[Cite as Plank v. Bellefontaine, 2017-Ohio-8623.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

CHRISTOPHER PLANK, 

ADMINISTRATOR OF THE 

ESTATE OF MONICA PLANK, 

 PLAINTIFF-APPELLEE, CASE NO. 8-17-18 

 v. 

CITY OF BELLEFONTAINE, ET AL., O P I N I O N 

 DEFENDANTS-APPELLANTS. 

 

Appeal from Logan County Common Pleas Court 

Trial Court No. CV 16 02 0040 

Judgment Reversed and Cause Remanded 

Date of Decision: November 20, 2017 

 

APPEARANCES: 

 

Keona R. Padgett for Appellants 

 Jeff Ratliff for Appellee 
Case No. 8-17-18 

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ZIMMERMAN, J. 

{¶1} Defendant-Appellant, the City of Bellefontaine and the City of 

Bellefontaine Water Department, (hereafter referred to as “Appellant”)1

 appeal the 

June 28, 2017 Judgment Entry of the Logan County Common Pleas Court denying 

its motion for summary judgment in a negligence lawsuit. For the reasons that 

follow, we reverse the judgment of the trial court. 

Facts and Procedural History 

{¶2} In the early morning hours of February 16, 2014, Christopher Plank, 

(“Christopher” or “Appellee”) Plaintiff-Appellee, and his wife, Monica Plank 

(“Monica”), were with friends at the Route 68 Grill in Bellefontaine, Ohio. Around 

1 a.m., Monica became upset and decided to leave the Route 68 Grill, by herself, to 

return to the Comfort Inn in Bellefontaine, Ohio, where she and Christopher were 

staying. When Christopher saw that Monica had left the Route 68 Grill, he paid 

their tab and started out on foot to follow Monica. While walking north on South 

Main Street in Bellefontaine, Monica chose to walk in the street because the 

sidewalk was covered with snow. Christopher, who was also in the street, was 

following behind Monica. While walking in the street, Monica was struck by a 

vehicle and killed in the vicinity of 917 South Main Street in Bellefontaine. The 

 

1

 For purposes of this appeal, the City of Bellefontaine Water Department, and the property that the Water 

Department occupies, are both owned by the City of Bellefontaine. Consequently, we refer to Appellant in 

the singular. 
Case No. 8-17-18 

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building located at 917 South Main Street was the City of Bellefontaine Water 

Department, which was owned and operated by the City of Bellefontaine. The 

sidewalk in front of the Water Department Building had not been cleared of snow 

at the time Monica was struck and killed. 

{¶3} On February 16, 2016, Christopher filed a wrongful death action in the 

Logan County Court of Common Pleas naming the City of Bellefontaine, the City 

of Bellefontaine Water Department, and Danny L. Levan and Loretta A. Levan2

 as 

defendants. (Doc. No. 1). In his complaint, Christopher alleged that as a result of 

the plowing of roads by city employees, there was a severe and unnatural 

accumulation of snow and ice on the sidewalk in front of the Bellefontaine City 

Water Department Building, and that unnatural accumulation of snow and ice on 

that sidewalk forced Monica to walk in the street, and proximately caused her death. 

(Id.). 

{¶4} Christopher’s lawsuit also cited Bellefontaine City Code Section 

521.06, which provided that it was the duty of the owner or occupant of each and 

every parcel of real estate in the City of Bellefontaine to the keep the sidewalk 

abutting his or her premises free and clear of snow and ice and to remove therefrom 

all snow and ice within a reasonable time. (Id.). Further, Christopher’s wrongful 

death complaint alleged that the City of Bellefontaine and the City of Bellefontaine 

 

2

 Danny L. Levan and Loretta A. Levan, owners of property located at 909 South Main Street in Bellefontaine, 

Ohio were voluntarily dismissed without prejudice by Appellee on May 13, 2016. (Doc. No. 30). 
Case No. 8-17-18 

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Water Department violated the city code, and negligently allowed unsafe and 

dangerous conditions to exist on the sidewalk after a reasonable time, which forced 

Monica to walk in the street. (Id. at 5). The wrongful death complaint alleged that 

Monica died as a direct and proximate result of Appellant’s negligence. (Id.). 

{¶5} On March 10, 2016, Appellant filed its answer denying negligence and 

asserting multiple defenses to Appellee’s claim, including political subdivision 

immunity. (Doc. No. 15). 

