JAMES ALCUS, et al., Plaintiffs-Appellants, - vs - BAINBRIDGE TOWNSHIP, et al., Defendants-Appellees.
CASE NO. 2019-G-0205
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
February 18, 2020
[Cite as Alcus v. Bainbridge Twp., 2020-Ohio-543.]
MARY JANE TRAPP, J.
Civil Appeal from the Geauga County Court of Common Pleas, Case No. 2017 P 000872. Judgment: Reversed and remanded.
Kathleen J. St. John and David A. Herman, Nurenberg, Paris, Heller & McCarthy, 600 Superior Avenue, E., Suite 1200, Cleveland, Ohio 44114 (For Plaintiffs-Appellants).
Douglas G. Leak, Kenneth A. Calderone, and Catherine E. Nagy, Hanna, Campbell & Powell, LLP, 3737 Embassy Parkway, Suite 100, Akron, 44333 (For Defendants-Appellees, Bainbridge Township, Bainbridge Township Trustees, and Francis Bularz).
James R. Gallagher and Laura E. Plank, Gallagher Gams Tallan Barnes & Littrell LLP, 471 East Broad Street, 19th Floor, Columbus, Ohio 43215 (For Defendant-Appellee, State Farm Fire & Casualty Company).
MARY JANE TRAPP, J.
{¶1} Appellants, James Alcus (Mr. Alcus) and Patricia Alcus (Mrs. Alcus) (collectively, the Alcuses), appeal the decision of the Geauga County Court of Common Pleas granting summary judgment to appellees, Bainbridge Township, the Bainbridge Township Trustees (collectively, the Township), and Francis Bularz (Mr. Bularz), based on political subdivision immunity pursuant to
{¶2} The Alcuses’ claims against the Township and Mr. Bularz are based on Mr. Alcus’ physical injuries and damage to his vehicle caused by a rolling backhoe that Mr. Bularz had parked in a negligent manner at the Township‘s service department premises prior to Mr. Alcus’ arrival to pick up toolboxes his employer had purchased.
{¶3} The Alcuses argue the trial court erred by (1) granting summary judgment to the Township on the basis that the exceptions to political subdivision immunity under
{¶4} After a careful review of the record and pertinent law, we find the trial court erred by granting summary judgment to the Township and to Mr. Bularz based on statutory immunity.
{¶5} First, the Alcuses met their burden to establish the exception to the Township‘s immunity under
{¶6} (a) The specific activity that caused the accident was Mr. Bularz‘s parking of the backhoe. This activity does not constitute the governmental function of the maintenance of public grounds under
{¶7} (b) The parking of the backhoe and/or the maintenance of nonpublic grounds also do not meet the criteria for a governmental function set forth in
{¶8} As a result of this holding, whether the Alcuses met their burden to establish the exception to the Township‘s immunity under
{¶9} Second, the Township did not meet its burden to establish the defense to liability under
{¶10} Finally, the Alcuses met their burden to establish genuine issues of material fact as to whether the exception to Mr. Bularz‘s immunity under
{¶11} Thus, we reverse the judgment of the Geauga County Court of Common Pleas and remand for further proceedings consistent with this opinion.
Substantive and Procedural History
{¶12} The Township owns the property located at 17800 Haskins Road, Chagrin Falls, Ohio (the Haskins Road property), which contains, among other things, the Township‘s service department premises. The service department has responsibility over the Township‘s parks, cemetery, roads, and buildings. The service department premises are developed with multiple structures, pavement, and a fence. The structures include a main office building, a vehicle storage building, a maintenance area, and numerous cold-storage structures. The premises are fenced in and contain a front gate.
Use of the Premises
{¶13} During the service department‘s hours of operation (7:00 a.m. to 3:00 p.m., Monday through Friday), it is open to the public. Members of the public may enter through the open gate. The public typically comes to the service department to file a complaint, ask a question regarding a service (e.g., cemetery, grounds keeping), rent a township property (e.g., dining hall for an event), or address other business. All visitors are required to sign in at the service department office, where most of their concerns or issues are addressed. On occasion, visitors may walk or drive to other locations within the premises. Visitors are not permitted to freely come into the maintenance area. A service department employee typically escorts or accompanies them as a measure of safety and to make sure they reach the correct destination pertinent to their particular issue.
The Accident
{¶14} On November 17, 2015, Mr. Bularz, a Township employee, was removing and replacing a tree located in front of the Township‘s service garage building located within the service department premises. Mr. Bularz uprooted the tree and loaded it onto a truck using a backhoe. While his co-workers went to get the new tree, Mr. Bularz transferred the unused soil to the auxiliary lot located in another portion of the premises.
