McGuire v. Lorain ( 2011 )

[Cite as McGuire v. Lorain, 2011-Ohio-3887.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
DOROTHY MCGUIRE C.A. No. 10CA009893
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CITY OF LORAIN, OHIO COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 09CV162719
DECISION AND JOURNAL ENTRY
Dated: August 8, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} Dorothy McGuire was marching in a Memorial Day parade when she stepped into
an uncapped monument box in the middle of the street and broke her ankle. A monument box is
a lidded cast-iron container that houses a property pin. She sued the City of Lorain for failing to
properly maintain the parade route. The City moved for summary judgment, arguing that it is
immune from liability and that the uncapped box was an open and obvious hazard. The trial
court denied the motion because it determined that there were genuine issues of material fact.
The City has appealed, assigning as error that it has recreational user and political subdivision
immunity and that the monument box hazard was open and obvious. We affirm because we do
not have jurisdiction to address the City’s open and obvious argument, Ms. McGuire was not a
recreational user under Section 1533.18.1 of the Ohio Revised Code, and there are genuine
issues of material fact in dispute regarding whether the City has political subdivision immunity.
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OPEN AND OBVIOUS
{¶2} The City’s second assignment of error is that the trial court incorrectly determined
that the open and obvious doctrine does not apply to an uncapped monument box in the middle
of the street as a matter of law. According to it, a reasonable person in Ms. McGuire’s position
would have seen the open monument box. We do not have jurisdiction regarding this assignment
of error.
{¶3} “Generally, the denial of summary judgment is not a final, appealable order.”
Hubbell v. City of Xenia, 115 Ohio St. 3d 77, 2007–Ohio–4839, at ¶9. “[If] a trial court denies a
motion in which a political subdivision . . . seeks immunity,” however, its “order denies the
benefit of an alleged immunity and is therefore a final, appealable order pursuant to R.C.
2744.02(C).” Id. at syllabus. We have held that “an appeal from such a decision is limited to the
review of alleged errors in the portion of the trial court’s decision which denied the political
subdivision the benefit of immunity.” Makowski v. Kohler, 9th Dist. No. 25219, 2011-Ohio-
2382, at ¶7 (citing Essman v. City of Portsmouth, 4th Dist. No. 08CA3244, 2009–Ohio–3367, at
¶10; CAC Bldg. Props. v. City of Cleveland, 8th Dist. No. 91991, 2009–Ohio–1786, at ¶9 n.1;
Carter v. Complete Gen. Constr. Co., 10th Dist. No. 08AP–309, 2008–Ohio–6308, at ¶8); see
also Deveaux v. Albrecht Trucking Co. Inc., 9th Dist. No. 09CA0069-M, 2010-Ohio-1249, at ¶7
(concluding that we did not have jurisdiction to address assumption of risk assignment of error in
appeal under Section 2744.02(C)). Accordingly, we will not address the City’s second
assignment of error. See Makowski, 2011-Ohio-2382, at ¶8 (concluding we did not have
jurisdiction to consider statute of limitations argument in appeal filed under Section 2744.02(C)).
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RECREATIONAL USER IMMUNITY
{¶4} The City’s first assignment of error is that the trial court incorrectly concluded
that it did not have immunity under the recreational user statute, Section 1533.18.1 of the Ohio
Revised Code. Under Section 1533.18.1, “[n]o owner . . . of premises: (1) [o]wes any duty to a
recreational user to keep the premises safe for entry or use; (2) [e]xtends any assurance to a
recreational user . . . that the premises are safe for entry or use; [or] (3) [a]ssumes responsibility
for or incurs liability for any injury to person or property caused by any act of a recreational
user.” For purposes of Section 1533.18.1, “‘[r]ecreational user’ means a person to whom
permission has been granted, without the payment of a fee or consideration . . . , other than a fee
or consideration paid to the state or any agency of the state . . . to enter upon premises to hunt,
fish, trap, camp, hike, or swim, or to operate a snowmobile, all-purpose vehicle, or four-wheel
drive motor vehicle, or to engage in other recreational pursuits.” R.C. 1533.18(B).