{¶6} On May 10, 2017, Appellant filed its Motion for Summary Judgment in 

the trial court. (Doc. No. 78). In its motion, Appellant asserted that summary 

judgment was appropriate as a matter of law because it is a political subdivision, 

engaged in a governmental function, and was entitled to immunity under R.C. 

Chapter 2744 as a matter of law. (Id. at 7). On June 2, 2017, Appellee filed a 

response to Appellant’s motion, asserting that summary judgment was not 

appropriate because material questions of fact exist and that Appellant was not 

immune under R.C. 2744.02(B). (Doc. No. 116). 

{¶7} On June 28, 2017, the trial court issued its Judgment Entry on 

Appellant’s motion for summary judgment. (Doc. No. 127). The trial court held: 

Plaintiff’s decedent, Monica Plank, was killed on South Main Street, 

Bellefontaine on February 15, 2014 in front of the premises owned by 

the City of Bellefontaine as part of its city water department (917 

South Main Street) and the Levans at 909 South Main Street. The 

deceased [sic] while walking north on Main Street was struck by an 

automobile and died from those injuries sustained in that impact. 
Case No. 8-17-18 

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Plaintiff’s complaint alleges that but for the negligence of the city the 

Plaintiff would not have had to walk in the street. The city in its 

defenses and in its motions alleges numerous defenses. The Court 

finds, however, that under Plaintiff’s complaint the city may be liable 

under the proprietary function exception to government immunity 

contained in R.C. 2744.02(B)(2). By definition the establishment, 

maintenance and operation of a water supply system is a proprietary 

function, R.C. 2744.01(G)(2)(c). The Court finds under the theory of 

liability and that exception of governmental immunity there are many 

genuine issues of material fact. Among them are whether the snow 

on the Defendant’s sidewalk was a natural accumulation or a manmade accumulation, whether the Defendant’s negligence, if any, was 

the proximate cause of decedent’s death, and whether the deceased’s 

conduct (assumption of risk) was comparatively more negligent than 

the city’s. It is therefore ORDERED that the Defendant’ [sic] motion 

for summary judgment be, and hereby is denied. 

(Id.). 

{¶8} From this Judgment Entry Appellant appeals pursuant to R.C. 

2744.02(C),3

 and presents the following sole assignment of error for our review: 

ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT ERRED BY DENYING POLITICAL 

SUBDIVISION IMMUNITY TO THE CITY OF 

BELLEFONTAINE AND THE CITY OF BELLEFONTAINE 

WATER DEPARTMENT BECAUSE THEY ARE ENTITLED 

TO A GENERAL GRANT OF IMMUNITY, NONE OF THE 

EXCEPTIONS UNDER R.C. 2744.02(B) APPLY TO BAR 

IMMUNITY, AND, EVEN IF AN EXCEPTION APPLIES, 

THREE DEFENSES ESTABLISH NON-LIABILITY. 

 

3

 While a denial of a motion for summary judgment is generally not a final appealable order, R.C. 2744.02(C) 

specifically allows that an order denying a political subdivision the benefit of an alleged immunity from 

liability as provided in R.C. Chapter 2744 is a final order. R.C. 2744.02(C). 
Case No. 8-17-18 

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{¶9} On appeal, Appellant presents three issues for this Court to review: (1) 

whether the City of Bellefontaine and the City of Bellefontaine Water Department 

are a political subdivision entitled to a grant of immunity; (2) whether any of the 

exceptions under R.C. 2744.02(B), including the exception regarding negligent 

performance of a proprietary function apply, removing immunity in a case regarding 

the maintenance of a sidewalk; and (3) whether, even if one of the exceptions under 

R.C. 2744.02 does apply, R.C. 2744.03 is applicable to establish Appellant’s nonliability. For the reasons that follow, we sustain Appellant’s assignment of error and 

reverse the judgment of the trial court. 

Standard of Review 

{¶10} An appellate court reviews a trial court’s decision on a motion for 

summary judgment de novo. Hancock Fed. Credit Union v. Coppus, 2015-Ohio5312, 54 N.E.3d 806, ¶ 15 (3rd Dist.). Trial courts may grant a motion for summary 

judgment when “(1) no genuine issue as to any material fact remains to be litigated, 

(2) the moving party is entitled to judgment as a matter of law, and (3) it appears 

from the evidence that reasonable minds can come to but one conclusion and that 

conclusion is adverse to the party against whom the motion for summary judgment 

is made.” Hamilton v. Hector, 117 Ohio App.3d 816, 819, 691 N.E.2d 745, 747 

(3rd Dist.1997). Additionally, “‘upon appeal from summary judgment, the 

reviewing court should look at the record in the light most favorable to the party 
Case No. 8-17-18 

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opposing the motion.’” Id. quoting Campbell v. Hosp. Motor Inns, Inc., 24 Ohio 

St.3d 54, 58, 493 N.E.2d 239 (1986). 

Analysis 

{¶11} The Political Subdivision Tort Liability Act, codified in R.C. Chapter 

2744, governs political subdivision liability and immunity. See generally, Vacha v. 

N. Ridgeville, 136 Ohio St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 12. In 

Ohio, courts apply a three-tiered analysis to determine whether a political 

subdivision is entitled to immunity under R.C. Chapter 2744. State ex rel. Rohrs. 

v. Germann, 3rd Dist. Henry No. 7-12-21, 2013-Ohio-2497, ¶ 28. “First, the court 

must determine whether the entity claiming immunity is a political subdivision and 

whether the alleged harm occurred in connection with either a governmental or a 

proprietary function.” R.C. 2744.02(A)(1); Brady v. Bucyrus Police Dept., 194 

Ohio App.3d 574, 2011-Ohio-2460, 957 N.E.2d 339, ¶ 44 (3rd Dist.). “In the 

second tier of analysis, R.C. 2744.02(B) provides five exceptions that may lift the 

broad immunity provided for in R.C. 2744.02(A).” Jones v. Delaware City School 

Dist. Bd. of Edn., 2013-Ohio-3907, 995 N.E.2d 1252, ¶ 19 (5th Dist.). And 

“‘[f]inally, under the third tier of analysis, immunity can be reinstated if the political 

subdivision can successfully argue that any of the defenses contained in R.C. 

2744.03 applies.’” McNamara v. Marion Popcorn Festival, 2012-Ohio-5578, 983 
Case No. 8-17-18 

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N.E.2d 818, ¶ 21 (3rd Dist.) quoting Hortman v. City of Miamisburg, 110 Ohio St.3d 

194, 2006-Ohio-4251, 852 N.E.2d 716, ¶ 12. 

Tier I - Political Subdivision Analysis 

{¶12} Initially, we must determine whether the City of Bellefontaine/City of 

Bellefontaine Water Department is a political subdivision and whether Monica’s 

alleged harm occurred in connection with either a governmental or proprietary 

function. 

{¶13} In determining whether an entity is a political subdivision, we must 

look to R.C. 2744.01(F), which defines a political subdivision, in its pertinent part, 

as follows: “* * * a municipal corporation, township, county, school district, or other 

body corporate and politic responsible for governmental activities in a geographic 

area smaller than that of the state. * * *.” R.C. 2744.01(F). In this case it is 

undisputed that the City of Bellefontaine is a political subdivision pursuant to R.C. 

2744.01(F). See Brady at ¶ 45 (finding that the City of Bucyrus was a political 

subdivision after satisfying R.C. 2744.01(F)). Further, the parties do not dispute 

that the City of Bellefontaine is the owner of the land upon which the City of 

Bellefontaine Water Department Building sits. Thus, we find that the City of 

Bellefontaine and the City of Bellefontaine Water Department to be a political 

subdivision. 
Case No. 8-17-18 

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{¶14} Next, under this first tier analysis, we must determine if the alleged 

harm (to Monica) occurred in connection with either a governmental or a proprietary 

function. Relevant to this appeal, R.C. 2744.01(C)(2)(e) defines a “governmental 

function” as: 

A “governmental function” includes, but is not limited to, the 

following: [t]he regulation of the use of, and the maintenance and 

repair of, roads, highways, streets, avenues, alleys, sidewalks, 

bridges, aqueducts, viaduct, and public grounds. 

(Emphasis added). R.C. 2744.01(C)(2)(e). And, with respect to a proprietary 

function, R.C. 2744.01(G)(2)(c) defines a “proprietary function” as: 

A “proprietary function” includes, but is not limited to, the following: 

[t]he establishment, maintenance, and operation of a utility, 

including, but not limited to, a light, gas, power, or heat plant, a 

railroad, a busline or other transit company, an airport, and a 

municipal corporation water supply system. 

(Emphasis added). R.C. 2744.01(G)(2)(c). 

