Cynthia S. Siebenaler v. Village of Montpelier

• Decision Date: 26 July 1996
• Docket Number: WM-95-035,96-LW-3769
• Parties: Cynthia S. Siebenaler, et al., Appellants v. Village of Montpelier, et al., Appellees Court of Appeals
• Court: Ohio Court of Appeals

Cynthia S. Siebenaler, et al., Appellants v. Village of Montpelier, et al., Appellees

No. WM-95-035

96-LW-3769 (6th)

Court of Appeals of Ohio, Sixth District Williams

July 26, 1996

Trial Court No. 95CI000067

Steven P. Collier and Sarah Steele Riordan, for appellants.

Joan C Szuberla and Byron S. Choka, for appellees.

OPINION

SHERCK J.

This appeal comes to us from the Williams County Court of Common Pleas. The common pleas court granted summary judgment to a village in a negligence suit. Because we conclude that the trial court properly determined that the village was statutorily immune from such a suit, we affirm.

In July 1994, appellant Cynthia S. Siebenaler enrolled her five and one-half year-old son, Adam, in a swimming class offered at the municipal swimming pool operated by appellees, village of Montpelier and its park board. The course was conducted by pool lifeguards, at least one of whom was a certified swimming instructor.

At the conclusion of the first lesson, Adam asked the instructor for permission to use the high diving board. The instructor acceded to Adam's request and stationed herself in the water below the board. Adam's first dive was uneventful. As he began to climb the ladder for his second dive, Adam turned to talk to his sister, lost his footing and fell to the deck surrounding the pool. Adam struck his head and was injured.

Cynthia Siebenaler and her husband Douglas Siebenaler brought suit individually and as Adam's natural guardians. They alleged that appellees' negligence was the cause of Adam's injuries.

Following discovery, appellees moved for summary judgment claiming political subdivision immunity by virtue of R.C. Chapter 2744. Appellants responded to appellees' motion arguing that statutory immunity was not applicable in this case because swimming classes are a proprietary function exempt from the protection of the statute. Alternatively, appellants argued that R.C. Chapter 2744 is unconstitutional. In their appeal, appellants set forth the following three assignments of error:

"I. Appellees are not immune from liability for negligence of its employees in connection with swimming lessons offered by the municipality for a fee, because they were engaged in a proprietary function.

"II. Even assuming that swimming lessons are properly classified as a governmental function, the public grounds exception to sovereign immunity applies.

"III. R.C. Section 2744.01(c)(2)(u) violates the open courts provision of Section 16, Article I of the Ohio Constitution."

"*** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, 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. *** A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. ***" Civ.R. 56(C).

When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleading, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E); Riley v. Montgomery (1984), 11 Ohio St.3d 75, 79.

In this case, there exist no genuine issues of material fact. The principal issue is whether the political subdivision immunity statutes shield appellees from this suit, entitling them to judgment as a matter of law.

I

We first address the constitutionality of R.C. 2744.01, et seq., which appellants raise in their third assignment of error. Appellants' arguments have been considered and rejected by the Supreme Court of Ohio in Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666. Accordingly, appellants' third assignment of error is found not well-taken.

II

In their first assignment of error, appellants assert that appellees are not entitled to claim immunity in this case because the activity of providing swimming lessons is a proprietary function.

R.C Chapter 2744 divides the activities of government into two categories: governmental functions and proprietary functions. Governmental functions are those activities which promote or preserve, "*** the public peace, health, safety, or welfare; that involve[] activities that are not engaged in or not customarily engaged in by non-governmental persons ***." R.C. 2744.01(C)(1)(c). Propriety functions are those, "*** activities that are customarily engaged in by non-governmental persons." R.C. 2744.01(G)(1)(b). R.C. 2744.01 provides a non-exclusive list of activities specifically deemed to be within the purview of each function. This Chapter further provides that political subdivisions are immune from tort liability but "*** are liable for injury, death or loss to persons or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions." R.C. 2744.02(B)(2). Included in the list of statutorily enumerated functions specifically designated as "governmental" is the, "*** repair, maintenance and operation of any park *** or swimming pool." R.C. 2744.01(C)(2)(u).

As we noted in Garrett v. City of Sandusky (Feb. 14 1992), Erie App. No. E-91-5, unreported, affirmed (1994), 68 Ohio St.3d 139,

"The history of how a swimming pool came to be included within the scope of a governmental function is germane to our analysis. In 1982 the Ohio Supreme Court abrogated the judicial doctrine of sovereign immunity for municipalities. Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26. In 1985, the legislature responded by enacting the Political Subdivision Tort Liability Act. 1985 Am. Sub. HB 176; see, also,

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