2006 Ohio 5192 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 2} The record discloses the following facts. On October 13, 2001, Alice and her immediate family attended the "haunted hayride" at the Lake Metroparks' Farm Park in Kirtland, Ohio. The "haunted hayride" was an event conducted by Lake Metroparks and took place on Lake Metroparks' property; it consisted of a tractor towing a wagon of seated attendees through the woods.
{¶ 3} Alice and her family were seated in the front row of the wagon. At some point during the ride, the wagon in which Alice and her family were riding detached from the tractor, rolled backwards, and impacted a tree.
{¶ 4} On October 8, 2003, appellants filed a complaint with the Lake County Court of Common Pleas. The complaint specifically named Lake Metroparks as a defendant. In addition, the complaint named unknown Lake Metroparks' employees — John Doe I and John Doe II — as defendants. Alice claimed that as a result of the "haunted hayride" accident, she incurred physical injuries and requested compensatory damages in excess of $25,000. Richard, as Alice's husband, requested damages for loss of consortium.
{¶ 5} Lake Metroparks filed a timely answer and stated the affirmative defense of immunity. Shortly thereafter, Lake Metroparks moved for summary judgment as to all of the complaint's claims. Lake Metroparks' argued that it was entitled to summary judgment predicated upon immunity under R.C. 2744, et seq.
{¶ 6} Attached to the motion for summary judgment were Alice's deposition testimony and the affidavit of Schultz. Schultz's affidavit attested that he was employed by Lake Metroparks at the time of the accident. He stated that the tractors and wagons used during the "haunted hayride" were owned by Lake Metroparks and it was his job to inspect, maintain, and repair the tractors and wagons. Schultz further attested that the wagon involved in the accident was inspected in September 2001, just prior to the "haunted hayride." This inspection failed to reveal any defects or breakage and, therefore, he concluded the wagon was safe for use during the "haunted hayride."
{¶ 7} Schultz further stated that he inspected the wagon following the accident. He attested that "a weld at a place where the tongue of the wagon was attached to the front axle gave way and allowed the tongue of the wagon to come apart and break free from the wagon, while the other end of the tongue remained attached to the tractor which was towing the wagon."
{¶ 8} Alice's testimony revealed specific facts surrounding the accident. She testified that the accident and her alleged injury occurred during the hayride, while the wagon and tractor were in the woods. Photographic exhibits corroborated her testimony.
{¶ 9} On July 6, 2004, appellants moved for leave of court to file an amended complaint, which the trial court ultimately granted. The amended complaint named Schultz as a defendant in place of John Doe I. This amended complaint, and its attendant summons, were served by certified mail upon Mr. Schultz. Thereafter, an amended answer was filed jointly by Lake Metroparks and Schultz. The amended answer included the affirmative defense of insufficiency of process and insufficiency of service of process.
{¶ 10} Appellants filed a brief in opposition to Lake Metroparks' motion for summary judgment. The brief in opposition maintained that Lake Metroparks was not entitled to immunity under R.C. 2744, et seq. Lake Metroparks replied contending that immunity did apply and that the accident did not occur "within or on the grounds of buildings that are used in connection with the performance of a governmental function."
{¶ 11} Schultz filed separate motions for summary judgment. His first motion for summary judgment argued that, as an employee of Lake Metroparks, he was entitled to immunity pursuant to R.C.
{¶ 12} After reviewing the parties' submissions, the trial court granted summary judgment in favor of Lake Metroparks and Schultz. From this judgment, appellants filed a timely notice of appeal and now set forth the following assignment of error:
{¶ 13} "The trial court erred in granting summary judgment to appellees in its December 21, 2004 order since there are genuine issues of material fact as to whether appellees breached the duty of care to appellants, a business invitee."
{¶ 14} An appellate court reviews a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio EdisonCo.,
{¶ 15} Material facts are those facts that might affect the outcome of the suit under the governing law of the case. Turnerv. Turner,
{¶ 16} The party seeking summary judgment on the ground that the nonmoving party cannot prove its case bears the initial burden of informing the trial court of the basis for the motion and of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmoving party's claims. Dresher v. Burt,
{¶ 17} If the moving party fails to satisfy this initial burden, summary judgment should be denied. Dresher at 293. However, if this initial burden is met, the nonmoving party has a reciprocal burden to respond, by affidavit or as otherwise provided in the rule, in an effort to demonstrate that there is a genuine issue of fact suitable for trial. Id.
{¶ 18} The instant appeal requires an analysis relating to a political subdivision's immunity from tort liability. The Ohio Supreme Court has set forth the following three-tiered analysis to determine whether a political subdivision is immune from tort liability: the first tier is to establish immunity under R.C.
{¶ 19} R.C.
{¶ 20} Appellants concede that the "haunted hayride" represented a "governmental function" because the ride was part of a political subdivision's operation of a park. As a result, appellants admit that Lake Metroparks is generally immune from liability per R.C.
{¶ 21} At the outset, we agree with appellants that the "haunted hayride" was a "governmental function." R.C.
{¶ 22} "[A political subdivision's] design, construction, reconstruction, renovation, repair, maintenance, and operation of any school athletic facility, school auditorium, or gymnasium or any recreational area or facility, including, but not limited to, any of the following:
{¶ 23} "(i) A park, playground, or playfield[.]"
{¶ 24} Here, Lake Metroparks, a political subdivision, conducted the "haunted hayride" as part of its operation of a park; namely, the Lake Metroparks' Farm Park. Accordingly, the "haunted hayride" was a "governmental function." See, e.g.,Doyle v. Akron (1995),
{¶ 25} Although immunity generally applies to a "governmental function," we must examine former R.C.
{¶ 26} "Except as otherwise provided in section
{¶ 27} A "plain meaning construction" of former R.C.
{¶ 28} In the instant case, Alice testified that the accident occurred in the woods. This was further confirmed by numerous picture exhibits showing that the accident and injury occurred in the woods. However, this evidence, standing alone, fails to affirmatively demonstrate that the injury did not occur on the grounds of a building owned by Lake Metroparks. Thus, there remained a genuine issue of material fact regarding whether R.C.
{¶ 29} Appellee contends that immunity is reinstated under R.C.
{¶ 30} R.C. 27433.03(A)(5) states that, "[t]he 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."
{¶ 31} In the recent and analogous case of Elston v. HowlandLocal Schools, 11th Dist. No. 2004-T-0092,
{¶ 32} "[The school's district] reliance upon R.C.
{¶ 33} Here, as in Elston, Lake Metroparks argues that immunity is reinstated under R.C.
{¶ 34} There is no evidence that Lake Metroparks exercised any judgment or discretion with respect to whether the wagon or tractor was to be used for the "haunted hayride" or whether the wagon or tractor was safe to be used for the "haunted hayride." As a result, Lake Metroparks failed to show that immunity is reinstated under R.C.
{¶ 35} Appellants also argue that Mr. Schultz's Civ.R. 15(D) defense should fail. While admitting, essentially, that the rule requires personal service of process upon a John Doe defendant (in which guise Mr. Schultz first entered this action), they contend an exception should apply in this case, in order to facilitate the purposes of Civ.R. 15(C), which is intended to ameliorate the effect of the statute of limitations. Williams v.Jerry L. Kaltenbach Ent., Inc. (1981),
{¶ 36} Civ.R. 15(D) states as follows:
{¶ 37} "Amendments where name of party unknown. — When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words "name unknown," and a copy thereof must be served personally upon the defendant."
{¶ 38} It should be noted that, by its terms, Civ.R. 15(D) mandates personal service of the original complaint and summons
on a John Doe defendant — not the amended complaint and summons. McConville v. Jackson Comfort Sys., Inc. (1994),
{¶ 39} Supreme Court authority indicates, however, that service of the original complaint and summons should be made on the former John Doe defendant, and that Civ.R. 15(D) explicitly requires these to be by personal service. Cf. Amerine v.Haughton Elevator Co. (1989),
{¶ 40} In this case, however, Mr. Schulz did not waive insufficiency of process or service thereof: he claimed these defenses in the first pleading he could file in this action — his answer to the amended complaint. As such, the matter was preserved, and it was proper for the trial court to grant him summary judgment on the basis of the statute of limitations, once the one year period provided for service under Civ.R. 3(A) ran in October, 2004.
{¶ 41} Based upon the foregoing analysis, appellants' sole assignment of error is without merit regarding their claim that the trial court erred by granting summary judgment in favor of Schultz. However, the portion of appellant's assignment of error relating to Lake Metroparks is with merit. Thus, the trial court erred in granting summary judgment to Lake Metroparks.
{¶ 42} This court notes with appreciation the superior presentation of the issues made by the attorneys for both sides to this appeal.
{¶ 43} The judgment of the Lake County Court of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
Ford, P.J., concurs with Concurring Opinion,
Rice, J., dissents with Dissenting Opinion.
Concurrence Opinion
{¶ 44} Although I concur with the majority, I must note the following two points.
{¶ 45} First, the majority relies on Elston v. Howland LocalSchools, 11th Dist. No. 2004-T-0092,
{¶ 46} In Elston, the majority held: "[t]he subsections of R.C.
{¶ 47} In this writer's Dissenting Opinion in Elston, I stated that: "I disagree with the majority that the liability exceptions contained within R.C.
{¶ 48} It is worth noting that the conclusions reached inElston are under review by the Supreme Court of Ohio. Elstonv. Howland Local Schools,
{¶ 49} Second, appellants argue that Schultz's Civ.R. 15(D) defense should fail. I agree with the majority here that appellants' contention is without merit. However, this writer takes issue with the majority's analysis regarding Civ.R. 15(D) with respect to original and amended complaints. The Supreme Court of Ohio in Amerine v. Haughton Elevator Co. (1989),
{¶ 50} For the foregoing reasons, I concur with the majority. The trial court erred in granting summary judgment to Lake Metroparks. However, the portion of appellants' sole assignment of error relating to Schultz is not well-taken because the trial court did not err by granting summary judgment in his favor.
Dissenting Opinion
{¶ 51} The majority maintains immunity does not "re-attach" via R.C.
{¶ 52} R.C.
{¶ 53} Specifically, a political subdivision is a conceptual or legal abstraction. It possesses neither volitional consciousness nor individual subjectivity. The only way a political subdivision can "act" or, perhaps more germane to the instant matter, exercise judgment or discretion, is through its agents or employees. Accordingly, where employees are acting within their capacity as agents of the political subdivision, the consequences issuing from their acts or omissions may be reasonably imputed to the political subdivision itself.
{¶ 54} However, the majority's reasoning in Elston requires a political subdivision to engage in volitional conduct apart from its agents and employees. According to Elston, immunity will attach under R.C.
{¶ 55} That said, Richard Schulz, former Head of Vehicles for Lake County Metroparks, testified via affidavit that the wagon in question was inspected for suitability and safety in July, August and September 2001 (prior to the October 2001 Haunted Hayride). According to Schultz, "[n]o irregularities, breakage, or unsafe conditions were found on wagon no. 9. Wagon no. 9 was considered safe for use as a people transporting wagon for the Haunted Hayride event of 2001, and it was so used." Schultz additionally stated that he then inspected wagon no. 9 after the accident and determined that a weld that was attached to the front axle broke, which caused the wagon to detach and roll free.
{¶ 56} Under the circumstances, there is no evidence that Schultz (or anyone else) acted with malicious purpose, bad faith or in a wanton or reckless manner. I would therefore hold the decision to use wagon no. 9 for the Haunted Hayride in October 2001 was a result of the exercise of judgment or discretion in determining how to use equipment. After multiple safety inspections, the wagon was deemed worthy for transporting people during the Haunted Hayride. I believe the reasoned judgment described by Schultz in his affidavit falls within the gamut of discretionary exercises protected by R.C.
{¶ 57} The majority's analysis, premised upon Elston,
simply concludes that R.C.
