Mitchell v. Cleveland Elec. Illuminating Co.

• Decision Date: 06 May 1987
• Docket Number: Nos. 86-597,86-605,s. 86-597
• Citation: 30 OBR 295,507 N.E.2d 352,30 Ohio St.3d 92
• Parties: , 30 O.B.R. 295 MITCHELL, Admx., Appellee, et al. v. CLEVELAND ELECTRIC ILLUMINATING CO.; City of Avon Lake, Appellant.
• Court: Ohio Supreme Court

Page 92

30 Ohio St.3d 92

507 N.E.2d 352, 30 O.B.R. 295

MITCHELL, Admx., Appellee, et al. v. CLEVELAND ELECTRIC ILLUMINATING CO.; City of Avon Lake, Appellant.

Nos. 86-597, 86-605.

Supreme Court of Ohio.

May 6, 1987.

Syllabus by the Court

1. R.C. 723.01 does not create a duty requiring a municipality to protect individuals from, or warn them of, dangers existing on property which is beyond its corporate limits or control.

2. A municipality's determination that a specific entity constitutes or does not constitute a nuisance is a basic policy decision requiring a high degree of official judgment or discretion, and thus the municipality is immune from tort liability for making or failing to make such a determination.

This case arises from the July 27, 1982 drowning of John H. Mitchell and his ten-year-old son, Toriano L. Mitchell, in Lake Erie adjacent to the electric generating plant of the Cleveland Electric Illuminating Company (hereinafter "CEI"). The generating plant, which abuts the shore of Lake Erie, is located in the city of Avon Lake, Ohio (hereinafter "Avon Lake"), near Miller Road Park, a municipal park which also abuts Lake Erie. The area where the drownings occurred was at least one hundred feet beyond the territorial limits of Avon Lake and the Miller Road Park.

As part of its cooling system, the CEI generating facility draws water from Lake Erie and then discharges it back into the lake. The water that is discharged from the CEI plant is heated. This thermal discharge creates both an attractive fishing area and an undertow current which varies in strength depending on the rate of the discharge of water from the plant. Although the power plant itself is situated within Avon Lake, the discharged water enters Lake Erie at a point outside the city limits.

On the day of the drownings, John and Toriano Mitchell and two other individuals crossed through Miller Road Park, climbed down a cliff to Lake Erie, traversed a narrow sandbar to the area behind the power plant and waded out onto a sandbar in Lake Erie to fish. Toriano stepped off the sandbar and was apparently caught in the undertow. John dove in to try to save him, but was unable to do so and they both drowned.

Appellee Beverly Mitchell, the administratrix of the decedents' estates, brought this wrongful death action against CEI and appellant Avon Lake asserting that Avon Lake was negligent because it was aware of the dangerous nature of the undertow but failed to erect fences, post warning signs or take other measures in the park to inform persons of an alleged nuisance outside the park. Appellee also asserts that while the discharge channel itself was not under the city's control, Avon Lake had a duty to abate the purported nuisance since the generating plant was located within its municipal boundaries. Following appellee's opening statement, the trial court issued a directed verdict in favor of Avon Lake. ¹ The court of appeals reversed the directed verdict and remanded the cause to the trial court.

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

Gaines & Stern Co., L.P.A., Michael B. Michelson and John V. Scharon, Cleveland, for appellee.

Fillo, Ristau & Drain and Timothy P. Ristau, Cleveland, for appellant.

WRIGHT, Justice.

The sole question before this court is whether appellee's opening statement and the allegations of the amended complaint state a cause of action against Avon Lake. We hold that the directed verdict in favor of Avon Lake was not erroneous.

In reaching this conclusion, we are mindful that "[a] trial court should exercise great caution in sustaining a motion for a directed verdict on the opening statement of counsel; it must be clear that all the facts expected to be proved, and those that have been stated, do not constitute a cause of action or a defense, and the statement must be liberally construed in favor of the party against whom the motion has been made." Brinkmoeller v. Wilson (1975), 41 Ohio St.2d 223, 70 O.O.2d 424, 325 N.E.2d 233, syllabus. See, also, Archer v. Port Clinton (1966), 6 Ohio St.2d 74, 35 O.O.2d 88, 215 N.E.2d 707. When the court finds that reasonable minds could come to only one conclusion, and that conclusion is adverse to the party against whom the directed verdict is sought, a directed verdict may be issued. See Civ.R. 50(A). These criteria were met in this case.

