ROSALINDA CONTRERAZ, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF SANTOS LEON GARCIA, DECEASED v. VILLAGE OF BETTSVILLE, ET AL.
CASE NO. 13-10-48
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
August 22, 2011
2011-Ohio-4178
PRESTON, J.
OPINION
Appeal from Seneca County Common Pleas Court Trial Court No. 08CV0594
Judgment Affirmed
Date of Decision: August 22, 2011
APPEARANCES:
R. Ethan Davis for appellant.
John T. McLandrich and Frank H. Scialdone, for appellees.
{¶1} Plaintiff-appellant, Rosalinda Contreraz, Individually and as Administratrix of the Estate of Santos Leon Garcia, deceased, appeals from the judgment of the Seneca County Court of Common Pleas, which granted defendants-appellees‘, Village of Bettsville, Bettsville Recreation Board, and Andrea Bender, motion for summary judgment. For the reasons that follow, we affirm.
{¶2} This case involves the tragic death of Santos Garcia (hereinafter “Garcia“), who drowned at the Village of Bettsville‘s public swimming area. The case arises out of the following set of facts.
{¶3} The Village of Bettsville owns the Eells Park Quarry, a public recreational swimming area, which is operated by the Bettsville Recreation Board. At the time of the incident, the general layout of the quarry, which is not in dispute, was as follows. Located near the quarry beach there was a small single story building, which was used as a concession stand, park pool director‘s office, the lifeguard locker/break room, and an equipment storage area. Inside the concession building there was a land line telephone to be used for emergencies. With regards to the beach, there were two elevated lifeguard stands located on the beach, while an additional elevated lifeguard stand was positioned by the diving
{¶4} Additionally, there was a floating buoy line that traversed across the quarry for purposes of separating the shallow end from the deep end. The buoy line was positioned at a water depth between four feet (4‘) to five feet (5‘). In addition, there was another buoy line, made up of old railroad ties, located just beyond the two floating rafts and used for purposes of separating the swim area from the non-swim area.
{¶5} In 2006, the Bettsville Recreation Board hired Andrea Bender (hereinafter “Bender“) as a lifeguard. (A. Bender Depo. at 7-8). Bender worked at the park during the summers of 2006, 2007, and 2008, and had been the on-duty lifeguard on the beach when Garcia drowned. (Id.).
{¶6} The incident occurred on August 3, 2007. Garcia and his sisters, Rosalinda and Eva, along with several of Garcia‘s friends and Garcia‘s aunt and uncle, decided to go swimming at the quarry. (A. Alonso Depo. at 21-22); (R. Garcia Depo. at 18-19). At the time of the incident, Garcia was fifteen-years-old and five feet three inches (5‘3“) in height. (Coroner‘s Report, Ex. K). In addition, Garcia had taken a YMCA swim course and was described as an average swimmer who either could not or did not like to swim underwater. (R. Garcia Depo. at 15);
{¶7} Before entering the water, Garcia‘s friend, Lamont, said that he provided Garcia with shoelaces so that Garcia could tie his long pants up around his knees to swim. (L. Garcia Depo. at 28-29). Rosalinda and Eva were the first ones to enter the water. (E. Garcia Depo. at 35). Eva said she swam out to the aqua bobber, while Rosalinda swam out to the deep-end and was treading water near the diving boards and slide platform. (E. Garcia Depo. at 35); (R. Garcia Depo at 35-36). Eva said that she saw Garcia and several of his friends enter the water from the shallow end and walk out towards the outer raft closest to the diving boards, where Rosalinda was located. (E. Garcia Depo. at 36). Lamont said that he and Garcia then swam under the buoy line into the deeper portion of the swimming area. (L. Garcia Depo. at 36). At this point, Rosalinda said that she had still been treading water near the diving board and slide platform when Garcia proceeded to swim underwater and tickle her feet. (R. Garcia Depo. at 37). Rosalinda said that after this occurred, she and Garcia decided to race out to the closest raft. (R. Garcia Depo. at 37). Rosalinda said that she made it to the raft in what she believed was a few seconds but when she turned around, she did not see Garcia. (Id. at 39). Eva, who was still on the aqua bobber, said that she had had her back to the swimming area, but that when she turned around she also did not
{¶8} Another swimmer at the quarry, Alex Fox, who had been swimming near the buoy line with his girlfriend, testified that he heard Rosalinda yelling that she could not find her brother. (Fox Depo. at 32-33). Alex said that his girlfriend was asking the lifeguard to take action; however, Alex admitted that at no point was it apparent whether the missing individual was missing in the water or missing out of the water. (Id. at 27, 32-33). In fact, Alex was under the belief that the missing individual was out of the water near the concession building. (Id.).
