Singleton v. City of Hamilton

Jones, J. This is an appeal by plaintiffs-appellants, Pamela Singleton and a group of similarly situated Hamilton residents, from a decision of the Butler County Court of Common Pleas sustaining the defendant-appel-lee’s, city of Hamilton’s, motion for judgment on the pleadings. 1 Appellants filed suit claiming appellee failed to enforce a general city charter provision 2 relating to public health in connection with the storage and subsequent escape into the environment of hazardous chemicals and pollutants from the Chem-Dyne Corporation (hereinafter “Chem-Dyne”) waste disposal site in Hamilton, Ohio. Appellants’ complaint alleged appellee was negligent and liable to them for failing to take action against Chem-Dyne, a private corporation, based on the city’s duty to promote the general health of its citizens and abate nuisances. The trial court entered judgment for appellee finding it owed appellants no special duty regarding the activities of Chem-Dyne within the city. Appellants’ appeal assigns the following error: *189 appellee’s motion for judgment on the pleadings.” *188 “The trial court erred in granting *189 I When considering a defense motion for judgment on the pleadings, a trial court is required to assume the allegations in the complaint and all reasonable inferences to be drawn therefrom are true. Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, 165-166, 63 O.O. 2d 262, 264, 297 N.E. 2d 113, 117. A Civ. R. 12(C) motion for judgment on the pleadings presents a court with a question of law — that is, assuming that the complainant’s allegations of fact and reasonable inferences to be drawn therefrom are true, 3 do they state a legal cause of action? Peterson, supra. Since municipal corporations still enjoy certain forms of sovereign immunity, we will first examine the impact, if any, of prior sovereign immunity decisions on this case. Second, since appellants’ action involves the obligation of a city to protect the public health and ábate nuisances, we will then address this duty. Finally, since the appellants’ complaint alleges negligence, we will examine this case bearing in mind that a cause of action in negligence has four elements: (1) duty, (2) breach of duty, (3) proximate causation, and (4) injury resulting from the duty’s breach. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 180, 472 N.E. 2d 707, 710. II The Ohio Supreme Court has generally abolished sovereign immunity for municipal corporations. Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26, 2 OBR 572, 442 N.E. 2d 749; Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31, 6 OBR 53, 451 N.E. 2d 228. The abolition of municipal corporation sovereign immunity came about because the Supreme Court found it was time to “subject” “municipal entities to the same rules as private persons or corporations if a duty has been violated and a tort has been committed.” Enghauser, supra, at 35, 6 OBR at 56, 451 N.E. 2d at 232. However, the Supreme Court’s opinions have also made it clear that some forms of municipal sovereign immunity must necessarily continue to exist in order for local governments to continue to function effectively. For instance, the court pointed out that no tort action lies against a municipal corporation for *190 acts or omissions involving the exercise of a legislative or judicial 4 function, or the exercise of an executive planning function 5 involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion. 6 Enghauser, supra, at paragraph two of the syllabus; Cf. Marrek v. Cleveland Metroparks Bd. of Commrs. (1984), 9 Ohio St. 3d 194, 9 OBR 508, 459 N.E. 2d 873. Our reading of the Ohio Supreme Court’s previous sovereign immunity decisions leads us to believe that they stand generally for the proposition that while no action lies to compel a municipality to exert its governmental authority in a given arena, once an express decision is made to engage a municipality in a certain function or activity, it will be held liable for its employees’ and agents’ negligent acts or omissions in the performance of that function or activity the same as a private corporation or any person would be. Enghauser, supra, at paragraph two of the syllabus; Longfellow v. Newark (1985), 18 Ohio St. 3d 144, 146, 18 OBR 203, 205, 480 N.E. 2d 432, 434. Based on the Supreme Court’s prior decisions, we further believe that absent an express statutory duty to regulate or oversee a certain public or private activity, and absent the voluntary exercise of a governmental unit’s authority to regulate