{¶ 1} Dеfendant-appellant, Central Ohio Transit Authority (“COTA”), appeals from the judgment of the Franklin County Court of Common Pleas denying its motion for summary judgment on the negligence and loss-of-consortium claims asserted by plaintiffs-appellees, Andrew H. Smith, Alexandra Smith, and Nicholas Smith (collectively, “appellees”).
{¶ 2} This action arises out of a head-on automobile collision that occurred on June 18, 2005. Appellees allege that defendant, Shaun Martin, was driving north on Stelzer Road when he struck a concrete bus-stop pad located just off the east side of the roadway. The bus-stop pad, which was bordered on three sides by four-by-four timbers, was constructed and maintained by COTA. Appellees contend that Martin’s impact with the bus-stop pad caused Martin’s vehicle to travel left of center and strike the vehicle driven by appellee Andrew Smith.
{¶ 4} COTA filed an answer to appellees’ first amended complaint on April 14, 2006, raising the defense of political subdivision immunity pursuant to R.C. 2744.03. On February 2, 2007, COTA moved for summary judgment. In its motion for summary judgment, COTA preserved any argument contesting appellees’ allegation of nеgligence while arguing that it was immune from liability for appellees’ claims under the Ohio Political Subdivision Tort Liability Act. Alternatively, COTA argued that application of the public-duty doctrine established that COTA owed no duty to appellees under the circumstances of this case.
{¶ 5} In a decision and entry filed August 27, 2007, the trial court denied COTA’s motion for summary judgment. The trial court determined that the exception to political subdivision immunity set forth in R.C. 2744.02(B)(2) exposed COTA to liability for the negligence alleged in appellees’ complaint and that none of the defenses set forth in R.C. 2744.03 applied to restore COTA’s immunity. COTA filed a timely notice of appeal from the trial court’s denial of its motion for summary judgment.
{¶ 6} While a trial court’s denial of a motion for summary judgment is normally not a final, appealable order, “[w]hen a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and is therefore a final, appealable order pursuant to R.C. 2744.02(C).”
Hubbell v. Xenia,
{¶ 7} In its single assignment of error, COTA contends:
The Lower Court erred to the prejudice of [COTA] when it denied its motion [for] summary judgment on the basis of immunity under Ohio’s Political Subdivision Tort Liability Act (Ohio Revised Code Chapter 2744).
{¶ 9} Pursuant to Civ.R. 56(C), summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, 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.” Accordingly, summary judgment is appropriate only under the following circumstances: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party.
Harless v. Willis Day Warehousing Co.
(1978),
{¶ 10} “[T]he moving party bеars the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim.”
Dresher v. Burt
(1996),
{¶ 11} Whether a political subdivision is immune from liability is purely a question of law, properly determined prior to trial and preferably on a motion for summary judgment.
Conley v. Shearer
(1992),
{¶ 12} The second tier of the political-subdivision-immunity analysis requires a determination of whether any of the five exceptions to immunity enumerated in R.C. 2744.02(B) apply to expose the political subdivision to liability. The only R.C. 2744.02(B) exception arguably applicable here is set forth in R.C. 2744.02(B)(2) and provides that, subject to certain inapplicable exceptions, “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.” (Emphasis added.)
{¶ 13} Finally, the third tier of analysis comes into play if one of the R.C. 2744.02(B) exceptions strips the political subdivision of the immunity provided by R.C. 2744.02(A)(1). Under the third tier, immunity may be reinstated if the political subdivision successfully asserts one of the defenses to liаbility listed in R.C. 2744.03.
Elston v. Howland Local Schools,
(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:-
* * *
(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
(5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶ 14} The parties do not dispute that COTA is a political subdivision, as defined in R.C. 2744.01(F). See R.C. 306.31 (“A regional transit authority [created in accordance with R.C. 306.32] is a political subdivision of the state”). Nor do the parties dispute that, absent application of the R.C. 2744.02(B)(2) exception, COTA is entitled to the general grant of immunity provided by R.C. 2744.02(A)(1). Accordingly, no further discussion of the first-tier analysis is warranted, and we begin our analysis with the second tier.
