Mathis v. Cleveland Public Library

• Decision Date: 22 February 1984
• Docket Number: No. 82-1809,82-1809
• Citation: 459 N.E.2d 877,9 Ohio St.3d 199,9 OBR 511
• Parties: , 9 O.B.R. 511 MATHIS et al., Appellants, v. CLEVELAND PUBLIC LIBRARY et al., Appellees.
• Court: Ohio Supreme Court

Page 199

9 Ohio St.3d 199

459 N.E.2d 877, 9 O.B.R. 511

MATHIS et al., Appellants, v. CLEVELAND PUBLIC LIBRARY et al., Appellees.

No. 82-1809.

Supreme Court of Ohio.

Feb. 22, 1984.

Syllabus by the Court

No tort action will lie against a public library for those acts or omissions involving the exercise of an executive or planning function or 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 public library will be held liable, the same as private corporations and persons, for the negligence of its employees and agents in the performance of their activities.

On January 7, 1980, Kevin Mathis, who was then six years old, visited a bookmobile owned and operated by the appellee Cleveland Public Library ("library"), which was parked on a four-lane roadway away from any marked crosswalks. Upon leaving, he crossed in front of the bookmobile and was struck by a passing vehicle travelling in the lane next to the curb lane where the bookmobile was parked. He was dragged for a considerable distance by the car that hit him and suffered catastrophic injuries from which he will never completely recover.

In March 1980, Kevin Mathis, by and through his mother, Juanita Mathis, and his mother individually, appellants herein, filed a complaint sounding in negligence against the appellee library and the motorist whose car struck Kevin. The complaint was amended in July 1980 to add appellee, the Morrison Company ("Morrison"), which had sold the bookmobile van to the library, the board of trustees of the library, and the driver of the bookmobile as party defendants. The motorist was never served and is not a party to this appeal. The library moved to dismiss pursuant to Civ.R. 12(B)(6) on the basis of sovereign immunity, which motion the court granted. A similar motion was also granted in favor of the board of trustees and the driver of the bookmobile. Morrison moved for summary judgment pursuant to Civ.R. 56, which motion the court granted.

On appeal the court of appeals affirmed. The court held that the library enjoyed sovereign immunity and that appellants had made no showing of defectiveness in the bookmobile that Morrison had sold to the library.

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

Bruner & Shafran, Steven M. Weiss and Michael Shafran, Cleveland, for appellants.

Dyson, Schmidlin & Foulds Co., L.P.A., Robert Foulds and James J. Dyson, Cleveland, for appellee Cleveland Public Library.

Mansour, Gavin, Gerlack & Manos Co., L.P.A., Jeffrey L. Tasse and Jeffrey M. Embleton, Cleveland, for appellee Morrison Co.

SWEENEY, Justice.

The first question presented in this appeal is whether the library may successfully assert a sovereign immunity defense. The second question is whether Morrison was entitled to summary judgment.

In Schenkolewski v. Metroparks System (1981), 67 Ohio St.2d 31, 426 N.E.2d 784 , this court abrogated the sovereign immunity formerly enjoyed by a board of commissioners of a park district, a political subdivision analogous to the library herein, to the extent that the injury complained of arose from the board's exercise of a proprietary function. In the instant case the court below determined that operation of the bookmobile was a governmental as opposed to a proprietary function based on "the educational function libraries provide," and consequently held the library to be immune from suit.

Recent cases from this court involving municipalities have called into question the much criticized governmental-proprietary dichotomy and have effectively repudiated the traditional proprietary-governmental distinction. ¹ See, e.g., Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 29, 442 N.E.2d 749 ("these two categories have caused confusion and unpredictability in the law"); Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 451 N.E.2d 228. In Enghauser, supra, at paragraph two of the syllabus, the court redefined the scope of a municipality's liability as follows:

"Under this decision abolishing municipal immunity, no tort action will lie against a municipal corporation 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 and agents in the performance of the activities."

The Enghauser standard has been held to apply to counties as well as municipalities, Zents v. Bd. of Commrs. (1984), 9 Ohio St.3d 204, 459 N.E.2d 881, and we see no reason not to apply the same standard to public libraries. We hold, therefore, that no tort action will lie against a public library for those acts or omissions involving the exercise of an executive or planning function or 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 public library will be held liable, the same as private corporations and persons, for the negligence of its employees and agents in the performance of their activities.

In the case at bar, appellants' complaint did not allege that the library had negligently acted or failed to act with respect to "the exercise of an executive or planning function involving the making of a basic policy decision." Rather, the allegations of negligence arose from the manner in which the library engaged "in a certain activity or function," specifically the operation of the bookmobile, for which the library may "be held liable, the same as private corporations and persons." Accordingly, the library could not successfully assert the defense of sovereign immunity, and the courts below erred in holding that the library was immune from suit in this instance.

The second issue raised in this appeal is whether the trial court properly granted summary judgment in favor of Morrison. Appellants made allegations sounding in negligence and strict liability, see Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267 , against Morrison, contending that Morrison's failure to add school bus safety equipment to the bookmobile it sold the library amounted to negligence and the introduction of a defectively designed and unreasonably dangerous product into the stream of commerce.

The record indicates that Morrison made some minor modifications to the vehicle pursuant to specifications submitted by the library prior to delivery of the bookmobile. Morrison painted various signs and labels on the van, installed a heavy-duty floor, extended step platforms, and attached a grab handle to the vehicle's exterior.

The affidavit of H. Donald Morrison, ² Morrison's secretary-treasurer, stated that Morrison "was not involved in any way in the manufacture, design or assembly" of the vehicle and further that the library's "specifications did not include a request for placement of either safety warning signs or lights other than what were already on the vehicle at the time of sale." In response to appellant's request for admissions, Morrison stated that "[n]o 'warning lights' other than those mandated by Federal and State law were installed on the vehicle to [Morrison's] * * * knowledge."

Civ.R. 56(E) states in pertinent part:

" * * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere...