Lead Opinion
{¶ 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 R.C. 3743.54(C) to inspect the site prior to granting a permit for the fireworks discharge setup and was authorized to inspect the premises immediately prior to the exhibition. An employee of Truro Township conducted an inspection on July 3, 1996, to ensure that the spectator area was the proper distance from the fireworks discharge area. The inspector did not determine the types of shells to be used in the fireworks display or detect that the shells had not been buried according to the National Fire Protection Association (“NFPA”) standards. The NFPA standards, which were adopted pursuant to R.C. 3743.53(B), require shells to be buried at a depth of at least two-thirds of their length. No Truro Township Fire Department employee inspected the site after the installation of the fireworks display.
{¶ 3} On July 4, 1996, prior to the start of the fireworks display, Reynolds-burg 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 shоoter 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
{¶ 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 court, 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 mоtion 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 Township appealed. On September 5, 2000, the appellate court reversed the trial court, holding that Reynoldsburg was immune from liability pursuant to R.C. 1533.181. It also found that Truro Township was not liable for activities in Huber Park because the park is located in Reynoldsburg. Aсcordingly, the court granted summary judgment to both Reynoldsburg and Truro Township. Appellant’s motion for reconsideration was denied by the court of appeals on October 24, 2000. Although the court recognized that Huber Park was located within Truro Township, it held that Truro Township could not be liable because it did not have administrative jurisdiction over the park.
{¶ 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),
{¶ 9} The court of appeals found that Reynoldsburg was immune from liability based on R.C. 1533.181, which provides:
{¶ 10} “(A) No owner, lessee, or occupant of premises:
{¶ 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, “R.C. 1533.181 provides owners, lessees, and occupants of property with immunity for all injuries incurred by ‘recreational users/ ” relying on Ross v. Strasser (1996),
{¶ 15} R.C. 1533.181(A)(1) does not state that a recreational user is owed no duty. Instead, R.C. 1533.181(A)(1) immunizes an owner, lessee, or occupant of premises only from a duty “to keep the premises safe for entry or use.” (Emphasis added.) The cause of the injury in this case had nothing to do with “premises” as defined in R.C. 1533.18(A). The cause of the injury was shrapnel from fireworks, which is not part of “privately-owned lands, ways, waters, and * * * buildings and structures thereon.” Id. Accordingly, R.C. 1533.181(A)(1) and (2) do not immunize Reynoldsburg. To hold otherwise would allow R.C. 1533.181 to immunize owners, lessees, and occupants for any of their negligent or reckless acts that occur on “premises.” The plain language of the statute indicates that the General Assembly had no such intention.
{¶ 16} R.C. 1533.181(A)(3) does not immunize Reynoldsburg from liability because the injuries were not “caused by any act” of Daniel Ryll. His only act was to be prеsent.
{¶ 17} In sum, we agree with the trial court that R.C. 1533.181 does not immunize Reynoldsburg from liability in this case, and we reverse the court of appeals on this issue.
{¶ 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 to this court: whether Reynoldsburg is entitled to immunity under R.C. Chapter 2744.
{¶ 19} It is uncontested that Reynoldsburg is a political subdivision. Therefore, the general rule of R.C. Chapter 2744 “that politiсal subdivisions are not liable in damages” is applicable. Greene Cty. Agricultural Soc. v. Liming (2000),
{¶ 20} The first step is to determine whether sponsoring a fireworks display is a governmental function. “R.C. 2744.01(C)(2) lists specific functions expressly designated as governmental functions.” Greene Cty.,
{¶ 21} “(a) A function that is imposed upоn 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 customarily engaged in by nongovernmental persons * * *.”
{¶ 24} R.C. 2744.01(C)(1)(a) does not apply because Ohio does not require Reynoldsburg to sponsor a fireworks display. R.C. 2744.01(C)(1)(b) does not apply because the fireworks display benefited “only some of the citizens of the state, not all citizens.” Greene Cty.,
{¶ 25} The second tier of the analysis is to determine whether any exceptions to the general rule of immunity apply. R.C. 2744.02(B)(2) states that, with certain exсeptions, “political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.” Having determined that sponsoring a fireworks display is a proprietary function, it is obvious that the R.C. 2744.02(B)(2) exception to the general rule of immunity applies and that it is possible for Reynoldsburg to be liable.
{¶ 26} Accordingly, in the third tier of the аnalysis, we determine whether any defenses apply. R.C. 2744.03. After our review of R.C. 2744.03 and the record, we conclude that none of the defenses set forth in R.C 2744.03 applies to this case. See Greene Cty.,
{¶ 28} R.C. 2744.02(B)(2) does not apply, however, unless Reynoldsburg acted negligently. There is evidence in the record that Reynoldsburg designated a safety area closer to the discharge area than called for by NFPA standards. Construing this evidence most strongly in favor of the nonmoving party, we conclude that there are factual issues that cannot be resolved as a matter оf law. Therefore, summary judgment cannot be proper with respect to negligence.
{¶ 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 R.C. Chаpter 2744. Again, we follow the three-tier analysis discussed above. The first step is to determine whether inspecting a fireworks display is a government function. The court of appeals ruled that Truro Township’s inspection of the fireworks display was a government function, relying on R.C. 2744.01(C)(2)(a) and R.C. 3743.54(C).
{¶ 31} R.C. 2744.01(C)(2)(a) provides:
{¶ 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 protеction.”
{¶ 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. R.C. 3743.54(C). We agree with the court of appeals that Truro Township’s inspection of the fireworks display was a governmental function.
{¶ 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 R.C. 2744.02(B)(3) applied to Truro Township’s inspection of the fireworks display. R.C. 2744.02(B)(3) provides:
{¶ 37} The court of appeals found that Huber Park was located within Reynoldsburg and not within Truro Township. It is uncontested that Huber Park is located within Reynoldsburg. This fact does not mean that Huber Park cannot also be within Truro Tоwnship. Our reading of the record reveals that Reynoldsburg residents vote for Truro Township Trustees and that a former Truro Township Trustee believes Huber Park to be located within Truro Township. Further, our reading of the statute indicates that ownership of the park is not relevant. Because this case involves determining whether summary judgment was appropriate, we must construe the evidence most strongly in favor of the nonmoving party. See Temple v. Wean United, Inc. (1977),
{¶ 38} The record reveals that Truro Township inspected the premises prior to installation in accordance with R.C. 3743.54. Satisfying this statutory requirement does not necessarily relieve Truro Township from liability for “failure to keep [Huber Park] free from nuisance.” R.C. 2744.02(B)(3). Truro Township knew that there was going to be a fireworks display and knew thаt fireworks displays are potentially lethal. Nothing in the record indicates that Truro Township attempted to determine whether the safety rules required by R.C. 3743.53 were followed. Construing this evidence most strongly in favor of the nonmoving party, we cannot say as a matter of law that Truro Township kept Huber Park free from nuisance. Therefore, summary judgment cannot be proper with respect to nuisance.
{¶ 39} Our analysis of the issues before us reveals that the trial court did not abuse its disсretion 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.
Concurrence Opinion
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 tо R.C. 1533.181. R.C. 1533.181 does not, by its own terms, apply to publicly owned property. Notwithstanding that the majority did not cite or rely on Johnson v. New London (1988),
{¶ 42} The cause of action in Johnson arose after this court abolished common-law municipal sovereign immunity in Haverlack v. Portage Homes, Inc. (1982),
{¶ 43} Because the facts giving rise to Johnson took place prior to the legislature’s enactment of R.C. Chapter 2744, Johnson is inapplicable. This may be, in fact, the reason that thе majority does not cite Johnson. However, as previously indicated, the majority cannot reach its conclusion with regard to R.C. 1533.181 without the application of Johnson. In any event, this court held in Johnson that political subdivisions are subject to suit by recreational users of their property in the same manner as private parties. Johnson, 36 Ohio St.3d at
{¶ 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),
{¶ 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,
{¶ 46} For the foregоing reasons, I concur in judgment only.
Notes
. For a full discussion of sovereign immunity, see Butler v. Jordan (2001),
Dissenting Opinion
dissenting.
{¶ 47} This case features 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),
{¶ 48} An order is not final and appealable unless it falls within one of the categories of orders described in R.C. 2505.02. See Chef Italiano Corp. v. Kent State Univ. (1989),
{¶ 49} Although not citing it expressly, the court of apрeals apparently relied upon R.C. 2505.02(B)(1) to find that the trial court’s order was final and appealable. This provision defines as “final” an order that “affects a substantial right in an action that in effect determines the action and prevents a judgment.” The court of appeals made no express determination concerning the existence of these three factors. See Stewart v. Midwestern Indemn. Co. (1989),
{¶ 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 R.C. 2505.02. Indeed, this court has rejected attempts by litigants and courts to create a final appealable ordеr from a nonappealable interlocutory order. See Noble v. Colwell (1989),
{¶ 51} Second, the court of appeals’ rationale relies on an unduly expansive interpretation of the language in R.C. 2505.02(B)(1) requiring that a final order be one “that in effect determines the action.” The court of appeals decided that the trial court’s denial of summary judgment determined the action simply because of the parties’ contingent settlement arrangement. But “in effect determines the action” refers to the nature of the order itself, without reference to any settlement by the parties. See Legg v. Fuchs (2000),
{¶ 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 R.C. 2505.02(B)(1). There is nothing about the denial of a summary-judgment motion that prevents a judgment. See Celebrezze,
{¶ 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,