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Barge v. St. Bernard, City of

ELR Citation: 41 ELR 20254
Nos. No. C-100764, (Ohio Ct. App. , 07/22/2011)

An Ohio appellate court held that a city is not immune from residents' negligence lawsuit against it concerning pollution allegedly caused by a city landfill. The city argued that it was immune from suit because the operation of the landfill was a governmental function rather than a proprietary one since, under state law, the term "governmental function" includes the collection and disposal of solid waste. But the residents alleged that the city accepted three types of waste that were not classified as "solid waste" under state law: demolition waste; liquid industrial waste; and hazardous waste. Although the definition of "solid waste" includes commercial and industrial wastes, 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. Further, while the collection and disposal of "hazardous waste generated by households" is defined as a governmental function, the allegations in the residents' complaint indicate that the wastes stored at the landfill came from sources other than households. Accordingly, the residents' allegations, accepted as true, would place the operation of the landfill within the definition of a proprietary function. The city, therefore, is not immune from suit.