Pursuant to ORC § 2744.02, a political subdivision enjoys governmental immunity for acts related to governmental or proprietary functions. However, immunity is not absolute if the political subdivision violates one of the exceptions to immunity set forth in ORC § 2744.02(B). Recently, the Twelfth District Court of Appeals engaged in such an analysis to determine that Twin Township engaged in a governmental function and was entitled to immunity when it demolished a barn on the Plaintiffs’ property.
In Shelton, et al. v. Twin Township, et al., 2015-Ohio-1602, Plaintiffs John E. Shelton, Betty J. Shelton, and John E. Shelton, Jr. (the “Sheltons”) sued Twin Township and the Trustees (the “Township”) for demolishing a barn on the Sheltons’ property. The barn had been inspected and deemed unsafe. The Township passed a resolution ordering the barn demolished. Pursuant to ORC § 505.86, the Sheltons were notified. An agreement was reached allowing the Sheltons ninety days to remove the barn and/or repair any salvageable portion. When the ninety days elapsed and nothing had been done, the Township had the barn demolished.
The Sheltons subsequently filed suit in the United States District Court for the Southern District of Ohio. The federal court dismissed the federal claims and then dismissed the state claims without prejudice. The Sheltons then filed a lawsuit in the Preble County Court of Common Pleas alleging wrongful demolition, breach of contract, and conversion against the Township, and trespass against the Trustees. The Common Pleas Court granted summary judgment in favor of the Sheltons on cross-motions for summary judgment, and the Township appealed.
The Twelfth District Court of Appeals quickly pointed out that the Township’s actions fell under ORC § 505.86, which allows a political subdivision to remove structures deemed unsafe. Based on this finding the Twelfth District determined that the Township was engaged in a governmental function. The Twelfth District then considered the exceptions to immunity set forth in ORC § 2744.02(B) and determined that none of the exceptions applied. Thus, the Twelfth District reversed the trial court and granted immunity to the Township on the wrongful demolition claim.
Turning to the issue of the Trustees, the Twelfth District quickly dispensed with the individual claims since the Township was engaged in a governmental function and no exceptions to immunity applied. Thus, the Trustees were entitled to individual immunity. Likewise, the Twelfth District found that the Sheltons’ conversion claim was meritless. Specifically, the appellate court reasoned that removal of an unsafe structure necessarily meant “removal of the materials that comprised the barn.”
Finally, the appellate court considered the breach of contract claim. The Twelfth District considered the negotiations between the Township and the Sheltons, the language of the agreement, and the nature of the hazard. The Township, after determining that the barn was unsafe and posed a safety hazard, passed a resolution. Subsequently, the Township entered into an agreement with the Sheltons to allow them time to rectify the problem themselves. The agreement required the barn to be removed and/or repaired within ninety days, despite a requirement of only thirty days’ notice in the statute. The Twelfth District reasoned that the nature of the hazard, along with allowing more time than is required by statute, leads to the conclusion that time was of the essence. Based on this reasoning, the Twelfth District determined that the Sheltons were in material breach of the contract, and thus the Township was not limited by any language in the agreement preventing it from immediately demolishing the barn.
Thus, the Twelfth District Court of Appeals reversed the trial court and granted summary judgment in favor of the Township and Township Trustees.
This case is significant since it provides guidance for political subdivisions who enter into agreements with landowners relating to removal, repair, or securing of structures within that political subdivision’s boundaries. When entering into an agreement with landowners it is important to specify the contemplated action, specifying a date certain as to when the action is expected to be completed, and specifying that time is of the essence.
If you have any questions or need guidance in any issue regarding governmental liability, please contact a member of our Governmental Liability Group.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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