Korengel v. Little Miami Golf Ctr.

• Decision Date: 13 September 2019
• Docket Number: NO. C-180416,C-180416
• Citation: 2019 Ohio 3681,144 N.E.3d 1074
• Parties: Ryan KORENGEL, a Minor, Individually and by and Through his Parents and Next Friends, Donald Korengel and Michelle Korengel, Michelle Korengel, Donald Korengel, and Megan Korengel, Plaintiffs-Appellees, v. LITTLE MIAMI GOLF CENTER, Hamilton County Park District, Hamilton County Park District—Safety Division, and Dennis Wells, in his Official Capacity, Defendants-Appellants, and Dennis Wells, in his Individual Capacity, et al., Defendants.
• Court: Ohio Court of Appeals

144 N.E.3d 1074

2019 Ohio 3681

Ryan KORENGEL, a Minor, Individually and by and Through his Parents and Next Friends, Donald Korengel and Michelle Korengel,Michelle Korengel, Donald Korengel, and Megan Korengel, Plaintiffs-Appellees,

v. LITTLE MIAMI GOLF CENTER, Hamilton County Park District, Hamilton County Park District—Safety Division, and Dennis Wells, in his Official Capacity, Defendants-Appellants,andDennis Wells, in his Individual Capacity, et al., Defendants.

NO. C-180416

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: September 13, 2019

OPINION.

Winkler, Judge.

{¶1} This appeal, the second in the case, addresses whether defendants-appellants Little Miami Golf Center (the "Golf Center"), Hamilton County Park District, Hamilton County Park District—Safety Division (collectively the "Park District"), and Dennis Wells, a golf professional at the Golf Center acting in his official capacity (collectively "Appellants"), are entitled to summary judgment on the basis of immunity under R.C. Chapter 2744, the Political Subdivision Tort Liability Act, from claims brought by Ryan Korengel and his family, Michelle, Donald and Megan (collectively "Korengels"). The claims are for injuries Ryan sustained as a youth from a falling tree limb that struck him while he was playing golf during a windstorm from Hurricane Ike that overtook the Park District's Golf Center. At the time of Ryan's injury, the Golf Center's clubhouse was equipped with a siren to warn golfers of impeding severe storms, but it was not activated by employees.

{¶2} After a remand by this court in R.K. v. Little Miami Golf Ctr. , 2013-Ohio-4939, 1 N.E.3d 833 (1st Dist.) (" R.K. I "),¹ the case proceeded on Ryan's three claims that survived a motion for judgment on the pleadings, as well as his family members' derivative loss-of-consortium claims. Ryan alleges the Park District is liable to him because his injury resulted from a defective tree or siren and the Park District employees at the Golf Center were negligent/reckless in the repair and maintenance of the tree and in the maintenance of or failure to use the storm siren. He additionally claims the Park District is liable to him for reckless supervision based on the failure to warn him of the impending weather, while turning away other golfers because of the weather.

{¶3} Upon our review, we conclude issues of material fact exist as to whether the Park District is liable to Ryan under the physical-defect exception to immunity for negligence in the maintenance of the tree and in failing to activate the storm siren, and therefore, summary judgment was properly denied as to those claims. Because the record contains no facts demonstrating that employees turned away golfers due to the weather before Ryan's injury, the Park District is entitled to the immunity defense set forth in R.C. 2744.03(A)(5) with respect to that recklessness claim, and we reverse the denial of summary judgment on that claim.

Background Facts and Procedure

{¶4} Some of the facts in this case are undisputed. These demonstrate that on September 14, 2008, Ryan, then 12 years old, and three other boys paid to play golf on the nine-hole, par-three golf course at the Golf Center, which was owned, operated, and maintained by the Park District. The Golf Center advertises to golfers through signage and on the scorecard that it will "attempt to notify them of potentially severe weather conditions" by sounding a siren, communicating the "recommend[ation] [that the golfer] seek shelter or vacate the course immediately."

{¶5} When the boys teed off on the 1st hole around 1 p.m., the weather was warm, sunny, and breezy. As they progressed from hole to hole, the wind continually increased. The golf course play coordinator told the boys to pick up their pace near the fourth green, but he never warned them about the approaching storm.

{¶6} As the boys teed off on the sixth hole, the wind became noticeably stronger and continued to increase. On the seventh hole, the boys began to hear tree limbs cracking and saw tree limbs breaking and falling from trees in the woods adjacent to the course.