or oversee a certain field of activity following executive or legislative decision-making, a municipal corporation is not generally liable for nonfeasance. In other words, a governmental unit’s failure to exercise its authority to enter a field of activity, public or private, in order to regulate or oversee activity is not itself actionable in the absence of a city charter, city ordinance, or statutory duty mandating that the governmental unit oversee or regulate' such field. See Cleveland, ex rel. Neelon, v. Locher (1971), 25 Ohio St. 2d 49, 54 O.O. 2d 189, 266 N.E. 2d 831. Consequently, we conclude from the Supreme Court’s prior decisions that should there be no legally enforceable duty or voluntary assumption of a duty on a governmental entity’s part, no citizen or group of citizens may successfully initiate court action for damages because that governmental unit failed to exercise its executive or legislative discretion to enter into a field of regulation, oversight, or activity. We further conclude appellee is not required to enter into the regulation of hazardous waste sites unless it is expressly required to do so by law or it has otherwise voluntarily chosen to regulate them. With this in mind, we turn to a municipality’s duty to abate a nuisance such as a hazardous waste site. Since Hamilton is a charter government and has a municipal code, and Ohio has state statutory law on the doctrine of nuisance, we shall examine both in an attempt to determine what duty ap-pellee had to abate the conditions we must assume it knew existed at Chem-Dyne. Ill We begin our discussion of ap- *191 pellee’s duty to appellants by noting appellants’ complaint stresses ap-pellee’s knowledge of the existence of the potentially hazardous situation at Chem-Dyne. As we read appellants’ complaint, it alleges appellee owed appellants a duty because it had knowledge of the danger Chem-Dyne posed to the surrounding area. We read the complaint to further allege that ap-pellee’s knowledge of the potential danger constituted a warning to ap-pellee of foreseeably injurious consequences and thereby imposed a duty on appellee to take action to prevent such injury. However, in Ruwe v. Bd. of Cty. Commrs. of Hamilton Cty. (1986), 21 Ohio St. 3d 80, 83, 21 OBR 377, 379, 488 N.E. 2d 157, 159, the Ohio Supreme Court expressly disapproved of such an argument in a county immunity case, saying: “* * * The mere existence of a hazard does not result in actual or constructive notice to a governmental entity when the governmental entity’s statutory or voluntarily assumed responsibilities do not include prevention or removal of the aforesaid hazard.” Since knowledge of the Chem-Dyne situation alone does not impose a duty on appellee to become involved in Chem-Dyne’s activity, we turn to the Codified Ordinances of the city of Hamilton and the Hamilton City Charter to determine what nuisance regulation duties appellee has voluntarily undertaken. An examination of appellants’ complaint directs our attention to Section 011.87, Article XI of the Hamilton City Charter as the predicate for imposition of a governmental duty to appellants in this case or as evidence ap-pellee has voluntarily agreed to act in this situation. It provides in part: “The city shall, through such officers as may be provided for by ordinance, enforce all laws and ordinances relating to health, and such officer or officers shall perform all duties and may exercise all powers relative to the public health provided by general law to be performed and exercised in municipalities by health officers. * * *” Upon examining the above charter provision, we are not convinced by this broad statement alone that a duty has been created or voluntarily assumed by appellee to regulate or oversee hazardous waste disposal sites within the city of Hamilton. Normally, the provisions of the Ohio Constitution 7 conferring powers of local self-government are self-executing in the sense that no legislative act is necessary to make them effective and available to a municipality. Perrysburg v. Ridgway (1923), 108 Ohio St. 245, 140 N.E. 595, limited on other grounds, Cleveland v. Pub. Util. Comm. (1936), 130 Ohio St. 503, 200 N.E. 765. However, the charter is basically the constitution of the municipality, Cleveland, ex rel. Neelon, v. Locker, supra, and is not necessarily self-executing. Hayslip v. Akron (1984), 21 Ohio App. 3d 165, 21 OBR 176, 495 N.E. 2d 28. A self-executing city charter provision is one which includes the rules or means by which it will be enforced, Stange v. Cleveland (1916), 94 Ohio St. 377, 380, 114 N.E. 261, 262, while a charter provision which is not self-executing is one which requires some additional expression, legislative or otherwise, which makes it enforceable. Hayslip, supra; Taylor v. Cleveland (1950), 97 Ohio App. 132, 57 Ohio Law Abs. 81, 42 O.O. 348, 93 N.E. 2d 594. Our reading of this charter provision leads us to conclude that it is not self-executing. For on its face it contemplates that further legislative and executive action will be undertaken. Moreover, it does not address any specific areas of public health. Certainly, not all public health threats were *192 contemplated as being undertaken by virtue of this single declaratory charter provision. For example, we think it unlikely that the city of Hamilton by this provision undertook to regulate or oversee the burning of' the high-sulfur coal and be liable for the damage it causes its citizens in the form of acid rain. We, therefore, cannot agree with appellants that this charter provision alone imposes a duty on the city of Hamilton to regulate or oversee the Chem-Dyne waste disposal site. However, our examination of the Codified Ordinances of the city of Hamilton reveals that further legislation has been enacted pursuant to this provision. To these sections, we now turn. In reviewing this legislation we are mindful of the Ohio Supreme Court’s recent decision in Fondessy Enterprises, Inc. v. Oregon (1986), 23 Ohio St. 3d 213, 23 OBR 372, 492 N.E., 2d 797, holding that municipalities retain authority to' act in the area of hazardous waste facilities if they wish 8 by enacting ordinances under their local police powers. However, such ordinances may not conflict with the general laws of this state upon this subject as contained in R.C. Chapter 3734. Part seventeen of Hamilton’s city ordinances concerns public health. Within this section, Hamilton’s ordinances are divided into two titles: (1) housing, and (2) general standards. Within the general standards title are ordinance chapters relating, inter alia, to regulation of littering, food establishments, preparation of frozen desserts, sale of meats, disposal of the dead, swimming pools, weeds, and animals. In reviewing the general standards title we find three chapters merit further attention. Chapter 1759 on offensive objects and substances does not apply to hazardous waste sites for it only addresses disposing of household liquids and industrial substances into the city’s sewers or by another sanitary means. Chapter 1775 addresses miscellaneous sanitary requirements but contains no mention of the handling and disposal of industrial waste. Perhaps most closely related to 'this case is Chapter 1767 on nuisances. Chapter 1767 in general terms allows city officials to investigate and abate if necessary conditions amounting to a nuisance or conditions defined by law or ordinance as a nuisance. The chapter contains four sections providing for nuisance investigation, notice to a property owner, and provisions for abatement or vacating of structures found to be nuisances. However, nowhere is the subject of hazardous,or toxic wastes addressed in the nuisance chapter in any way, shape, or form. It is therefore our conclusion, based upon an examination of the Codified Ordinances of the city of Hamilton, that appellee has not enacted any public health or nuisance ordinances of anything other than' a general nature. Most certainly appellee has hot by its nuisance or other public health ordinances enacted a regulatory or oversight scheme addressed, generally or specifically, to hazardous or toxic waste disposal within the city. We, therefore, do not find the ap-pellee has expressly assumed an obligation to regulate or oversee the operation of hazardous or toxic waste *193 disposal within the city by its charter or ordinances. 9 Thus, appellee is not liable on such a theory to appellants. However, we must also address ap-pellee’s state statutory duties to appellants for potential nuisances within the city. IV ■ Although cities may not use their home rule authority to regulate hazardous waste sites in a manner which conflicts with general state law, Clermont Environmental Reclamation Co. v. Wiederhold (1982), 2 Ohio St. 3d 44, 2 OBR 587, 442 N.E. 2d 1278, R.C. 715.44 provides municipal corporations with the power to abate nuisances. Generally, it provides a municipality may abate, regulate, or prohibit a nuisance within its boundaries. However, the statute is written in permissive language using the word “may.” When the word “may” is used in a