{¶5} The City has argued that parade participants are recreational users under Section
1533.18(B). The Ohio Supreme Court, noting that the statute identifies a number of particular
recreational uses, has held that courts must apply the doctrine of ejusdem generis in determining
whether an activity is included within its catch-all “engaged in other recreational pursuits”
language. Light v. Ohio University, 28 Ohio St. 3d 66, 68 (1986). Under that doctrine, if
“general words follow the enumeration of particular classes of things, the general words will be
construed as applying only to things of the same general class as those enumerated.” Id. The
Court reasoned that its conclusion that the doctrine of ejusdem generis applies “is supported by
the fact that R.C. 1533.18(B) is included in Title 15 of the Revised Code, having to do with
conservation of natural resources and is part of R.C. Chapter 1533, dealing with fishing and
hunting.” Id. In Light, the Supreme Court concluded that a minor who was injured in the locker
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room of a university gymnasium was not a recreational user under Section 1533.18(B) because
“working out in a gymnasium is not within the contemplation of the recreational-user statutes.”
Id.{¶6} In Miller v. City of Dayton, 42 Ohio St. 3d 113 (1989), the Supreme Court
acknowledged a caveat to the rule it set out in Light. Id. at 115. It held that, if the premises
where an injury occurred have generally been held out to the public for recreational uses, “[t]he
existence of statutory immunity does not depend upon the specific activity pursued by the
plaintiff at the time of the plaintiff's injury.” Id. “For example, we recognize immunity to the
owner of a park (which qualifies as recreational premises), whether the injury is to one who is
jogging in the park, tinkering with a model airplane or reading poetry to satisfy a school
homework assignment.” Id.
{¶7} In Fuehrer v. Westerville City School District Board of Education, 61 Ohio St. 3d
201 (1991), the Supreme Court demonstrated the application of Light and Miller. A child died
on a school soccer field while he and his friends were attempting to raise a goal they had
previously knocked over. The child’s mother sued the school district, which argued that it had
immunity under Section 1533.18.1. The Supreme Court held that the child was not a recreational
user under Section 1533.18(B), noting that “[r]oughhousing on a soccer goal is not a recreational
activity of the type contemplated by the statute.” Id. at 204. It also held that, unlike “[p]arks[,
which] exist for persons to enjoy many different kinds of recreational pursuits[,] [a] soccer field
exists for one purpose—to play soccer.” Id. It, therefore, concluded that the school district did
not have immunity under Section 1533.18.1. Id. It did, however, conclude that the school
district owed no duty to the child because he had entered the soccer field at his own peril. Id.
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{¶8} Similar to Fuehrer, the City’s argument fails both parts of the Section 1533.18.1
analysis. First, although marching in a parade could be considered a recreational activity, it is
not similar in nature to the type of recreational pursuits identified in Section 1533.18(B). Light
v. Ohio University, 28 Ohio St. 3d 66, 68 (1986). Second, the City has not persuaded us that a
four-lane state route running through the heart of a city qualifies as “recreational premises.”
Miller v. City of Dayton, 42 Ohio St. 3d 113, 114 (1989). At the very least, there is no evidence
in the record that the road on which Ms. McGuire was injured is open to the public for
recreational uses other than parades. Accordingly, we conclude that the trial court correctly
denied the City immunity under Section 1533.18.1. The City’s first assignment of error is
overruled.
POLITICAL SUBDIVISION IMMUNITY
{¶9} The City’s third assignment of error is that the trial court incorrectly concluded
that it was not entitled to immunity under Sections 723.01 and 2744.02(B)(3) of the Ohio
Revised Code. Under Section 723.01, “the legislative authority of a municipal corporation shall
have the care, supervision, and control of the public highways, streets, avenues, alleys, [and]
sidewalks . . . within the municipal corporation. The liability or immunity from liability of a
municipal corporation for injury, death, or loss to person or property allegedly caused by a
failure to perform the responsibilities imposed by this section shall be determined pursuant to
divisions (A) and (B)(3) of section 2744.02 of the Revised Code.” Under Section 2744.02(B)(3),
“political subdivisions are liable for injury, death, or loss to person or property caused by their
negligent failure to keep public roads in repair and other negligent failure to remove obstructions
from public roads[.]”