{¶15} During his work, Mr. Bularz believed there was a problem with the backhoe‘s brakes, so he drove the backhoe from the auxiliary lot to the maintenance garage. He stopped the backhoe outside of the maintenance garage door, kept the engine running, put the gear in neutral, and put the front loader bucket down. The backhoe has a diesel engine that could not simply be turned on and off but had to idle and cool to avoid damage. Mr. Bularz also surveyed the area to see if anything or
{¶16} While Mr. Bularz was inside the maintenance garage, Mr. Alcus arrived at the service department premises to pick up toolboxes that his employer had purchased through the GovDeals auction website. After signing in, he was directed to drive his pickup truck and park it at a location behind the backhoe. Shortly after Mr. Bularz got off the backhoe, Mr. Alcus and a Township employee were loading one of the toolboxes onto Mr. Alcus’ pickup truck. The backhoe rolled backwards toward them, struck Mr. Alcus’ left arm, and knocked him to the ground. The backhoe also struck and damaged Mr. Alcus’ vehicle.
{¶17} Mr. Alcus was a resident of New York, and his employer had procured a workers’ compensation and employers liability policy from State Farm & Casualty Company (State Farm). Following the accident, Mr. Alcus filed a claim for workers’ compensation benefits, and State Farm paid certain benefits under the policy.
The Cause of the Accident
{¶18} The Township concedes that Mr. Bularz acted negligently by failing to engage the backhoe‘s parking brake. The mechanic who subsequently inspected the backhoe‘s brakes determined they were operating properly and were not in need of repair or maintenance.
{¶19} The manufacturer of the backhoe recommends that an operator park it by leaving the engine running, placing the gear in neutral, dropping the implements (i.e., a front end loader bucket, a rear backhoe arm and bucket, and outriggers on each side) to the ground, and setting the parking brake. In addition, the applicable OSHA regulation states [w]henever the equipment is parked, the parking brake shall be set. See
{¶20} The Alcuses’ expert, a mechanical engineer, stated that the grade where the backhoe was parked was sufficient to cause the machine to roll. He opined that the cause of the accident was Mr. Bularz‘s failure to engage the parking brake and take further reasonable precautions to secure the backhoe from rolling.
{¶21} The Township‘s expert, a professional engineer, opined that the cause of the accident was simple operator error. Mr. Bularz should have set the parking brake and followed the manufacturer‘s recommended operating procedure when he stopped and left the backhoe idling outside the garage door.
The Complaint
{¶22} The Alcuses subsequently filed a complaint against the Township, Mr. Bularz, and State Farm in the Geauga County Court of Common Pleas. The Alcuses also named two other Township employees as defendants but later voluntarily dismissed them from the lawsuit.
{¶23} The Alcuses sought compensatory damages against the Township, alleging that by and through the negligent actions of its employees, it (1) caused a physical defect in the form of a backhoe to exist within or on the grounds of a building used in connection with a governmental function, (2) was negligent with respect to proprietary functions in which its employees
{¶24} The Alcuses also sought compensatory damages against Mr. Bularz, alleging that while acting within the course and scope of his employment, he negligently, recklessly, and with wanton disregard for the safety of others (1) created a physical defect on the premises in the form of a backhoe parked on a hill despite being aware that the brakes were malfunctioning, and (2) failed to secure the backhoe to prevent it from rolling down the hill in the direction of Mr. Alcus.
{¶25} The Alcuses further sought punitive damages against Mr. Bularz, alleging that while acting within the course and scope of his employment, he knowingly and with wanton disregard for the safety of Mr. Alcus created a dangerous property defect by parking the backhoe on a hill without properly securing the machinery to prevent it from rolling downhill. Mrs. Alcus asserted a consortium claim against the Township and Mr. Bularz.
{¶26} With respect to State Farm, the Alcuses sought declaratory judgment that it does not have any right of subrogation or reimbursement, or alternatively, that any such right is subordinate to and dependent on the Alcuses’ right to receive full compensation for all injuries and damages.1
{¶27} The Township and Mr. Bularz filed a joint answer denying the Alcuses’ allegations and asserting the affirmative defense of political subdivision immunity. The parties engaged in discovery, including several depositions and the exchange of expert witness reports, and subsequently engaged in extensive summary judgment proceedings.
