Alcus v. Bainbridge Twp.
| Decision Date | 18 February 2020 |
| Docket Number | NO. 2019-G-0205,2019-G-0205 |
| Citation | 152 N.E.3d 340,2020 Ohio 543 |
| Parties | James ALCUS, et al., Plaintiffs-Appellants, v. BAINBRIDGE TOWNSHIP, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Kathleen J. St. John and David A. Herman, Nurenberg, Paris, Heller & McCarthy, 600 Superior Avenue, E., Suite 1200, Cleveland, Ohio 44114 (For Plaintiffs-Appellants).
Douglas G. Leak, Kenneth A. Calderone, and Catherine E. Nagy, Hanna, Campbell & Powell, LLP, 3737 Embassy Parkway, Suite 100, Akron, 44333 (For Defendants-Appellees, Bainbridge Township, Bainbridge Township Trustees, and Francis Bularz).
James R. Gallagher and Laura E. Plank, Gallagher Gams Tallan Barnes & Littrell LLP, 471 East Broad Street, 19th Floor, Columbus, Ohio 43215 (For Defendant-Appellee, State Farm Fire & Casualty Company).
{¶1} Appellants, James Alcus ("Mr. Alcus") and Patricia Alcus ("Mrs. Alcus") (collectively, the "Alcuses"), appeal the decision of the Geauga County Court of Common Pleas granting summary judgment to appellees, Bainbridge Township, the Bainbridge Township Trustees (collectively, the "Township"), and Francis Bularz ("Mr. Bularz"), based on political subdivision immunity pursuant to R.C. Chapter 2744.
{¶2} The Alcuses' claims against the Township and Mr. Bularz are based on Mr. Alcus' physical injuries and damage to his vehicle caused by a rolling backhoe that Mr. Bularz had parked in a negligent manner at the Township's service department premises prior to Mr. Alcus' arrival to pick up toolboxes his employer had purchased.
{¶3} The Alcuses argue the trial court erred by (1) granting summary judgment to the Township on the basis that the exceptions to political subdivision immunity under R.C. 2744.02(B)(2) and/or R.C. 2744.02(B)(4) do not apply, and (2) granting summary judgment to Mr. Bularz on the bases that the Alcuses did not sue him in his individual capacity and that the exception to Mr. Bularz's immunity under R.C. 2744.03(A)(6)(b) does not apply.
{¶4} After a careful review of the record and pertinent law, we find the trial court erred by granting summary judgment to the Township and to Mr. Bularz based on statutory immunity.
{¶5} First, the Alcuses met their burden to establish the exception to the Township's immunity under R.C. 2744.02(B)(2) involving an employee's negligent performance of a proprietary function:
{¶6} (a) The specific activity that caused the accident was Mr. Bularz's parking of the backhoe. This activity does not constitute the governmental function of the "maintenance of public grounds" under R.C. 2744.01(C)(2)(e). The parking of a backhoe does not constitute "maintenance," and even if it did, the service department premises do not constitute "public grounds."
{¶7} (b) The parking of the backhoe and/or the maintenance of nonpublic grounds also do not meet the criteria for a "governmental function" set forth in R.C. 2744.01(C)(1)(a), (b), or (c). Thus, the Township was engaged in a proprietary function.
{¶8} As a result of this holding, whether the Alcuses met their burden to establish the exception to the Township's immunity under R.C. 2744.02(B)(4) is moot.
{¶9} Second, the Township did not meet its burden to establish the defense to liability under R.C. 2744.03(A)(5). Mr. Bularz's decision whether to use the parking brake on the backhoe constitutes a routine matter of safe operation that did not involve a high degree of discretion or judgment.
{¶10} Finally, the Alcuses met their burden to establish genuine issues of material fact as to whether the exception to Mr. Bularz's immunity under R.C. 2744.03(A)(6)(b) applies. The Alcuses' complaint demonstrates they sued Mr. Bularz in his individual capacity, and whether the evidence establishes Mr. Bularz's conduct was reckless or wanton is a question of fact for the jury, not a court.
{¶11} Thus, we reverse the judgment of the Geauga County Court of Common Pleas and remand for further proceedings consistent with this opinion.
{¶12} The Township owns the property located at 17800 Haskins Road, Chagrin Falls, Ohio (the "Haskins Road property"), which contains, among other things, the Township's service department premises. The service department has responsibility over the Township's parks, cemetery, roads, and buildings. The service department premises are developed with multiple structures, pavement, and a fence. The structures include a main office building, a vehicle storage building, a maintenance area, and numerous cold-storage structures. The premises are fenced in and contain a front gate.
{¶13} During the service department's hours of operation (7:00 a.m. to 3:00 p.m., Monday through Friday), it is open to the public. Members of the public may enter through the open gate. The public typically comes to the service department to file a complaint, ask a question regarding a service (e.g., cemetery, grounds keeping), rent a township property (e.g., dining hall for an event), or address other business. All visitors are required to sign in at the service department office, where most of their concerns or issues are addressed. On occasion, visitors may walk or drive to other locations within the premises. Visitors are not permitted to freely come into the maintenance area. A service department employee typically escorts or accompanies them as a measure of safety and to make sure they reach the correct destination pertinent to their particular issue.
{¶14} On November 17, 2015, Mr. Bularz, a Township employee, was removing and replacing a tree located in front of the Township's service garage building located within the service department premises. Mr. Bularz uprooted the tree and loaded it onto a truck using a backhoe. While his co-workers went to get the new tree, Mr. Bularz transferred the unused soil to the auxiliary lot located in another portion of the premises.
{¶15} During his work, Mr. Bularz believed there was a problem with the backhoe's brakes, so he drove the backhoe from the auxiliary lot to the maintenance garage. He stopped the backhoe outside of the maintenance garage door, kept the engine running, put the gear in neutral, and put the front loader bucket down. The backhoe has a diesel engine that could not simply be turned on and off but had to idle and cool to avoid damage. Mr. Bularz also surveyed the area to see if anything or anyone was located behind the backhoe. It is undisputed that he did not engage the parking brake. He then got off the backhoe and went inside the maintenance garage to speak with a mechanic. The evidence also indicates Mr. Bularz parked the backhoe on an incline.
{¶16} While Mr. Bularz was inside the maintenance garage, Mr. Alcus arrived at the service department premises to pick up toolboxes that his employer had purchased through the "GovDeals" auction website. After signing in, he was directed to drive his pickup truck and park it at a location behind the backhoe. Shortly after Mr. Bularz got off the backhoe, Mr. Alcus and a Township employee were loading one of the toolboxes onto Mr. Alcus' pickup truck. The backhoe rolled backwards toward them, struck Mr. Alcus' left arm, and knocked him to the ground. The backhoe also struck and damaged Mr. Alcus' vehicle.
{¶17} Mr. Alcus was a resident of New York, and his employer had procured a workers' compensation and employers liability policy from State Farm & Casualty Company ("State Farm"). Following the accident, Mr. Alcus filed a claim for workers' compensation benefits, and State Farm paid certain benefits under the policy.
{¶18} The Township concedes that Mr. Bularz acted negligently by failing to engage the backhoe's parking brake. The mechanic who subsequently inspected the backhoe's brakes determined they were operating properly and were not in need of repair or maintenance.
{¶19} The manufacturer of the backhoe recommends that an operator park it by leaving the engine running, placing the gear in neutral, dropping the implements (i.e., a front end loader bucket, a rear backhoe arm and bucket, and outriggers on each side) to the ground, and setting the parking brake. In addition, the applicable OSHA regulation states "[w]henever the equipment is parked, the parking brake shall be set." See 29 C.F.R. 1926.600(a)(3)(ii). The Township held regular safety meetings and provided safety programs and OSHA-related training. Operators of the backhoe were trained to drop one of the implements on the ground and engage the parking brake before getting off the backhoe.
{¶20} The Alcuses' expert, a mechanical engineer, stated that the grade where the backhoe was parked was sufficient to cause the machine to roll. He opined that the cause of the accident was Mr. Bularz's failure to engage the parking brake and take further reasonable precautions to secure the backhoe from rolling.
{¶21} The Township's expert, a professional engineer, opined that the cause of the accident was "simple operator error." Mr. Bularz should have set the parking brake and followed the manufacturer's recommended operating procedure when he stopped and left the backhoe idling outside the garage door.
{¶22} The Alcuses subsequently filed a complaint against the Township, Mr. Bularz, and State Farm in the Geauga County Court of Common Pleas. The Alcuses also named two other Township employees as defendants but later voluntarily dismissed them from the lawsuit.
{¶23} The Alcuses sought compensatory damages against the Township, alleging that by and through the negligent actions of its employees, it (1) caused a physical defect in the form of a backhoe to exist within or on the grounds of a building used in connection with a governmental function, (2) was negligent with respect to proprietary functions in which its employees were engaged, and/or (3) was negligent in the operation of a motor vehicle, i.e., the backhoe.
{¶24} The Alcuses also sought compensatory damages...
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...the political subdivision, the burden lies with the plaintiff to show that one of the recognized exceptions apply." Alcus v. Bainbridge Twp. , 2020-Ohio-543, 152 N.E.3d 340, ¶ 58 (11th Dist.). If one of these exceptions applies, "the political subdivision has the burden of showing that one ......
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Angelo v. City of Warren
...the burden lies with the plaintiff to show that one of the recognized exceptions apply." Alcus v. Bainbridge Twp., 2020-Ohio-543, 152 N.E.3d 340, ¶ 58 (11th Dist.). If one of these exceptions applies, "the political subdivisionPage 6 has the burden of showing that one of the defenses to lia......