Summers v. Slivinsky , 141 Ohio App. 3d 82 ( 2001 )

I respectfully dissent from the opinion of the majority because I do not agree with the majority's conclusion that cheerleading is a governmental function.

Greene Cty. Agricultural Soc. v. Liming (2000), 89 Ohio St. 3d 551, involved a dispute concerning the eligibility of a hog named Big Fat to compete in a hog show held at the Greene County Fair. After Big Fat was named "Reserve Grand Champion," the second highest award for a hog at the show, the Greene County Agricultural Society's suspicion of his ineligibility led to an investigation of his owner. The investigation resulted in sanctions against Big Fat's owner. The Society filed suit to enforce the sanctions. Big Fat's owner filed a counterclaim contending that the Society violated her due process rights and defamed her. The trial court sustained the Society's motion for summary judgment based upon sovereign immunity. The Court of Appeals affirmed the trial court's decision. The sole issue before the Ohio Supreme Court was whether the Society was entitled to immunity under R.C. 2744. It held that immunity did not apply. The court determined that the Society was not engaging in governmental functions because its actions were not for the common good of all citizens of the state and were the type customarily engaged in by nongovernmental persons. It concluded that, while conducting a county fair is something that is not customarily engaged in by nongovernmental persons, conducting a livestock competition is. The court further noted that the activities of the Society were not described in R.C.2744.01(C)(2).

While I recognize that Greene, supra, was decided only by a plurality of the Ohio Supreme Court, I agree with its rationale. A review of R.C.2744.01(C)(1) leads to the conclusion that cheerleading cannot be considered a governmental function. It cannot be said that cheerleading is a function imposed upon the state as an obligation of sovereignty. It is not a function that is for the common good of all citizens of the state. Moreover, cheerleading is an activity that is engaged in by nongovernmental actors. The Los Angeles Laker Girls and the Dallas Cowboy Cheerleaders are two common examples. Therefore, cheerleading could only be considered a governmental function if it is described in R.C.2744.01(C)(2). Among the examples of governmental functions provided by that section, is the provision of a system of public education. The majority holds that cheerleading is at least a part of the school system's education program and must, therefore, be a governmental function. However, education value alone is not enough to convert what otherwise would not be a governmental function into something that is a governmental function. Greene, supra at 560.

Under the majority's approach, anything a school system does could be considered a governmental function. The legislature did not intend this result. If it did, it would have so stated explicitly. Instead, the legislature included as a governmental function "the provision of a system of public education." R.C. 2744.01(C)(2)(c). It included as proprietary functions the operation of public stadiums, bands or orchestras. R.C. 2744.01 (G)(2)(e). These proprietary functions are performed by virtually every school district. In Greene, supra, the Ohio Supreme Court held that livestock competitions are proprietary functions performed within the government function of holding a county fair. Likewise, school districts operating a stadium, band or orchestra are performing proprietary functions, even though those functions aid in the provision of education. I agree with the trial court's observation that cheerleading is not distinguishable from bands or orchestras.

My position would be different if the record revealed that Ms. Summers received academic credit for her participation in cheerleading. InAngelot v. Youngstown Bd. of Edn. (Sept. 18, 1998), Mahoning App. No. 96CA90, unreported, this court held that the school board was immune from liability to a student who was injured while moving volleyball equipment during a regularly scheduled physical education class. That class was part of the regular curriculum and was, thus, part of the provision of education. However, to construe cheerleading, an extracurricular activity, as the provision of a system of public education is to declare also that operating a stadium, band or orchestra is the provision of a public education system. Those activities, which the legislature clearly considered to be proprietary, would thus become governmental by virtue of a school district performing them. No such blanket immunity exists for schools.

The effect of the majority's sweeping interpretation of "governmental function" is to leave many, who should be compensated under our system for their injuries, without any legal recourse. Article I, Section 16 of the Ohio Constitution provides that, "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law * * *." Notwithstanding this provision, the legislature chose to provide political subdivisions with immunity for certain conduct. If that immunity is to be expanded, the General Assembly, not the courts, is the proper forum.

For these reasons, I respectfully dissent from the majority opinion.