STATE OF OHIO COUNTY OF SUMMIT ss: MICHAEL L. HAWSMAN, minor, et al., Appellants v. CITY OF CUYAHOGA FALLS, et al., Appellees
C.A. No. 25582
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 3, 2011
[Cite as Hawsman v. Cuyahoga Falls, 2011-Ohio-3795.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2009 07 5156
MOORE, Judge.
{¶1} Appellants, Michael Hawsman, a minor, and his parents, appeal from the judgment of the Summit County Court of Common Pleas granting summary judgment against them on the basis of political subdivision immunity. This Court reverses.
I.
{¶2} The relevant facts, for purposes of context, are as follows. On May 12, 2006, Michael Hawsman visited the Cuyahoga Falls Natatorium and Wellness Center. He injured his knee while using the pool and diving board. The City of Cuyahoga Falls maintains and operates the Natatorium. On July 10, 2009, Hawsman and his parents filed suit against the City and five unidentified defendants alleging that the City negligently maintained the diving board. After filing a certification for leave to plead, the City filed its answer on September 9, 2009.
{¶3} On May 26, 2010, the City filed a motion for summary judgment claiming that it was immune from suit. Specifically, it contended that the exception to political subdivision
{¶4} The Hawsmans timely filed a notice of appeal and raise one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN FINDING THAT THE EXCEPTION TO POLITICAL SUBDIVISION IMMUNITY PROVIDED IN OHIO REVISED CODE §2744.0[2](B)(4) DOES NOT APPLY TO THE INDOOR SWIMMING POOL OPERATED BY [THE CITY].”
{¶5} In their first assignment of error, the Hawsmans contend that the trial court erred in granting summary judgment to the City because the exception to political subdivision immunity found in
{¶6} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial court, viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12.
{¶7} Pursuant to
“(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
{¶8} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for thе motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in
{¶9} We begin by аcknowledging that fewer than two years ago in Hopper v. Elyria, 9th Dist. No. 08CA009421, 2009-Ohio-2517, this Court decided a nearly identical issue in reliance on the lead opinion from Cater v. Cleveland, supra. The vitality of the lead opinion in Cater has been subjected to increasing skepticism in recent years, particularly with respect to its treatment of municipal swimming pools. In Cater, a twelve-year-old boy lost consciousness and nearly drowned in a city-owned indoor pool. Cater, 83 Ohio St.3d at 24. He developed pneumonia and was declared brain-dead four days later. Id. Cater‘s family sued. Id. At the close of the family‘s case, the City of Cleveland moved for a directed verdict on the basis of immunity under
{¶10} Cater set forth an oft-cited explanation of the appropriate analysis of cases falling under
{¶11} The second tier involves the five exceptions set forth in
B. Applicability of R.C. 2744.02(B)(4) to Municipal Pools
{¶12} In this case, the parties agree that maintenance of the pool and diving board is a governmental function. Thus, the single issue for our determination is whether the exception to immunity set forth in
{¶13} In the court below, the City based its motion for summary judgment upon the Supreme Court‘s decision in Cater, which interpreted the applicability of
{¶14} Chief Justice Moyer concurred in the syllabus and judgment, expressing his belief that
{¶15} Further, the Supreme Court has since implicitly abandoned a distinction between places of business and places of recreation in interpreting the applicability of
function” and concluded that units of public housing are used in connection with the performance of a governmental function. Id. For that reason, the Court held that
{¶16} In recent years, the rationale of Cater‘s lead opinion has come under increasing criticism from several appellate districts. In 2005, the Third District Court of Appeals in Thompson v. Bagley, 3d Dist. No. 11-04-12, 2005-Ohio-1921, questioned the continuing validity of Cater. The Bagley court observed that, like in Moore, the Supreme Court in Hubbard considered only the plain language of
{¶17} The Sixth District Court of Appeals addressed political subdivision immunity related to a city-operated swimming pool in O‘Connor v. City of Fremont, 6th Dist. No. S-10-008, 2010-Ohio-4159. The majority affirmed the grant of summary judgment in favor of the city on the basis of political subdivision immunity. Id. at ¶1. The majority relied upon Cater‘s lead
{¶18} The Fourth District Court of Appeals faced an analogous situation in Mathews v. City of Waverly, 4th Dist. No. 08CA787, 2010-Ohio-347. Although a municipal pool was not involved, the two-judge majority affirmed a trial court‘s order denying summary judgment to the city on the basis that the exception in
{¶19} Hopper is presently binding precedent in this district. Hopper‘s son drowned in a city-owned pool. Hopper, at ¶6. The case was disposed of on a motion to dismiss pursuant to
C. Hopper Overruled
{¶20} Because Hopper relied on the lead opinion in Cater, an opinion not joined by any other justice, as binding authority, it was wrongly decided. Hopper is overruled. In so holding, we rely on the authority of Moore and the applicable statutory language of
{¶21} The Hawsmans’ single assignment of error is sustained.
III.
{¶22} The Hawsmans’ single assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is reversed and the cause remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
CARLA MOORE
FOR THE COURT
BELFANCE, P. J. DICKINSON, J. CONCUR
APPEARANCES:
PETER D. TRASKA and WILLIAM J. PRICE, Attorneys at Law, for Appellant.
PAUL A. JANIS, Law Director, and HOPE L. JONES, Deputy Law Director, for Appellee.