 

{¶ 13} The trial court also considered a second dispositive motion, 

brought by the county pursuant to both Civ.R. 12(C) and 56, that is not directly at 

issue in this appeal. In that motion, the county sought judgment in its favor based 

on “issues of immunity and causation,” including the theory that the county was 

immune by operation of R.C. 2744.01(C)(2)(l) and 2744.02, which confer 

immunity on a political subdivision against liability based on its design of a sewer 

system. The court denied the motion to the extent that the immunity claim was 

based on Civ.R. 12(C), but the court held its decision on summary judgment in 

abeyance until discovery was complete. 

{¶ 14} The county immediately appealed both judgments. The Eighth 

District Court of Appeals held that it did not have jurisdiction to consider the 

statute-of-limitations claim due to the lack of a final, appealable order. The 

county appealed to this court and now insists that the denial of that motion is a 

final, appealable order over which the appellate court had jurisdiction. We turn 

now to that question. 

ANALYSIS

Ohio’s Political Subdivision Tort Liability Act, R.C. Chapter 2744

{¶ 15} R.C. Chapter 2744, Ohio’s Political Subdivision Tort Liability Act, 

was enacted in response to the judicial abrogation of the common-law immunity 

of political subdivisions. Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 

551, 558, 733 N.E.2d 1141 (2000). R.C. Chapter 2744 generally shields political 

subdivisions from tort liability in order to preserve their fiscal integrity. See, e.g.,
January Term, 2013 

5

Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 23; 

R.C. 2744.02(A)(1).3

 

{¶ 16} We previously have recognized that the General Assembly made 

clear the purpose, and importance, of this statutory scheme: 

“[T]he 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. 

Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 

522, ¶ 38. 

{¶ 17} In so doing, we also recognized that immunity determinations are 

vitally important to the parties’ interests, and to judicial economy: 

“ ‘[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 

 

3. R.C. 2744.02(A)(1) states: 

Except as provided in division (B) of this section, 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.
SUPREME COURT OF OHIO

6

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.) [Hubbell, 115 Ohio St.3d 77, 2007-Ohio-4839, 

873 N.E.2d 878] at ¶ 25, quoting Burger v. Cleveland Hts. (1999), 

87 Ohio St.3d 188, 199-200, 718 N.E.2d 912 (Lundberg Stratton, 

J., dissenting). 

Id. at ¶ 39. 

Final, appealable orders and R.C. Chapter 2744 

{¶ 18} “An appellate court can review only final orders, and without a 

final order, an appellate court has no jurisdiction.” Supportive Solutions, L.L.C. v. 

Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997 

N.E.2d 490, ¶ 10. Given the legislative intent in enacting the politicalsubdivision-immunity statute and the important prudential considerations the 

statute serves, it is not surprising that the General Assembly enacted R.C. 

2744.02(C),4

 which provides that an order denying a political subdivision the 

benefit of immunity is a final order that may be appealed immediately. R.C. 

 

4. “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.” R.C. 2744.02(C). 
January Term, 2013 

7

2744.02(C); Supportive Solutions, L.L.C., at ¶ 11; see also Sullivan v. Anderson 

Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88, syllabus. 

{¶ 19} Consistent with the legislative intent behind R.C. Chapter 2744, we 

have interpreted R.C. 2744.02(C) broadly. We have held that R.C. 2744.02(C)’s 

scope extends to the denial of a motion for summary judgment that is based on a 

claim that the political subdivision is immune under R.C. Chapter 2744, Hubbell, 

115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, at ¶ 27, and to the denial of 

a political subdivision’s motion to amend its answer to a complaint in order to 

assert an immunity defense based on R.C. Chapter 2744, Supportive Solutions, 

L.L.C., at ¶ 23. The breadth of our decisions in Hubbell and Supportive Solutions, 

L.L.C., is anchored in precedent and public policy, but the decisions divided the 

court and engendered spirited dissents. See, e.g., id., at ¶ 24-26 (Lanzinger, J., 

dissenting) (stating that Hubbell was wrongly decided and that Supportive 

Solutions, L.L.C., was an unwarranted extension of Hubbell). Here, however, we 

are of one mind. We hold that the court of appeals properly held that an order 

denying a motion for judgment on the pleadings that is predicated on a statute-oflimitations defense does not deny the benefit of immunity and is not a final, 

appealable order even though it arose along with a political subdivision’s 

immunity claim. 

{¶ 20} The court of appeals correctly recognized that the county’s statuteof-limitations theory was not a claim of immunity. Although our prior decisions 

have interpreted R.C. 2744.02(C) broadly in favor of early appeal, they have 

always been tethered directly to the defense of immunity, not to other defenses. 

E.g., Supportive Solutions, L.L.C., at ¶ 13. Here, however, there is no such nexus 

to immunity. R.C. 2744.04(A)5

 sets forth the statute-of-limitations defense for 

 

5. R.C. 2744.04(A) provides: 
SUPREME COURT OF OHIO

8

actions against subdivisions, but it has nothing to do with the immunity of 

subdivisions. As our courts of appeals have repeatedly recognized, there is a 

meaningful distinction between a claim of immunity and a defense of the statute 

of limitations. See, e.g., Guenther v. Springfield Twp. Trustees, 2012-Ohio-203, 

970 N.E.2d 1058, ¶ 24 (2d Dist.) (recognizing that an order denying summary 

judgment based on a political subdivision’s immunity defense is a final, 

appealable order but holding that the “denial of summary judgment based on a 

statute of limitations, however, does not deny the political subdivision the benefit 

of immunity”); Makowski v. Kohler, 9th Dist. Summit No. 25219, 2011-Ohio2382 (holding that the trial court’s conclusion that the plaintiffs’ claims were not 

barred by the statute of limitations was not a final, appealable order because it 

denied the political subdivision only the benefit of the statute of limitations, not 

the benefit of immunity); Essman v. Portsmouth, 4th Dist. Scioto No. 08CA3244, 

2009-Ohio-3367, ¶ 10 (“because the trial court's decision to deny appellant 

summary judgment on its statute of limitations defense does not deny appellant 

the benefit of R.C. Chapter 2744 immunity, there is no exception to the general 

rule that a denial of summary judgment is a non-final appealable [sic] order,” and 

accordingly, the appellate court lacked jurisdiction to consider the denial of 

summary judgment on the basis of a statute-of-limitations defense). 

{¶ 21} The court of appeals in this case correctly held that the fact that a 

political subdivision is the party that raises a statute-of-limitations defense does 

 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. 
January Term, 2013 

9

not change the general rule that the ruling on that defense is not a final, appealable 

order. 2012-Ohio-2921, ¶ 17. Because the order denying the motion for 

judgment on the pleadings based on the statute of limitations was not a final, 

appealable order, the appellate court correctly concluded that it lacked jurisdiction 

to entertain that appeal. 

CONCLUSION

{¶ 22} The court of appeals properly dismissed the county’s appeal of the 

trial court’s order denying the motion for judgment on the pleadings because that 

order is not a final, appealable order. We therefore affirm the judgment of the 

court of appeals. 

Judgment affirmed. 

PFEIFER, O’DONNELL, LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ., 

concur. 

____________________ 

 Landskroner, Greco, Merriman, L.L.C., Drew Legando, Jack Landskroner, 

and Tom Merriman, for appellees. 

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Charles 

E. Hannan, Assistant Prosecuting Attorney, for appellant. 

 Walter, Haverfield, L.L.P., and R. Todd Hunt, urging reversal for amicus 

curiae, Northeast Ohio Law Directors Association. 

________________________