Hawsman v. Cuyahoga Falls

[Cite as Hawsman v. Cuyahoga Falls, 2011-Ohio-3795.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
MICHAEL L. HAWSMAN, minor, et al. C.A. No. 25582
Appellants
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CITY OF CUYAHOGA FALLS, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellees CASE No. CV 2009 07 5156
DECISION AND JOURNAL ENTRY
Dated: August 3, 2011
MOORE, Judge.
{¶1} Appellants, Michael Hawsman, a minor, and his parents, appeal from the
judgment of the Summit County Court of Common Pleas granting summary judgment against
them on the basis of political subdivision immunity. This Court reverses.
I.
{¶2} The relevant facts, for purposes of context, are as follows. On May 12, 2006,
Michael Hawsman visited the Cuyahoga Falls Natatorium and Wellness Center. He injured his
knee while using the pool and diving board. The City of Cuyahoga Falls maintains and operates
the Natatorium. On July 10, 2009, Hawsman and his parents filed suit against the City and five
unidentified defendants alleging that the City negligently maintained the diving board. After
filing a certification for leave to plead, the City filed its answer on September 9, 2009.
{¶3} On May 26, 2010, the City filed a motion for summary judgment claiming that it
was immune from suit. Specifically, it contended that the exception to political subdivision
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immunity found in R.C. 2744.02(B)(4), as interpreted in Cater v. Cleveland (1998), 83 Ohio
St.3d 24, did not apply to indoor swimming pools. The Hawsmans filed a brief in opposition to
the motion and the City filed a reply brief. On August 17, 2010, the trial court granted summary
judgment in favor of the City.
{¶4} The Hawsmans timely filed a notice of appeal and raise one assignment of error
for our review.
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN FINDING THAT THE EXCEPTION TO
POLITICAL SUBDIVISION IMMUNITY PROVIDED IN OHIO REVISED
CODE §2744.0[2](B)(4) DOES NOT APPLY TO THE INDOOR SWIMMING
POOL OPERATED BY [THE CITY].”
{¶5} In their first assignment of error, the Hawsmans contend that the trial court erred
in granting summary judgment to the City because the exception to political subdivision
immunity found in R.C. 2744.02(B)(4) does not apply to the City’s indoor swimming pool. We
agree.
{¶6} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial court,
viewing the facts of the case in the light most favorable to the non-moving party and resolving
any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio
App.3d 7, 12.
{¶7} Pursuant to Civ.R. 56(C), summary judgment is proper if:
“(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
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summary judgment is made, that conclusion is adverse to that party.” Temple v.
Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
{¶8} The party moving for summary judgment bears the initial burden of informing
the trial court of the basis for the motion and pointing to parts of the record that show the
absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93.
Specifically, the moving party must support the motion by pointing to some evidence in the
record of the type listed in Civ.R. 56(C). Id. Once this burden is satisfied, the non-moving party
bears the burden of offering specific facts to show a genuine issue for trial. Id. at 293. The non-
moving party may not rest upon the mere allegations and denials in the pleadings but instead
must point to or submit some evidentiary material that demonstrates a genuine dispute over a
material fact. Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735.
{¶9} We begin by acknowledging that fewer than two years ago in Hopper v. Elyria,
9th Dist. No. 08CA009421, 2009-Ohio-2517, this Court decided a nearly identical issue in
reliance on the lead opinion from Cater v. Cleveland, supra. The vitality of the lead opinion in
Cater has been subjected to increasing skepticism in recent years, particularly with respect to its
treatment of municipal swimming pools. In Cater, a twelve-year-old boy lost consciousness and
nearly drowned in a city-owned indoor pool. Cater, 83 Ohio St.3d at 24. He developed
pneumonia and was declared brain-dead four days later. Id. Cater’s family sued. Id. At the
close of the family’s case, the City of Cleveland moved for a directed verdict on the basis of
immunity under R.C. Chapter 2744. Id. at 27. The trial court granted the motion and the court
of appeals affirmed. Id. We begin our analysis of this case with a brief review of the relevant
portions of R.C. 2744.02.
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A. Chapter 2744 Analytical Structure
{¶10} Cater set forth an oft-cited explanation of the appropriate analysis of cases falling
under R.C. 2744.02. Cater observed that “[t]he Political Subdivision Tort Liability Act, as
codified in R.C. Chapter 2744, sets forth a three-tiered analysis for determining whether a
political subdivision is immune from liability.” Id. at 28. The first tier is the premise under R.C.