Summary Judgment Proceedings
{¶28} The Township filed a motion for summary judgment, arguing that as a political subdivision, it is entitled to immunity under
{¶29} The Township also argued that the Alcuses’ claims do not fall within any statutory exceptions to immunity set forth in
{¶30} The Township further argued that even if an exception applies, the defense to liability set forth in
{¶31} The Alcuses filed a brief in opposition, arguing that the Township was engaged in a proprietary function at the time of the accident (or there was a genuine issue of material fact as to whether it was), so that the exception to immunity set forth in
{¶32} Alternatively, the Alcuses argued that even if the Township was engaged in a governmental function, the exception to immunity set forth in
{¶33} Finally, the Alcuses argued that the defense to liability set forth in
{¶34} The Township filed a reply brief responding to the Alcuses’ arguments. Notably, the Township set forth a detailed description of the Haskins Road property and its uses. It also recharacterized its activities on the day of the accident, stating that Mr. Bularz was operating the backhoe as part of the maintenance of the service department grounds. It asserted that this activity constitutes an express, statutory governmental function under
{¶35} The Alcuses filed a surreply, disputing the Township‘s assertion that it was engaged in maintenance and that the service department‘s premises and the area where the injury occurred constitute public grounds. They also disagreed with
{¶36} Mr. Bularz filed a separate motion for summary judgment arguing that he was immune from liability pursuant to
The Trial Court‘s Judgment Entry
{¶37} The trial court issued a judgment entry granting the Township‘s and Mr. Bularz‘s motions for summary judgment, concluding that the Alcuses did not meet their burden to show any exceptions to immunity apply.
{¶38} The trial court first determined that the backhoe was not a motor vehicle for purposes of the exception under
{¶39} The trial court next determined that the Township was engaged in a governmental function under
{¶40} The trial court also determined that the Township was engaged in a governmental function under
{¶41} Thus, the trial court held that the exception to immunity set forth in
{¶42} The trial court further determined that the exception to immunity under
{¶43} Since it found the Alcuses had not established any exceptions to immunity, the trial court stated it was not required to address whether the Township had established the defense to liability set forth in
{¶44} Finally, the trial court found that the complaint did not show the Alcuses sued Mr. Bularz in his individual capacity, and even if they had, there was no evidence he acted outside the scope of his employment, with malicious purpose, in bad faith, or in a wanton or reckless manner, or is subject to liability expressly imposed by statute pursuant to the exceptions set forth in
{¶45} The Alcuses filed a notice of appeal and set forth three assignments of error for our review:
{¶46} [1.] The trial court erred in granting summary judgment to Bainbridge Township and/or Bainbridge Township Trustees (the Township) on the ground that the exception to immunity in
{¶47} [2.] The trial court erred in granting summary judgment to the Township on the ground that the exception to immunity in
{¶48} [3.] The trial court erred in granting summary judgment to the defendant-appellee Francis Bularz.
Standard of Review
{¶49} We review de novo a trial court‘s order granting summary judgment. Sabo v. Zimmerman, 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶9. A reviewing court will apply the same standard a trial court is required to apply, which is to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. Id.
{¶50} Since summary judgment denies the party his or her ‘day in court’ it is not to be viewed lightly as docket control or as a ‘little trial‘. The jurisprudence of summary judgment standards has placed burdens on both the moving and the nonmoving party. In Dresher v. Burt [75 Ohio St.3d 280 (1996)], the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party‘s claim. The evidence must be in the record or the motion cannot succeed. The moving party cannot discharge its initial burden under
{¶51} The portions of the record * * * are those evidentiary materials listed in
{¶52} If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last sentence of
{¶53} Whether a political subdivision is entitled to immunity is a question of law properly determined by the court prior to trial pursuant to a motion for summary judgment. Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, ¶12, citing Conley v. Shearer, 64 Ohio St.3d 284, 292 (1992).
{¶54} In addition, statutory interpretation presents a question of law. Riedel v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010-Ohio-1926, ¶6. The necessity of considering the facts or the evidence to determine whether a legislative act applies to a particular case does not turn the issue of statutory interpretation into a question of fact. Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, ¶18, citing Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 148 (2000).
Political Subdivision Immunity
{¶55} The General Assembly enacted the Political Subdivision Tort Liability Act, codified at
{¶56} The Township is a political subdivision of the State of Ohio. See
{¶57} First,
{¶58} Second,
{¶59} Third, if any of the exceptions in
{¶60} In this case, an analysis of the first step is not necessary, as the parties do not dispute that the Township is a political subdivision entitled to the general grant of immunity under
{¶61} Mr. Bularz is an employee of a political subdivision. Subject to three exceptions, employees of political subdivisions are immune from liability in a civil action brought to recover damages for injury, death, or loss to person or property allegedly caused by an act or omission in connection with a governmental or proprietary function.
