O'Connor v. FremontO'Connor v. Fremont
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Donald J. Rasmussen, for appellants.
Larry P. Meyer, for appellee.
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OSOWIK, P.J.
{¶ 1} This is аn appeal from a judgment of the Sandusky County Court of Common Pleas which granted appellee‘s motion for summary judgment. For the reasons set forth below, this court affirms the judgment of the trial court.
{¶ 3} “Assignment of Errоr No. 1: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT, AS A MATTER OF LAW, IN FAVOR OF THE CITY OF FREMONT ON THE BASIS THAT THE SPECIFIC IMMUNITY EXCEPTION TO POLITICAL SUBDIVISION OF IMMUNITY FOUND IN
{¶ 4} The following undisputed facts are relevant to the issues raised on appeal. On June 23, 2005, Daniel O‘Connor, a minor, was engaged in recreational swimming at the Fremont Community Recreation Complex Swimming Pool. In the course of enjoying the municipal swimming pool, O‘Connor utilized the swimming pool diving board. O‘Connоr successfully jumped from the diving board without incident. Subsequently, on a second trip to the diving board, approximately 20 minutes following the first successful dive, O‘Connor slipped and fell from the diving board sustaining injury.
{¶ 5} The O‘Connors filed suit against appellee alleging negligence in connection to the swimming pool diving board. On May 16, 2008, the O‘Connors voluntarily dismissed their initial action against appellee. Appellee‘s motion for summary judgment was pending at the time of the voluntary dismissal. On May 13, 2009, the O‘Connors refiled the matter. In the refiling, appellants again alleged negligence in the design, operation, supervision, and maintenance of the swimming pool and its diving board.
{¶ 7} In support of its summary judgment filing, appellee asserted that sovereign immunity precluded any claimed liability in negligence. In addition, appellee contended that contributory negligence and assumption of the risk by O‘Connor proximately caused his injuries.
{¶ 8} Fоllowing extensive opposing summary judgment briefing by the parties, the matter became decisional. On January 14, 2010, the trial court granted summary judgment to appellee affirming its sovereign immunity. The merits of the alleged negligence and the affirmative defenses asserted in rebuttal were moot and not incorpоrated in the ruling given the threshold determination that sovereign immunity applied to appellee thus precluding the claimed negligence as a matter of law.
{¶ 9} In support of its summary judgment determination, the trial court found in relevant part, “Defendant City of Fremont enjoys a general grant of immunity under
{¶ 10} In their sole assignment of error, appellants assert that the trial court erred in granting summary judgment to appellee. It is well-established that appellate review of summary judgment determinations is conducted on a de novo basis, applying the same
{¶ 11} In support of their contention that the trial court erred in finding appellee protected by a sovereign immunity and not subject to the relevant exception to immunity set forth in
{¶ 12} In the highly relevant Ohio Supreme Court case of Cater, the Ohio Supreme Court expressly held that the sovereign immunity exception set forth in
{¶ 14} Our analysis comports with that which was set forth in Hopper and we likewise determine that pursuant to the controlling Ohio Supreme Court Cater case, the damages sustained at the Fremont outdoor recreational swimming pool at issue in this casе do not fall within the sovereign immunity exception of
{¶ 15} Given our determination against the threshold issue of whether the sovereign immunity exception of
{¶ 16} On consideration whereof, the judgment of the Sandusky County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, P.J.
CONCUR. _______________________________
JUDGE
Keila D. Cosme, J.,
DISSENTS.
COSME, J., dissenting.
{¶ 17} I respectfully dissent. Specifically, I disagree with the majority‘s conclusion that the determinative issue in this appeal is controlled by the Ohio Supreme Court‘s decision in Cater v. Cleveland (1998), 83 Ohio St.3d 24. Twelve years ago, a single member of the Ohio Supreme Court—the author of Cater—opined that even though the operation and maintenance of a municipal recreational swimming pool is specifically designated as a governmental function under former
{¶ 18} Pursuant to
{¶ 19}
{¶ 20} Nevertheless, the lead opinion in Cater reasoned:
{¶ 21} “Unlike a courthouse or office building where government business is conducted, a city recreation center houses recreational activities. Furthermore, if we applied former
{¶ 22} It is well-established that plurality opinions are not binding authority. See State ex rel. Rouch v. Eagle Tool & Machine Co. (1986), 26 Ohio St.3d 197, 218, fn. 7 (Celebrezze, C.J., concurring in part and dissenting in part); Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42, 44; State v. Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, ¶ 41, fn. 2; State v. Harris, 8th Dist. No. 90699, 2008-Ohio-5873, ¶ 99, fn. 1; Reasoner v. Bill Woeste Chevrolet, Inc. (1999), 134 Ohio App.3d 196, 201; Progressive Cas. Ins. Co. v. Oakford (1992), 79 Ohio App.3d 97, 98; McIntosh v. Stanley-Bostitch, Inc. (S.D.Ohio 2000), 82 F.Supp.2d 775, 786. The opinion in Cater as to the inapplicability of
{¶ 23} Thus, in a concurring opinion joined by two other justices, Chief Justice Moyer wrote:
{¶ 24} “As the lead opinion acknowledges, operation of a swimming pool has been expressly designated a governmental function.
{¶ 25} Not since Cater was decided has the Ohio Supreme Court or any of its members relied upon, endorsed, or even cited to its “government business” analysis in determining the application of
{¶ 26} In any event, even if Cater initially enjoyed the force of law in regard to a municipality‘s liability for injuries sustained in connection with the operation of a recreational swimming pool, it can no longer be said to have any continuing validity in that regard. Cater‘s continuing viability was first questioned by the Third District Court of Appeals in Thompson v. Bagley, 3d Dist. No. 11-04-12, 2005-Ohio-1921, ¶ 34:
{¶ 27} “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 Cty. 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
{¶ 28} The majority distinguishes Thompson, however, on the basis of the Ninth District Court of Appeals’ decision in Hopper v. Elyria, 182 Ohio App.3d 521, 2009-Ohio-2517. In Hopper, the court found that Hubbard did not diminish the authority of Cater on the present issue and distinguished Thompson as follows:
{¶ 29} ”Thompson involved a child who drowned in a school pool during a physical education class. However, the Thompson court noted that the parties agreed that the child‘s ‘death occurred in connection with a governmental function as provided for in
{¶ 30} The majority‘s analysis inappropriately ends at this point. It does not go on to examine the propriety of Hopper‘s assertions or other relevant case law. In distinguishing Thompson and following the lead opinion in Cater, the court in Hopper
{¶ 31} Second, the court in Hopper distinguished Thompson from Cater on grounds that the injurious event in Thompson did not occur in connection with a governmental function listed in subsection (C)(2)(u) of
{¶ 32} “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. Due to the apparent conflict between
{¶ 33} In light of the decisions in Moore and Mathews, and considering the initial and ongoing lack of even plurality support for Cater‘s tenuous reasoning in regard to the application of
{¶ 34} I, therefore, respectfully dissent.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.