2744.02(A)(1) that: “[e]xcept as provided in division (B) of this section, a political subdivision is
not liable in damages in a civil action for injury, death, or loss to person or property allegedly
caused by any act or omission of the political subdivision or an employee of the political
subdivision in connection with a governmental or proprietary function.” (Emphasis omitted.) Id.
at 28.
{¶11} The second tier involves the five exceptions set forth in R.C. 2744.02(B), any of
which may abrogate the general immunity delineated in R.C. 2744.02(A)(1). Id. Lastly, under
the third tier, “immunity can be reinstated if the political subdivision can successfully argue that
one of the defenses contained in R.C. 2744.03 applies.” Id. The Supreme Court of Ohio has
repeatedly endorsed this approach. See, e.g., Hubbard v. Canton City School Bd. of Ed., 97 Ohio
St.3d 451, 2002-Ohio-6718.
B. Applicability of R.C. 2744.02(B)(4) to Municipal Pools
{¶12} In this case, the parties agree that maintenance of the pool and diving board is a
governmental function. Thus, the single issue for our determination is whether the exception to
immunity set forth in R.C. 2744.02(B)(4) applies. The exception to immunity found in R.C.
2744.02(B)(4) provides that “political subdivisions are liable for injury, death, or loss to person
or property that is caused by the negligence of their employees and that occurs within or on the
grounds of, and is due to physical defects within or on the grounds of, buildings that are used in
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connection with the performance of a governmental function, including, but not limited to, office
buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or
any other detention facility * * *.”
{¶13} In the court below, the City based its motion for summary judgment upon the
Supreme Court’s decision in Cater, which interpreted the applicability of R.C. 2744.02(B)(4) to
municipal pools, and this Court’s decision in Hopper, which followed the lead opinion. Justice
Sweeney, writing only for himself in the lead opinion, said that operation of an indoor municipal
swimming pool was subject to the immunity exception found in former R.C. 2744.02(B)(3),
which addressed nuisance conditions, but was not subject to the exception found in former R.C.
2744.02(B)(4).1 Cater, 83 Ohio St.3d at 30-32. The opinion examined the statutory language
from R.C 2744.02(B)(4) including “within or on the grounds of, buildings that are used in
connection with the performance of a governmental function, including, but not limited to, office
buildings and courthouses, but not including jails * * *.” The lead opinion then distinguished
recreational locations from business activity locations, saying that “[u]nlike a courthouse or
office building where government business is conducted, a city recreation center houses
recreational activities.” Id. at 31. The opinion continued in dicta that “if we applied former R.C.
2744.02(B)(4) to an indoor swimming pool, liability could be imposed upon the political
subdivision. However, there would be no liability if the injury occurred at an outdoor municipal
swimming pool, since the injury did not occur in a building.” Id.
{¶14} Chief Justice Moyer concurred in the syllabus and judgment, expressing his belief
that R.C. 2744.02(B)(4) clearly applies to indoor and outdoor pools. Id. at 35. The Chief
Justice’s concurrence reasoned that indoor pools are naturally found within buildings and
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outdoor pools “invariably are located on land that includes buildings[.]” Id. Two justices
concurred in this opinion and the syllabus, creating a plurality opinion. Id. at 34. The syllabus is
broad and states that municipal swimming pools are subject to the exceptions to immunity set
forth in R.C. 2744.02(B). Id. at the syllabus. The final two justices concurred in judgment only.
Id. at 34. Overall, four justices concurred in the broad syllabus statement that the operation of
municipal swimming pools is subject to the immunity exceptions found in R.C. 2744.02(B), one
justice in the lead opinion agreed that R.C. 2744.02(B)(4) did not provide an exception to
immunity in the case of municipal pools and distinguished between recreational and
governmental business buildings, two justices concurred in judgment only, and three justices
opined that R.C. 2744.02(B)(4) should apply to indoor and outdoor municipal pools. Against
this background, the holding of Justice Sweeney’s lead opinion in Cater has limited precedential
effect.
{¶15} Further, the Supreme Court has since implicitly abandoned a distinction between
places of business and places of recreation in interpreting the applicability of R.C.
2744.02(B)(4). In Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250,
two children died as a result of a fire in an apartment owned by the housing authority. Id. at ¶2.