Exception to Immunity - R.C. 2744.02(B)(2)
{¶62} In their first assignment of error, the Alcuses argue the trial erred by granting summary judgment to the Township on the grounds that the exception to immunity set forth in
{¶64} The parties dispute whether Mr. Bularz was engaged in a governmental or a proprietary function.
Governmental and Proprietary Functions
{¶65} According to the Supreme Court of Ohio, [i]n making the distinction between governmental functions and proprietary functions a key component of
{¶66} When a political subdivision‘s acts go beyond governmental functions (and when it acts in a proprietary nature) there is little justification for affording immunity to that political subdivision. ‘Having entered into activities ordinarily reserved to the field of private enterprise, a [political subdivision] should be held to the same responsibilities and liabilities as are private citizens.’ Id. at 559, quoting Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31, 37 (1981).
{¶67} The mutually exclusive definitions of governmental function and proprietary function are set forth in
{¶68} Inversely, a proprietary function is a function that either (1) is specifically listed in
Governmental Function - R.C. 2744.01(C)(2)(e)
{¶69} One of the governmental functions specified in
{¶70} Whether a function is governmental or proprietary must be determined by defining what it is that the political subdivision is actually doing when performing the function. Kenko Corp. v. Cincinnati, 183 Ohio App.3d 583, 2009-Ohio-4189, ¶27 (1st Dist.), quoting Allied Erecting & Dismantling Co. v. Youngstown, 151 Ohio App.3d 16, 2002-Ohio-5179, ¶23 (7th Dist.).
{¶71} The Supreme Court of Ohio has rejected an overly broad characterization of a political subdivision‘s activities. For instance, in Greene Cty., a county agricultural society brought action against a hog exhibitor and others for allegedly violating exhibition rules at a livestock competition at a county fair. Id. at 552. The defendants filed a counterclaim for violation of due process and defamation, and the society asserted immunity under
{¶72} In determining whether the society was engaged in a proprietary or governmental function, the Supreme Court of Ohio stated the issue here is not whether holding a county fair is a governmental function; rather, it is the more specific question of whether conducting the hog show at the county fair and conducting the investigation into the allegations of irregularity surrounding the entry of [the winning pig] in that hog show are governmental functions. Id. at 560. The court ultimately held that the society was engaged in a proprietary function, even though holding a county fair with hog contests is a governmental function. Kenko Corp. at ¶29, citing Greene Cty. at 561.
{¶73} In personal injury cases, courts look at the particular, specific activity that allegedly resulted in the plaintiff‘s injury. DSS Services, LLC v. Eitel‘s Towing, LLC, 10th Dist. Franklin No. 18AP-567, 2019-Ohio-3158, ¶18. For example, in DSS Services, a township fire department responded to an accident scene involving an overturned dump truck. Id. at ¶2. The township authorized a towing company to right the overturned truck, but the process used caused significant damage to the truck. Id. The truck owner sued the township for negligence, and the township asserted political subdivision immunity. Id. at ¶3.
{¶74} In determining whether the township was engaged in a governmental or proprietary function, the Tenth District stated: [W]e must focus on the specific activity of righting and towing the truck, not the more general actions of responding to and handling an accident scene, to determine the nature of the function at issue. Id. at ¶19. This is consistent with the views of other courts. See, e.g., Plank v. Bellefontaine, 3d Dist. Logan No. 8-17-18, 2017-Ohio-8623, ¶20 (holding that the applicable function was that for which the plaintiff seeks to hold the political subdivision liable); Hignett v. Schwarz, 9th Dist. Lorain No. 10CA009762, 2011-Ohio-3252, ¶18 (holding that the relevant activity was the one being engaged in at the time [plaintiff] was injured); Milbert v. Wells Twp. Haunted House, Inc., 7th Dist. Jefferson No. 15 JE 0023, 2016-Ohio-5643, ¶24 ([T]he question of whether the township was entitled to immunity depends upon whether an employee negligently performed an act that caused the plaintiff‘s injury).
{¶75} The evidence in this case establishes that the negligent method Mr. Bularz
constitutes the maintenance of public grounds under
Maintenance
{¶76} We must first determine whether the Township was engaged in the “maintenance” of the service department premises under
{¶77}
{¶78} Prior to the accident, Mr. Bularz utilized the backhoe to uproot a tree and transport extra dirt. Uprooting a tree and transporting soil are obviously maintenance activities because they involve the upkeep of the service department premises. However, Mr. Bularz was not engaged in these activities when Mr. Alcus was injured and his vehicle damaged. See Murray v. Chillicothe, 164 Ohio App.3d 294, 2005-Ohio-5864, ¶17 (4th Dist.) (“Because [appellant‘s] injury did not result from the catch-basin grate‘s being in a state of disrepair, we cannot say that this case involves the maintenance of a storm-sewer system“). At most, Mr. Bularz‘s parking of the backhoe related to the upkeep of the backhoe rather than the service department premises. Therefore, we conclude that the parking of the backhoe does not constitute “maintenance” of public grounds under
Definition of Public Grounds
{¶79} Even if we construed Mr. Bularz‘s activity at the time of the accident as involving the maintenance the service department premises, these premises do not constitute “public grounds” as contemplated by
{¶80}
{¶81} Examples of “public grounds” include publicly owned and controlled parks and swimming pools. See, e.g., Ferrando at 210 (“Municipally owned and controlled parks, established and maintained for and open to the general public, and to which the general public are invited to come, are, in the fullest sense, public grounds“); Cater v. Cleveland, 83 Ohio St.3d 24, 30 (1998), abrogated by M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336 (“We find that an indoor municipal swimming pool, which is open to the general public, also falls within the definition of ‘public grounds‘“).
{¶82} The Eighth District applied the definition of “public grounds” in Pesta v. Parma, 8th Dist. Cuyahoga No. 94395, 2010-Ohio-4897. In Pesta, an individual was walking on city-owned property when he fell down a ravine
{¶83} In addition to recognizing the Supreme Court of Ohio‘s holdings in Standard Fire and Ferrando, the Eighth District stated that “not all land owned by a political subdivision should be considered ‘public grounds‘” and that “[t]he mere fact that property may be owned by a political subdivision does not mean the public is invited there.” Id. at ¶20.
{¶84} The court ultimately determined there were genuine issues of material fact as to whether the property constitutes public grounds. Id. at ¶21. Evidence indicated the property on the east side of South Park Boulevard “was not developed with walking trails, sidewalks, play areas or the like,” while “the existence of the turn-around and its location across the street from a public park area suggests that the public was invited there.” Id.
{¶85} In Marshall v. Portsmouth, 11 Ohio Misc. 123 (C.P.1967), the Scioto County Court of Common Pleas considered whether a parking lot used in connection with a municipal hospital constituted “public grounds.” The court rejected the “widest meaning” of the term, which would be “any ground owned by the public.” Id. at 124. The court concluded that the parking lot was a “public ground” because it “was intended to be used for travel in that it was to be driven on and walked on,” “it was opened to the public by municipal authorities,” and “it was being used by plaintiff in the ordinary mode and for the purpose for which it was created.” Id. at 126.
The Trial Court‘s Determinations
{¶86} In this case, the trial court determined the service department is ”on public grounds.” (Emphasis added.) However, the correct inquiry is whether the service department premises are public grounds.
{¶87} The trial court did not cite or apply the above authorities regarding the definition of “public grounds.” Rather, the trial court quoted a portion of
{¶88} The trial court also quoted portions of
{¶89} Further, the trial court considered the entire Haskins Road property in determining the existence of “public grounds.” The evidence indicates that the Haskins Road property contains other unrelated areas besides the service department premises, including, among other things, a recycling center and a public park and
{¶90} Courts that have applied the definition of “public grounds” have focused on the portion of the property where the incident took place rather than the entire property. For example, in Pesta, the Eighth District considered whether a ravine was “public grounds” where it was located adjacent to a public park, including a play area, and a gravel “turn-around.” Id. at ¶19. In Marshall, the common pleas court considered whether a parking lot used in connection with a municipal hospital constituted “public grounds.” Id. at 123. Similarly, in Pettit v. Perry Cty. Commrs., 5th Dist. Perry No. 10-CA-07, 2011-Ohio-572, the Fifth District determined whether a parking lot of a county-owned license bureau constituted “public grounds.” Id. at ¶15.
{¶91} Thus, while the accident occurred within the Haskins Road property, it specifically occurred within the maintenance area of the service department premises.
Public Grounds Analysis
{¶92} The facts regarding the public‘s use of the service department premises are not in dispute. During the service department‘s hours of operation (7:00 a.m. to 3:00 p.m., Monday through Friday), it is open to the public. Members of the public may enter through the open gate. The public typically comes to the service department to file a complaint, ask a question regarding a service (e.g., cemetery, grounds keeping), rent a township property (e.g., dining hall for an event), or address other business. All visitors are required to sign in at the service department office, where most of their concerns or issues are addressed.
{¶93} This evidence suggests that the service department office is generally open to the public to address relevant business. However, the office does not constitute “public grounds.” The definition of “governmental function” set forth in
{¶94} The evidence also indicates that on occasion, visitors may walk or drive to other locations within the premises. However, visitors are not permitted to freely come into the maintenance area. A service department employee typically escorts or accompanies them as a measure of safety and to make sure they reach the correct destination pertinent to their particular issue.
{¶95} While the maintenance area may constitute “grounds,” it does not constitute “public grounds.” Unlike the public park in Ferrando, the parking lot in Marshall, or the swimming pool in Cater, the maintenance area is not “established and maintained for and open to the general public.” See Ferrando at 210. Rather, the maintenance area is established and maintained for service department employees to perform their job duties and to store Township equipment and vehicles. Unlike the parking lot in Marshall, the purpose for which the maintenance area was created appears to be nonpublic in nature.
{¶96} The general public is also not “invited” to the maintenance area. See Ferrando at 210. It is not even generally open to members of the public that visit the service department. Because
{¶97} The Township, distinguishing Pesta, argues that the fact the service department premises are developed suggests it is “public grounds.” However, the critical issue in Pesta was not that the property was undeveloped. Rather, it was unclear whether the public was invited there because the property was adjacent to obvious “public grounds” such as a public park and turnaround. See id. at ¶21. Unlike in Pesta, the Township‘s undisputed restrictions on the use of the maintenance area demonstrate that only the front office is intended for general public use.
{¶98} The Township acknowledges that it “regulates” the “use” of the maintenance area but argues that “all public facilities must have some kind of regulations regarding their use,” such as a public school, citing Fairlawn v. Fraley, 9th Dist. Summit No. 9827, 1981 WL 3850 (Feb. 11, 1981).
{¶99} Fraley involved the meaning of the term “public place” in the context of posting ordinances, not the meaning of “public grounds” or even the issue of statutory immunity. See id. at *4. While it is true that members of the public “may not wander into a public school at will,” see id. at *5, public schools are unquestionably intended for public use. Here, the public‘s highly restricted use of the service department‘s maintenance area is ancillary to its intended nonpublic purpose.
{¶100} Accordingly, even assuming Mr. Bularz was engaged in “maintenance” at the time of the accident, he was not maintaining “public grounds.”
Regulating the Use of Public Grounds
{¶101} Alternatively, the Township argues that if it was not engaged in the “maintenance of public grounds” at the time of the accident, it was engaged in “the regulation of the use of, and the maintenance and repair of, * * * public grounds” under
{¶102} Based on the foregoing, we conclude the Township‘s activity at issue in the present case – specifically, parking the backhoe, or, more broadly, maintaining nonpublic grounds of the service department - does not fall within those specified as a “governmental function” in
Governmental Function - R.C. 2744.01(C)(1)(c)
{¶103} Since the Township‘s activities do not constitute a “specified” governmental function, we must apply the general definitions of “governmental function” set forth in
{¶104}
{¶106} However, the Township‘s sale of the toolboxes was not the cause of the accident. This activity simply occurred in the vicinity of where Mr. Bularz parked the backhoe. And even if parking a backhoe “promotes or preserves the public peace, health, safety, or welfare,” nongovernmental persons engage in such activity all the time. Accordingly, the Township was not engaged in a governmental function under
Governmental Function - R.C. 2744.01(C)(1)(a)
{¶107}
{¶108} The Township argues that
{¶109} Even assuming Mr. Bularz was maintaining the service department premises, there is no evidence that the tree he removed was near a “public road.” And as demonstrated above, the service department premises do not constitute “public grounds.”
{¶110} Further, the removal of trees on nonpublic grounds are hardly the type of duties the Supreme Court of Ohio has recognized as being “imposed upon the state as obligations of sovereignty,” such as “protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property.” Greene Cty. at 558, quoting Wooster v. Arbenz, 116 Ohio St. 281, 284 (1927).
{¶111} Finally, the statutes that the Township cites are inapplicable.
{¶112} None of the cited statutes that are applicable to townships involve the removal of trees on nonpublic grounds. See
R.C. 2744.01(C)(1)(b)
{¶113}
{¶114} As demonstrated above, there is no legislative duty imposed on the Township to maintain trees on its grounds. Further, the Supreme Court of Ohio addressed the scope of
{¶115} The Township‘s maintenance of its grounds only benefits some of the citizens of the state, mainly Township employees who work there, and to some extent, the visitors who are permitted access, not all citizens of the state. Accordingly, the Township was not engaged in a governmental function under
{¶116} In sum, we conclude the Township‘s activity at issue in this case does not constitute a governmental function under
Exception to Immunity - R.C. 2744.02(B)(4)
{¶117} In their second assignment of error, the Alcuses argue the trial erred by granting summary judgment to the Township on the grounds that the exception to immunity set forth in
{¶118}
{¶119} By its express terms, the exception set forth in
Defense to Liability - R.C. 2744.03(A)(5)
{¶120} The Township argues that even if an exception to immunity under
{¶121} The trial court found that third-tier analysis was not required based on its determination that no exceptions to immunity apply. If the defense to liability in
{¶122}
{¶123} “In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
{¶124} “* * *
{¶125} “The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.”