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{¶10} The City has argued that it can not be held liable for an injury caused by the
uncapped monument box unless it had notice and a reasonable time to repair the defect before
the injury occurred. See Vogel v. Wells, 57 Ohio St. 3d 91, 97 (1991) (interpreting prior version
of R.C. 723.01). According to the City, there is no evidence that it had actual notice of the
defect. Regarding constructive notice, the City has argued that, because it is not known how
long the monument box was uncovered, there are no facts under which Ms. McGuire can show
that it could or should have known of the defect.
{¶11} We agree that Ms. McGuire has not presented any evidence to show that the City
had actual notice of the open monument box. According to workers from the City’s engineering
and streets departments, the City has not used that particular monument box in over 20 years.
The employee who paints lane markings for the City ``testified that the lid was in place when he
painted the street the previous summer. According to him, because the monument box is in the
center of the road, if the lid had been missing when he painted the road, the small guiding wheel
on his paint assembly would have fallen into it and broken the assembly. He had no record of
that happening when he last painted the street.
{¶12} It also appears undisputed that the City does not have exclusive access to the
monument boxes but that private surveyors can remove the lids if they need access to property
pins. City workers also testified that passing vehicles sometimes break or knock the lids off the
boxes. Workers from the streets department who replaced the missing lid after Ms. McGuire’s
fall were unable to determine what had happened to the previous lid because they did not find its
remnants inside the box or find it in the vicinity.
{¶13} Regarding whether the City had constructive knowledge of the missing lid, city
employees testified that workers from the streets department drove up and down the parade route
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checking for hazards the Friday before the parade. Early on the morning of the parade, while it
was still dark, two workers drove street sweepers up and down the parade route, preparing it for
the parade. The workers who operated the sweepers testified that they did not see an open
monument box along the route, although they admitted that their attention was on the edges of
the street. There is also testimony that, an hour before the parade began, the City’s auxiliary
police force blocked off the parade route to normal traffic and went over the route to make sure it
was clear of parked cars. There is also testimony that there were two auxiliary police officers in
cruisers driving very slowly at the front of the parade, who were assigned, as one of their
primary duties, to make sure the parade route was safe for its participants. The chief of the
auxiliary police force, who was in one of the cruisers, testified that he is familiar with monument
boxes and would have had the hole marked with a cone if he had seen it because it would have
been foreseeable that someone would step in it.
{¶14} A city has constructive knowledge of a hazard if it was of a nature that it could or
should have been discovered, if it existed long enough to have been discovered, and if its
discovery would have created a reasonable apprehension of danger. Harp v. City of Cleveland
Hts., 87 Ohio St. 3d 506, 512 (2000) (quoting Franks v. Lopez, 69 Ohio St. 3d 345, 349 (1994)).
Viewing the evidence in a light most favorable to Ms. McGuire, we conclude that there are
genuine issues of material fact regarding whether the uncapped monument box was discoverable,
whether the hazard existed for sufficient time that the City could or should have discovered it,
and whether, if discovered, it would have created a reasonable apprehension of a potential
danger. Even if a passing vehicle knocked the cover off after the City did its review of the
parade route three days before the event, a reasonable finder of fact could find that the auxiliary
police officers at the front of the parade, who were driving very slowly within a couple feet of
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the center of the road, should have seen the eight-inch by eight-inch square hole that had been
created by the missing cover in the middle of the road.
{¶15} The trial court correctly concluded that there are genuine issues of material fact in
dispute and that the City was not entitled to judgment on its political subdivision immunity
defense as a matter of law. The City’s third assignment of error is overruled.
CONCLUSION
{¶16} On an appeal under Section 2744.02(C) of the Ohio Revised Code, this Court
only has jurisdiction over issues regarding immunity. The trial court correctly concluded that the
City is not entitled to immunity under Section 1533.18.1 or Section 2744.02 as a matter of law.
The judgment of the Lorain County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, P. J.
WHITMORE, J.
CONCUR
APPEARANCES:
GEOFFREY R. SMITH, Attorney at Law, for Appellant.
THOMAS G. MACKIN, Attorney at Law, for Appellees.
PATRICK C. MACKIN, Attorney at Law, for Appellees.