{¶9} Nevertheless, Alex said that he decided to swim under water and swim towards the diving board and slide platform in the deep end of the quarry. (Id. at 43-44, 56, 94). After approximately ten to fifteen feet, Alex said he saw Garcia some distance in front of the diving board at the bottom of the quarry. (Id. at 32-33, 43-44, 94). Alex said that he picked Garcia off the bottom of the quarry and brought him to the surface. (Id.). When he got to the surface, Alex said that he saw the lifeguard jump down from the lifeguard stand and run towards the concession building. (Id.). At that point, Alex said that he, with the help of two
{¶10} Overall, none of the witnesses saw Garcia in any type of distress nor did they see Garcia submerged below the surface of the water.
{¶11} Michael Abernathy testified that he had been the on-duty lifeguard prior to the incident and that he remembered Garcia and his friends enter the shallow area of the quarry. (Abernathy Depo. at 18). However, he said that he never saw Garcia go beyond the buoy line and into the deep end of the quarry. (Id.).
{¶12} Andrea Bender testified that she took over for Michael at 7:00 p.m. and became the on-duty lifeguard. (A. Bender Depo. at 46). She said that she did an initial head count of swimmers and determined that there were 15 to 20 swimmers in the water. (Id. at 48). Bender testified that approximately thirty seconds to one minute after she had taken the lifeguard stand, a woman approached her and told her that a boy was missing. (Id. 49-50). Bender said that she attempted to get more information from the woman and asked her where the boy was missing. (Id. at 52). After about one minute and thirty seconds of discussion, Bender stated that the woman told her that she believed the missing boy had been in the water and that she did not think that the boy knew how to
{¶13} Bender went on to state that approximately ten to fifteen seconds after she blew her whistle, she heard a rise in voices and saw a swimmer surface with Garcia. (Id. at 56). Bender said that she then jumped down from the lifeguard stand, blew her whistle to clear everyone from the water, and sprinted to the concession building, yelling for Rachel Banks to call 911. (Id. at 56, 64). Bender explained that as she approached the concession building, lifeguard Michael Abernathy ran down the beach towards the water. (Id. at 66). Bender testified that she told Rachel Banks of the emergency and to call 911. (Id. at 69).
{¶14} Michael Abernathy and another swimmer began C.P.R. on Garcia after he was brought on to the beach. (Abernathy Depo. at 30). They continued to provide C.P.R. until paramedics arrived, at which time a paramedic assisted Michael Abernathy with C.P.R. (Id. at 35). Garcia was eventually transported to a nearby hospital; however, all efforts to save Garcia were unsuccessful.
{¶15} On November 19, 2008, Rosalinda Contreraz, Individually and as Administratrix of the Estate of Garcia (hereinafter “the Estate” or “Mother“), filed a complaint against the Village of Bettsville, Bettsville Recreation Board, and
{¶16} On June 28, 2010, the defendants filed a motion for summary judgment, and on October 12, 2010, they were granted leave to file a supplemental motion for summary judgment instanter with exhibits attached. On October 18, 2010, Mother filed a memorandum in opposition to the defendants’ motion for summary judgment. The defendants filed a response memorandum on October 28, 2010.
{¶17} Thereafter, on December 6, 2010, the trial court issued its order and decision granting the defendants’ motion for summary judgment.
{¶18} Mother now appeals and raises the following four assignments of error. For ease of our discussion, we elect to address Mother‘s first and second assignments of error together.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND FINDING THAT THE
THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND FINDING THAT THERE WAS NO EVIDENCE OF NEGLIGENCE OR A DEFECT IN THE PREMISES.
