Cater v. City of Cleveland

• Decision Date: 19 August 1998
• Docket Number: Nos. 97-1261,97-1488,s. 97-1261
• Citation: 697 N.E.2d 610,83 Ohio St.3d 24
• Parties: CATER et al., Appellants, v. CITY OF CLEVELAND, Appellee.
• Court: Ohio Supreme Court

Page 24

83 Ohio St.3d 24

697 N.E.2d 610

CATER et al., Appellants, v. CITY OF CLEVELAND, Appellee.

Nos. 97-1261, 97-1488.

Supreme Court of Ohio.

Submitted May 13, 1998.

Decided Aug. 19, 1998.

SYLLABUS BY THE COURT

The operation of a municipal swimming pool, although defined as a governmental function in R.C. 2744.01(C)(2)(u), is subject to the exceptions to immunity set forth in former R.C. 2744.02(B) and to the available defenses enumerated in R.C. 2744.03.

On June 14, 1993, twelve-year-old Darrall A. Cater lost consciousness from nearly drowning in the city of Cleveland's Alexander Hamilton indoor swimming pool. As a result of the near drowning, Darrall developed acute bronchial pneumonia and was declared brain dead four days later. He died in the hospital after being removed from life support systems. Darrall's mother, Valerie Cater, as administrator of Darrall's estate, along with Darrall's father, Lawrence Cater, plaintiffs-appellants, brought this lawsuit against the city of Cleveland, defendant-appellee, alleging that the city acted negligently and/or recklessly in operating the swimming pool and causing Darrall's death. The city of Cleveland argued that it was immune from liability under R.C. Chapter 2744 and filed two motions for summary judgment. The trial court denied both of these motions, and the case proceeded to trial before a visiting judge.

At trial, the evidence established that the near drowning occurred on the first day of the summer swim season at the Alexander Hamilton indoor swimming pool. On that day, there were four Red Cross certified lifeguards on duty. Lisa Hutson, a year-round physical director, was the senior guard. The other lifeguards on duty were Willie Hodge, who was also an experienced year-round physical director; Mark McDougall, who was hired as a summer lifeguard and had ten years' lifeguarding experience; and Damon Carter, who had recently been certified as a lifeguard in May 1993, and was beginning his first day as a lifeguard.

Open swim was scheduled to take place from 1:00 to 4:30 p.m. From 1:00 p.m. until about shortly after 3:00 p.m., all four guards patrolled the pool. Hutson walked around the perimeter of the pool deck, while the other three guards were stationed at the lifeguard chairs, two of which were located at the deep end and one was located at the shallow end. At around 3:00 p.m., however, Hutson and Hodge left their posts, and took an unauthorized lunch break. Even though it was against pool policy to take lunch breaks during open swim periods, Hutson, who was nearly nine months pregnant, asked Hodge to buy them lunch. When Hodge returned around 3:30 p.m. with sandwiches, he and Hutson ate lunch in the lobby, while the other two guards remained at the pool. Rookie guard Carter sat in the high lifeguard chair at the deep end, while McDougall watched the shallow end of the pool from his guard chair. A folding chair that was located at the deep end, and which had previously been occupied by one of the other guards, was left empty.

At approximately 3:40 p.m., swimmers notified McDougall and Carter that there was a boy at the bottom of the pool. The boy, later identified as Darrall Cater, was found at the bottom of the deep end, in seven feet of water, in an area within five to fifteen feet from the previously occupied folding guard chair. Carter explained that he had not seen Darrall in distress because glare interfered with his visibility. The glare was caused by sunlight that reflected off a glass-paneled wall that ran along the side of the pool, directly behind the high lifeguard chair where Carter sat. City employees, including the aquatics manager for the city of Cleveland, were aware of the glare problem at the pool and conceded that there was no training on how to deal with the glare.

Upon seeing Darrall at the bottom of the pool, McDougall dove in the water, pulled Darrall out of the pool and began CPR. Howard McKeller, the recreation center manager for the pool, who was responsible for all pool employees at that location, was returning to the facility when he heard the whistle blow. Upon hearing the whistle and seeing commotion, McKeller ran to the pool area and assisted McDougall with resuscitation attempts on Darrall.

In the meantime, at least three city employees attempted to dial 911, but were unable to get an outside phone line. Carter said that he tried to dial 911 five or six times but could not get through. Physical director Hutson and a custodian made several attempts to dial 911, but they, too, did not know how to use the phone system. These employees were never instructed on the use of 911 and were never told that it was necessary first to dial a nine to get an outside line. When asked about the lack of training, center manager McKeller testified that he just assumed that the guards had been briefed how to get an outside line to dial 911. Eventually, someone was able to make the 911 call. However, paramedics did not arrive at the pool until about 4:10 p.m., nearly thirty minutes after Darrall's body was discovered at the bottom of the pool.

One of Darrall's treating physicians at the hospital testified that Darrall had been deprived of oxygen for at least five minutes before resuscitation attempts were underway. According to the coroner, Darrall died as a result of the near drowning. Frank Pia, plaintiff's aquatics expert, testified that without proper oxygenation, irreversible brain damage occurs in a drowning within four to seven minutes. In Pia's expert opinion, the conduct of the physical directors and the failure to have in place an effective rescue plan, including the proper use of 911, was reckless. Pia also testified that the glare spot in the pool created a nuisance; however, the trial court excluded that testimony.

Following an internal investigation by the city, physical directors Hutson and Hodge, and the center's manager, McKeller, were found to have violated several city policies by failing to ensure that the pool was properly staffed at all times; wantonly or willfully neglecting the performance of their assigned duties; leaving the job or work area during regular working hours without authorization; failing to remain at their posts except in cases of emergency or when properly relieved; failing to maintain required standards of performance; and failing to observe official safety rules or common safety practices. ¹ Due to their misconduct Hutson and Hodge were each suspended for forty-five days. McKeller was suspended for three days.

At the close of the plaintiffs' case, defense counsel moved for a directed verdict, again arguing that the city was immune from liability under R.C. Chapter 2744. Following oral arguments on this point, the trial court granted the motion for directed verdict, noting that the city had hired qualified personnel, had proper rules and regulations in place, and did not act in a reckless or wanton manner.

The court of appeals affirmed. In finding the city immune from liability under R.C. 2744.02(A), the court reasoned that the operation of an indoor municipal swimming pool is a governmental function under R.C. 2744.01(C)(2)(u), and that, therefore, no exceptions to immunity apply. Furthermore, the court held that the city did not act in a wanton or reckless manner in its discretionary decision making in the operation of the pool. See R.C. 2744.03(A)(5).

This court accepted jurisdiction of this case in case No. 97-1261, upon the allowance of a discretionary appeal. The case was then certified to this court as being in conflict with Hall v. Ft. Frye Local School Dist. Bd. of Edn. (1996), 111 Ohio App.3d 690, 676 N.E.2d 1241, and Siebenaler v. Montpelier (1996), 113 Ohio App.3d 120, 680 N.E.2d 654, in case No. 97-1488, and is now before this court upon our determination that a conflict exists.

Linton & Hirshman and Robert F. Linton, Jr., Cleveland; Klein & Carney Co., L.P.A., and Larry S. Klein, Cleveland, for appellants.

Mark W. Ruf, Cleveland, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

Isaac, Brant, Ledman & Teetor, Mark Landes and Steven G. LaForge, Columbus, urging affirmance for amicus curiae, County Commissioners Association of Ohio.

John E. Gotherman, Columbus, and Daniel J. O'Loughlin, Cleveland, urging affirmance for amici curiae, Ohio Municipal League and Ohio Municipal Attorneys Association.

R. Todd Hunt, Cleveland, urging affirmance for amicus curiae, Cuyahoga County Law Directors Association.

FRANCIS E. SWEENEY, Sr., Justice.

The certified issue is "whether a governmental function and the absolute immunity provided it under R.C. 2744.01(C)(2)(u) [are] still subject to the exceptions to immunity provided in R.C. 2744.02(B)(3) and (4)." We find that the operation of an indoor municipal swimming pool, although defined as a governmental function under R.C. 2744.01(C)(2)(u), is still subject to the exception to immunity found in former R.C. 2744.02(B)(3), but not to the exception contained in former R.C. 2744.02(B)(4).

We also find that a directed verdict was improper in this case, since reasonable minds can differ as to whether the city acted in a wanton or reckless manner under R.C. 2744.03(A)(5), by failing to institute policies or training regarding the use of 911. ² Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for a new trial.

The Political Subdivision Tort Liability Act, as codified in R.C. Chapter 2744, sets forth a three-tiered analysis for determining whether a political subdivision is immune from liability. First, R.C. 2744.02(A) sets forth the general rule of immunity, that political subdivisions are not liable in damages for the personal injuries or death of a person. R.C. 2744.02(A)(1) provides:

"For purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division ...