The lawsuit claimed that a housing authority employee removed the lone working smoke
detector in the apartment. Id. at ¶3. The housing authority argued that R.C. 2744.02(B)(4) only
applied to buildings similar to offices and courthouses. Id. at ¶23. The majority analyzed the
phrase “including, but not limited to” and observed that it “denotes a nonexclusive list of
buildings to which the exception may apply.” Id. at ¶24. On appeal, the Supreme Court seized
on the phrase “buildings that are used in connection with the performance of a governmental
1
The version of R.C. 2744.02(B)(4) in effect at the time did not include the clause “and
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function” and concluded that units of public housing are used in connection with the
performance of a governmental function. Id. For that reason, the Court held that R.C.
2744.02(B)(4) created an exception to immunity in that case. Id. Although the Court did not
explicitly abandon the governmental-business-versus-recreational-use distinction, a housing
authority apartment is not a place where the public generally appears and government business
takes place.
{¶16} In recent years, the rationale of Cater’s lead opinion has come under increasing
criticism from several appellate districts. In 2005, the Third District Court of Appeals in
Thompson v. Bagley, 3d Dist. No. 11-04-12, 2005-Ohio-1921, questioned the continuing validity
of Cater. The Bagley court observed that, like in Moore, the Supreme Court in Hubbard
considered only the plain language of R.C. 2744.02(B)(4) and made no mention of a distinction
between recreational and governmental uses. Id. at ¶34. The Bagley court, however,
distinguished the case from Cater on the basis that Thompson was a fourth-grade student
involved in a school swim class at the time of his death. Bagley at ¶36. The court noted that
even teaching students how to swim “is much more akin to the governmental business conducted
in a courthouse or office building than the recreational activities of a municipal swimming pool.”
Id. On that basis, the Third District reversed the trial court’s grant of summary judgment in
favor of the school district. Id. at ¶59.
{¶17} The Sixth District Court of Appeals addressed political subdivision immunity
related to a city-operated swimming pool in O’Connor v. City of Fremont, 6th Dist. No. S-10-
008, 2010-Ohio-4159. The majority affirmed the grant of summary judgment in favor of the city
on the basis of political subdivision immunity. Id. at ¶1. The majority relied upon Cater’s lead
is due to physical defects within or on the grounds of.”
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opinion and Hopper, specifically repeating that Cater constitutes binding precedent. Id. at ¶12.
The majority also relied on Hopper’s determination that Bagley was distinguishable on the basis
that a school is a place of governmental business as opposed to recreational activity, quoting that
“‘the analysis by the Thompson court does not implicate the reasoning in Cater.’” Id. at ¶13.
Judge Cosme, however, wrote a comprehensive dissent. First, the dissent observed that plurality
opinions are not binding authority and cited, among others, Hedrick v. Motorists Mut. Ins. Co.
(1986), 22 Ohio St.3d 42, 44. Id. at ¶17, 22. The dissent further observed that Cater’s lead
opinion did not obtain even plurality status because the lone concurring judge did not join on the
issue of R.C. 2744.02(B)(4)’s applicability. Id. at ¶22. The dissent also criticized Hopper’s
reliance on Cater’s governmental-business-versus-recreational-use distinction in light of
Moore’s implicit abandonment of this approach. Id. at ¶30. In light of the inherent conflict
between Cater’s lead opinion and Moore, the dissent would have relied upon the more recent
precedent and denied the city’s summary judgment motion. Id. at ¶32.
{¶18} The Fourth District Court of Appeals faced an analogous situation in Mathews v.
City of Waverly, 4th Dist. No. 08CA787, 2010-Ohio-347. Although a municipal pool was not
involved, the two-judge majority affirmed a trial court’s order denying summary judgment to the
city on the basis that the exception in R.C. 2744.02(B)(4) applied to the negligent maintenance of
public parks. Id. at ¶36. The third judge dissented without opinion. In that case, “a tree limb
fell on Ms. Mathews while she stood in the parking lot of Canal Park, which the City of Waverly
owns and operates.” Id. at ¶3. The city moved for summary judgment on the basis that R.C.
2744.02(B)(4) does not apply as an exception to immunity because Mathews could not “show
that any building within the park was used in connection with the performance of a government
function.” Id. at ¶4. The Mathews court acknowledged the tension between Hopper and Bagley.
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Id. at ¶33-34. The court also observed the tension between Cater and Moore. Id. at ¶32. The
majority criticized Cater because it “ignore[d] principles of statutory interpretation.” Id. at ¶30.
