CATER ET AL., APPELLANTS, v. CITY OF CLEVELAND, APPELLEE.
Nos. 97-1261 and 97-1488
SUPREME COURT OF OHIO
Submitted May 13, 1998—Decided August 19, 1998.
83 Ohio St.3d 24 | 1998-Ohio-421
APPEAL frоm and CERTIFIED by the Court of Appeals for Cuyahoga County, No. 70674.
The operation of a municipal swimming pool, although defined as a governmental function in R.C. 2744.01(C)(2)(u), is subject to the exceptions to immunity set forth in former R.C. 2744.02(B) and to the available defenses enumerated in R.C. 2744.03.
{¶ 1} On June 14, 1993, twelve-year-old Darrall A. Cater lost consciousness from nearly drowning in the city of Cleveland‘s Alexander Hamilton indoor swimming pool. As a result of the nеar drowning, Darrall developed acute bronchial pneumonia and was declared brain dead four days later. He died in the hospital after being removed from life support systems. Darrall‘s mother, Valerie Cater, as administrator of Darrall‘s estate, along with Darrall‘s father, Lawrence Cater, plaintiffs-appellants, brought this lawsuit against the city of Cleveland, defendant-appellee, alleging that the city acted negligently and/or recklessly in operating the swimming pool and causing Darrall‘s death. The city of Cleveland argued that it was immune from liability under
{¶ 3} Open swim was scheduled to take place from 1:00 to 4:30 p.m. From 1:00 p.m. until about shortly after 3:00 p.m., all four guards patrolled the pool. Hutson walked around the perimeter of the pool deck, while the other three guards were stationed at the lifeguard chairs, two of which were located at the deep end and one was located at the shallow end. At around 3:00 p.m., however, Hutson and Hodge left their posts, and took an unauthorized lunch break. Even though it was against pool policy to take lunch breaks during open swim periods, Hutson, who was nearly nine months pregnant, asked Hodge to buy them lunch. When Hodge returned around 3:30 p.m. with sandwiches, he and Hutson ate lunch in the lobby, while the other two guards remained at the pool. Rookie guard Carter sat in the high lifeguard chair at the deep end, while McDougall watched the shallow end of the pool from his guard chair. A folding chair that was located at the deep end, and which had previously been occupied by one of the other guards, was left empty.
{¶ 4} At approximately 3:40 p.m., swimmers notified McDougall and Carter that there was a boy at thе bottom of the pool. The boy, later identified as Darrall Cater, was found at the bottom of the deep end, in seven feet of water, in an area within five to fifteen feet from the previously occupied folding guard chair. Carter explained that he had not seen Darrall in distress because glare interfered with his visibility. The glare was caused by sunlight that reflected off a glass-paneled wall that ran along the side of the pool, directly behind the high lifeguard
{¶ 5} Upon seeing Darrall at the bottom of the pool, McDougall dove in the water, pulled Darrall out of the pool and began CPR. Howard McKeller, the recreation center manager for the pool, who was responsible for all pool employees at that location, was returning to the facility when he heard the whistle blow. Upon hearing the whistle and seeing commotion, McKeller ran to the pool area and assisted McDougall with resuscitation attempts on Darrall.
{¶ 6} In the meantime, at least three city employees attempted to dial 911, but were unable to get an outside phone line. Carter said that he tried to dial 911 five or six times but could not get through. Physical director Hutson and a custodian made several attempts to dial 911, but they, too, did not know how to use the phone system. These employees were never instructed on the use of 911 and were never told that it was necessary first to dial a nine to get an outside line. When asked about the lack of training, center manager McKeller testified that he just assumed that the guards had been briefed how to get an outside line to dial 911. Eventually, someone was able to make the 911 call. However, paramedics did not arrive at the pool until about 4:10 p.m., nearly thirty minutes after Darrall‘s body was discovered at the bottom of the pool.
