April 9, 2014
A Gasoline Leak Into the Basement

by Justice Paul E. Pfeifer

On August 28, 2009, after a heavy rainfall, the smell of gasoline arose in the basement of the home shared by Alessandra Riscatti, Elisabetta Riscatti, and Laszlo Beres. Worse yet, later that day, flames erupted from the sewer and spread through the house.

Alessandra and Laszlo battled the fire while waiting for the Parma Fire Department. By the time they escaped their home, each had inhaled smoke that contained toxic substances, and Alessandra required treatment for carbon monoxide poisoning and smoke inhalation.

The fire was extinguished, but the interior of the house and most of the personal items inside were destroyed or damaged.

Investigations by the Ohio Bureau of Underground Storage Tank Regulation (“BUSTR”), the Parma Fire Department (“PFD”), the EPA and the 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 shut immediately.

BUSTR ordered an excavation of the tank system and discovered that drainpipes connected an underground storage-tank cavity under the gas station to the sewer main on State Road. That connection had been in place since the pipes were installed in 1982 to keep the tank from floating in case of rising groundwater during rain or snowmelt. But over the years the pipes caused continual dumping of gasoline-contaminated groundwater into the sewer main, and eventually into the sewer lines of homes along State Road.

The homeowners alleged that in early 2008, they, their neighbors, and motorists in the area, had contacted the PFD to report a strong odor of gasoline inside their houses 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 into a catch basin at the gas station. The sewer district confirmed the station as the source of the odors but failed to inform the homeowners.

After that discovery, BUSTR cited the owner of the station for failing to periodically inspect the equipment at the station. But despite that citation, and eight prior documented gas leaks starting in 1989, the station owner made no effort to determine how the toxins got into the neighborhood homes.

The homeowners maintained that they had complained of gasoline odors since 1982, but that the PFD, the EPA, BUSTR, the sewer district and the station owner all assured them that the odors were from natural sources, not the station.

As a result, the homeowners alleged that they were exposed to toxic gasoline vapors – without knowing the danger or origin – from 1982 until the flames burst into the Riscattis’ basement.

The homeowners brought suit against various defendants, including the county. Their complaints asserted that the county’s failure to properly maintain and operate the sewer system constituted a tort – or wrongful act – for which the county lacked immunity.

Before the lawsuit even got started the county filed several motions to try to end it. The first motion sought judgment on the pleadings – on the theory that the homeowners’ cause of action had not been filed within the two-year statute of limitations applicable to lawsuits filed against political subdivisions, such as cities and counties.

The trial court denied the motion, and the county appealed. The court of appeals concluded that it did not have jurisdiction to consider the statute-of-limitations claim due to the lack of a final, appealable order. After that, the county turned to us – the Ohio Supreme Court.

About a decade ago the Ohio legislature passed the Political Subdivision Tort Liability Act. The Act generally shields political subdivisions from liability in order to preserve their fiscal integrity.

In a previous case, our court recognized that the legislature made clear the purpose and importance of the Act. “The 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.”

We have also recognized that immunity determinations are vitally important to the people involved, and to judicial economy. “Determination of whether a political subdivision is immune from liability is usually pivotal to the ultimate outcome of a lawsuit.” Early resolution of the immunity issue is beneficial to both parties.

If the court of appeals concludes “that the political subdivision is immune, the litigation can come to 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.” But if the court of appeals determines that immunity doesn’t 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 parties “may save time, effort, and expenses of a trial and appeal, which could take years.”

In this case, the court of appeals concluded that it didn’t have the jurisdiction to consider the statute-of-limitations claim because of the lack of a final, appealable order. That’s because an appellate court can only review final orders, and without a final order, an appellate court has no jurisdiction.

So, was the trial court’s denial of the statute-of-limitations claim a final, appealable order? By a seven-to-zero vote, we concluded that it was not.

We determined that the court of appeals properly held that an order denying a motion predicated on a statute-of-limitations defense does not deny the benefit of immunity and is not a final, appealable, order.

The court of appeals in this case correctly determined that the fact that a political subdivision is the party that raises a statute-of-limitations defense does not change the general rule that the ruling on that defense is not a final, appealable order. Thus, the court 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.

EDITOR'S NOTE: The case referred to is Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530. Case No. 2012-1307. Decided October 15, 2013. Majority opinion written by Chief Justice Maureen O'Connor.