In interpreting R.C. 2744.02(B)(4) the court observed that “[t]he plain meaning of a
‘governmental function’ includes the operation of a swimming pool. Inserting this latter
definition into R.C. 2744.02(B)(4) would mean that the statute applies to ‘buildings used in
connection with the performance of the operation of a swimming pool.’” Id. The court further
observed that Cater’s lead opinion never explained how it could “avoid a seemingly plain
application of the statute to conclude that that the General Assembly did not intend to include
buildings that house a municipal swimming pool from the reach of R.C. 2744.02(B)(4).” Id. If
the General Assembly intended a distinction between governmental business and recreational use
it could have used language to that effect. Id. The Fourth District determined that Moore was
more recent and its approach to R.C. 2744.02(B)(4) was more consistent with the plain language
of the statute. Id. at ¶35. The court held that “[a]lthough the city does not literally ‘maintain’ or
‘operate’ the park from the shelter houses or the roofed pagodas, those buildings are used in
connection with the performance of the operation of the park.” Id. at ¶36. Consequently,
Mathews was not barred by political subdivision immunity from pursuing a claim because the
plain language of the statute and the Supreme Court’s straightforward interpretation of that
language in Moore were held not to support a distinction between buildings used for recreational
purposes and those used for government business. Id.
{¶19} Hopper is presently binding precedent in this district. Hopper’s son drowned in a
city-owned pool. Hopper, at ¶6. The case was disposed of on a motion to dismiss pursuant to
Civ.R. 12(B)(6), but the complaint alleged that the city failed to post proper warning signs and
failed to secure the premises against unauthorized entry. Id. The trial court declined to dismiss
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the suit and the city appealed. Hopper contended that Hubbard calls into question the reasoning
behind Cater. Id. at ¶15. This Court observed that Hubbard cited Cater as authority for the
three-tiered analysis used in determining immunity and that Hubbard did not attempt to discuss
or distinguish its reasoning from Cater. Id. This Court also rejected the conclusion reached in
Bagley, reasoning that Bagley involved an office building, a school, in which a governmental
function is performed, the education of children. Id. at ¶17. In Hopper this Court reaffirmed the
authority of Cater and reversed the trial court’s denial of the city’s motion to dismiss on the basis
of immunity. Id. at ¶18. Upon considered review, the criticisms of Cater by the various courts
of appeal, however, are well-reasoned and compelling.
C. Hopper Overruled
{¶20} Because Hopper relied on the lead opinion in Cater, an opinion not joined by any
other justice, as binding authority, it was wrongly decided. Hopper is overruled. In so holding,
we rely on the authority of Moore and the applicable statutory language of R.C. 2744.02(B)(4).
Moore implicitly discarded the distinction between recreational use and governmental business.
Moore at ¶24. Moore instead focused on the clear language of R.C. 2744.02(B)(4): “buildings
that are used in connection with the performance of a governmental function.” Id. Moore
observed that the additional language of R.C. 2744.02(B)(4) “including, but not limited to,”
office buildings and courthouses “denotes a nonexclusive list of buildings to which the exception
may apply.” Id. It held that injuries occurring within or on the grounds of these buildings, in
that case public housing authority apartments, are not subject to immunity. Id. R.C.
2744.01(C)(2)(u)(iv) defines the “* * * repair, maintenance, and operation of * * * [a] swimming
pool, * * * water park, * * * wave pool, water slide, or other type of aquatic facility[,]” as a
governmental function. The facility in which Hawsman was injured, the Cuyahoga Falls
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Natatorium, contains a swimming pool that the City repairs, maintains, and operates, and is,
therefore, a building used in connection with the performance of a governmental function.
Accordingly, the exception to immunity found in R.C. 2744.02(B)(4) applies and the City is not
immune from suit by the Hawsmans. Although the trial court could not have predicted that we
would overrule Hopper, its judgment must be reversed.
{¶21} The Hawsmans’ single assignment of error is sustained.
III.
{¶22} The Hawsmans’ single assignment of error is sustained. The judgment of the
Summit County Court of Common Pleas is reversed and the cause remanded for further
proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
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 Summit, 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 Appellees.
CARLA MOORE
FOR THE COURT
BELFANCE, P. J.
DICKINSON, J.
CONCUR
APPEARANCES:
PETER D. TRASKA and WILLIAM J. PRICE, Attorneys at Law, for Appellant.
PAUL A. JANIS, Law Director, and HOPE L. JONES, Deputy Law Director, for Appellee.