Ganzhorn v. R & T Fence Co.Ganzhorn v. R & T Fence Co.
Civil Appeal from the Court of Common Pleas, Case No. 2009 CV 1018.
Judgment: Reversed and remanded.
Richard L. Demsey, Richard L. Demsey Co., L.P.A., 1550 U.S. Bank Centre, 1350 Euclid Avenue, Cleveland, OH 44115 (For Plaintiff-Appellant).
John T. McLandrich, Frank H. Scialdone, James A. Climer, and John D. Pinzone, Mazanec, Raskin, Ryder & Keller Co., L.P.A., 100 Franklin‘s Row, 34305 Solon Road, OH 44139 (For Defendant-Appellee).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Steve Ganzhorn, appeals the judgment of the Portage County Court of Common Pleas granting appellee‘s, city of Aurora (“Aurora“),1 motion for judgment on the pleadings finding Aurora immune from suit for injury.
{¶3} Ganzhorn, one of the players in a softball league, was attempting to catch a foul ball when he collided with a chain link fence that was allegedly installed incorrectly along the foul line of the softball field. Upon impact, the protective plastic cover of the fence cracked and shattered, exposing metal spikes. In his complaint, Ganzhorn alleged that this protective cover was “improperly maintained *** such that it was caused to dry out and shatter[.]” Further, Ganzhorn alleged that due to this protective cover, he was unable to observe the top of the chain link fence. Ganzhorn suffered lacerations to both of his arms.
{¶4} Aurora filed an answer to Ganzhorn‘s complaint asserting, among other affirmative defenses, immunity pursuant to
{¶5} Aurora then filed a motion for judgment on the pleadings pursuant to
{¶6} Ganzhorn filed a response asserting that an exception to the immunity statute is applicable, as he suffered injuries at the park allegedly due to a defect on the premises. Further, Ganzhorn claimed that the recreational user statute does not eliminate Aurora‘s liability for his injuries.
{¶8} “Aurora is immune from suit for injury caused by the construction, repair, and maintenance of a playfield such as the one where [Ganzhorn] was injured. See,
R.C. 2744.01(C)(2)(u) . As pleaded, [Ganzhorn‘s] complaint does not state a viable claim for relief against Aurora.{¶9} “Upon review and consideration of the motions and pleadings filed herein, and construing the factual allegations of the complaint as true in favor of [Ganzhorn], the Court concludes that Aurora is entitled to judgment as a matter of law.”
{¶10} Ganzhorn filed a timely notice of appeal and, as his first assignment of error, states:
{¶11} “The trial court erred in granting Defendant-Appellee‘s, City of Aurora, motion for judgment on the pleadings by finding that Defendant-Appellee is entitled to sovereign immunity pursuant to
{¶12} “‘Because
{¶13} The distinction in this analysis is clear: while we construe all of the allegations as true in the complaint, and we may consider the responses and affirmative defenses raised in the answer, those are not entitled to any inferences. In other wоrds, the assertion of an affirmative defense does not place a burden on the non-moving party to affirmatively demonstrate or plead the absence of, or any exception to, immunity. In the complaint of appellant in this case, it is clear there are factual issues that relate to the applicability of the immunity defenses asserted by Aurora.
{¶14}
{¶15} It is undisputed that Aurora is a political subdivision as defined in
{¶16} Ganzhorn, however, claims the triаl court erred in granting immunity to Aurora, as one of the exceptions enumerated in
{¶17} “(B) Subject to section
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:{¶18} “***
{¶19} “(4) Except as otherwise provided in section
3746.24 of the Revised Code , political subdivisions 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 оn 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, as defined in section2921.01 of the Revised Code .”
{¶20} Aurora maintains this exception is not applicable because Ganzhorn did not allege in his complaint that “the alleged physically defective fence at Sunny Lake Park was located on the grounds of any building, let alone the grounds of a building
{¶21} Conversely, Ganzhorn claims that since his injury occurred on park grounds in connection with a governmental function, an exception to immunity is applicable.
{¶22}
{¶23} With respect to the first issue, employee negligence, Ganzhorn alleges in his complaint that Aurora improperly maintained the fence at issue and failed to warn him of the hazards associated with the fence. “Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity.” Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480. ”
{¶24} Some political subdivisions have argued for a heightened pleading standard by requiring a plaintiff to assert how or why the political subdivision is not immune from suit. However, this court will not adopt such a standard. Effectively, adoption of such a standard would require a plaintiff to anticipate affirmative defenses and exceptions at the inception of the litigation. The Eighth District Court of Appeals and other courts have rejected the “heightened pleading” standard, stating:
{¶25} “CMHA argues that appellee must plead with specificity how CMHA is not immune from suit. Ohio Civil Rules require ‘notice pleading’ rather than ‘fact pleading.’ *** ‘Notice pleadings’ under
Civ.R. 8(A) and8(E) merely require that a claim concisely set forth only those operative facts sufficient to give ‘fair notice of the nature of the action[.]’ *** Except in very narrow circumstanсes, such as fraud, a plaintiff is not required to plead the operative facts of his or her case with particularity. *** A plaintiff is not required to prove his or her case at the pleading stage. ***{¶26} “We decline to extend pleading with specificity to an area it has not traditionally been applied. Appellee‘s complaint is sufficient to put CMHA on notice as to the facts and circumstances surrounding the complained of injury. Discovery is the appropriate method to further ascertain the series of events that led to the injury of appellee‘s daughter. Appellee has alleged that CMHA is not immune from suit based
on the operation of a building in furtherance of a governmental function, which would remove governmental immunity under R.C. 2744.02(B)(4) . ***” (Internal citations omitted.) Diaz v. Cuyahoga Metro. Hous. Auth., 8th Dist. No. 92907, 2010-Ohio-13, at ¶15-16.
{¶27} There is no question that Aurora is a municipal corporation in Ohio. This fact is alleged in the complaint. Therefore, it is entitled to any of the applicable immunities afforded by law. However, before judgment on the pleadings can be granted, it is necessary to consider the applicable law and determine if there are any facts that would afford Ganzhorn recovery based on the allegations in the complaint.
{¶28} As previously stated, a “governmental function” includes “[t]he design, construction, reconstruction, renovation, repair, maintenance, and operation of any recreational area or facility, including, but not limited to, *** (I) [a] park, playground, or playfield.”
{¶29} In Cater v. Cleveland, 83 Ohio St.3d 24, the Supreme Court of Ohio, in a plurality opinion, addressed the applicability of the
{¶30} “Although former
R.C. 2744.02(B)(4) 2 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. *** Unlike а 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.” Id. at 31-32.
{¶31} In Cater, former Chief Justice Thomas Moyer, in a concurring opinion joined by two other justices, stated:
{¶32} “Rather, I believe that the city‘s рotential liability is based in former
R.C. 2744.02(B)(4) , which provided at the time of Cater‘s drowning: ‘Political subdivisions are liable for injury, death, or loss to persons or property 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 ***.’ (Emphasis added.)
{¶33} “As the lead opinion acknowledges, operation of a swimming pool has been expressly designated a governmental function.
R.C. 2744.01(C)(2)(u) . It follows that liability potentially exists where death is caused by the negligence of city employees on swimming pool property. Although I acknowledge the existence of case law from the courts of appeals to the contrary, in my view both indoor and outdoor pools exist ‘within or on the grounds’ of buildings used in connection with the performance of the governmental function of operating a pool. Indoor pools clearly are ‘within’ buildings. Outdoor pools, while not located within buildings themselves, invariably are located on land that includes buildings, such as bathhouses, shelters, restrooms, storage areas, and offices. I therefore do not accept the conclusion of the majority that application of (B)(4) to this casе would result in our creation of an artificial distinction between indoor and outdoor pools in applying the relevant immunity statutes.” Id. at 34-35. (Moyer, C.J., concurring in syllabus and judgment.)
{¶34} Based on the reasoning employed by Cater, appellate courts have varied interpretations of the application of the
{¶36} “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 [v. Canton City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718]. 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. [Cater] at 31-32. The Court made this finding dеspite having recognized 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) .’ [Cater] at 28. 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[al] function ***.’ Hubbard at ¶18. There was no discussion regarding whether the governmental function in the building involved wasrecreational in nature.” Thompson, supra, at ¶34. See, also, Contreraz v. Bettsville, 3d Dist. No. 13-10-48, 2011-Ohio-4178, at ¶26-30.
{¶37} The Supreme Court of Ohio then released Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250. Moore observed that the ruling in Cater, supra, seems to ignore the plain language of
{¶38} After the release of Moore, supra, the Fourth Appellate District decided Mathews v. City of Waverly, 4th Dist. No. 08CA787, 2010-Ohio-347. A tree limb fell on Ms. Mathews while she stood in the parking lot of Canal Park, which is owned and operated by the city of Waverly. The city argued that it was immune from liability for Ms. Mathews’ injuries under
{¶39} ”Moore stands in contrast to Cater. Moore does not interpret
R.C. 2744.02(B)(4) so as to require that the building house the actual, physical operations, maintenance, etc., of a governmental body performing a governmental function. For example, in Moore the political subdivision did not literally ‘operate’ or ‘maintain’ the public housing from the building where the injury occurred - a requirement that Cater seems to imply. The political subdivision‘s base of operations or maintenance was not physically located in the public housing, yet Moore did not find this absence to remove the building from the definition of a building used in connection with the performance of a governmental function. Instead, Moore applies a plain, common sense definition - one that asks whether the building is logically, not literally, connected to the performance of a governmental function.{¶40} “***
{¶41} “Due to the apparent conflict between Moore and Cater, we choose to follow the recent Moore ruling that more broadly defines ‘buildings used in connection with the performance of a governmental function’ as used in
R.C. 2744.02(B)(4) . Under the Moore rationale, buildings used in сonnection with the performance of the operation or maintenance of a park fall withinR.C. 2744.02(B)(4) , even though those buildings may not house the physical location of the governmental body operating or maintaining the park. Rather, under Moore, it is sufficient that the building bears a logicalconnection to the performance of a governmental function, i.e., the operation or maintenance of a park.” Id. at ¶32-35.
{¶42} Therefore, the Mathews court determined:
{¶43} “[T]hat the buildings in Canal Park bear a logical connection to the performance of the operation or maintenance of the park. Community members apparently use the shelter houses for various events. They are part and parcel of the park. The city obviously holds them out as available for public use. Although the city does not literally ‘maintain’ or ‘operate’ the park from the shelter houses or the roofed pagodas, those buildings are used in connection with the performance of the operation of the park. The city maintains those structures as part of its governmental function of operating the park. Consequently,
R.C. 2744.02(B)(4) applies to the facts of the case at bar to except appellant fromR.C. 2744.02(A)(1) ‘s general grant of immunity.” Id. at ¶36.
{¶44} We note, however, that in footnote 3, the Mathews court observed the result under
{¶45} Aurora alleges that based on Hopper, 2009-Ohio-2517, and Cater, 83 Ohio St.3d 24, outdoor recreational facilities are excluded from the
{¶46} “[T]he Supreme Court [since Cater] has implicitly abandoned a distinction between the places of business and places of recreation in interpreting the applicability of
R.C. 2744.02(B)(4) . *** The majority [in Moore] analyzed the phrase ‘including, but not limited to’ and observed that it ‘denotes a nonexclusive list of buildings to which the exception may apply.’ *** On appeal, the Supreme Court seized on the phrase ‘buildings that are used in connection with the performance of a governmental function. *** For that reason, the court held thatR.C. 2744.02(B)(4) created an exception to immunity in that case. *** Althоugh the Court did not explicitly abandon the governmental-business-versus-recreation-use distinction, a housing authority apartment is not a place where the public generally appears and government business takes place.” Hopper, supra, at ¶15.
{¶47} In the present case, the pleadings do not resolve whether there is a building anywhere on the grounds of Sunny Lake Park, and what the relation may be to the chain link fence at issue. If the facts in this regard favor an exception to immunity, Ganzhorn must be given an opportunity to resolve this issue in the discovery process. No heightened standard of pleading exists that would require Ganzhorn to anticipate an affirmative defense and plead an exception to it at this stage. As a result, the trial court erred by granting Aurora‘s motion for judgment on the pleadings.
{¶48} Ganzhorn‘s first assignment of error is well taken.
{¶49} Ganzhorn‘s second assignment of error states:
{¶50} “The trial court erred in granting Defendant-Appellee‘s motion for judgment on the pleadings and failing to allow time for additional discovery.”
{¶52} Ganzhorn asserts two contentions undеr this assignment. He first contends that the “court should consider whether any of the defenses afforded in
{¶53} Ganzhorn‘s second contention alleges that he needs discovery to determine if the affirmative defense under the recreational user statute is applicable. Based on the disposition of Ganzhorn‘s first аssignment of error, these issues are rendered moot since this matter is being remanded for further proceedings which will allow Ganzhorn to seek discovery of additional relevant facts with regard to both contentions.
{¶54} Ganzhorn‘s second assignment of error is moot.
{¶55} Aurora has asserted the following cross-assignment of error:
{¶56} “The trial court erred when it failed to apply the Recreational User Statute,
{¶57} The trial court granted Aurora‘s
{¶58}
{¶59} “In connection with an appeal of a final order, judgment, or decree of a court, assignments of error may be filed by an appellee who does not appeal, which assignments shall be passed upon by a reviewing court before the final order, judgment, or decree is reversed in whole or in part. The time within which assignments of error by an appellee may be filed shall be fixed by rule of court.” (Emphasis added.)
{¶60} Since disposition of this assignment of error may result in preventing a reversal of the trial court ruling, this court will address the cross-assignment of error.
{¶61}
{¶62} “Immunity from liability to recreational users
{¶63} “(A) No owner, lessee, or occupant of premises:
{¶64} “(1) Owes any duty to a recreational user to keep the premises safe for entry or use;
{¶65} “(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;
{¶66} “(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user.
{¶67} “(B) Division (A) of this section applies to the owner, lessee, or occupant of privately owned, nonresidential premises, whether or not the premises are kept open for public use and whether or not the owner, lessee, or occupant denies entry to certain individuals.”
{¶68} The complaint in this case alleges that Ganzhorn was a “paid participant” in the softball league. It further alleges that because Ganzhorn “paid a fee” to Aurora to participate in the softball league, “he is not a recreational user.” In addition, the complaint alleges that Aurora, a municipal corporation, “owned, operated, maintained, possessed and controlled” the softball field in question.
{¶69} “Premises” and “recreational user” are defined in
{¶70} “(A) ‘Premises’ means all privately owned lands, ways, and waters and any buildings and structures thereon, and all privately owned and state-owned lands, ways and waters leased to a private person, firm, or organization, including any buildings and structures thereon.
{¶71} “(B) ‘Recreational user’ means a person to whom permission has been granted, without the payment of a fee or consideration to the owner, lessee, or occupant of premises, other than a fee or consideration paid to the state or any agenсy of the state or a lease payment or fee paid to the owner of privately owned lands, to enter upon premises to hunt, fish, trap, camp, hike, or swim, or to operate a snowmobile, all-
purpose vehicle, or four-wheel drive motor vehicles, or to engage in other recreational pursuits.” (Emphasis added.)
{¶72} At a minimum, there are facts that are unresolved regarding the payment of the fee and whether the property in question meets the definition of “premises.” As noted in the first assignment of error, the facts contained in the complaint must be construed as true, and accepting them as true, there must be no set of facts that would allow recovery for Ganzhorn. Because there are potential facts that, if resolved in favor of Ganzhorn, could result in rendering the recreational user statute inapplicable to this case, judgment on the pleadings is inappropriate, and the cross-assignment of error is without merit.
{¶73} We have concluded that the trial court erred in granting Aurora‘s motion for judgment on the pleadings in relation to its immunity argument. Aurora may, or may not, ultimately be entitled to immunity in this matter. We merely conclude, in light of factual inferences to which Ganzhorn, as the plaintiff, is entitled on a
{¶74} The judgment of the Portage County Court of Common Pleas is hereby reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion.
THOMAS R. WRIGHT, J., concurs,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
____________________
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
{¶75} Defendant-appellee, the City of Aurora, is entitled to judgment on the pleadings pursuant to Ohio‘s Recreational User Statute, as argued in its cross-assignment of error. Accordingly, I dissent from the majority‘s decision to reverse the judgment of the lower court.
{¶76} The Recreational User Statute provides:
(A) No owner, lessee, or occupant of premises:
(1) Owes any duty to a recreational user to keep the premises safe for entry or use;
(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;
(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user.
{¶77} “Premises” are defined as “all privately owned lands, ways, and waters, and any buildings and structures thereon, and all рrivately owned and state-owned lands, ways, and waters leased to a private person, firm, or organization, including any buildings and structures thereon.”
{¶78} A “recreational user” is defined as “a person to whom permission has been granted, without the payment of a fee or consideration to the owner, lessee, or occupant of premises, other than a fee or consideration paid to the state or any agency of the state, or a lease payment or fee paid to the owner of privately owned lands, to enter upon premises to hunt, fish, trap, camp, hike, or swim, or to operate a snowmobile, all-purpose vehicle, or four-wheel drive motor vehicle, or to engage in other recreational pursuits.”
{¶79} Ganzhorn was a “recreational user” of Sunny Lake Park for the purposes of the Recreational User Statute as a participant in the Aurora Parks and Recreation Summer Adult Softball League. Ganzhorn argues that he was not a recreational user, because he “paid a fee to the defendant *** to participate in the softball league” (paragraph seven of the Complaint).
{¶80} Ganzhorn‘s argument is unavailing. There is abundant сase law that softball league participation fees do not constitute a “fee or consideration to enter upon ‘premises‘.” Boggs v. Bowling Green, 6th Dist. No. WD-03-008, 2003-Ohio-4093, at ¶7 (“[t]he mere fact that a fee was paid to a sponsor does not mean that a fee was paid to
{¶81} The majority asserts that there are “facts that are unresolved regarding the payment of the fee and whether the property in question meets the definition of ‘premises‘.” Supra at ¶72. I disagree. The allegations contained in Ganzhorn‘s Complaint, in light of the legal authorities, preclude all doubt as to the applicability of the Recreational User Statute in the present case. Accordingly, I respectfully dissent.