MEGAN FRENZ, ET AL. v. SPRINGVALE GOLF COURSE & BALLROOM, ET AL.
No. 97593
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 9, 2012
[Cite as Frenz v. Springvale Golf Course & Ballroom, 2012-Ohio-3568.]
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-747131
BEFORE: Stewart, P.J., Rocco, J., and Keough, J.
RELEASED AND JOURNALIZED: August 9, 2012
Cara M. Wright
James A. Climer
John T. McLandrich
Frank H. Scialdone
Mazanec, Raskin & Ryder Co., L.P.A.
100 Franklin‘s Row
34305 Solon Road
Cleveland, OH 44139
ATTORNEYS FOR APPELLEES
W. Craig Bashein
Anthony N. Palombo
Bashein & Bashein Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, OH 44113
Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, OH 44113
{¶1} Defendant-appellant city of North Olmsted1 appeals from the trial court‘s denial of its motion for summary judgment. The city complains that the trial court erred by not finding that the claims of plaintiff-appellee Megan Frenz are barred by governmental immunity. For the following reasons, we affirm.
{¶2} While attending a wedding reception at the Springvale Country Club, a facility owned and operated by the city of North Olmsted, Frenz removed her shoes and joined other guests on the dance floor in the club‘s ballroom. She dislocated her elbow when she slipped and fell on the floor.
{¶3} Frenz, and her husband Jonathan, filed suit against the city and fictitious “John Doe” defendants, alleging negligence and loss of consortium. In her complaint, Frenz asserts that: (1) excessive or unsuitable polish was used to maintain the ballroom floor and created a “defective and/or dangerous and hazardous condition,” (2) the city was aware of the unsafe condition, and (3) the city was negligent for failing to remedy the condition and/or warn the patrons of the danger. The city moved for summary judgment after discovery was completed, and its motion was denied without explanation.
{¶5} We review the trial court‘s denial of summary judgment under a de novo standard and address questions of sovereign immunity as a matter of law. Conley v. Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133, 595 N.E.2d 862.
{¶6}
{¶7} In Swanson v. Cleveland, 8th Dist. No. 89490, 2008-Ohio-1254, we reiterated that:
the Ohio Supreme Court established a three-tiered analysis for determining whether a political subdivision is immune from liability under
Chapter 2744 . The first tier provides a general grant of immunity, stating that “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.”R.C. 2744.02(A)(1) . The second tier involves an analysis of whether any of the exceptions to immunity, located inR.C. 2744.02(B) , apply. Finally, in the third tier of analysis, if it appears one of the stated exceptions to immunityapplies, immunity may be reinstated if the political subdivision can successfully assert one of the defenses to liability listed in R.C. 2744.03 .
{¶8} For the first tier of our analysis, the city of North Olmsted is a municipal corporation and therefore a political subdivision as defined by
{¶9} Although Frenz asserts in her brief that “[t]his court need not reach the second stage of the [immunity] test, as the first is dispositive,” we must indeed do so. Frenz mistakenly argues that because the operation of the club is not a governmental function, it is proprietary and therefore not subject to immunity. However,
{¶10} However, under the second tier of the analysis, if the operation of the club or ballroom is deemed to be a proprietary function,
{¶12} Governmental functions are defined in
{¶13} “In the absence of an explicit statutory definition, 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, 917 N.E.2d 888, ¶ 27 (1st Dist.), quoting Allied Erecting & Dismantling Co. v. Youngstown, 151 Ohio App.3d 16, 2002-Ohio-5179, 783 N.E.2d 523, ¶ 23 (7th Dist.).
{¶15} The hall rental does not fall within the definition of government functions because the activity is not listed in
{¶16} However, in Parker v. Distel Constr., Inc., 4th Dist. No. 10CA18, 2011-Ohio-4727, the court held that “before
{¶18} Frenz supports her theory of proximate causation with the deposition testimony of her mother and sister as well as event coordinator Sarah Barnhart, all of whom stated that the floor surface was “slippery.”
{¶19} We find that Frenz has demonstrated an exception to immunity pursuant to
is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
R.C. 2744.03(A)(3) .
{¶21} The city contends that the use and application of floor wax on the ballroom floor was not a routine endeavor, but instead was an undertaking requiring specialized knowledge due to the historic nature of the building. Therefore, the floor maintenance constituted an immune discretionary function encompassed within the duties and responsibilities of the facilities manager.
{¶22} In Hall v. Ft. Frye Loc. School Dist. Bd. of Edn., 111 Ohio App.3d 690, 676 N.E.2d 1241 (4th Dist.1996), the court noted that “[i]mmunity operates to protect political subdivisions from liability based upon discretionary judgments concerning the allocation of scarce resources; it is not intended to protect conduct which requires very little discretion or independent judgment.” Hall at 699. See also Kettering ex rel. Moser v. Kettering, 2d Dist. No. 10596, 1988 WL 10121, at *3, rev‘d on other grounds, 37 Ohio St.3d 233, 525 N.E.2d 490 (1988) (
{¶24} The city alternatively asserts that
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.
The city points out that Frenz‘s complaint failed to allege that the floor was waxed with a malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶25} Immunity pursuant to
{¶27} Judgment affirmed.
It is ordered that appellees recover of appellant their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR