[Cite as Stager v. Kettering, 2022-Ohio-4552.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY

HELEN STAGER

Plaintiff-Appellant

v.

CITY OF KETTERING, et al.

Defendants-Appellees

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Appellate Case No. 29525

Trial Court Case No. 2021-CV-920

(Civil Appeal from

Common Pleas Court)

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O P I N I O N

Rendered on the 16th day of December, 2022. 

. . . . . . . . . . . 

T. TOD MOLLAUN, Atty. Reg. No. 0072216, 124 East Third Street, Fifth Floor, Dayton, 

Ohio 45402

Attorney for Plaintiff-Appellant

 

EDWARD J. DOWD, Atty. Reg. No. 0018681 and CHRISTOPHER T. HERMAN, Atty. 

Reg. No. 0076894, 8163 Old Yankee Street, Suite C, Dayton, Ohio 45458

Attorneys for Defendants-Appellees

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TUCKER, P.J.
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{¶ 1} Helen Stager appeals from the trial court’s entry of summary judgment 

against her on a negligence complaint against the City of Kettering. 

{¶ 2} Stager sought to recover damages for injuries she sustained as a result of 

being pushed over a retaining wall while attending a concert on City property. The trial 

court found the City entitled to political-subdivision immunity under R.C. Chapter 2744. 

{¶ 3} In a single assignment of error, Stager contends the general grant of 

immunity enjoyed by the City was abrogated by R.C. 2744.02(B)(2), which provides that 

“political subdivisions are liable for injury * * * caused by the negligent performance of 

acts by their employees with respect to proprietary functions of the political subdivisions.” 

She also asserts that the “open-and-obvious” doctrine did not apply to her fall. 

{¶ 4} For the reasons set forth below, we hold that the trial court properly entered 

summary judgment for the City. Accordingly, the trial court’s judgment will be affirmed.

I. Background

{¶ 5} On August 21, 2019, Stager attended a concert at the Fraze Pavilion, an 

outdoor amphitheater owned and operated by the City of Kettering. The facility offered 

three seating areas—aluminum bleachers at the back of the venue, a lawn area in the 

middle, and fixed-chair seating closest to the stage. A low retaining wall divided the lawn 

seating from the fixed-chair seating area. Stager had attended concerts at the Fraze 

before. She was familiar with the retaining wall and the existence of a short drop down to 

the fixed-chair seating area. In fact, she had seen people hop over the wall from the 

grassy area to a sidewalk below. Stager also knew that there was no railing on top of the 
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wall. During the concert, she stood in the front of the lawn area, staying about two feet 

from the wall.

{¶ 6} Near the end of the concert, two female concert-goers engaged in a fight 

behind Stager, who felt one of them hit the back of her leg. Stager turned to see the other 

woman’s arm coming toward her face. Stager grabbed the woman’s arm. The woman 

responded by shoving Stager, who lost her footing and fell over the retaining wall. Both 

of the women involved in the fight fled the scene. As a result of the fall, Stager broke her 

wrist and required medical treatment. 

II. Analysis

{¶ 7} In her sole assignment of error, Stager contends the trial court erred in 

entering summary judgment for the City. As set forth above, she asserts that the City is 

not entitled to political-subdivision immunity and that the open-and-obvious doctrine does 

not apply. 

{¶ 8} Under Civ.R. 56(C), summary judgment may be granted when the moving 

party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party 

is entitled to judgment as a matter of law, and (3) 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. State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio 

St.3d 181, 183, 677 N.E.2d 343 (1997). Appellate review of summary judgment is de 

novo. Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162, 703 N.E.2d 841 

(4th Dist.1997). “We review the judgment independently and without deference to the trial 

court's decision.” (Citation omitted.) Id.
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{¶ 9} With the foregoing standards in mind, we turn to the immunity issue. 

Determining “whether a political subdivision is immune from tort liability pursuant to R.C. 

Chapter 2744 involves a three-tiered analysis.” Colbert v. City of Cleveland, 99 Ohio St.3d 

215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7, citing Greene County Agricultural Soc. v. 

Liming, 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000). The first tier “is the general 

rule that a political subdivision is immune from liability incurred in performing either a 

governmental * * * [or] proprietary function.” Id., citing R.C. 2744.02(A)(1), and Liming at 

556-557. The second tier “of the analysis requires a court to determine whether any of 

the five exceptions to immunity listed in R.C. 2744.02(B) apply.” (Citation omitted.) Id. at 

¶ 8. If the subdivision would be liable under R.C. 2744.02(B), then the third tier of the 

analysis requires a review of the defenses to liability found in R.C. 2744.03. Id. at ¶ 9.

{¶ 10} Here the parties agree that the City’s operation of the Fraze Pavilion is a 

proprietary function. R.C. 2744.01(G)(2)(e) (stating that a proprietary function includes 

but is not limited to “[t]he operation and control of a public stadium, auditorium, civic or 

social center, exhibition hall, arts and crafts center, band or orchestra, or off-street parking 

facility”). This being so, the City is immune from liability for Stager’s injury unless an 

exception to immunity applies. The only exception she cites on appeal is R.C. 

2744.02(B)(2), which makes a political subdivision liable for injury caused by the negligent 

performance of its employees’ acts with respect to a proprietary function. 

