Recently, the Ohio Supreme Court issued an opinion that allows a political subdivision, including employees of the political subdivision, to appeal a denial of immunity when raised at the summary judgment stage. This ruling will assist political subdivisions and their employees in avoiding trial and keeping down litigation costs when immunity is properly raised and addressed.
On October 3, 2007, the Ohio Supreme Court decided the case of Hubbell v. Xenia (2007), 115 Ohio St.3d 77, 2007-Ohio-4839. In a 4-3 decision, the Court held that a decision by a trial court that denies the benefit of an alleged immunity is a final order pursuant to Rev. Code 2744.02(C) and can be immediately appealed.
The Hubbell case involved a claim by Dottie Hubbell against the city of Xenia for property damage from sewage backing up in her home. At the close of discovery Xenia filed for summary judgment arguing that there was no evidence of negligence and that it was otherwise entitled to immunity. The trial court denied summary judgment stating that a question of fact existed as to negligence and that Xenia was not entitled to immunity. The trial court pointed to Rev. Code 2744.03(A)(5) for the proposition that a political subdivision can not seek immunity for the negligence of its employees.
Xenia immediately appealed the decision; the Second District Court of Appeals dismissed the appeal on the basis that the denial of summary judgment on the claim of immunity was not a final, appealable order. The court also recognized that its decision was in conflict with the decision in Lutz v. Hocking Technical College (May 18, 1999), Athens App. No. 98CA12, 1999 WL 355187, from the Fourth District Court of Appeals. The Second District therefore certified the following question to the Ohio Supreme Court: “Is the denial of a governmental entity’s motion for summary judgment on the issue of sovereign immunity due to the existence of genuine issues of material fact a final appealable order, pursuant to R.C. 2744.02(C)?”
Along with accepting the certified question, the Ohio Supreme Court accepted a request for discretionary appeal. Before the Court answered the certified question, the Fourth District reversed the Lutz decision, thereby resolving the conflict. Luckily, the Court had already accepted the discretionary appeal and provided a detailed analysis regarding the denial of immunity.
The Court looked to the plain language of Rev. Code 2744.02(C), which states, “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.” The Court focused on the words “benefit” and “alleged” to decide that the legislature intended that an order is appealable even if immunity was not denied outright. Rather, if the request for immunity was denied on the grounds that genuine issues of material fact existed then the benefit of an alleged immunity was being denied and the statute would allow for an appeal.
The Court distinguished the denial of summary judgment on the issue of immunity being denied from the denial of a Civ. R. 12(B)(6) motion to dismiss. Specifically, the Second District Court of Appeals referenced the decision of State Auto Mut. Ins. Co. v. Titanium Metals Corp. (2006), 108 Ohio St.3d 540, 2006-Ohio-1713, when it dismissed Xenia’s appeal. In Titanium, a third party defendant had filed a motion to dismiss on the grounds of immunity; the motion was denied without any record or opinion. None of the parties to that case raised the issue of Rev. Code 2744.02(C). On appeal to the Ohio Supreme Court, the Court did not have any evidence before it on which to make a decision, and therefore sent the case back to the trial court. The Court made it clear that its decision in Titanium was not based on Rev. Code 2744.02(C) as none of the parties in that case had raised the issue at that stage of the proceedings.
Interestingly, while the Court distinguished a motion to dismiss where no opinion or evidence is presented, from a motion for summary judgment, the Court concluded by holding that “when a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and thus is a final, appaelable order pursuant to R.C. 2744.02(C).” This leaves the door open for an appeal of a denial of a motion to dismiss where an opinion, along with any documents attached to the complaint, provides sufficient information for an appellate court to properly determine whether the denial was justified.
If you have any questions or need guidance in any issue regarding governmental liability, please contact a member of our Governmental Liability Group.
