Marrek v. Cleveland Metroparks Bd. of Com'rs

• Decision Date: 22 February 1984
• Docket Number: No. 83-43,83-43
• Citation: 9 Ohio St.3d 194,459 N.E.2d 873,9 OBR 508
• Parties: , 9 O.B.R. 508 MARREK, Appellant, v. CLEVELAND METROPARKS BOARD OF COMMISSIONERS et al., Appellees.
• Court: Ohio Supreme Court

Page 194

9 Ohio St.3d 194

459 N.E.2d 873, 9 O.B.R. 508

MARREK, Appellant, v. CLEVELAND METROPARKS BOARD OF COMMISSIONERS et al., Appellees.

No. 83-43.

Supreme Court of Ohio.

Feb. 22, 1984.

Syllabus by the Court

No tort action will lie against a board of commissioners of a park district for those acts or omissions involving the exercise of a legislative or judicial function or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion. However, once the decision has been made to engage in a certain activity or function, a board of commissioners of a park district will be held liable, the same as private corporations and persons, for the negligence of its employees in the performance of the activities.

On March 14, 1979, appellant, Sally Marrek, filed a complaint in the Court of Common Pleas of Cuyahoga County against appellee, the Cleveland Metroparks Board of Commissioners, and Gary Wascovich. The complaint alleged that on January 15, 1979, while Marrek was sledding in the Hinckley Reservation of the Cleveland Metroparks System ("park district"), Wascovich negligently struck her face with his foot. As a result, she suffered facial and eye injuries. In the complaint, Marrek sought damages based upon the alleged failure of the park district to supervise the sledding area and thereby proximately causing her injuries.

The park district filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6) and governmental immunity. The trial court granted the motion and it was affirmed by the court of appeals.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Sindell, Sindell, Rubenstein, Einbund, Pavlik & Novak Co., L.P.A., William J. Novak and Gregory M. Ensign, Cleveland, for appellant.

Kelley, McCann & Livingstone, Mr. Walter C. Kelley, Stephen M. O'Bryan and Michael Anne Johnson, Cleveland, for appellees.

FRANK D. CELEBREZZE, Chief Justice.

This case presents the issue of whether a park district is protected by immunity from tort liability. This question requires a determination of whether the defense of sovereign immunity is available to the park district, and if not, whether statutory immunity applies. We conclude that the common-law doctrine of sovereign immunity has been abrogated, but that statutory immunity applies in this case.

I

A similar fact situation and question of governmental immunity were presented in Bokovitz v. Cleveland Metroparks System (May 9, 1983), Cuyahoga App. No. 45215, unreported. The case also involved a sledding accident and the plaintiff alleged that the park district was liable for damages due to its negligence in operating the premises. The court relied upon Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 442 N.E.2d 749, and held that the abolition of sovereign immunity as applied to municipal corporations also abrogates the doctrine of governmental immunity for park districts established pursuant to R.C. Chapter 1545. ¹ We agree with the rationale in Bokovitz for the following reasons.

The park district was established under the authority of R.C. Chapter 1545. This court noted in Schenkolewski v. Metroparks System (1981), 67 Ohio St.2d 31, 37, 426 N.E.2d 784 , that "[a] board of commissioners of a park district bears certain similarities to a municipal corporation. Like a municipal corporation, such a board has a corporate nature, and may sue and be sued as provided by law. R.C. 1545.07. Clearly, it engages in some activities which promote the state's sovereign interests." Included are the power of eminent domain to acquire land for forest reserves and conservation of natural resources, R.C. 1545.11; the power to employ park police officers, R.C. 1545.13; and the power to levy taxes, R.C. 1545.20. In Schenkolewski, the court applied the governmental-proprietary classification, previously used for municipal corporations, and abolished the immunity of a board of commissioners of a park district for its negligence involving proprietary activities.

The governmental-proprietary dichotomy was abolished and the common-law doctrine of sovereign immunity for municipal corporations was abrogated in Haverlack, supra. The court held in paragraph two of the syllabus that the "defense of sovereign immunity is not available, in the absence of a statute providing immunity, to a municipal corporation in an action for damages" caused by its alleged negligence.

Subsequently, the court in Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 451 N.E.2d 228, defined the scope of liability for municipalities. According to paragraph two of the syllabus, immunity is retained "for those acts or omissions involving the exercise of a legislative or judicial function or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion. However, once the decision has been made to engage in a certain activity or function, municipalities will be held liable, the same as private corporations and persons, for the negligence of their employees in the performance of the activities."

Because a park district has some similarities to a municipal corporation, the same standard of liability should apply to both. Furthermore, sovereign immunity has been abolished for school boards, Carbone v. Overfield (1983), 6 Ohio St.3d 212, 451 N.E.2d 1229, for counties, Zents v. Bd. of Commrs. (1984), 9 Ohio St.3d 204, 459 N.E.2d 881, and for public libraries, Mathis v. Cleveland Public Library (1984), 9 Ohio St.3d 199, 459 N.E.2d 877.

Consistent with the foregoing cases, we hold that no tort action will lie against a board of commissioners of a park district for those acts or omissions involving the exercise of a legislative or judicial function or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion. However, once the decision has been made to engage in a certain activity or function, a board of commissioners of a park district will be held liable, the same as private corporations and persons, for the negligence of its employees in the performance of the activities.

Applying this standard to the case sub judice, the complaint alleged that the park district failed to supervise a sledding area. This allegation does not concern "the exercise of an executive or planning function involving the making of a basic policy decision." Instead, the "conduct claimed to be tortious involves rather the carrying out of previously established policies or plans." Enghauser, supra, 6 Ohio St.3d at 35, 451 N.E.2d 228. Therefore, the board of commissioners of a park district may be held liable, the same as private corporations and persons. Consequently, the complaint should not have been dismissed on the basis that the park district was protected by governmental immunity.

II

The park district argues that in the event that sovereign immunity has been abolished it is protected from suit by statutory immunity provided by R.C. 1533.181, which reads in pertinent part:

"(A) No owner, lessee, or occupant of premises:

"(1) Owes any duty to a recreational user to keep the premises safe for entry or use;"

The term "premises" is defined in R.C. 1533.18(A) as:

" * * * all privately-owned lands, ways, waters, and any buildings and structures thereon, and all state-owned lands, ways, and waters leased to a private person, firm, organization, or corporation, including any...