{¶7} By the time the boys teed off on the eighth hole, they could see trees swaying and heard more cracking of limbs. At around 2:30 p.m., Ryan was preparing to putt on the eighth green when tree limbs from a nearby silver maple tree fell towards him. One struck him in the head, resulting in serious and permanent injury.

{¶8} Before Ryan's injury, no one from the Golf Center activated the siren located in the Golf Center's clubhouse. Undisputedly, the wind was a cause of the branch failure, and on that same day, the dangerous winds from the unusual wind-only storm caused much damage in the Greater Cincinnati area, including at the Golf Center, where it caused other trees to fail and downed power lines.

{¶9} The Korengels filed a complaint against Appellants, and several other defendants who have been dismissed, alleging multiple claims, including several based on negligence/recklessness and derivative loss-of-consortium claims. Appellants moved for judgment on the pleadings on the grounds of political-subdivision immunity for the Park District and its employee Wells. The trial court denied the motion in its entirety. Appellants then appealed the denial of the motion to this court.

{¶10} In that appeal, this court reviewed the Korengels' negligence/recklessness allegations in light of the statutory analysis for determining whether a political subdivision is immune from liability. This analysis is three tiered. First, R.C. 2744.02(A)(1) sets forth the general grant of immunity for political subdivisions for damages in a civil action allegedly caused by any act or omission of a political subdivision or employee in connection with a governmental or proprietary function. Second, the immunity afforded to a political subdivision under R.C. 2744.02(A)(1) is subject to the exceptions to immunity listed in R.C. 2744.02(B). Third, if any one or more exceptions apply, immunity can be reinstated if the political subdivision can show that one or more of the defenses contained in R.C. 2744.03 apply. R.K. I. , 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 8.

{¶11} We concluded, based on the allegations, that the Park District was entitled to the general grant of immunity under R.C. 2744.02(A)(1) because it is a political subdivision and was engaged in a governmental function—the operation of a golf course—in connection with Ryan's injury. Id. at ¶ 14.

{¶12} Next we determined that the negligence/recklessness claims against Appellants were reinstated because the allegations sufficiently triggered the physical-defect exception to immunity under R.C. 2744.02(B)(4), which creates liability for political subdivisions "for injury death, or loss to persons 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 * * *." Of importance to this appeal, we noted that the Korengels had alleged various theories of employee negligence and that their allegation of an "unmaintained tree limb" or "[un]maintained" "storm siren[ ]" may qualify as a "physical defect" as contemplated by the statute. R.K. I at ¶ 20-22.

{¶13} Finally, we reviewed Appellants' argument that, based on the allegations, the defenses in R.C. 2744.03(A)(3) and (5) would apply to reinstate any immunity removed by an exception. To determine whether Appellants had shown any defenses to reinstate immunity as a matter of law, we carefully analyzed the specific allegations in the Korengels' multiple claims to determine if those allegations impugned the type of discretionary decisions given protection under R.C. 2744.03(A)(3) and (5).

{¶14} We concluded that the Korengels' cause of action could proceed on the theories arising out of the Park District's employees' alleged negligent/reckless repair and maintenance of the tree, negligent/reckless maintenance or use of the storm siren, and reckless, not just negligent, supervision of Ryan, by failing to warn him or otherwise get him off of the golf course while at the same time turning away other golfers due to the weather, as well as the Korengel family members' derivative loss-of-consortium claims. Id. at ¶ 35, 37, 39, 41, 51.

{¶15} As a result of our analysis, we directed the trial court on remand to enter judgment for Appellants as to the allegations that the Park District was negligent and/or reckless in designing the golf course, negligent and/or reckless in failing to adopt and/or implement plans for severe weather, monitoring adverse weather, and care for children, and was negligent and/or reckless in failing to provide staff, such as security patrols or course rangers before or during the storm, and several other claims not relevant on appeal.

R.K. I. , 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 35, 38-42, and 51.

{¶16} On remand, the parties engaged in discovery. Appellants then moved for summary judgment on all the remaining claims, again claiming that the Park District had political-subdivision immunity. The Korengels opposed summary judgment. After allowing additional discovery and ordering supplemental briefing, the trial court denied the motion for summary judgment, determining that genuine issues of material fact remained on multiple claims, including claims we held had not survived the motion for judgment on pleadings.

This Appeal

{¶17} In their sole assignment of error, Appellants argue the trial court erred by denying their motion for summary judgment. An order denying a political subdivision the benefit of claimed immunity from liability is a final appealable order under R.C. 2744.02(C) and is immediately appealable. See Sullivan v. Anderson Twp. , 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d 88, ¶ 12-13. Our review of the order is limited to alleged errors...