statute, it generally means that duty is optional, permissive, or discretionary, and not mandatory. State, ex rel. Niles, v. Bernard (1978), 53 Ohio St. 2d 31, 34, 7 O.O. 3d 119, 120-121, 372 N.E. 2d 339, 341. A governmental duty which is mandatory may be enforced by action for its breach, Strohofer v. Cincinnati (1983), 6 Ohio St. 3d 118, 6 OBR 178, 451 N.E. 2d 787, or in mandamus, Cleveland, ex rel. Neelon, supra. Because R.C. 715.44 uses the word “may,” and in light of Wiederhold, supra, we find any duty it imposes on appellee is not mandatory. This being the case, we believe the determination whether the city will or will not exercise its decision-making function and consequently its sovereign powers to pursue an alleged nuisance falls within the Supreme Court’s sovereign immunity grant for executive and legislative decisions involving the application of a high degree of official judgment or discretion. Cf. Schreier v. St. Bernard (C.P. 1909), 19 Ohio Dec. 476. We therefore find ap-pellee’s failure to take steps to abate a nuisance based on this statute can not be actionable. 10 Appellants have no cause of action against appellee on the basis of any statutory duty to abate nuisances or an action for failure to undertake a discretionary task. Turning to an examination of the balance of R.C. Title 7, we find that none of its chapters imposes a duty on municipalities to regulate or oversee hazardous waste disposal sites. As to R.C. Chapter 3734, we find it is a state oversight and licensing system for hazardous waste storage, treatment, *194 and disposal facilities. Based on our examination of it we conclude that responsibility for implementation of this regulatory effort lies with the state of Ohio, not appellee. We therefore conclude appellants have no action against appellee under state statutes relating to municipalities for failing to regulate or take action against Chem-Dyne. We now turn to an analysis of a negligence action by appellants against appellee separate and apart from duties imposed by ordinance or statute. V We have previously stated that a cause of action for negligence against appellee for failing to close or regulate Chem-Dyne requires appellants to prove four elements: a duty, its breach, proximate causation of an injury, and actual damages. The trial court granted appellee judgment on the pleadings because it found appellee owed appellants no special duty on which to predicate a negligence action. As we must accept appellants’ complaint as true, we believe the only areas of discussion which remain subject to examination are the existence of a duty owed appellants by appellee and proximate causation of appellants’ alleged injuries by appellee’s breach of such duty. A. Duty Whether one party owes another a duty is question of law. Strother v. Hutchinson (1981), 67 Ohio St. 2d 282, 21 O.O. 3d 177, 423 N.E. 2d 467. Appellants’ brief clearly states the nature of the duty claimed to exist here in its statement of the facts as follows: “The defendant, by official action or inaction of the city council and its duly appointed agents, officials and employees, negligently failed to carry out its duty to enforce the laws and ordinances of the city relating to the protection of the public health and allowed Chem-Dyne to commence operations and continue its operations for approximately five years * * *.” To the extent this quotation asserts that appellee’s negligence and liability are due to its council’s failure to act, we do not find it persuasive for the reasons set forth in Part II of this opinion and in light of Wiederhold, supra. Appellants further argue that the Supreme Court’s decision in Reynolds v. State (1984), 14 Ohio St. 3d 68, 14 OBR 506, 471 N.E. 2d 776, supports their claim that appellee owed them a duty. However, we find Reynolds distinguishable and inapplicable in this case. In Reynolds the state was held to be answerable for failing to confine a work-furloughed prison inmate during hours when he was not working. The court ruled the state had been negligent per se for failing to confine its prisoner when he was not at work as the work-furlough statute required, and as a consequence of which the inmate was able to commit a brutal and heinous crime for which suit was initiated. Appellants here do not cite any specific statutory violation or direct our attention to a duty arising from a city charter provision or city ordinance. This was the crucial factor in Reynolds. Finally, in addressing the concept of appellee’s duty to appellants, we believe the notion of “a special relationship” and the case of Texaus Investment Corp. v. Haendiges (C.A. 6, 1985), 761 F. 2d 252, merit attention. In Texaus, Texaus Investment Corporation filed suit against the city of Cleveland (among others) alleging the Sony building in Cleveland, which they had purchased from other defendants, was structurally unsound because, inter alia, city building inspectors had negligently performed their inspection and construction oversight duties. The Sixth Circuit Court of Appeals held that Texaus Investment’s suit against *195 the city of Cleveland for its failure to enforce its building code did not state a cause of action, finding Cleveland had no special relationship with Texaus and did not owe Texaus a special duty 11 regarding the enforcement of its building code. Our reading of Texaus leads us to conclude that it breaks new ground in Ohio law and is consistent with some lower Ohio court rulings. 12 To date, Ohio’s law respecting sovereign immunity for municipalities has said simply that if a municipality either voluntarily chooses or is statutorily required to regulate or oversee a certain field, a municipality is liable for negligence the same as a private corporation or person would be in the same position. Enghauser, supra. Thus, as the law now stands, if Cleveland is required by state law to inspect building construction or if Cleveland, though not required by statute to inspect buildings, nevertheless enacts express ordinances to inspect buildings, it is liable for negligence in the performance of such inspections, just as a private person or corporation would be. The view of the Sixth Circuit in Texaus explores further the concepts of the duty a city owes its citizens in a manner not yet addressed by the Ohio Supreme Court. However, since Texaus, supra, like Reynolds, supra, is firmly and clearly based upon the existence of a governmental supervisory or regulatory scheme which is already in place, which is not the case here as we have previously pointed out, we do not find the Texaus decision has any impact on the results here. With regard to the notion of the existence of “a special relationship” or private duty, we find no mention of either term in any Ohio Supreme Court sovereign immunity decision since the doctrine began its present course of decline. Lower courts in cases such as Cain v. State (1984), 14 Ohio App. 3d 105, 14 OBR 119, 470 N.E. 2d 208 (where an auto accident occurred when a driver who had passed a driver’s test in Spanish collided with another auto because he could not read English traffic signs) have examined some Ohio statutes and said the duty they create is one owed to all members of the public generally and not a particular private individual. However, these cases invariably cite as authority decisions rendered before the decline of sovereign immunity began. We are, therefore, unconvinced that the public duty/private duty dichotomy relied on by the trial court and Sixth Circuit in Texaus, supra, is viable in light of decisions such as Reynolds, supra. We decline to rely on such a dichotomy here. For the same reason, we decline reliance upon the notion of “a special relationship.” B. Proximate Cause In closing, we cannot help but question the existence of a causal relationship between appellee’s failure to act and appellants’ subsequent damage. To the extent appellants’ claim is merely that the presence of Chem-Dyne within their neighborhood caused their property to decline in value, we are unpersuaded of its validity, for the location of the facility itself, and not appellee’s failure to regulate it, would surely have depressed property values in any case. Additionally, even if ap- *196 pellee had instituted litigation against Chem-Dyne, there is no guarantee Chem-Dyne would not have prevailed or would have not obtained the necessary Environmental Protection Agency approvals, or that the damage which has occurred would not have occurred. It appears to us that the damage to appellants’ property could just as readily have occurred whether ap-pellee acted or not, and whether or not EPA approval occurred. We therefore cannot say the natural and foreseeable consequences of appellee’s failure to take action against Chem-Dyne caused environmental damage. After all, Chem-Dyne was a private corporation acting completely independently of ap-pellee, which had no specific laws on its books violated by Chem-Dyne. Conclusion We therefore overrule appellants’ sole assignment of error. We sustain the trial court’s decision granting judgment to appellee on the pleadings. Judgment