{¶19} In her first and second assignments of error, Mother argues that the trial court erred in finding that the Village was immune from liability under
Standard of Review
{¶20} We review a decision to grant summary judgment de novo. Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. Under this standard of review, we review the appeal independently, without any deference to the trial court. Conley-Slowinski v. Superior Spinning & Stamping Co. (1998), 128 Ohio App.3d 360, 363, 714 N.E.2d 991. A motion for summary judgment will be granted only when the requirements of
{¶21} The party asking for summary judgment bears the initial burden of identifying the basis for its motion in order to allow the opposing party a “meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 116, 526 N.E.2d 798. The moving party must also demonstrate the absence of a genuine issue of material fact as to an essential element of the case. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. Then the moving party must demonstrate that they are entitled to summary judgment as a matter of law, at which time, the burden then shifts to the non-moving party to produce evidence on any issue which that party bears the burden of production at trial. Deutsche Bank Trust Co. v. McCafferty, 3d Dist. No. 1-07-26, 2008-Ohio-520, ¶9, citing
Ohio‘s Political Subdivision Tort Liability Act
{¶22} Under Ohio‘s Political Subdivision Tort Liability Act, codified under
{¶23} However, the immunity established under
{¶24} Here, no one disputes the fact that the Village of Bettsville and Bettsville Recreation Board are political subdivisions and were engaged in the governmental function of maintenance and operation of a recreational swimming area. See
{¶25} Under the second tier of the immunity analysis, we note that a political subdivision‘s immunity is typically subject to the five exceptions listed in
{¶26} The first initial argument raised on appeal concerns whether
{¶27} The Village claims that, pursuant to the Supreme Court‘s decision in Cater,
{¶28} In Cater, the Ohio Supreme Court was asked to consider whether
Although former
R.C. 2744.02(B)(4) may be applicable to other governmental functions, not specifically listed in the statute, we believe that it does not apply to an indoor swimming pool. (See, also, Mattox v. Bradner [Mar. 21, 1997], Wood App. No. WD-96-038, unreported, 1997 WL 133330, which held that theexception enumerated in R.C. 2744.02[B][4] is inapplicable to injuries sustained in a municipal swimming pool.) Unlike a courthouse or office building where government business is conducted, a city recreation center houses recreational activities. Furthermore, if we applied formerR.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. We do not believe that the General Assembly intended to insulate political subdivisions from liability based on this distinction. Therefore, we reject appellants’ contention that formerR.C. 2744.02(B)(4) applies to an indoor municipal swimming pool.
Cater, 83 Ohio St.3d at 31-32.
{¶29} There has been at least one other appellate district that has recently applied Cater to outdoor swimming facilities and has held that the physical-defect exception does not apply, even if the injury was proximately caused by the negligence of an employee and due to a physical defect.2 O‘Connor v. City of Fremont, 6th Dist. No. S-10-008, 2010-Ohio-4159. However, we acknowledge that this Court has also recently addressed the Supreme Court‘s decision in Cater, but unlike the other appellate district, we questioned the validity of Cater, especially in light of the Supreme Court‘s more recent ruling in Hubbard. See Thomas, 2005-Ohio-1921. In Thomas, this Court noted:
Initially, we note that this Court has serious doubts regarding the continuing validity of Cater in light of the Supreme Court‘s more recent ruling in Hubbard. In Cater the Supreme Court found that municipal swimming pools were not subject to the
R.C. 2744.02(B)(4) exception based on the fact that the governmental function being performed by municipal pools was recreational in nature and not the kind of “government business” being conducted in a courthouse or government office building. Id. at 31-32, 697 N.E.2d 610. The Court made this finding despite having recognized earlier in the same opinion that “the General Assembly has already classified the operation of a municipal swimming pool as a governmental function underR.C. 2744.01(C)(2)(u) .” Id at 28, 697 N.E.2d 610. No such distinction has been made by the Court since Cater. In fact, in Hubbard the Court stressed that the only relevant inquiry in such a case is whether “the injuries claimed by plaintiffs were caused by negligence occurring on the grounds of a building used in connection with a government function * * *.” Hubbard at ¶ 18. There was no discussion regarding whether the governmental function in the building involved was recreational in nature.Additionally, as noted by Justice Moyer in a concurring opinion in Cater, outdoor pools are located on the grounds of buildings such as shelters, restrooms and storage areas that are being used in the performance of a governmental function. Cater, 83 Ohio St.3d at 35, 697 N.E.2d 610. Therefore, both outdoor and indoor municipal pools would be subject to the
R.C. 2744.02(B)(4) exception, and the distinction relied on by the majority in Cater involving outdoor and indoor municipal pools would appear to be invalid.
Thomas, 2005-Ohio-1921, ¶¶34-35.
{¶30} While we acknowledge this Court‘s prior decision in Thomas, we ultimately find that the trial court did not err in granting the Village‘s motion for summary judgment because Mother failed to present sufficient evidence that a
Constitutionality of R.C. 2744.02(B)(4)
{¶31} Mother briefly argues in her appellate brief that she was not required to present evidence of a physical defect in the premises pursuant to the Ohio Supreme Court‘s ruling in Hubbard v. Canton City School Bd. of Edn. (2002), 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543. She also claims that she did not have to prove the physical-defect requirement because the legislation that amended that particular statutory provision was declared unconstitutional.