A duty of care owed to plaintiff by defendant is one of the factors necessary to establish an actionable cause of negligence. Strunk v. Dayton Power & Light Co. (1983), 6 Ohio St.3d 429, 431, 6 OBR 473, 475, 453 N.E.2d 604, 606. "Before the city can be held liable, both pleading and proof must show an obligation due the plaintiff on the part of the city, which has been violated. * * * " Dering v. Cleveland (1921), 102 Ohio St. 94, 95, 130 N.E. 504. While we have empathy for appellee and the decedents' family, an untimely death alone is not enough to create liability. See Taylor v. Cincinnati (1944), 143 Ohio St. 426, 430-431, 28 O.O 369, 371, 55 N.E.2d 724, 726-727; Leipsic v. Gerdeman (1903), 68 Ohio St. 1, 67 N.E. 87. Furthermore, " * * * [t]he mere abrogation of [municipal] immunity does not free a plaintiff from establishing the required elements of the alleged tortious conduct. * * * " Strunk, supra, 6 Ohio St.3d at 431, 6 OBR at 476, 453 N.E.2d at 606. See, also, Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 6 OBR 53, 451 N.E.2d 228.

The first inquiry in a determination of whether Avon Lake owed a duty to the decedents involves the nature of the relationship between the decedents and Avon Lake at the time of the accident. R.C. 1533.181 provides that the owner of a premises owes no duty to a recreational user to keep the premises safe for entry or use. A recreational user is one "to whom permission has been granted, without the payment of a fee or consideration to the owner * * * to enter upon premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits." R.C. 1533.18. See Light v. Ohio University (1986), 28 Ohio St.3d 66, 28 OBR 165, 502 N.E.2d 611. The statutory immunity granted by R.C. 1533.181 applies to state-owned land and other public land, including metropark districts, to the same extent as private land. Marrek v. Cleveland Metroparks Bd. of Commrs. (1984), 9 Ohio St.3d 194, 9 OBR 508, 459 N.E.2d 873; Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138, 16 O.O.3d 161, 404 N.E.2d 742; McCord v. Division of Parks & Recreation (1978), 54 Ohio St.2d 72, 8 O.O.3d 77, 375 N.E.2d 50.

It is undisputed that appellee's decedents were gratuitous users of the Miller Road Park and were using the premises to fish, a recreational pursuit. Consequently, the decedents were recreational users of the park and Avon Lake, as owner of the park, had no duty pursuant to R.C. 1533.181 to keep the premises safe for their entry and use. However, appellee argues that this statutory immunity provided by R.C. 1533.181 is not applicable since the drownings occurred beyond the park's boundaries. Thus, it appears that appellee is suggesting that Avon Lake owes a greater duty to protect users of its property from dangers that are on adjoining property than it has to protect them from conditions on its property. This is certainly a novel proposition of law.

" * * * [L]iability in tort is an incident to occupation or control. Berkowitz v. Winston [1934], 128 Ohio St., 611, 193 N.E., 343; Ripple v. Mahoning National Bank [1944], 143 Ohio St., 614, 56 N.E. (2d), 289." Cooper v. Roose (1949), 151 Ohio St. 316, 317, 39 O.O. 145, 146, 85 N.E.2d 545, 546. " * * * The control necessary as the basis for tort liability implies the power and the right to admit people to the premises and to exclude people from it, and involves a substantial exercise of that right and power. * * * " Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 188, 26 OBR 160, 162, 497 N.E.2d 1118, 1120.

The drownings occurred in Lake Erie. The waters of Lake Erie belong to the state of Ohio, and it is undisputed that Avon Lake's territorial limits extend only to the low water line of Lake Erie. See R.C. 123.03. Yet, appellee asserts that Avon Lake had a duty to warn people who were lawfully in the park and to erect fences to protect them from dangers outside the park. Appellee further suggests that such a duty is created by R.C. 723.01 which provides that " * * * [municipal corporations] shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, * * * and shall cause them to be kept open, in repair, and free from nuisance."

It is clear that R.C. 723.01 does require the municipality to keep the premises of the park "open, in repair, and free from nuisance," but it does not speak of a duty extending beyond the park boundaries. This court has never read R.C. 723.01 to extend its protection beyond the territorial limits of the specified areas. Earlier this term, in Ruwe v. Bd. of Springfield Twp. Trustees (1987), 29 Ohio St.3d 59, 29 OBR 441, 505 N.E.2d 957, we held that a municipality cannot be charged with constructive notice of a nuisance while it exists outside the corporate limits of the municipality. Similarly, in Strunk, supra, we held that a municipality's duty to keep its streets "open, in repair, and free from nuisance" extended only as far as the berm and not to a light pole located adjacent to the berm. See, also, Lovick v. Marion (1975), 43 Ohio St.2d 171, 72 O.O.2d 95, 331 N.E.2d 445. Therefore, we must decline to extend Avon Lake's duty to the decedents beyond the corporate limits or control of the municipality, and hold that R.C. 723.01 does not create a duty requiring a municipality to protect individuals from or warn them of dangers existing on property which is beyond its corporate limits or control.

Appellee further argues that because the CEI generating plant itself is located...