RYLL, APPELLANT, v. COLUMBUS FIREWORKS DISPLAY COMPANY, INC.; CITY OF REYNOLDSBURG ET AL., APPELLEES.
No. 2000-1904
Supreme Court of Ohio
Decided June 19, 2002
95 Ohio St.3d 467 | 2002-Ohio-2584
PFEIFER, J.
Submitted October 30, 2001. APPEAL from the Court of Appeals for Franklin County, Nos. 99AP-1061 and 99AP-1311.
PFEIFER, J.
{¶1} Appellant Deborah Ryll, administrator of the estate of Daniel Ryll, brought suit against appellees, including the city of Reynoldsburg and Truro Township, for the wrongful death of her husband, Daniel Ryll. Mr. Ryll was killed when shrapnel from an exploding firework shell hit him during the July 4, 1996 Reynoldsburg fireworks display.
{¶2} Reynoldsburg held its annual fireworks display in Huber Park. Truro Township, the entity responsible for fire protection in Reynoldsburg, was required by
{¶3} On July 4, 1996, prior to the start of the fireworks disрlay, Reynoldsburg used caution tape to designate the spectator safety area. In determining the distance from the discharge at which the tape should be placed, Reynoldsburg did not consult the licensed fireworks shooter about the angulation or the placement of the fireworks. Some spectators were as close as six hundred sixty feet from the discharge area. According to NFPA standards, when vertical twelve-inch shells are to be used in the display, the safety area should be no closer than eight hundred forty feet from the discharge area.
{¶4} During the July 4, 1996 fireworks display, a twelve-inch shell exploded inside its mortar tube. A piece of shrapnel from the explosion struck Mr. Ryll, who was sitting with his family in the designated spectator safety area, approximately six hundred sixty feet from the discharge area. Mr. Ryll died from the resulting injuries.
{¶5} Reynoldsburg and Truro Township each filed separate motions for summary judgment in the trial cоurt, both claiming sovereign immunity. While the motions were pending, appellant reached a settlement agreement with Reynoldsburg and Truro Township that was contingent on the rulings on the motions for summary judgment. Reynoldsburg agreed to pay $100,000 to appellant if its motion was granted and to pay $750,000 if its motion was denied. Truro Township agreed to pay $100,000 to appellant if its motion was granted and to pay $600,000 if its motion was denied. The trial court denied both summary judgment motions.
{¶6} Reynoldsburg and Truro Tоwnship appealed. On September 5, 2000, the appellate court reversed the trial court, holding that Reynoldsburg was immune from liability pursuant to
{¶7} The cause is now before this court pursuant to the allowance of a discretionary appeal.
{¶8} The issue before this court is whether Reynoldsburg and Truro Township are immune from liability. Some members of this court are on record as believing sovereign immunity to be an unconstitutional infringement of Section 16, Article I of the Ohio Constitution. See Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141, 624 N.E.2d 704 (Pfeifer, J., concurring). Today, however, we resolve the issue before us in favor of the appellant without addressing the constitutional issue.
{¶9} The court of appeals found that Reynoldsburg was immune from liability based on
{¶10} “(A) No owner, lessee, or occupant of premises:
{¶11} “(1) Owes any duty to a recreational user to keep the premises safe for entry or use;
{¶12} “(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use;
{¶13} “(3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user.”
{¶14} The court of appeals stated, ”
{¶15}
{¶16}
{¶17} In sum, we agree with the trial court that
{¶18} The court of appeals found Reynoldsburg‘s other arguments moot. Because of our decision, they are not, and we will now address the only one of those arguments brought tо this court: whether Reynoldsburg is entitled to immunity under
{¶19} It is uncontested that Reynoldsburg is a political subdivision. Therefore, the general rule of
{¶20} The first step is to determine whether sponsoring a fireworks display is a governmental function. ”
{¶21} “(a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement;
{¶22} “(b) A function that is for the common good of all citizens of the state;
{¶23} “(c) A function that promotes or preserves the public peace, health, safety or welfare [and] that involves activities that are not engaged in or not customаrily engaged in by nongovernmental persons * * *.”
{¶24}
{¶25} The second tier of the analysis is to determine whether any exceptions to the general rule of immunity apply.
{¶26} Accordingly, in the third tier of the analysis, we determine whether any defenses apply.
{¶27} In the interests of judicial economy, we have reviewed this issue even though the court of appeals did not. Because this case involves determining whether summary judgment was appropriate, we have cоnstrued the evidence most strongly in favor of the nonmoving party. See Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267. Based on the above analysis, we conclude that Reynoldsburg is not entitled to summary judgment on the issue of sovereign immunity.
{¶28}
{¶29} Our analysis of the issues before us reveals that the trial court did not abuse its discretion when it denied Reynoldsburg‘s motions for summary judgment. Accordingly, we reverse the judgment of the court of appeals and remand to the trial court for the purpose of ensuring that the agreement between appellant and Reynoldsburg is enforced.
{¶30} Next, we analyze whether Truro Township is entitled to immunity under
{¶31}
{¶32} “(2) A ‘governmental function’ includes, but is not limited to, the following:
{¶33} “(a) The provision or nonprovision of police, fire, emergency medical, ambulance, and rescue services or protection.”
{¶34} Among the duties of a fire chief is to issue permits to licensed exhibitors of fireworks after inspecting the premises from which the fireworks will be fired.
{¶35} The second step is to determine whether any exceptions to the general rule of immunity apply. In defending against Truro Township‘s motion for summary judgment, appellant asserted that
{¶36} “[P]olitical subdivisions are liable for injury, death, or loss to person or property caused by their failure to keep * * * public grounds within the political subdivisions open, in repair, and free from nuisance.”
{¶38} The record reveals that Truro Township inspected the premises prior to installation in accordance with
{¶39} Our analysis of the issues before us reveals that the trial court did not abuse its discretion when it denied Truro Township‘s motion for summary judgment. Accordingly, we reverse the judgment of the court of appeals and remand to the trial court for the sole purpose of ensuring that the agreement between appellant and Truro Township is enforced.
Judgment reversed and cause remanded.
RESNICK, J., concurs.
DOUGLAS and F.E. SWEENEY, JJ., concur in judgment only.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
DOUGLAS, J., concurring.
{¶40} I concur in the judgment of the majority. I do so, however, for different reasons.
{¶41} In my view, despite the conclusions reached by the majority, I would hold that political subdivisions are no longer entitled to immunity pursuant to
{¶42} The cause of action in Johnson arose after this court abolished common-law municipal sovereign immunity in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 2 OBR 572, 442 N.E.2d 749, paragraph two of the syllabus, and Enghauser, 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228, paragraphs one and two of the syllabus, but prior to the enactment of
{¶43} Because the facts giving rise to Johnson took place prior to the legislature‘s enactment of
{¶44} Furthermore, the majority states, “Some members of this court are on record as believing sovereign immunity to be an unconstitutional infringement of Section 16, Article I of the Ohio Constitution. See Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141, 624 N.E.2d 704 (Pfeifer, J., concurring).” While I agree with the conclusion reached in Justice Pfeifer‘s concurrence in Garrett, I disagree slightly with the analysis he applied. In Community Ins. Co. v. Ohio Dept. of Transp. (2001), 92 Ohio St.3d 376, 750 N.E.2d 573, I pointed out that Garrett relies on the second sentence of Section 16, Article I, Ohio Constitution, which provides, “Suits may be brought against the state, in such courts and in such manner, as may be provided by law.” (Emphasis added.) Id. at 387-388, 750 N.E.2d 573 (Douglas, J., dissenting). The waiver of immunity, expressed in the second sentence of Section 16, Article I, removes the cloak of sovereign immunity that was traditionally granted to thе state. However, political subdivision immunity did not originate with the traditional immunity accorded to the state. Butler v. Jordan (2001), 92 Ohio St.3d 354, 358-361, 750 N.E.2d 554 (The concept of state immunity evolved from the English common-law concept that “the King can do no wrong.” Local government immunity can be traced to the English case of Russell v. Men of Devon [K.B.1788], 100 Eng.Rep. 359, and the misapplication of Russell by a Massachusetts court in 1812). Moreover, the Revised Code specifically distinguishes between the state and political subdivisions, providing that ” ‘[s]tate’ does not include political subdivisions.”
{¶45} For these reasons, I do not believe that reference to the word ‘state’ in the second sentence of Section 16, Article I, has any application to political subdivisions. Instead, I believe it to be a proper conclusion that a political subdivision is not entitled to immunity based upon the right-to-remedy provision of the first sentence of Section 16, Article I. Community, 92 Ohio St.3d at 387-388, 750 N.E.2d 573 (Douglas, J., dissenting). Additionally, I believe that
{¶46} For the foregoing reasons, I concur in judgment only.
F.E. SWEENEY, J., concurs in the foregoing opinion.
Cook, J., dissenting.
{¶47} This case featurеs intriguing legal issues within the context of a tragic set of circumstances. But even when it is “tempting to us to consider” important legal questions, we must decline to do so when “the issue being appealed to us does not emanate from an order which is final and appealable.” N. Canton v. Hutchinson (1996), 75 Ohio St.3d 112, 114, 661 N.E.2d 1000. Because there was never a final appealable order rendered by the trial court in this case, this court is without jurisdiction to decide the merits of the cause. I therefore respectfully dissent.
{¶48} An order is not final and appealable unless it falls within one of the categories of orders described in
{¶49} Although not citing it expressly, the court of appeals apparently relied upon
{¶50} First, the court of appeals essentially allowed the parties to create a final appealable order by way of settlement. There is no authority for the proposition that parties to an action may convert an otherwise interlocutory order into a “final order” under
{¶51} Second, the court of appeals’ rationale relies on an unduly expansive interpretation of the language in
{¶52} Finally, even if I could agree with the court of appeals that the trial court‘s denial of summary judgment “determined the action,” the court of appeals’ finding of final appealability remains incorrect. The court of appeals failed to explain why the trial court‘s order prevented a judgment within the meaning of
{¶53} Because the trial court‘s order denying summary judgment was not a final appealable order, the court of appeals did not have jurisdiction to entertain the merits of the appeal before it. Stevens, 91 Ohio St.3d at 186, 743 N.E.2d 901; see, also, Section 3(B)(2), Article IV, Ohio Constitution. And because the court of appeals laсked jurisdiction, we are likewise without jurisdiction to reach the merits of the cause. Stevens, 91 Ohio St.3d at 195-196, 743 N.E.2d 901. I would therefore vacate the judgment of the court of appeals, dismiss the appeal, and remand this cause to the trial court for further proceedings.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing dissenting opinion.
Karr & Sherman Co., L.P.A., Keith M. Karr, Robert P. Sherman and Suzanne E. Kelly, for appellant.
Gallagher, Gams, Pryor & Littrell and Timothy J. Ryan, for appellee Truro Township.
Law Offices of Alan Wayne Sheppard, Alan Wayne Sheppard and Scyld D. Anderson, for appellee city of Reynoldsburg.
Boyk & Crossmock, L.L.C., and Steven L. Crossmock, urging reversal for amicus curiae Ohio Academy of Trial Lawyers.