{¶126} The Township argues this provision applies because Mr. Alcus’ injuries resulted from the Township‘s “exercise of judgment or discretion in how to use equipment (i.e. the backhoe).” We disagree.
{¶127} The Supreme Court of Ohio has held that “[t]he nonliability provisions of [
{¶128} We have held that “[s]overeign immunity * * * protects only those charged with weighing alternatives and making choices with respect to public policy and planning characterized by a high degree of discretion and judgment. It does not protect a [political subdivision] from the negligent conduct of its employees in the details of carrying out the activity even though there is discretion in making choices. This is not the type of discretion for which there is immunity as it does not involve public policy endangering the creative exercise of political judgment.” Id. at ¶25, quoting DuBose v. Akron Pub. Schools, 9th Dist. Summit No. 18707, 1998 WL 208846, *4 (Apr. 29, 1998). See also Hubbell v. Xenia, 175 Ohio App.3d 99, 2008-Ohio-490, ¶22 (2d Dist.) (“[R]outine decisions requiring little judgment or discretion and that, instead, portray inadvertence, inattention, or unobservance, are not covered by the defense provided in
{¶129} In Leasure v. Adena Local School Dist., 4th Dist. Ross No. 11CA3249, 2012-Ohio-3071, the Fourth District determined that “[w]hether to set up and use the bleachers according to the manufacturer‘s specifications involved a routine matter of safe and proper operation of school equipment.” Id. at ¶34. Therefore, the court concluded “[o]perating them in a safe manner and in accordance with the manufacturer‘s specifications does not involve the creative exercise of political judgment” under
{¶130} In Jones v. Delaware City School Dist. Bd. of Edn., 5th Dist. Delaware No. 2013 CAE 01 0009, 2013-Ohio-3907, the Fifth District held that “the removal of the reflective tape and lighting from the orchestra pit * * * does not involve the type of
{¶131} Here, as in Leasure and Jones, Mr. Bularz‘s decision whether to use the parking brake on the backhoe was a routine matter of safe operation. It involved parking the backhoe in accordance with the manufacturer‘s recommendations and his training rather than a high degree of discretion or judgment. His failure to do so portrayed inadvertence, inattention, and/or unobservance. See Hubbell at ¶22.
{¶132} The Township urges us to adopt the holding in Fields v. Talawanda Bd. of Edn., 12th Dist. Butler No. CA2008-02-035, 2009-Ohio-431, where the Twelfth District determined that “the use or non-use of equipment or safety devices constitutes an exercise of judgment or discretion within the purview of
{¶133} Even if Mr. Bularz‘s decision constituted the type of discretion contemplated by
{¶134} In sum, the Alcuses met their burden to establish an exception to the Township‘s immunity under
{¶135} The Alcuses’ first assignment of error has merit, and its second assignment of error is dismissed as moot.
Mr. Bularz‘s Immunity
{¶136} In their third assignment of error, the Alcuses argue the trial erred by granting summary judgment to Mr. Bularz. Specifically, the Alcuses argue the trial court erred by determining (1) Mr. Bularz was not sued in his individual capacity, and (2) no genuine issues of material fact exist as to whether Mr. Bularz engaged in reckless or wanton conduct.
{¶137} Immunity is also extended to individual employees of political subdivisions. (Citations omitted.) Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, ¶10. For claims against individual employees, the three-tiered analysis used to determine whether a political subdivision is immune is not used. (Citation omitted.) Id. Rather,
{¶138}
{¶139} Relevant here is
Individual Capacity
{¶140} The trial court determined that
{¶141} For purposes of political-subdivision immunity, a suit against a political subdivision employee in his or her official capacity is treated the same as a suit against the political subdivision itself, and a three-tiered analysis applies. Rural Bldg. of Cincinnati, LLC v. Mercer, 1st Dist. Hamilton No. C-160760, 2017-Ohio-7226, ¶19. Whether an action is brought against a political-subdivision employee in an individual or official capacity requires a review of the language used in the complaint. Id.