{¶ 15} Appellees argue that the R.C. 2744.02(B)(2) exception regarding negligence of a political subdivision’s employee with respect to proprietary functions applies to strip COTA of its immunity. However, while appellees maintain that COTA’s actions regarding the placement and maintenance of the bus stop pad were proprietary functions subject to the R.C. 2744.02(B)(2) exception, COTA maintains that its actions constituted governmental functions for which it is entitled to immunity. In denying COTA’s motion for summary judgment, the trial court agreed with appellees and held that COTA’s placement and maintenance of the bus stop pad constituted the exercise of prоprietary functions, subject to the R.C. 2744.02(B)(2) exception, and that COTA could, therefore, be held liable for the negligence of its employees with respect to such functions.
{¶ 16} The parties’ dispute regarding the second-tier analysis focuses on the threshold issue of whether COTA’s actions constituted proprietary or governmental functions. The mutually exclusive definitions of “governmental function” and “proprietary function” are set forth in R.C. 2744.01. R.C. 2744.01(C) defines a “governmental function” as follows:
(1) “Governmental function” means a function of a political subdivision that is specified in division (C)(2) of this section or that satisfies any of the following:
(а) 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;
(b) A function that is for the common good of all citizens of the state;
(c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function.
In contrast, R.C. 2744.01(G) defines “proprietary function” as follows:
(1) “Proprietary function” means a funсtion of a political subdivision that is specified in division (G)(2) of this section or that satisfies both of the following:
(a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section;
(b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.
Among the proprietary functions described in R.C. 2744.01(G)(2) is “[t]he establishment, maintenance, and operation of a utility, including, but not limited to, a light, gas, power, or heat plant, a railroad, a busline or other transit company, an airport, and a municipal corporation water supply system.” (Emphasis added.) R.C. 2744.01(G)(2)(c).
{¶ 17} The Supreme Court of Ohio has noted that, “[i]n making the distinction between governmental functions and proprietary functions a key component of R.C. Chapter 2744 * * *, the General Assembly has chosen to embrace a concept that was developed through the case law of this court prior to the adoption of that chapter.”
Greene Cty. Agricultural Soc.,
“In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, * * * the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to * * * immunity * * *. If, on the other hand, there is no obligation on the part of the municipality to perform them, but it does in fact do so for the comfort and convenience of its citizens * * * and the city has an election whether to do or omit to do those acts, the function is private and proprietary.
“Another familiar test is whether the аct is for the common good of all the people of the state, or whether it relates to special corporate benefit or profit.”
Id., quoting Wooster
v. Arbenz
(1927),
{¶ 18} Here, the trial court found that COTA’s placement and maintenance of the bus-stop pad constituted a proprietary function under R.C. 2744.01(G)(2)(c), stating that the operation of a bus line or transit company necessarily includes the establishment and maintenance of bus stops and, in COTA’s easе, the placement and maintenance of bus-stop pads. We agree.
{¶ 20} The Supreme Court of Ohio specifically addressed the proprietary functions listed in R.C. 2744.01(G)(2)(c) in considering the application of the R.C. 2744.02(B)(2) exception to political subdivision immunity in
Hill v. Urbana
(1997),
{¶ 21} By analogy to Hill, we hold that the establishment, maintenance, and operation of a bus line encompasses the placement and maintenance of equipment, facilities, and materials that are a necessary part of the bus line. Stephen Douglas, COTA’s Manager of Street and Remote Facilities, testified that concrete bus-stop pads are a necessary part of COTA’s operation of its bus system. Like the trial court, we conclude that the establishment, placement, and maintenance of bus stops and bus-stop pads are a necessary part of maintaining and operating a bus line and, pursuant to R.C. 2744.01(G)(2)(c), constitute a proprietary function.
{¶ 23} Second, COTA’s placement and maintenance of its bus-stop pad does not satisfy the definitional criteria for a governmental function set forth in R.C. 2744.01(C)(1)(a) through (c). Unlike the governmental functions listed in R.C. 2744.01(C)(2), which include the provision of police, fire, and emergency medical services, a public education system, law enforcement, and regulation of traffic, the placement аnd maintenance of a bus-stop pad is neither a function imposed upon the state as an obligation of sovereignty nor a function for the common good of all citizens of the state, as required by R.C. 2744.01(C)(1)(a) and (b). Rather, such actions benefit COTA’s patrons by providing them a place, safely off the road and out of the adjacent drainage ditch, to wait for or alight from a bus. Moreover, while placing and maintaining a bus-stop pad may promote or preserve public safety, it does not involve “activities that are not engaged in or not customarily engaged in by nongovernmental persons.” See R.C. 2744.01(C)(1)(c). Tо the contrary, nothing about the placement and maintenance of a bus stop, or a bus line for that matter, is unique to governmental actors. Accordingly, we hold that COTA’s activities here did not constitute governmental functions under R.C. 2744.01(C).
{¶ 24} Having determined that COTA’s actions did not involve functions described in R.C. 2744.01(C)(1)(a) or (b) and involved activities that are customarily engaged in by nongovernmental persons, we hold that COTA’s actions constitute proprietary functions under R.C. 2744.01(G). Therefore, the R.C. 2744.02(B)(2) exception to public subdivision immunity applies. Accordingly, we must determine whether any of the defenses to liability set forth in R.C. 2744.03 apply to restore COTA’s immunity.
The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
Under that section, “a political subdivision is immune from liability if the injury complained of resulted from an individual employee’s exercise of judgment or discretion in determining how to use equipment or facilities unless that judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.” Elston at ¶ 3. COTA argues that it is entitled to immunity, pursuant to R.C. 2744.03(A)(5), because the alleged conduct underlying appellees’ claims concerns Douglas’s exercise of judgment or discretion in determining how to use COTA equipment, supplies, materials, and resources.
{¶ 26} Douglas’s internal client, the COTA office of Business Developmeni/Planning, requested that his department install a bus-stop pad on the west side of Stelzer Road because there was no place for patrons to wait for the bus or to alight from the bus. While viewing the area as part of preparing to install a bus-stop pad on the west side of Stelzer Road, Douglas determined the additional need for a bus-stop pad on the east side of the road. He testified that “to leave that location and not look at doing something on the east side of the street; that would have been very uncomfortable for me because safety is something that we just don’t compromise on.” Although specifically requested to place a bus-stоp pad on the west side of Stelzer Road, Douglas made the decision to install the bus-stop pad at issue, that is, the pad on the east side of Stelzer Road. In his affidavit, Douglas states, “I had discretion with regard to when, where and how to use COTA supplies, material and personnel in the design, construction and maintenance of the bus stop pad in question.” Douglas had discretion over the design of the bus-stop pad, and it was his decision to install four-by-fours around the perimeter. Douglas stated, “For safety purposes, it is my policy to border the edges of the bus-stop pads with 4x4’s in order to provide a boundary and prevent whеelchairs and other mobility assistance devices from going over the edge.” Douglas also asserted, “The decision to install the bus stop pad in question, and how to install it, was fully within my policy-making, planning and enforcement powers by virtue of the duties and responsibilities of my position with COTA.”
{¶ 28} Although the trial court found that the placement and maintenance of the bus-stop pad was the result of Douglas’s exercise of discretion and judgment, it nevertheless found R.C. 2744.03(A)(5) inapplicable. The court found, as appellees argue on appeal, that R.C. 2744.03(A)(5) is inapplicable because the Franklin County Engineer’s office had the ultimate authority as to whether to permit installation of the bus-stop pad. The Franklin County Engineer has charge of improvements, maintenance, and repair of all highways and bridges under the jurisdiction of the Board of County Commissioners. Cornell R. Robertson, the Highway Design Engineer for the Franklin County Engineer’s office, stated that advance approval from the engineer’s office is required for any work or construction within the reserved right-of-way of Stelzer Road, including the bus-stop pad at issue here. However, because Douglas mistakenly believed that the bus stop was located within the city of Columbus, COTA did not apply for or receive approval from the Franklin County Engineer’s office to construct the bus-stop pad. Robertson states that had COTA applied for approval to construct the bus-stop pad as built, he would have recommended denial of COTA’s application because he believed the four-by-four timbers bordering the bus-stop pad were too close to the paved portion of Stelzer Road.
{¶ 29} The evidence establishes that COTA’s placement and maintenance of the bus-stop pad resulted from the exercise of discretion or judgment regarding how to use its equipment, personnel, and resources. The fact that the Franklin County Engineer hаd authority to deny COTA permission to locate its bus-stop
{¶ 30} In finding that the discretion of the Franklin County Engineer’s office to grant or deny a permit for construction trumped COTA’s discretion, rendering R.C. 2744.03(A)(5) inapplicable, the trial court improperly added its own requirements to the statute. A court’s duty is to construe statutes in a manner to give effect to the legislative intent.
Elston,
{¶ 31} Although we conclude that COTA’s establishment and maintenance of the bus-stop pad resulted from Douglas’s exercise of discretion or judgment in determining how to use equipment, personnel, and materials, R.C. 2744.03(A)(5) does not restore COTA’s immunity if Douglas exercised such discretion or judgment with malicious purpose, in bad faith or in a wanton or reckless manner.
{¶ 32} In
Elston,
{¶ 33} Here, in their first amended complaint, appellees alleged only that COTA had acted negligently in its placement and maintenance of the bus stop pad. Appellees did not allege that COTA exercised its judgment or discretion with malicious purpose, in bad faith, or in a wanton or reckless manner. Accordingly, appellees’ arguments regarding wanton or reckless conduct by COTA were insufficient to justify denial of COTA’s motion for summary judgment.
{¶ 34} However, even were we to consider appellees’ arguments that COTA acted in a wanton or reckless manner by failing to apply for and obtain approval from the Franklin County Engineer’s office before constructing the bus-stop pad, we find that the trial court correctly concluded that the record contains no evidence of wanton or reckless conduct.
1
“[W]anton misconduct [is] the failure to exercise any care whatsoever.”
Fabrey v. McDonald Village Police Dept.
(1994),
{¶ 35} COTA admits that it did not apply for a permit from the Franklin County Engineer’s office before constructing its bus-stop pad. However, Douglas believed that the location of the bus stop pad was within the city of Columbus and was covered by a general right-of-way permit from the city, eliminating the need for COTA to apply for an additional permit. Robertson admitted that there is a lot of confusion over who had jurisdiction over the area surrounding the bus-stop pad, noting that in 2002, the city of Columbus administered the design of a construction project on Stelzer Road and “reached Stage 2 or 3 level of design prior to the county engineer’s office taking it over” because the location was not within the city of Columbus. At the time it constructed the bus-stop pad at issue, COTA was operating under the reasonable, albeit mistaken, belief that the bus-stop pad was located within the city of Columbus and not under the jurisdiction of
{¶ 36} The trial court concluded that the evidence before it was insufficient to present a jury question as to whether COTA exercised its discretion in a wanton or reckless manner. Finding no evidence in the record from which reasonable minds might conclude that COTA’s exercise of its discretion in placing and maintaining the bus-stop pad constituted either wanton or reckless conduct, we agree with the trial court’s conclusion and further hold that the exception to liability set forth in R.C. 2744.03(A)(5) applies to reinstate COTA’s immunity.
{¶ 37} Because COTA is entitled to immunity under R.C. 2744.03(A)(5), we find COTA’s arguments regarding its entitlement to immunity under R.C. 2744.03(A)(3) moot. Having held that COTA is entitled to immunity, pursuant to R.C. 2744.03(A)(5), we find that the trial court erred in denying COTA’s motion for summary judgment. Accordingly, we sustain COTA’s single assignment of error, reverse the judgment of the Franklin County Court of Common Pleas, and enter judgment in favor of COTA on appellees’ claims.
Judgment reversed.
Notes
. Appellees did not argue that COTA had acted with a malicious purpose or in bad faith.