[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., 

 Appellees, 

 v. 

CITY OF ST. BERNARD, 

 Appellant. 

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APPEAL NO. C-100764 

TRIAL NO. A-1005718 

 

O P I N I O N.

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. 

HILDEBRANDT, 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 

2

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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

3

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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶ 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). 
OHIO FIRST DISTRICT COURT OF APPEALS 

5

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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

7

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.