Fry v. CincinnatiFry v. Cincinnati
Andrew W. Garth, City Solicitor, Scott M. Heenan and Katherine C. Baron, Assistant City Solicitors, for Defendants-Appellants.
{1} Plaintiff-appellee Cileta1 Fry was injured when the car she was driving on Colerain Avenue was struck by a tree that fell from an adjacent city park property. She sued defendants-appellants the city of Cincinnati and John Doe city employees (“the city“), alleging that she was injured as a result of the city‘s negligent failure to maintain trees on its property. The city moved to dismiss Fry‘s complaint pursuant to
{2} In a single assignment of error, the city challenges the trial court‘s denial of its
{3} A
{4} Courts utilize a three-tiered analysis to determine whether a political subdivision is immune from liability. Holimon v. Sharma, 2021-Ohio-3840, 180 N.E.3d 1226, ¶ 10 (1st Dist.). First,
{5} In this case, there is no dispute that the city is a political subdivision entitled to a general grant of immunity pursuant to
{6} The physical-defect exception in
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, but not including jails, places of juvenile detention, workhouses, or any other detention facility[.]
This court has held that to establish the
{7} The city concedes that, accepting the allegations in the complaint as true, Fry arguably met the first and third requirements of the
{8} The city argues that Fry‘s allegations failed to meet the second requirement of the physical-defect exception because she did not allege that her injury occurred within or on the grounds of buildings that are used in connection with the performance of a governmental function. Fry counters that the location where her injury occurred is irrelevant. She points to the Ohio Jury Instructions (“OJI“) related to the
1. GENERAL. The defendant (identify the governmental unit) is a political subdivision of the State of Ohio. It is liable if its employee(s) cause(s) (injury) (death) (damage) by failing to exercise reasonable care within or on the grounds of a building that is used in connection with the performance of a governmental function (including [an office building] [a courthouse]) (but not including a [jail] [place of juvenile detention] [workhouse] [detention facility as defined by R.C. 2921.01]).
1 Ohio Jury Instructions, CV Section 425.07.
{9} However, “OJI are nonbinding guidance that have no force or effect as a rule of law.” State v. Rhymer, 1st Dist. Hamilton No. C-200164, 2021-Ohio-2908, ¶ 17. This court and others have routinely held that the
{10} In holding that the
{11} Because Fry cannot establish the second requirement, the immunity exception in
{12} Consequently, we sustain the assignment of error. We reverse the trial court‘s judgment and remand this matter for the court to enter an order of dismissal as to the city.
Judgment reversed and cause remanded.
CROUSE, J., concurs.
BERGERON, J., concurs separately.
BERGERON, J., concurring separately.
{13} I concur in the majority‘s opinion because it correctly applies the law to the facts at hand. I write separately, however, to comment on the injustice the immunity statute works on Ms. Fry in this case. Of course, all immunity provisions negatively impact the person injured by the municipality‘s actions, but the legislature has deemed that a necessary trade-off, and that is its prerogative.
{14} The line-drawing executed by the legislature here (as it pertains to people situated as Ms. Fry), however, offends basic sensibilities, and that‘s why I think (as a policy matter) the OJI instruction should be correct. Consider the following scenario: a building owned and managed by the city has fallen into disrepair based on the city‘s negligence. Part of the building collapses, and three people are injured—a person working in the building, a person sitting just outside the building (but on the city‘s property), and a person walking down the street (just inches outside the city‘s property line).
{15} Based on how the statute works, immunity would not apply to the first two people (because they were within or on the grounds of the building) but immunity would apply to the third—whose misfortune of being injured is compounded by the misfortune of straying inches outside of city property at the time of the accident.
{17} The legislature, of course, must draw lines, and sometimes those are difficult and may not make the most sense to us in hindsight. However, if the legislature has determined that people situated similarly to the first two people in my hypothetical above can recover, it stands to reason that the same policy rationale should protect the third. Nor would exempting that third person from immunity strain municipal budgets—the likelihood of someone suffering injury outside city property from negligence occurring on city property seems pretty remote. But as Ms. Fry‘s case unfortunately demonstrates, such occurrences do happen.
{18} The legislature would be wise to follow OJI‘s lead and protect people in Ms. Fry‘s situation.
Please note: The court has recorded its own entry this date.