Mathews v. WaverlyMathews v. Waverly
COUNSEL FOR APPELLANT: Edward J. Dowd and Brendan D. Healy, 1 Prestige Place, Suite 700, Miamisburg, Ohio 45342
COUNSEL FOR APPELLEES: Thomas M. Spetnagel and Paige J. McMahon, 42 East Fifth Street, Chillicothe, Ohio 45601
PER CURIAM.
{¶ 1} This is an appeal from a Pike County Common Pleas Court judgment that denied the City of Waverly, defendant below and appellant herein, the benefit of an alleged immunity under
{¶ 2} Appellant raises the following assignments of error for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT IMMUNITY PURSUANT TO
R.C. 2744.01 WITH RESPECT TO PLAINTIFFS-APPELLEES’ NEGLIGENCE AND NUISANCE CLAIMS. THERE IS NO EXCEPTION UNDERR.C. 2744.02(B) THAT WOULD ABROGATE DEFENDANT-APPELLANT’S GENERAL GRANT OF IMMUNITY.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT IMMUNITY PURSUANT TO
R.C. 2744.03(A)(5) WITH RESPECT TO PLAINTIFFS-APPELLEES’ NEGLIGENCE AND NUISANCE CLAIMS. THE DEFENDANT-APPELLATE [SIC] CANNOT BE HELD LIABLE FOR DISCRETIONARY DECISIONS AS TO ITS ALLOCATION OF PERSONNEL AND RESOURCES TOWARD THE IMPLEMENTATION AND EXECUTION OF ITS TREE INSPECTION PROGRAM.”
{¶ 3} On September 4, 2004, a tree limb fell on Ms. Mathews while she stood in the parking lot of Canal Park, which the City of Waverly owns and operates. Ms. Mathews and her husband filed a complaint and alleged that appellant negligently maintained the park premises and that appellant allowed a nuisance to exist. Mr. Mathews also asserted a loss of consortium claim. Appellant denied liability and asserted the defense of statutory immunity under
{¶ 4} Appellant subsequently filed a summary judgment motion and asserted that no genuine issues of material fact remained as to whether it is immune from liability for appellant’s injuries under
{¶ 5} The trial court considered and denied appellant’s summary judgment motion and this appeal followed.
{¶ 6} In its two assignments of error, appellant asserts that the trial court erroneously denied its summary judgment motion on the basis of
{¶ 7} A
{¶ 8} SUMMARY JUDGMENT STANDARD
{¶ 9} Initially, we note that appellate courts conduct a de novo review of trial court summary judgment decisions. See, e.g., Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Accordingly, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court’s decision. See Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411-12, 599 N.E.2d 786. Thus, to determine whether a trial court properly granted a
{¶ 10}
* * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.
{¶ 11} Thus, pursuant to
{¶ 12} B
{¶ 13} GENERAL IMMUNITY PRINCIPLES
{¶ 14}
{¶ 15} In the case at bar, the parties do not dispute that appellant is entitled to the general grant of immunity under
{¶ 16} C
{¶ 17} R.C. 2744.02(B)(4)
{¶ 18} Appellant first contends that none of the exceptions to immunity contained within
{¶ 19}
(B) Subject to sections
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:* * *
(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 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, as defined in section2921.01 of the Revised Code.
(Emphasis added).
{¶ 20} Appellant contends that this exception does not apply because the injury did not occur “within or on the grounds of * * * buildings that are used in connection with the performance of a governmental function.” Appellant advances two arguments in support of this contention. First,2 appellant argues that the immediate grounds of Canal Park do not include any buildings that are used in connection with the performance of a governmental function. Appellant argues that the shelter houses, roofed pagodas, playground structures and bathrooms located in Canal Park do not constitute “buildings used in connection with the performance of a governmental function.” Second, appellant asserts that the nearby grounds of the municipal building, which is located upon a separate parcel of property and is divided from Canal Park by
{¶ 21} D
STATUTORY INTERPRETATION
{¶ 22} The interpretation of a statute is a question of law that we review de novo. Washington Cty. Home v. Ohio Dept. of Health, 178 Ohio App.3d 78, 2008-Ohio-4342, at ¶27. “The primary goal of statutory construction is to ascertain and give effect to the legislature’s intent in enacting the statute. Brooks v. Ohio State Univ. (1996), 111 Ohio App.3d 342, 349, 676 N.E.2d 162. The court must first look to the plain language of the statute itself to determine the legislative intent. State ex rel. Burrows v. Indus. Comm. (1997), 78 Ohio St.3d 78, 81, 676 N.E.2d 519. We apply a statute as it is written when its meaning is unambiguous and definite. Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶52, citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d 463. An unambiguous statute must be applied in a manner consistent with the plain meaning of the statutory language. State ex rel. Burrows, 78 Ohio St.3d at 81.” State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, at ¶9.
{¶ 23} Courts must give effect to the words used in a statute and must not delete
E
“BUILDINGS THAT ARE USED IN CONNECTION WITH THE PERFORMANCE OF A GOVERNMENTAL FUNCTION”
{¶ 24} In determining whether the shelter houses, roofed pagodas, etc., located in Canal Park constitute “buildings that are used in connection with the performance of a governmental function,” we first look to the statutory definition of “governmental function.” 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, any of the following: (i) A park, playground, or playfield * * *.”
{¶ 25} A straight-forward application of the principles of statutory interpretation would appear to indicate that the structures present in Canal Park constitute “buildings that are used in connection with the performance of a governmental function” and thus, within the
{¶ 26} In Cater v. Cleveland (1998), 83 Ohio St.3d 24, 697 N.E.2d 610, the court construed a former but similar version of
“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 the exception enumerated inR.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.”3
{¶ 27} Id. at 31-32.
{¶ 28} Therefore, under Cater a building that a political subdivision owns that does not house the activities of a governmental body does not meet the definition of a
{¶ 29} Chief Justice Moyer criticized this aspect of the majority’s holding and stated his belief that
“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 case would result in our creation of an artificial distinction between indoor and outdoor pools in applying the relevant immunity statutes.”
{¶ 30} In addition to the Chief Justice’s concerns, we note that Cater seems to ignore principles of statutory interpretation. The plain meaning of
{¶ 31} Although we may not fully agree with Cater, it is obviously a pronouncement from a superior court, thus, controlling authority. We note, however, that a more recent Ohio Supreme Court decision appears to diverge from Cater. In Moore v. Lorain Metropolitan Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606,4 the court held “that the operation of a public housing authority is a governmental function under
{¶ 32} Thus, Moore stands in contrast to Cater. Moore does not interpret
{¶ 33} Once again, we note that at least one other Ohio appellate court has questioned Cater’s continued validity. The Thompson court wrote:
“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.”
{¶ 34} A more recent Ohio appellate decision finds Cater to be of continuing validity. In Hopper v. Elyria, 182 Ohio App.3d 521, 2009-Ohio-2517, 913 N.E.2d 2517, the city claimed that it was immune from liability for the wrongful death action that the plaintiff brought as a result of his son’s drowning at the city’s pool. On appeal, the court first concluded that the city’s operation of a municipal pool constituted a governmental function for which it is entitled to
{¶ 35} We share the Thompson court’s reservations regarding Cater’s continuing validity, especially in light of the more recent Moore decision. We observe that Hopper did not address the impact of Moore upon Cater.5 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
F
“GROUNDS”
{¶ 37} Although we believe that the foregoing analysis completely disposes of appellant’s argument regarding the
{¶ 38} To determine whether the city building and Canal Park constitute the same “grounds,” we again must interpret the statute. In determining the meaning of a word within a statute, we look first to the plain meaning. The ordinary dictionary definition from Webster’s Encyclopedic Dictionary of the English Language defines the plural of “ground” as “land, often with lawns, flower gardens etc., attached to a house for ornament and recreation” or as “an area of land devoted to and equipped for some special purpose, camping ground * * *.” (1989), 424. Merriam-Webster’s Online Dictionary defines “grounds” as “the area around and belonging to a house or other building.” http://www.merriam-webster.com/dictionary/grounds, 4.c.
{¶ 39} In the case at bar, we disagree with appellant that the definition of “grounds” is determined by looking to the legal description of the specific parcel of property. The plain meaning of “grounds” includes the area around a building. The land around a building may not always coincide with the legal description of the particular parcel of land upon which the building sits. For example, an individual or entity may own contiguous parcels of land that nonetheless constitute the “grounds” of the building that sits on one of those parcels. The multiple parcels may be grouped together as the “grounds” of a building if they form the portion of land surrounding the building and are devoted to the same purpose as the building. Moreover, if the General Assembly had intended to limit the definition of “grounds” to a particular “parcel” of land, it could have used the word “parcel,” instead of “grounds,” in the statute.
{¶ 40} We are not convinced, however, that Canal Park and the municipal
{¶ 41} Accordingly, based upon the foregoing reasons, we overrule appellant’s first assignment of error.
G
R.C. 2744.03(A)(5)
{¶ 42} Appellant next argues that even if the
{¶ 43} Appellees assert, however, that the allegation is not whether appellant should have had a better tree inspection program - but rather, whether appellant negligently administered the program it already had in place. More specifically, they frame the issue as whether appellant negligently maintained the tree.
{¶ 44}
{¶ 45} Under
“Immunity 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 or independent judgment. The law of immunity is designed to foster freedom and discretion in the development of public policy while still ensuring that implementation of political subdivision responsibilities is conducted in a reasonable manner.”
{¶ 46} In Hall, for example, we held that the maintenance of a school’s irrigation system does not involve the exercise of judgment or discretion. In that case, the plaintiff, a football player, suffered an injury during football practice when he stepped on an exposed sprinkler head located on the high school’s practice field. The trial court
{¶ 47} In the case at bar, appellees essentially assert that appellant negligently maintained the tree which fell upon Ms. Mathews. This is a question of routine maintenance, not a question of appellant’s exercise of discretion in determining how to allocate resources or personnel. The question simply is: was appellant’s employee negligent in maintaining the tree?
{¶ 48} Contrary to appellant’s suggestion, appellees have not argued that appellant should have adopted a more thorough tree inspection program. Rather, appellees limited their argument to whether appellant’s employee was negligent in failing to detect the alleged defect. Appellees’ complaint does not contain any allegation that appellant’s tree inspection policy was deficient. Rather, the complaint asserts that Ms. Mathews’ injury resulted from appellant’s negligence in failing “to maintain the premises in a reasonably safe condition.” Appellees did not argue during the summary judgment proceedings or on appeal that appellant’s inspection program is negligent. The apparent purpose of appellees’ expert affidavit is not to show that appellant’s tree inspection policy is deficient, but instead, to show that appellant’s employee was negligent in failing to recognize the alleged danger that the tree posed. Thus, we do not address whether appellant would be entitled to invoke the
{¶ 49} Accordingly, based upon the foregoing reasons, we overrule appellant’s second assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed and that appellees recover of appellant the 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 Pike County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to
McFarland, P.J.: Dissents
Harsha, J. & Abele, J.: Concur in Judgment & Opinion
For the Court
BY: ______________________________
Matthew W. McFarlalnd
Presiding Judge
BY: ______________________________
William H. Harsha, Judge
BY: ______________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.