COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73658 JOSEPH COTICCHIA, et al. : ACCELERATED DOCKET : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF BAY VILLAGE : : PER CURIAM Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION ------------------------- CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-340159 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ------------------------ APPEARANCES: For Plaintiffs-Appellants: LEONARD A. SPREMULLI (0023915) 29425 Chagrin Boulevard, Suite 305 Pepper Pike, Ohio 44122 For Defendant-Appellee: GARY A. EBERT (0003394) MICHAEL E. STINN (0011495) Seeley, Savidge & Aussem Co., L.P.A. 800 Bank One Center 600 Superior Avenue, East Cleveland, Ohio 44114-2655 PER CURIAM: Plaintiffs-appellants Joseph Coticchia and Lisa Coticchia ( appellants ) appeal from the trial court's order dismissing their -2- complaint for injunctive relief to prohibit defendant-appellee City of Bay Village ( Bay Village ) from maintaining a public nuisance. Appellants assign the following errors for our review: I. THE LOWER COURT ERRED IN GRANTING DEFENDANT'S MOTION TO DISMISS FOR WANT OF SUBJECT MATTER JURISDICTION PURSUANT TO CIVIL RULE 12(B)(1). II. THE LOWER COURT ERRED IN GRANTING DEFENDANT'S MOTION TO DISMISS ON THE BASIS THAT PLAINTIFFS LACK STANDING TO BRING THIS MATTER. III. THE LOWER COURT ERRED IN GRANTING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Finding appellants' second assignment of error to lack merit, and appellants' first and third assignments of error to be moot, the judgment of the trial court is affirmed. I. On March 18, 1997, appellants filed a complaint for preliminary and permanent injunctive relief against Bay Village. In their complaint, appellants sought to prohibit Bay Village from maintaining an alleged public nuisance. Specifically, appellants claimed that Bay Village, by failing to prevent northbound automobiles from turning left onto Naigle Road from Bradley Road during rush hour, was maintaining a public nuisance. According to appellants, automobiles following the vehicles attempting to turn left onto Naigle Road are forced to stop on the Norfolk and Southern railroad tracks. Therefore, appellants sought a court order demanding that Bay Village install no left turn signs at that intersection. -3- Appellants voluntarily dismissed their original complaint without prejudice pursuant to Civ.R. 41(A)(1). On September 10, 1997, appellants refiled their complaint for injunctive relief. In their refiled complaint, appellants claimed to have suffered the following injury in fact : On separate occasions, each plaintiff has been forced to stop directly on the railroad tracks due to an automobile attempting to turn left onto Naigle Road. At the same moment, the railroad crossing flashers engaged, the warning signal sounded, the gates came down and a Norfolk & Southern train began bearing down on the plaintiffs. Due to the gridlock caused by an attempted left turn vehicle, plaintiffs were trapped on the crossing without any means of escape. (Complaint, at 8.) On September 22, 1997, Bay Village filed a motion to dismiss. In its motion, Bay Village asserted that appellants' complaint for injunctive relief should be dismissed because: (1) the trial court lacked subject matter jurisdiction; (2) appellants lacked standing; (3) the complaint failed to state a claim; and (4) appellee was immune from liability for a discretionary governmental function (installation of traffic signs). On November 10, 1997, the trial court granted Bay Village's motion to dismiss. II. In their second assignment of error, appellants argue that the trial court erred in granting Bay Village's motion to dismiss on the basis that appellants lacked standing. Appellants claim that they had standing, as private citizens, to bring a private action for injunctive relief to prohibit Bay Village from maintaining a -4- public nuisance. This argument is without merit. While a private nuisance action is maintainable by a private citizen, the general rule is that a private individual lacks standing to maintain a private action for a public nuisance. Miller v. City of West Carrollton (1993), 91 Ohio App.3d 291, 295, citing, Prosser, Private Action for Public Nuisance (1966), 52 Va.L.Rev. 997, 999. A private plaintiff may fall within the exception to the general rule by proving that he has suffered some special injury or particular damage not incurred by the public generally. While authorities are in disagreement as to what constitutes a special injury, the majority view regards the special injury as an injury suffered by the plaintiff which is different in kind rather than degree from that suffered by other members of the public exercising the same public right. Miller, supra, at 295-296, citing Prosser, supra, fn. 6, Section 88 at 587; 72 Ohio Jurisprudence 3d (1987), at 441, 442; Clabaugh v. Harris (1971), 27 Ohio Misc. 153. In the instant case, appellants, as private citizens, lack standing to maintain a private action for injunctive relief to prohibit Bay Village from maintaining a public nuisance. Miller, supra, at 295. Appellants have neither suffered nor alleged any special injury or particular damage not incurred by the public generally. The injury in fact allegedly suffered by the appellants, being forced to stop on the railroad tracks, is not different in kind from that suffered by other members of the public traveling north on Bradley Road behind vehicles attempting left- -5- hand turns onto Naigle Road during rush hour. Accordingly, appellants' second assignment of error is overruled. III. In their first and third assignments of error, appellants contend that the trial court erred in granting Bay Village's motion to dismiss for want of subject matter jurisdiction and for failure to state a claim. However, as discussed above, the trial court did not err in dismissing appellants' complaint for injunctive relief because appellants lacked standing to maintain a private action for a public nuisance. Pursuant to App.R. 12(A), we choose not to address appellants' first and third assignments of error, as disposition of the second assignment of error renders these arguments moot. Judgment affirmed. -6- It is ordered that appellee recover of appellants its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, ADM. JUDGE DIANE KARPINSKI, JUDGE LEO M. SPELLACY, JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with -7- supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .