O'connor v. City Of Fremont, Court of Appeals No. S-10-008
| Decision Date | 03 September 2010 |
| Docket Number | Court of Appeals No. S-10-008,Trial Court No. 09-CV-582 |
| Citation | 2010 Ohio 4159 |
| Parties | Daniel R. O'Connor, et al. Appellants, v. City of Fremont Appellee. |
| Court | Ohio Court of Appeals |
Donald J. Rasmussen, for appellants.
Larry P. Meyer, for appellee.
DECISION AND JUDGMENT
{¶ 1} This is an appeal from a judgment of the Sandusky County Court of Common Pleas which granted appellee's motion for summary judgment. For the reasons set forth below, this court affirms the judgment of the trial court.
{¶ 2} Appellants, Daniel O'Connor and his parents ("The O'Connors"), set forth the following sole assignment of error:
{¶ 3} "Assignment of Error No. 1: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT, AS A MATTER OF LAW, IN FAVOR OF THE CITY OF FREMONT ON THE BASIS THAT THE SPECIFIC IMMUNITY EXCEPTION TO POLITICAL SUBDIVISION OF IMMUNITY FOUND IN R.C. 2744.02 (B)(4) DID NOT APPLY."
{¶ 4} The following undisputed facts are relevant to the issues raised on appeal. On June 23, 2005, Daniel O'Connor, a minor, was engaged in recreational swimming at the Fremont Community Recreation Complex Swimming Pool. In the course of enjoying the municipal swimming pool, O'Connor utilized the swimming pool diving board. O'Connor successfully jumped from the diving board without incident. Subsequently, on a second trip to the diving board, approximately 20 minutes following the first successful dive, O'Connor slipped and fell from the diving board sustaining injury.
{¶ 5} The O'Connors filed suit against appellee alleging negligence in connection to the swimming pool diving board. On May 16, 2008, the O'Connors voluntarily dismissed their initial action against appellee. Appellee's motion for summary judgment was pending at the time of the voluntary dismissal. On May 13, 2009, the O'Connors refiled the matter. In the refiling, appellants again alleged negligence in the design, operation, supervision, and maintenance of the swimming pool and its diving board.
{¶ 6} On May 28, 2009, on the proffered basis of efficiency and judicial economy, appellee filed a motion to carry forward all prior discovery and pleadings, including the motion for summary judgment. The motion was granted. The previously pending motion for summary judgment became active again before the trial court.
{¶ 7} In support of its summary judgment filing, appellee asserted that sovereign immunity precluded any claimed liability in negligence. In addition, appellee contended that contributory negligence and assumption of the risk by O'Connor proximately caused his injuries.
{¶ 8} Following extensive opposing summary judgment briefing by the parties, the matter became decisional. On January 14, 2010, the trial court granted summary judgment to appellee affirming its sovereign immunity. The merits of the alleged negligence and the affirmative defenses asserted in rebuttal were moot and not incorporated in the ruling given the threshold determination that sovereign immunity applied to appellee thus precluding the claimed negligence as a matter of law.
{¶ 9} In support of its summary judgment determination, the trial court found in relevant part, "Defendant City of Fremont enjoys a general grant of immunity under R.C. 2744.02(A)(1), and the specific immunity exception of R.C. 2744.02(B)(4) does not apply." Timely notice of appeal was filed.
{¶ 10} In their sole assignment of error, appellants assert that the trial court erred in granting summary judgment to appellee. It is well-established that appellate review of summary judgment determinations is conducted on a de novo basis, applying the samestandard utilized by the trial court. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129; Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Summary judgment shall be granted when there remains no genuine issue of material fact and, when considering the evidence most strongly in favor of the non-moving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C).
{¶ 11} In support of their contention that the trial court erred in finding appellee protected by a sovereign immunity and not subject to the relevant exception to immunity set forth in R.C. 2744.02(B)(4), appellants assert that the seminal Ohio Supreme Court case of Cater v. Cleveland (1998), 83 Ohio St. 3d 28 rendering the sovereign immunity exception inapplicable to municipal swimming pools is not controlling in this matter. In conjunction with this, appellants further bolster their argument by contending that the R.C. 2744.02(B)(4) immunity exception applying in this case is supported by the Third District's holding in Thompson v. Bagley, 3d Dist. No. 11-04-12, 2005-Ohio-1921. Thompson found liability in connection to a drowning at a public elementary school pool occurring in the course of a general education class taking place at the school.
{¶ 12} In the highly relevant Ohio Supreme Court case of Cater, the Ohio Supreme Court expressly held that the sovereign immunity exception set forth in R.C. 2744.02(B)(4) is inapplicable to municipal pools hosting recreational activities. This is precisely the scenario present in this case. Cater remains binding precedent and has not been overturned as applied to this case.
{¶ 13} In the analogous Ninth District case of Hopper v. Elyria, 182 Ohio App.3d 521, 2009-Ohio-2517, the appellant similarly cited Thompson in support of the notion both that Cater was not controlling and that the sovereign immunity exception could be applied. In rejecting this argument, the court emphasized that Thompson is materially distinguishable inasmuch as that incident did not occur at an informal recreational facility but rather involved an official school physical education class taking place at a pool located at a school building. As such, the court held, "the analysis by the Thompson court does not implicate the reasoning in Cater." On that basis, the Hopper court determined that Thompson did not negate an application of Cater. It concluded that claimed damages in negligence in connection to the municipal, recreational swimming pool did not fall within the R.C. 2744.02(B)(4) sovereign immunity exception so as to enable the imposition of liability in negligence against the sovereign, the city of Elyria.
{¶ 14} Our analysis comports with that which was set forth in Hopper and we likewise determine that pursuant to the controlling Ohio Supreme Court Cater case, the damages sustained at the Fremont outdoor recreational swimming pool at issue in this case do not fall within the sovereign immunity exception of R.C. 2744.02(B)(4). Cater clearly states and stands for the proposition that liability in negligence cannot be imposed upon the sovereign for claimed injuries in connection to an outdoor recreational municipal swimming pool. As the Hopper court held, we likewise conclude that Thompson is fundamentally distinguishable from, and thus inapplicable to, recreational pool cases given its substantively and materially divergent genesis in a public educationcourse conducted at a school building so as to be encompassed by the sovereign immunity exception established by R.C. 2744.02(B)(4). Based upon the forgoing, the stare decisis application of Cater to the instant case such that appellee's sovereign immunity is intact remains proper.
{¶ 15} Given our determination against the threshold issue of whether the sovereign immunity exception of R.C. 2744.02(B)(4) can be applied to the outdoor recreational municipal pool at issue in this matter, appellants' remaining supporting arguments are moot. Wherefore, we find appellants' sole assignment of error not welltaken.
{¶ 16} On consideration whereof, the judgment of the Sandusky County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
{¶ 17} I respectfully dissent. Specifically, I disagree with the majority's conclusion that the determinative issue in this appeal is controlled by the Ohio Supreme Court's decision in Cater v. Cleveland (1998), 83 Ohio St.3d 24. Twelve years ago, a single member of the Ohio Supreme Court—the author of Cater—opined that even though the operation and maintenance of a municipal recreational swimming pool is specifically designated as a governmental function under former R.C. 2744.01(C)(2)(u) for purposes of immunity, it is not a governmental function for purposes of the exception to immunity under former R.C. 2722.02(B)(4). This aspect of Cater never attained the status of a plurality opinion, let alone binding legal precedent. However, even if Caterinitially constituted controlling legal authority on this issue, it no longer possesses any continuing validity in light of recent case law on the subject that is not included in the majority's analysis.
{¶ 18} Pursuant to R.C. 2744.02(A)(1), political subdivisions are immune from tort liability in connection with a governmental or proprietary function unless one of the five exceptions in subsection (B) applies. R.C. 2744.02(B)(4) provides that "political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses * * *." (Emphasis added.)
{¶ 19} R.C. 2744.01(C)(2)(u) defines a "governmental function" to include the "maintenance, and operation of * * * any recreational area or facility, including * * *[a] swimming pool." Inserting this...
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