{¶ 11} Stager argues that the City’s employees negligently maintained the 

retaining wall by failing to provide protection such as a railing to prevent her fall. She also 

asserts that the City’s employees negligently failed to warn her of the danger of falling. 
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Finally, she suggests that the City’s employees acted negligently in determining the 

number and location of security guards and stewards working at the event. Therefore, 

she insists that immunity is abrogated by R.C. 2744.02(B)(2).

{¶ 12} Upon review, we find Stager’s arguments to be unpersuasive. With regard 

to the retaining wall, she reasons that the facility was negligently designed insofar as the 

wall lacks a railing and that the City’s employees failed to warn her of the danger. By her 

own admission, however, Stager was familiar with the wall and was aware of the drop 

down to the fixed-chair seating area. Thus, any danger of falling over the low retaining 

wall without a railing was open and obvious, and the City’s employees had no duty to 

warn Stager of this self-evident possibility. Meyer v. Dayton, 2016-Ohio-8080, 74 N.E.3d 

921, ¶ 22 (2d Dist.) (reasoning in a case involving political-subdivision immunity that “[i]t

is possible that the condition that caused Meyer to fall is open and obvious, which would 

also relieve Dayton of any duty of care to Meyer”). 

{¶ 13} With regard to other actions of the City’s employees, Stager admitted in her 

deposition that no City employees could have known that a fight would occur or that she 

would be pushed over the retaining wall. Stager also admitted not knowing whether 

anyone called for security during the fight before she was pushed. Due to the concert 

noise, Stager added that “it wouldn’t have been heard” even if someone had called for 

security. She also admitted seeing stewards and security personnel present that night, 

including a woman wearing a “Fraze shirt” to her right. Finally, Stager suggested in the 

proceedings below that the female combatants were intoxicated and that the City’s 

employees were negligent with regard to their intoxication. Stager has no personal 
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knowledge, however, as to whether the women in fact were intoxicated or whether they 

even consumed any alcohol at the concert.

{¶ 14} In short, we see no genuine issue of material fact as to whether any City 

employee negligently performed any act with respect to the proprietary function of 

operating the Fraze facility. In light of this determination, the City did not lose its immunity 

under R.C. 2744.02(B)(2), and we have no occasion to consider whether immunity might 

be reinstated under the third tier of the analysis.

{¶ 15} In finding the City entitled to summary judgment, we recognize Stager’s 

argument that she held the status of an invitee rather than a licensee at the time of her 

injury. In its summary-judgment ruling, the trial court found that she was a licensee, 

meaning that the City only had a duty to refrain from willful, wanton, or reckless conduct.

Compare Honek v. Chidsey, 2021-Ohio-3816, 182 N.E.3d 6, ¶ 25 (8th Dist.) (holding that 

an attendee at a free outdoor concert on city-owned property was a licensee, not an 

invitee). Stager insists that she was a business invitee, meaning that the City owed her a 

duty of ordinary care and was required not to unnecessarily and unreasonably expose 

her to danger. 

{¶ 16} But even if we accept that Stager was an invitee, the fact remains that 

negligence by the City’s employees must exist for political-subdivision immunity to be lost

under R.C. 2744.02(B)(2). It remains equally true that “a business is under no duty to 

protect business invitees from dangers ‘which are known to such invitee or are so obvious 

and apparent to such invitee that he may reasonably be expected to discover them and 

protect himself against them.’” O’Dell v. Vrable, 4th Dist. Gallia No. 20CA18, 2022-Ohio-
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4156, ¶ 77, quoting Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 203-04, 480 

N.E.2d 474 (1985). Here any potential danger of falling over the railing was apparent to 

everyone attending the concert, including Stager, and, perhaps more importantly, the 

record lacks evidence that any City employee acted negligently in performing the

proprietary function of operating the Fraze Pavilion. 

{¶ 17} Finally, we find Stager’s reliance on Hacker v. Cincinnati, 130 Ohio App.3d 

764, 721 N.E.2d 416 (1st Dist.1998), to be unpersuasive. Addressing the second tier of 

the immunity analysis, the First District found a genuine issue of material fact as to 

whether a six-inch curb on a ramp at Riverfront Stadium presented an open and obvious 

danger. The First District noted that the curb was the same color as the ground 

surrounding it and that the plaintiff was walking in a crowd of people who may have 

obstructed his view. The First District consequently found a genuine issue of material fact 

as to whether the defendant had a duty to warn about the curb or to protect pedestrians. 

The Hacker court then proceeded to the third tier of the immunity analysis and found no 

defenses to liability applicable. Unlike Hacker, we determined above that any hazard 

presented by the retaining wall at the Fraze Pavilion was open and obvious as a matter 

of law. We also found no genuine issue of material fact as to whether any City employee 

acted negligently. That being so, we have no occasion to proceed to the third tier of the 

immunity analysis, which is the primary issue for which Stager cites Hacker.

{¶ 18} For the foregoing reasons, we overrule Stager’s assignment of error.

III. Conclusion

{¶ 19} The judgment of the Montgomery County Common Pleas Court is affirmed. 
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WELBAUM, J. and EPLEY, J., concur. 

Copies sent to: 

T. Tod Mollaun

Edward J. Dowd

Christopher T. Herman

Hon. Richard S. Skelton