affirmed. Koehler, P.J., concurs separatelyRingland, J., dissents. Ringland, J., of the Court of Common Pleas of Clermont County, sitting by assignment in the Twelfth Appellate District. Footnotes [1] Civ. R: 12(C). [2] Appellants did not allege a violation of any specific city ordinance or state statute. [3] Applying the Peterson decision, the question we are presented here is: Assuming the city of Hamilton is an Ohio municipal corporation whose charter provides it shall enforce all laws and ordinances and exercise all powers relating to public health; assuming said city allowed the Chem-Dyne Corporation to operate within its boundaries and receive toxic and hazardous chemicals for storage or reclamation purposes; assuming said city knew or should have known Chem-Dyne had never received an Ohio Environmental Protection Agency or United States Environmental Protection Agency permit as required by federal law; assuming further that Chem-Dyne was accumulating, storing, and disposing of toxic and hazardous substances at its site within the city and that its methods of doing so were unsafe and could cause damage or prejudice to others; assuming as a result of Chem-Dyne’s unsafe accumulation, storage, and disposal methods surface and subterranean contamination occurred at the Chem-Dyne site and in adjacent areas; assuming also said city’s officials, by action or inaction, permitted Chem-Dyne to operate for five years in spite of their knowledge of Chem-Dyne’s existence and function; and assuming that certain city residents suffered injury to their persons and real property as a result of Chem-Dyne’s operation; do these certain city residents have a cause of action against the city of Hamilton for negligence? [4] An example of this surviving form of judicial immunity is found in Wilson v. Neu (1984), 12 Ohio St. 3d 102, 12 OBR 147, 465 N.E. 2d 854. [5] An example of a city’s legislative body’s immunity for an approval of a subdivision plat can be found in C & D Partnership v. Gahanna (1984), 15 Ohio St. 3d 359, 15 OBR 480, 474 N.E. 2d 303. [6] This principle stems, at lease in part, from the Supreme Court’s previous recognition that it is generally without authority in the first instance to initiate or compel initiation of any governmental activity. Wapakoneta v. Helpling (1939), 135 Ohio St. 98, 13 O.O. 460, 19 N.E. 2d 772. [7] Section 3, Article XVIII, Ohio Constitution. [8] In light of our discussion of municipal government liability and the loss of municipal immunity in Part II, supra, we believe it important to remember that to the extent a municipality permissibly enacts police power legislation, etc., respecting hazardous waste disposal and handling, it makes itself involved in the arena of hazardous waste disposal and subjects itself to liability if it fails to enforce its regulations or ordinances as a reasonable person would. [9] On this point we part company with Judge Ringland, who dissents herein. We believe the majority and minority points of view differ on the issue of whether a municipality’s assumption of a duty through its ordinances by which it loses its immunity must be express, or whether it can also be implied. We believe the dissent reaches its conclusion that Hamilton has assumed a duty toward the appellants by implying such duty arises from existing non-specific ordinances which could be interpreted to cover this situation. However, we believe any assumption of a duty which consequently removes a city’s sovereign immunity shield should be an express and knowing act of the city’s fathers. It should not be implied from ordinances which are often written broadly and at a time when the specific problem which later develops was not foreseen. We believe that to be the case here. [10] We note at this point that neither side to date has addressed appellants’ private right to bring a nuisance action against Chem-Dyne. Rather, the thrust of this case appears to be that the city alone bears responsibility to bring a nuisance action. Ohio has long recognized the private right to bring a nuisance action. See Rothfuss v. Hamilton Masonic Temple Co. (1973), 34 Ohio St. 2d 176, 63 O.O. 2d 270, 297 N.E. 2d 105. [11] By “special duty” the Sixth Circuit apparently meant a duty which is more than simply the general municipal duty to its citizens as a whole as gathered from the city’s charter and ordinances. [12] See Epling v. Cardarelli (1983), 13 Ohio App. 3d 142, 13 OBR 175, 468 N.E. 2d 335; Zebrasky v. Dept. of Transportation (1984), 16 Ohio App. 3d 481, 16 OBR 564, 477 N.E. 2d 218.