{¶142} In Parmertor I, we held that the plaintiffs had only sued the members of a board of education in their official capacities as opposed to their individual capacities because (1) “the substance of the [complaint] fails to specifically allege the board members transcended their official duties,” (2) “the allegations state the board members were acting in their official capacity,” and (3) “there are no allegations that any of the board members took any personal actions that would indicate intentional or reckless conduct that could create a causal nexus between them individually and the injuries that resulted from the incident.” Id. at ¶32.
{¶143} By contrast, in Doe v. Licate, 11th Dist. Ashtabula No. 2018-A-0019, 2019-Ohio-412, we found that a school district transportation supervisor was sued in his individual capacity where (1) the allegations of the complaint did not challenge any policies and practices of the transportation supervisor‘s office, (2) neither the board of education nor the school district were named in the complaint, and (3) the complaint alleged the employee “personally engaged in actions that subject him to liability as an employee of [the school district].” Id. at ¶43.
{¶144} In their complaint, the Alcuses alleged that Mr. Bularz was the “last person to operate the backhoe” and that he “negligently, recklessly, and with wanton disregard for the safety of others, decided to leave the backhoe parked on a hill despite being aware that the brakes were malfunctioning, thereby creating a physical defect on the premises” and “failed to secure the backhoe to prevent it from rolling down the hill in the direction” of Mr. Alcus. The Alcuses also sought punitive damages against Mr. Bularz. A request for punitive damages suggests an employee is being sued as an individual. Thompson v. Buckeye Joint Vocational School Dist., 5th Dist. Tuscarawas No. 2015AP080047, 2016-Ohio-2804, ¶40. Therefore, the Alcuses sufficiently alleged in their complaint that Mr. Bularz personally engaged in actions that subject him to individual liability as an employee.
{¶145} The Township argues that because the Alcuses also alleged Mr. Bularz was “acting within the course and scope of his employment” with the Township, he
Wanton or Reckless Conduct
{¶146} The trial court also determined that even if the Alcuses sued Mr. Bularz in his individual capacity, there was no evidence he “acted outside the scope of his employment, acted with malicious purpose, in bad faith, or in a wanton or reckless manner, or is subject to liability expressly imposed by statute.” The Alcuses argue genuine issues of material fact exist as to whether Mr. Bularz engaged in reckless or wanton conduct. They do not the assert that Mr. Bularz acted outside the scope of his employment, with malicious purpose, or in bad faith.
{¶147} We have held that whether wanton or reckless behavior exists is generally a question of fact to be resolved by the jury. (Citations omitted.) Parmertor v. Chardon Local Schools, 11th Dist. Lake No. 2018-L-035, 2019-Ohio-328, ¶ 42, appeal not allowed, 156 Ohio St.3d 1405, 2019-Ohio-2261. “Summary judgment is appropriate only when the facts are clear and fail to rise to the level of conduct that could be construed as * * * wanton [or] reckless.” (Citations omitted.) Id.
{¶148} The Supreme Court of Ohio has held that “reckless” and “wanton” describe different and distinct degrees of care that are not interchangeable. Anderson, supra, at ¶31. “Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” (Citations omitted). Id. at ¶34. “Reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a conscious disregard of or indifference to the risk, but the actor does not desire harm.” (Citation omitted.) Id.
{¶149} “Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result.” (Citation omitted.) Id. at ¶33. “[O]ne acting in a wanton manner is aware of the risk of the conduct but is not trying to avoid it and is indifferent to whether harm results.” (Citation omitted.) Id.
{¶150} In this case, Mr. Bularz parked the running backhoe on an incline and did not engage the parking brake, despite the manufacturer‘s recommendation, the applicable OSHA regulation, and his training. Although he lowered the front loader bucket, he did so facing the maintenance garage, which was of questionable effectiveness. Further, the Alcuses dispute whether the bucket was touching the ground. On the other hand, Mr. Bularz surveyed the area while parking the backhoe, and there is no evidence to indicate he was aware Mr. Alcus would be arriving at the premises. The evidence also suggests the backhoe did not begin rolling immediately. The parties appear to disagree regarding the materiality of Mr. Bularz parking on the incline.
{¶151} To resolve these issues, it is necessary to weigh conflicting evidence and determine an ultimate fact where different
{¶152} In sum, the Alcuses sued Mr. Bularz in his individual capacity, and there are genuine issues of material fact as to whether Mr. Bularz‘s conduct was reckless or wanton under
{¶153} The Alcuses’ third assignment of error has merit.
{¶154} Based on the foregoing, the trial court erred in granting summary judgment to the Township and to Mr. Bularz based on political subdivision immunity under
TIMOTHY P. CANNON, P. J.,
CYNTHIA WESTCOTT RICE, J.,
concur.