Edward Vitai v. City of Sheffield Lake, Ohio, 87-LW-0100

• Decision Date: 21 January 1987
• Docket Number: 4045,87-LW-0100
• Parties: Edward VITAI, et al., Plaintiffs-Appellants, v. CITY OF SHEFFIELD LAKE, OHIO, et al., Defendants-Appellees.
• Court: Ohio Court of Appeals

Edward VITAI, et al., Plaintiffs-Appellants, v. CITY OF SHEFFIELD LAKE, OHIO, et al Defendants-Appellees.

No. 4045.

87-LW-0100 (9th)

Court of Appeals of Ohio, Ninth District Lorain

January 21, 1987

Appeal From Judgment Entered in the Common Pleas Court, County of Lorain, Ohio, Case No. 95710 85.

Timothy M. Bittel and Stephen M. Bales, Cleveland, for plaintiffs.

James J. Dyson, Lyndhurst, for defendants.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

MAHONEY Presiding Judge.

Appellant, Edward Vitai, challenges an order of the Lorain County Common Pleas Court granting summary judgment in favor of appellee, the City of Sheffield Lake. We affirm.

FACTS

On April 25, 1984, thirteen-year-old Edward Vitai fell from a swing in Lincoln Park. Lincoln Park is a public recreational facility owned and maintained by the City of Sheffield Lake (Sheffield Lake). In the fall, Vitai cut his left hand on a piece of glass located in a puddle beneath the swing. As a result of the fall, Vitai sustained permanent partial disability to his left hand.

Vitai filed suit against Sheffield Lake. Vitai alleged that his injuries were the direct and proximate result of the willful wanton, and reckless acts and omissions of Sheffield Lake in maintaining Lincoln Park after having actual knowledge of its dangerous condition.

On January 6, 1986, Sheffield Lake moved for summary judgment. Sheffield Lake argued that R.C. 1533.181 granted it immunity from liability to recreational users of its park. Vitai responded that, under R.C. 723.01, Sheffield Lake had a duty to keep its public grounds "open, in repair, and free from nuisance." Vitai attached to its response, affidavits from Linda Vitai and Joy Wtulich, property owners in the vicinity of Lincoln Park. The affiants stated that they had, beginning in 1983, complained to Sheffield Lake about broken glass in the play areas of Lincoln Park.

On March 28, 1986, the trial court granted Sheffield Lake's motion for summary judgment. The trial court relied on R.C. 1533.181 and the holding in Marrek v. Cleveland Metroparks Bd. of Commrs. (1984), 9 Ohio St.3d 194 in determining that Sheffield Lake is immune from liability to Vitai, a recreational user of Lincoln Park.

ASSIGNMENTS OF ERROR

"I.Summary judgment was not properly granted by the lower court because genuine issues of material fact existed with respect to the City of Sheffield Lake's duty under O.R.C. Section 723.01 to keep Lincoln Park open, in repair and free from nuisance.

"II.Section 1533.181 of the Ohio Revised Code does not entitle appellee to judgment as a matter of law, therefore, summary judgment was improperly granted."

In his assignments of error, Vitai contends that the trial court erred in granting summary judgment in favor of Sheffield Lake on the basis of R.C. 1533.181 and Marrek, 9 Ohio St.3d at 194. Vitai first contends that R.C. 1533.181 and Marrek grant a governmental entity immunity from negligence actions but not from nuisance actions. Vitai secondly contends that R.C. 723.01 supercedes R.C. 1533.181.

This court finds that Vitai's contentions are without merit. First, while Marrek dealt specifically with a negligence action, the court, in discussing governmental immunity from suit by a recreational user under R.C. 1533.181, did not distinguish between negligence and nuisance actions. The court, rather, emphasized that governmental entities should be held to the same standard of liability as private property owners under R.C. 1533.181. Thus, R.C. 1533.181 and Marrek, in effect, grant governmental entities and private property owners alike immunity from tort actions by recreational users.

Second, this court finds that R.C. 723.01 is compatible with R.C. 1533.181, and thus does not supersede it. R.C. 723.01 imposes upon a municipality a duty to keep its public grounds free from nuisance. R.C. 1533.181 does not negate the municipality's duty but instead takes away the right of a recreational user who has gratuitously entered upon land for recreational use to sue in tort for injuries that may have resulted from his recreational use of the property.

Applying R.C. 1533.181 and Marrek to the facts of this case, we find...