{¶32} In Hubbard, in interpreting the previous version of
R.C. 2744.02(B)(4) applies to all cases where an injury resulting from the negligence of an employee of a political subdivision occurs within or on the grounds of buildings that are used in connection with the performance of a governmental function. The exception is not confined to injury resulting from physical defects or negligent use of grounds or buildings.
{¶33} However, we find that Mother‘s reliance on Hubbard is misplaced. In Hubbard, the Ohio Supreme Court interpreted the prior version of
{¶34} Furthermore, with respect to Mother‘s argument that the legislation that amended the
{¶35} More significantly, we note that Mother failed to raise this issue below at the trial court. “In order for a party to challenge the constitutionality of a state statute, ‘the issue must be raised in the complaint or the initial pleading and the Ohio Attorney General must be properly served.‘” Troutman, 2010-Ohio-855, at ¶12, quoting M.B. v. Elyria City Bd. of Edn., 9th Dist. No. 05CA008831, 2006-Ohio-4533, ¶6. As such, we find that Mother has waived the issue for purposes of appeal. See State v. Heft, 3d Dist. No. 8-09-08, 2009-Ohio-5908, ¶29, quoting State v. Rice, 3d Dist. Nos. 1-02-15, 1-02-29, 1-02-30, 2002-Ohio-3951, ¶7, quoting State v. Awan (1986), 22 Ohio St.3d 120, 489 N.E.2d 277, syllabus, limited by In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, syllabus.
{¶36} Now that we have addressed all of the parties’ initial arguments, we will discuss the applicability of the
R.C. 2744.02(B)(4)
{¶37} As we stated above, once general immunity has been established by the political subdivision, the burden lies with the plaintiff to show that one of the five exceptions under
[s]ubdivisions 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 connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses * * *.
Under the terms of
{¶38} Here, after considering all of the evidence, the trial court found as follows:
In addition, the
R.C. 2744.02(B)(4) exception is inapplicable because the injury was not due to a “physical defect.” Although the Complaint alleges that Garcia became submerged below the water due to a sudden drop-off, absent is any evidence supporting this allegation. There is no evidence that a sudden drop-off existed and there is no evidence that the drowning could have been caused by an increase in water depth. In short, the evidence establishes that Garcia was swimming just prior to the incident and the relevant areas of the park quarry had only a very gradual water depth increase. For this additional reason, theR.C. 2744.02(B)(4) exception does not apply.
There is also no evidence of any underwater obstruction present at the time of the incident, which could represent a “physical defect” that caused the drowning. The testimony of Alex Fox establishes that Garcia was not entangled or trapped by an underwater obstruction. There was also no evidence of trauma to Garcia‘s body.
Because none of the immunity exceptions under
R.C. 2744.02(B)(1) -(5) apply, the Village of Bettsville and Bettsville Recreation Board are entitled to immunity underR.C. 2744.02(A)(1) .
(Dec. 6, 2010 JE at 15-16).
{¶39} On appeal, in attempting to establish the exception under
{¶40} However, as found by the trial court, most of Mother‘s allegations have nothing to do with a physical defect on the property. For example, the Village‘s alleged failure to provide sufficient lifeguards, failure to appropriately train and evaluate its lifeguards, and negligent and/or reckless hiring and training of its lifeguards clearly do not concern any physical defect regarding the premise.
{¶41} The only three allegations this Court can find may amount to a physical defect would be the allegation that the Village failed to post signs warning of deep water, the allegation that there was copious amounts of vegetation in the designated swim area, and the allegation that there was drastic change in the slope or a sudden drop-off in the designated swim area. Nevertheless, for the following reasons, under the facts and circumstances of this particular case, we find that none of the allegations rise to the level of a physical defect for purposes of
{¶42} With respect to the Village‘s failure to post signs warning of the presence of deep water, we find that Mother has failed to present any evidence demonstrating how this amounted to a physical defect in the property. As both parties’ experts stated, deep water in public swimming areas is a common and
{¶43} Next, with respect to the copious amount of vegetation allegation, we find that, even if this amounted to a physical defect, Mother failed to present sufficient evidence that this alleged defect existed at the time of the incident. The only evidence presented by Mother in regards to the copious amount of vegetation was from the plaintiff‘s expert witness, who found that the designated swim area had copious amounts of vegetation. However, the plaintiff‘s expert made her inspection of the premises on July 6, 2010, almost three years after the incident, which again occurred back on August 3, 2007. There is no evidence in the record that this vegetation existed at the time of the incident.