{¶ 7} One of Darrall‘s treating physicians at the hospital testified that Darrall had been deprived of oxygen for at least five minutes before resuscitation attempts were underway. According to the coroner, Darrall died as a result of the near drowning. Frank Pia, plaintiff‘s aquatics expert, testified that without proper oxygenation, irreversible brain damage occurs in a drowning within four to seven minutes. In Pia‘s expert opinion, the conduct of the physical directors and the failure to have in place an effective rescue plan, including the proper use of 911,
{¶ 8} Following an internal investigation by the city, physical directors Hutson and Hodge, and the center‘s manager, McKeller, were found to have violated several city policies by failing to ensure that the pool was properly staffed at all times; wantonly or willfully neglecting the performance of their assigned duties; leaving the job or work area during regular working hours without authorization; failing to remain at their posts except in cases of emergency or when properly relieved; failing to maintain required standards of performance; and failing to observe official safety rules or common safety practices.1 Due to their misconduct, Hutson and Hodge were each suspended for forty-five days. McKeller was suspended for three days.
{¶ 9} At the close of the plaintiffs’ case, defense counsel moved for а directed verdict, again arguing that the city was immune from liability under
{¶ 10} The court of appeals affirmed. In finding the city immune from liability under
{¶ 11} This court accepted jurisdiction of this case in case No. 97-1261, upon the allowance of a discretionary appeal. The case was then certified to this court as being in conflict with Hall v. Ft. Frye Local School Dist. Bd. of Edn. (1996), 111 Ohio App.3d 690, 676 N.E.2d 1241, and Siebenaler v. Montpelier (1996), 113 Ohio App.3d 120, 680 N.E.2d 654, in case No. 97-1488, and is now before this court upon our determination that a conflict exists.
Linton & Hirshman and Robert F. Linton, Jr.; Klein & Carney Co., L.P.A., and Larry S. Klein, for appellants.
Mark W. Ruf, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.
Isaac, Brant, Ledman & Teetor, Mark Landes and Steven G. LaForge, urging affirmance for amicus curiae, County Commissioners Association of Ohio.
John E. Gotherman and Daniel J. O‘Loughlin, urging affirmance for amici curiae, Ohio Municipal League and Ohio Municipal Attorneys Association.
R. Todd Hunt, urging affirmance for amicus curiae, Cuyahoga County Law Directors Association.
FRANCIS E. SWEENEY, SR., J.
{¶ 13} We also find that a directed verdict was improper in this case, since reasonable minds can differ as to whether the city acted in a wanton or reckless manner under
{¶ 14} The Political Subdivision Tort Liability Act, as codified in
“For purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except 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 added.)
{¶ 16} Despite the structure of the Act, appellee, city of Clevelаnd, maintained below that it had absolute immunity in this case, and that it was not responsible for the negligent acts arising out of the operation of a municipal swimming pool. Since the General Assembly has already classified the operation of a municipal swimming pool as a governmental function under
{¶ 17} The court of appeals mistakenly relied on
{¶ 18}
{¶ 19} Therefore, we agree with those appellate decisions certified as being in conflict with this case that have held that even if an activity is defined as a governmental function, it is still subject to the five exceptions of former
“Political subdivisions are liable for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avеnues, alleys, sidewalks, bridges, viaducts, or public grounds within the subdivisions open, in repair, and free from nuisance * * *.”4
{¶ 21} Appellants contend that under former
{¶ 22} The phrase “free from nuisance” in former
{¶ 24} Not only was there testimony that the glare obstructed the lifeguards’ view, but there was also evidence that the city was aware that glare was a problem at the pool. Both the aquatics manager for the city of Cleveland and the recreation center manager testified that they knew that glare was a problem and conceded that lifeguards had not been instructed on how to deal with the glare. They also acknowlеdged that there were no pool policies addressing this concern. For liability to be imposed on a political subdivision for a nuisance, the political subdivision must have had “‘either actual or constructive knowledge of the nuisance.‘” Franks v. Lopez, 69 Ohio St.3d at 349, 632 N.E.2d at 505, quoting Vogel v. Wells (1991), 57 Ohio St.3d 91, 97, 566 N.E.2d 154, 160. There was sufficient evidence presented to satisfy this notice requirement.
{¶ 25} We recognize that glare can exist at all pools (as the aquatics manager testified). Nevertheless, we are not testing the merits of the underlying claim here. Instead, we are deciding whether the trial court erred in directing a verdict for the city, which we believe it did. Consequently, we find that former
{¶ 26} Appellants also argue that former
“Political subdivisions are liable for injury, death, or loss to persons or property that is caused by the negligence of their employees and that occurs 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 nоt including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.”
{¶ 27} Although former
{¶ 28} Appellants further contend that
{¶ 29}
“The political subdivision is immune from liability if the injury [or] death * * * 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.”
{¶ 30} The evidence overwhelmingly established that three city employees were unable to contact 911, despite several attempts to do so. It was further shown that these employees were never trained on the use of the phone system. As a result of their failure to contact 911, there was about a thirty-minute delay in Darrall‘s treatment.
{¶ 31} The fact that the city had no policy in place or training regarding 911 is appalling. The seriousness of these omissions is highlighted by the fact that more than one hundred swimmers, mostly children unaccompаnied by adults, frequented the city pool that day. However, something as basic and important as dialing 911
{¶ 32} This court has defined the term “reckless” to mean that the conduct was committed “‘knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.‘” Marchetti v. Kalish (1990), 53 Ohio St.3d 95, 96, 559 N.E.2d 699, 700, fn. 2, quoting 2 Restatement of the Law 2d, Torts (1965) 587, Section 500. The conduct by the city regarding its lack of training on the use of 911 presents a question of fact for the jury to consider, which was improperly disposed of by granting the city‘s motion for directed verdict.
{¶ 33} The standard for directing a verdict is well established. Civ.R. 50(A)(4) provides:
“When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.”
{¶ 34} In deciding a motion for a directed verdict, neither the weight of the evidence nor the credibility of the witnesses is to be considered. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284, 21 O.O.3d 177, 179, 423 N.E.2d 467, 469. Instеad, “[w]hen a motion for a directed verdict is entered, what is being tested is a question of law; that is, the legal sufficiency of the evidence to take the case to
{¶ 35} Since reasonable minds can differ as to whether the city allowed a nuisance to exist and as to whether the city acted in a wanton or reckless manner in its use of its facilities and equiрment under
{¶ 36} Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for a new trial.
Judgment reversed and cause remanded.
PFEIFER, J., concurs and concurs separately.
MOYER, C.J., HADLEY and LUNDBERG STRATTON, JJ., concur in syllabus and judgment.
DOUGLAS and RESNICK, JJ., concur in judgment only.
RONALD E. HADLEY, J., of the Third Appellate District, sitting for COOK, J.
Pfeifer, J., concurring.
{¶ 37} I concur because of my belief that Ohio‘s sovereign immunity statute is unconstitutional. See Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141, 624 N.E.2d 704, 706 (Pfeifer, J., concurring).
MOYER, C.J., concurring in syllabus and judgment.
{¶ 39} In applying that syllabus to the case before us, however, I do not believe that the facts of this case fall within the scope of the exception in former
{¶ 40} Rather, I believe that the city‘s potential liability is based in former
{¶ 41} I write separately, as well, to express my disagreement with the majority‘s analysis of the applicability of the defense provided by
{¶ 42} The majority concludes that reasonable minds might find recklessness on the part of the city based solely on its alleged failure to effectively instruct employees in the use of pool telephones to contact emergency services by dialing 911.
{¶ 43} I need not endorse such a conclusion on this record. Determining the point at which behavior rises from the merely negligent to the level of reckless behаvior is in every instance problematic. In this case, the plaintiffs produced a litany of facts of decisions and acts demonstrating questionable decision-making on the part of city employees as to, e.g., understaffing of lifeguards, failure to compensate for the existence of glare on the water, and inadequate training in emergency procedures. The decision need not be made in this case whether each of these circumstances, standing alone, rises to the level of recklessness. Here a jury viewing all of the facts in their
{¶ 44} I therefore concur in the syllabus and the judgment only.
HADLEY and LUNDBERG STRATTON, JJ., concur in the foregoing concurring opinion.