{¶15} Appellant asserts that because Appellee contends that the plowing of 

snow on a street and the maintenance (or lack thereof) of its sidewalk was the 

proximate cause of Monica’s death, the harm Monica incurred was in connection to 

a governmental function. We agree. The First District Court of Appeals reasoned 

in Evans v. Cincinnati, that “the statute in question [R.C. 2744.01] explicitly 

provides that to be proprietary, an activity must not be listed as governmental. * * * 

Sidewalk maintenance and regulation is specifically listed as governmental.” Evans 

v. Cincinnati, 1st Dist. Hamilton No. C-120726, 2013-Ohio-2063, ¶ 12. See also, 
Case No. 8-17-18 

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Wilson v. Cleveland, 2012-Ohio-4289, 979 N.E.2d 356, ¶ 15 (8th Dist.) (holding 

that the maintenance of a sidewalk is a governmental function, and as a 

governmental function, the exception under R.C. 2744.02(B)(2) does not apply). In 

the case before us, Appellee alleged in his complaint that the City of Bellefontaine 

breached its duty to keep the sidewalk clear of a dangerous condition that it created, 

(i.e. excess snow on the sidewalk from plowing) which was the proximate cause of 

Monica’s death. As such, and similar to the holdings of our sister districts in Evans 

and Wilson, we find that the maintenance of streets and sidewalks by a city is a 

governmental, not a proprietary function. 

{¶16} Nevertheless, Appellee argues that the trial court properly held that the 

“city may be liable under the proprietary function exception to governmental 

immunity contained in R.C. 2744.02(B)(2),” because the City owned and operated 

the Water Department Building that abutted the sidewalk in question. However, we 

find such analysis misplaced because the harm suffered (by Monica) must have a 

greater nexus to a proprietary function for this exception to apply. In support of this 

we are directed to Calet v. East Ohio Gas Company, wherein the 9th District Court 

of Appeals affirmed the trial court’s denial of a motion for summary judgment filed 

on behalf of the City of Akron, finding that there were genuine issues of material 

fact that rendered summary judgment inappropriate. Calet v. E. Ohio Gas Co., 

2017-Ohio-348, 83 N.E.3d 218, ¶¶ 14-16 (9th Dist). The Plaintiff in Calet suffered 
Case No. 8-17-18 

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injuries resulting from falling into a hole in a city sidewalk. Id. at ¶ 15. “A 

supervisor for the City’s Water Distribution Division identified the sidewalk hole 

as a ‘water curb box’ and explained that [the hole] contained a valve used by the 

city to control water service to that location.” Id. Based on those facts, the 9th

District Court of Appeals reasoned that there was a logical nexus between the City 

of Akron and its proprietary function of maintaining and operating a municipal 

corporation water supply system, pursuant to R.C. 2744.01(G)(2)(c), and the 

resulting harm to the Plaintiff. Id. at ¶ 16. 

{¶17} In the case before us, there is no evidence to support that the City of 

Bellefontaine’s proprietary function of maintaining and operating its water 

department (pursuant to R.C. 2744.01(G)(2)(c)) was the proximate cause of 

Monica’s harm. Rather, as pled in Appellee’s complaint, the “severe accumulation 

of snow and ice [on the sidewalk] was such that it created an obstruction upon the 

sidewalks * * * and forced Monica Plank to walk in the street * * *” and caused 

such harm. (Doc. No. 1 at ¶ 16). Moreover, the record does not support that the 

City of Bellefontaine’s operation or management of its Water Department had any 

nexus to Monica’s harm other than the fact that the Water Department Building was 

located on the land that contained the sidewalk that abutted the street where she was 

killed. Thus, we are unpersuaded that the plowing of the street and/or maintenance 
Case No. 8-17-18 

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of the sidewalk located in front of the City of Bellefontaine Water Department 

Building constituted a proprietary function in this case. 

Tier II - Exceptions to General Immunity 

{¶18} Next, we must determine whether any of the five exceptions under 

R.C. 2744.02(B) lift the general grant of immunity afforded to a political 

subdivision. Appellant argues that none of the exceptions contained in R.C. 

2744.02(B) apply to the case before us, while Appellee argues that R.C. 

2744.02(B)(2) and R.C. 2744.02(B)(5)4

 remove the general presumption of 

statutory immunity set forth in R.C. 2744.01(A)(1). As an initial matter, our 

analysis under this tier will be limited to R.C. 2744.02(B)(2) and (B)(5), as neither 

party asserts that the exceptions found under R.C. 2744.02(B)(1); (B)(3); or (B)(4) 

apply. 

{¶19} Analyzing each exception at issue, R.C. 2744.02(B)(2) provides as 

follows: 

Subject to sections 2744.03 and 2744.05 of the Revised Code, a 

political subdivision is liable in damages in a civil action for injury, 

death, or loss to person or property allegedly caused by an act or 

omission of the political subdivision or of any of its employees in 

connection with a governmental or proprietary function, as follows: 

Except as otherwise provided in sections 3314.07 and 3746.24 of the 

Revised Code, political subdivisions are liable for injury, death, or 

loss to person or property caused by the negligent performance of acts 

 

4

 In its Judgment Entry, the trial court specifically found that the City may be liable under the proprietary 

function exception to government immunity contained in R.C. 2744.02(B)(2). (Doc. No. 127 at 2). 
Case No. 8-17-18 

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by their employees with respect to proprietary functions of the 

political subdivisions. 

(Emphasis added). R.C. 2744.02(B)(2). 

{¶20} To determine whether the R.C. 2744.02(B)(2) exception applies, we 

must look at the particular function at issue. As this Court has previously held, “the 

central issue resolves to whether the action for which the plaintiff seeks to hold the 

political subdivision liable is a part of a governmental function or part of a 

proprietary function.” Main v. Lima, 3rd Dist. Allen No. 1-14-42, 2015-Ohio-2572, 

¶ 17 citing Scott v. Columbus Dept. of Pub. Utils., 192 Ohio App.3d 465, 2011-

Ohio-677, 949 N.E.2d 552, ¶ 11 (10th Dist.) citing Burns v. Upper Arlington, 10th 

Dist. No. 06AP-680, 2007-Ohio-797, 2007 WL 589111, ¶ 10, 12. In this case, even 

though the trial court specifically found that a material issue of fact existed 

regarding the City’s performance of a proprietary function, (i.e. the maintenance 

and operation of a Water Department) the record does not establish a nexus between 

Monica’s harm (being forced to walk on the road due to the plowing of snow and 

ice on the sidewalk) and any service offered by the Water Department. The function 

for which the Appellee seeks to hold the political subdivision liable (maintenance 

of sidewalks and streets) is decidedly a part of its governmental functions through 

its maintenance of its streets and sidewalks. As such, we find that R.C. 

2744.02(B)(2) does not apply herein to remove the general presumption of statutory 

immunity set forth in R.C. 2744.01(A)(1). 
Case No. 8-17-18 

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{¶21} Further, while not analyzed by the trial court, the Appellee alleges that 

the R.C. 2744.02(B)(5) exception applies and removes the general presumption of 

statutory immunity contained in R.C. 2744.01(A)(1). R.C. 2744.02(B)(5) states: 

Subject to sections 2744.03 and 2744.05 of the Revised Code, a 

political subdivision is liable in damages in a civil action for injury, 

death, or loss to person or property allegedly caused by an act or 

omission of the political subdivision or of any of its employees in 

connection with a governmental or proprietary function, as follows: 

In addition to the circumstances described in divisions (B)(1) to (4) of 

this section, a political subdivision is liable for injury, death, or loss 

to person or property when civil liability is expressly imposed upon 

the political subdivision by a section of the Revised Code, including, 

but not limited to, sections 2743.02 and 5591.37 of the Revised Code. 

Civil liability shall not be construed to exist under another section of 

the Revised Code merely because that section imposes a responsibility 

or mandatory duty upon a political subdivision, because that section 

provides for a criminal penalty, because of a general authorization in 

that section that a political subdivision may sue and be sued, or 

because that section uses the term “shall” in a provision pertaining to 

a political subdivision. 

R.C. 2744.02(B)(5). Appellant disagrees and asserts that no provision of the 

Revised Code exists to impose liability on the City pursuant to R.C. 2744.02(B)(5). 

Nevertheless, in our de novo review of the record, we find Appellee’s reliance on 

Bellefontaine City Codes 521.06 and 905.09 misplaced. Appellee argues that the 

Revised Code created a statutory mechanism for the City Code to impose liability. 

Specifically, R.C. 723.011 states: 

The legislative authority of a municipal corporation, in addition to the 

powers conferred by sections 729.01 to 729.10, inclusive, of the 

Revised Code, may require, by ordinance, by the imposition of 
Case No. 8-17-18 

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suitable penalties or otherwise, that the owners and occupants of 

abutting lots and lands shall keep the sidewalks, curbs, and gutters in 

repair and free from snow or any nuisance. 

R.C. 723.011. 

{¶22} We agree (with Appellee) that the City used R.C. 723.011 to enact two 

city ordinances regarding the maintenance and repair of sidewalks, including the 

removal of snow and ice. However, we disagree with Appellee’s reliance on 

Bellefontaine City Code 521.06, which provides: 

(a) No owner or occupant of abutting lands shall fail to keep the 

sidewalks, curbs or gutters in repair and free of any nuisance. 

(b) It shall be the duty of the owner or occupant of each and every 

parcel of real estate in the City abutting upon any sidewalk to keep 

such sidewalk abutting his or her premises free and clear of snow and 

ice and to remove therefrom all snow and ice accumulated thereon 

within a reasonable time. “Reasonable time” means removal of the 

snow and ice within twenty-four hours after the most recent 

accumulation of ice or snow or within twenty-four hours after 

adequate notice, whether oral or written, has been served upon the 

owner or occupant or posted in writing at the main entrance of the 

premises. 

(c) Whoever violates this section is guilty of a minor misdemeanor. 

(Emphasis added). Bellefontaine City Code 521.06. The immunity exception set 

forth in R.C. 2744.02(B)(5) states: “[c]ivil liability shall not be construed to exist 

* * * merely because * * * that section provides for a criminal penalty.” Thus, 

Appellee’s attempt to create an exception based upon a city ordinance that imposes 

a criminal penalty is contrary to the plain reading of R.C. 2744.02(B)(5). 
Case No. 8-17-18 

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Accordingly, we find Appellee’s argument regarding Bellefontaine City Code 

521.06 is without merit. 

{¶23} As to the second city ordinance cited by Appellee, Bellefontaine City 

Code 905.09, states as follows: 

(a) Every owner, occupant, lessee, person or agent having charge, 

control or ownership or any tenement, building, lot or land fronting 

on any avenue, street, alley, road or other public highway of the City 

is charged with the construction, maintenance and repair of the 

necessary sidewalks, or parts thereof located upon such lot or land, 

within the limits of the City, and such owner, occupant, person or 

agent shall be liable in money damages to any person, who, while in 

lawful use of such sidewalks, sustains an injury to person or damages 

to property, by reason of the failure of such owner, lessee, occupant, 

person or agent in charge, to maintain the sidewalk in good repair and 

free from any defect. 

(b) If by reason of the failure of such owner, occupant, lessee, person 

or agent in charge, as referred to in subsection (a) above, to maintain 

the sidewalk in good repair free of any defect, a claim is made or a 

money judgment obtained against the City, by any person sustaining 

injury for failure to repair to maintain a sidewalk free of any defect, 

the owner, occupant, lessee, person or agent in charge, shall be liable 

to and reimburse the City for all money paid by the City on any claim 

made or judgment obtained against the City, by any person injured by 

reason thereof. 

(Emphasis added). Bellefontaine City Code 905.09. While Bellefontaine City Code 

905.09 does impose civil liability for the failure to maintain a sidewalk, it also 

provides that such liability attaches only when an injury occurs while a person is in 

lawful use of said sidewalk. In the case before us, the record reveals that Monica 

was not using the sidewalk when she was injured – rather, Monica was struck by a 
Case No. 8-17-18 

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vehicle while walking in the road. (See Doc. No. 1 at 4). As such, we find 

Appellee’s reliance on R.C. 2744.02(B)(5) unpersuasive, and that no exception 

exists under the facts presented to remove the City’s general grant of immunity 

under 2744.02(B)(5). 

Tier III – Defenses to Exceptions Found in R.C. 2744.03 

{¶24} Under the third tier of analysis, a political subdivision can reinstate 

immunity by successfully arguing that any of the defenses contained in R.C. 

2744.03 applies. However, such analysis is not required in this case because, as we 

have held above, the City of Bellefontaine is a political subdivision and is entitled 

to a grant of immunity and none of the exceptions to City’s grant of immunity apply. 

As such, analysis of the third tier is unnecessary. Thus, we find that the trial court 

erred as a matter of law by denying Appellant’s motion for summary judgment. 

{¶25} Accordingly, we sustain the Appellant’s sole assignment of error. 

Having found error prejudicial to the Appellant herein in the particulars assigned 

and argued, we reverse the judgment of the trial court, and remand the cause for 

proceedings consistent with this opinion. 

Judgment Reversed and 

Cause Remanded 

WILLAMOWSKI and SHAW, J.J., concur. 

/jlr