{¶44} Finally, with respect to the sudden drop-off or drastic change in slope allegation, again we find that Mother failed to present sufficient evidence that this amounted to a physical defect. The only evidence introduced that indicates that there was such a physical defect was the affidavit from the plaintiff‘s expert
{¶45} “[W]hen an affidavit is inconsistent with affiant‘s prior deposition testimony as to material facts and the affidavit neither suggests affiant was confused at the deposition nor offers a reason for the contradiction in her prior testimony, the affidavit does not create a genuine issue of fact which would preclude summary judgment.” Swiger v. Kohl‘s Dept. Store, Inc., 2nd Dist. No. 23713, 2010-Ohio-6230, ¶5, quoting Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶29, quoting Lemaster v. Circleville Long Term Care, Inc. (Feb. 22, 1988), 4th Dist. No. 87 CA 2, at *3. Based on the above, we find the plaintiff‘s expert‘s prior deposition testimony is inconsistent with her affidavit testimony — she testified first that there were no significant drop-offs in the area where Garcia drowned, but later averred that this area did have a sudden and drastic change, such that it made that particular area defective and dangerous.
{¶46} Mother also tries to utilize the defense expert witness‘s testimony in support of her position that there was a physical defect in the property by the presence of a drastic change in slope and/or sudden drop-off. However, upon a review of the defense expert‘s testimony, we find that Mother has mischaracterized his testimony and has taken his conclusions out of context by only selecting certain portions of his deposition testimony to highlight on appeal. A review of the defense expert‘s testimony reveals that he did not find a drastic change in slope or a sudden drop-off in the area Garcia drowned. (Griffiths Depo. at 91-108).
{¶47} Nevertheless, even if there was sufficient evidence that these allegations involved physical defects on the premise, the fact of the matter remains that Mother failed to show how Garcia‘s drowning was due to these alleged physical defects. There was no evidence linking Garcia‘s drowning to any sort of vegetation in the quarry. In fact, the patron who discovered Garcia‘s body under water and pulled him to shore, specifically testified that Garcia had not been entangled by any obstructions when he found him at the bottom of the deep end of
{¶48} Furthermore, there was no evidence connecting Garcia‘s drowning to any drastic slope change or drop-off nor the failure to post signs warning patrons of the presence of deep water. Mother proposes a theory that Garcia drowned when he had been walking from the shallow end to the deep end when he either encountered a drop-off, a drastic change in slope, or had not been properly warned of the presence of deep water. However, the evidence indicates that Garcia had actually been swimming in the deep-end of the quarry by the diving board and slide platform before he disappeared and was found subsequently laying at the bottom of the quarry. (R. Garcia Depo. at 37-39); (L. Garcia Depo at 36). The evidence also indicates that, right before he disappeared, Garcia had decided to race his sister out to the raft, which was further away in the deep-end. (R. Garcia at 37-39). Even though Garcia‘s body was discovered in the deep-end of the quarry, none of the witnesses actually saw Garcia drown — no one saw him under the surface of the water, no one saw him struggling in the water, and no one saw any signs that Garcia had been in distress prior to his disappearance.
{¶49} Moreover, we note that, regardless of whether or not Mother presented evidence that raised questions regarding Bender‘s response to the incident, Mother still had to show that Garcia‘s drowning was also due to a
{¶50} Therefore, we find that the trial court correctly determined that the exception to immunity pursuant to
{¶51} Mother‘s first and second assignments of error are, therefore, overruled.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED IN FINDING THAT DEFENDANTS’ IMMUNITY IS REINSTATED PURSUANT TO
{¶52} In her third assignment of error, Mother argues that the trial court erred in finding that even if the Village was excepted out of immunity, the Village‘s immunity could nonetheless be reinstated pursuant to the defenses in
{¶54} Mother‘s third assignment of error is, therefore, overruled as moot.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO CONSTRUE THE EVIDENCE IN A LIGHT MOST FAVORABLE TO APPELLANT.
{¶55} Finally, in her last assignment of error, Mother argues that the trial court overall erred in failing to consider all of the evidence in a light most favorable to her, the non-moving party.
{¶56} Again, given our discussion above, we find that as it relates to the Village of Bettsville and the Bettsville Board of Recreation, the trial court did not err in granting summary judgment in their favor.
{¶57} As it relates to Bender, it appears that Mother has not raised any specific claim regarding Bender‘s liability on appeal. Nevertheless, to the extent Mother may have raised any issues regarding Bender‘s liability on this appeal, we note that, pursuant to
{¶58} Mother‘s fourth assignment of error is, therefore, overruled.
{¶59} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr