[Cite as Clemons v. Cardington, 2022-Ohio-513.]

COURT OF APPEALS 

MORROW COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JOYCE CLEMONS 

 Plaintiff-Appellee 

-vsVILLAGE OF CARDINGTON, et al. 

 Defendants-Appellants 

JUDGES: 

Hon. W. Scott Gwin, P. J. 

Hon. John W. Wise, J. 

Hon. Patricia A. Delaney, J. 

Case No. 2021 CA 0008 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 2019 CV 0020 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: February 18, 2022 

APPEARANCES: 

For Appellant For Appellee 

MICHAEL J. VALENTINE SCOTT C. WALKER 

MELVIN J. DAVIS COLIN R. BEACH 

REMINGER CO., LPA WALKER NOVACK LEGAL GROUP, LLC 

200 Civic Center Drive, Suite 800 5013 Pine Creek Drive 

Columbus, Ohio 43215 Westerville, Ohio 43081 
Morrow County, Case No. 2021 CA 0008 2

Wise, J. 

{¶1} Defendant-Appellant, Village of Cardington (“Appellant”), appeals from the 

June 7, 2021, Judgment Entry by the Morrow County Court of Common Pleas. Appellee 

is Joyce Clemons. The relevant facts leading to this appeal are as follows. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On June 20, 2019, Appellee filed a Complaint alleging while attending a 

festival in the Village of Cardington she fell while stepping on a catch basin set within 

crumbling street pavement. As an exception to immunity, Appellee argued R.C. 

2744.02(B)(3) applies, which imposes liability for a political subdivisions’ negligent failure 

to keep public roads in repair. 

{¶3} On January 25, 2021, Appellant moved for summary judgment arguing R.C. 

2744(B)(3) did not apply because the catch basin was not in the street, but in an area 

reserved for parking. 

{¶4} On February 19, 2021, Appellee filed her memorandum opposing summary 

judgment arguing there was a genuine issue of material fact as to whether or not Appellant 

was entitled to political subdivision immunity from tort liability. 

{¶5} On June 7, 2021, the trial court denied Appellant’s Motion for Summary 

Judgment finding an exception to political subdivision immunity under R.C. 2744.02(B)(2), 

negligence of a political subdivision’s employees during the performance of a proprietary 

function, may apply. The trial court found a genuine issue of material fact exists as to 

whether or not Appellant sponsored the street fair and subsequent fireworks display. The 

trial court did not analyze an exception to political subdivision immunity from tort liability 

pursuant to R.C. 2744(B)(3). 
Morrow County, Case No. 2021 CA 0008 3

ASSIGNMENTS OF ERROR

{¶6} Appellant filed a timely notice of appeal and herein raises the following three 

Assignments of Error: 

{¶7} “I. THE TRIAL COURT ERRED BY DENYING THE VILLAGE OF 

CARDINGTON POLITICAL SUBDIVISION IMMUNITY UNDER THE EXCEPTION 

FOUND UNDER R.C. 2744.02(B)(2) BECAUSE THE VILLAGE OF CARDINGTON WAS 

NOT ENGAGED IN A PROPRIETARY FUNCTION, NOR WAS IT ALLEGED THAT THEY 

WERE. 

{¶8} “II. THE TRIAL COURT ERRED BY FAILING TO CONDUCT AN 

ANALYSIS OF WHETHER THE EXCEPTION TO IMMUNITY FOUND UNDER R.C. 

2744.02(B)(3) WAS APPLICABLE TO THIS CASE. 

{¶9} “III. THE TRIAL COURT ERRED BY DENYING THE VILLAGE OF 

CARDINGTON POLITICAL SUBDIVISION IMMUNITY BECAUSE THERE WAS NO 

EVIDENCE THAT THE VILLAGE OF CARDINGTON WAS NEGLIGENT.” 

Standard of Review 

{¶10} With regard to summary judgment, this Court applies a de novo standard of 

review and reviews the evidence in the same manner as the trial court. Smiddy v. The 

Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any 

deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio 

App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may grant 

summary judgment if it determines: (1) no genuine issues as to any material fact remain 

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 
Morrow County, Case No. 2021 CA 0008 4

viewing such evidence most strongly in favor of the party against whom the motion for 

summary judgment is made, that conclusion is adverse to that party. Temple v. Wean 

United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274 (1977). 

{¶11} The record on summary judgment must be viewed in the light most

favorable to the party opposing the motion. Williams v. First United Church of Christ, 37 

Ohio St.2d 150, 151, 309 N.E.2d 924 (1974). 

{¶12} The moving party bears the initial responsibility of informing the trial court 

of the basis for the motion and identifying those portions of the record before the trial court 

which demonstrate the absence of a genuine issue of fact on a material element of the 

nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). 

Once the moving party has met the burden, the nonmoving party then has a reciprocal 

burden of specificity and cannot rest on the allegations or denials in the pleadings, but 

must set forth “specific facts” by the means listed in Civ.R. 56(C) showing that a “triable 

issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 

(1988). 

I., III. 

{¶13} In Appellant’s First and Third Assignments of Error, Appellant argues 

Appellee failed to establish a genuine issue of material fact as to whether Appellant is 

entitled to political subdivision immunity from tort liability. We disagree. 

{¶14} A three-tiered analysis is required to determine whether a political 

subdivision is immune from tort liability pursuant to R.C. 2744. Gattrell v. Utica, 5th Dist. 

Licking No.15-CA-26, 2016-Ohio-792, 63 N.E.3d 461, ¶36-37, citing Greene Cty. 

Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000); Smith 
Morrow County, Case No. 2021 CA 0008 5

v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶13-15. The first tier is 

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

either a governmental or a proprietary function. Greene Cty. Agricultural Society at 556-

557, 733 N.E.2d 1141; R.C. 2744.02(A)(1). That immunity, however, is not absolute. R.C. 

2744.02(B); Cater v. Cleveland, 83 Ohio St.3d 24, 697 N.E.2d 610 (1998). “The second 

tier of the analysis requires a court to determine whether any of the five listed exceptions 

to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability.” 

Greene Cty. Agricultural Society at 556-557, 733 N.E.2d 1141; R.C. 2744.02(A)(1). The 

third tier is to determine whether the political subdivision is entitled to a defense or 

qualified immunity under R.C. 2744.03(A). Vasquez-Comer v. City of Toledo, 6th Dist. 

Lucas No. L-18-1266, 2019-Ohio-5149, ¶9. 

First Tier Analysis 

{¶15} In this case there is no dispute that Appellant is a political subdivision. 

{¶16} R.C. 2744.01 defines “proprietary function,” to include, 

(G)(1) “Proprietary function” means a function of a political 

subdivision that is specified in division (G)(2) of this section or that satisfies 

both of the following: 

(a) The function is not one described in division (C)(1)(a) or (b) of this 

section and is not one specified in division (C)(2) of this section; 

(b) The function is one that promotes or preserves the public peace, 

health, safety, or welfare and that involves activities that are customarily 

engaged in by nongovernmental persons. 
Morrow County, Case No. 2021 CA 0008 6

(2) A “proprietary function” includes, but is not limited to, the 

following: 

(a) The operation of a hospital by one or more political subdivisions; 

(b) The design, construction, reconstruction, renovation, repair, 

maintenance, and operation of a public cemetery other than a township 

cemetery; 

(c) The 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; 

(d) The maintenance, destruction, operation, and upkeep of a sewer 

system; 

(e) The 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. 

{¶17} R.C. 2744.01 defines a “governmental function” as “(a) [a] function that is 

imposed upon the state as an obligation of sovereignty and that is performed by a political 

subdivision voluntarily or pursuant to legislative requirement; (b) [a] function that is for the 

common good of all citizens of the state; [or] (c) [a] function that promotes or preserves 

the public peace, health, safety, or welfare; that involves activities that are not engaged 

in or not customarily engaged in by nongovernmental persons.” 

{¶18} In Brown v. Lincoln Hts., 1st Dist. No. C-100699, 195 Ohio App.3d 149, 

2011-Ohio-3551, 958 N.E.2d 1280, ¶20, the First District Court of Appeals held that, 
Morrow County, Case No. 2021 CA 0008 7

“sponsoring of a festival is not one of the delineated governmental functions.” The Court 

continued, 

[t]he Defendant was not required by the state as a sovereign to

sponsor a festival. And the act of sponsoring the festival was not done for 

the common good of all citizens of Ohio. Rather, it was performed for the 

particular benefit of the village and its current and past inhabitants. Last, 

although the sponsorship of a festival does promote public peace, health, 

safety, and welfare, it is not a function in which nongovernmental persons 

are not customarily engaged. 

The First District, therefore, determined coordination and operation of the festival was a 

proprietary function. 

{¶19} In the case sub judice, the record shows Appellant participated in the 

coordination and operation of the festival by blocking off roadways for use in the festival, 

cleaning up before and after the festival, and providing on-duty police and EMS on 

standby. As such, viewing the record most strongly in favor of Appellee, a genuine issue 

of material fact exists as to whether or not the level of participation by Appellant in the 

coordination and operation of the festival rises to the level of a proprietary function. 

Second Tier Analysis 

{¶20} The second step of the analysis is to determine whether any of the 

exceptions to the general rule of immunity, contained in R.C. 2744.02(B) apply. Greene 

Cty. Agricultural Society at 556-557, 733 N.E.2d 1141; R.C. 2744.02(A)(1). Under 

R.C.2744.02(B)(2), a political subdivision loses its immunity and becomes liable for 

damages resulting from the harm caused by the negligence of its employees in their 
Morrow County, Case No. 2021 CA 0008 8

performance of proprietary functions. Brown v. Lincoln Hts., 1st Dist. No. C-100699, 195 

Ohio App.3d 149, 2011-Ohio-3551, 958 N.E.2d 1280, ¶22. If the finder of fact determines 

Appellant’s participation in the coordination and operation of the festival constitutes a 

proprietary function, this exception will be applicable if there was negligence on the part 

of Appellant. 

{¶21} To prove negligence, Appellee has the burden to establish: (1) a duty of 

care by Appellant to Appellee, (2) breach of that duty, and (3) injury proximately caused 

from the breach. Vasquez-Cromer v. City of Toledo, 6th Dist. Lucas No. L-18-1266, 2019-

Ohio-5149, ¶16 citing Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 

N.E.2d 707 (1984). Where negligence revolves around the existence of a hazard or 

defect, a duty of care does not arise unless the defendant has notice, either actual or 

constructive, of such hazard or defect.” Cone v. City of Canton, 5th Dist. Stark 

No.2017CA00043, 2017-Ohio-8035, ¶14 quoting Davis v. Akron, 9th Dist. Summit No. 

19553, 2000 WL 254900, *1 citing Heckert v. Patrick, 15 Ohio St.3d 402, 473 N.E.2d 1204 

(1984). 

{¶22} In the case sub judice, Appellee alleges Appellant had notice of the defect, 

supported by affidavits, that the area around the catch basin had been repaved several 

times given the height of the pavement. However, Appellant never adjusted the height of 

the catch basin grate. This caused Appellee’s fall resulting in a fractured left femur, left 

foot, Appellee struck her head, and injured her right shoulder. Therefore, while viewing 

the record in a light most favorable to Appellee, the trial court did not err when it found 

there is a genuine issue of material fact whether Appellee’s damages were caused by the 

negligence of Appellant’s employees in their performance of a proprietary function. 
Morrow County, Case No. 2021 CA 0008 9

Third Tier Analysis 

{¶23} There is no dispute that the defenses and immunities listed in R.C. 2744.03 

do not apply. 

{¶24} Viewing the current evidence in the light most favorable to Appellee, we find 

there is a genuine issue of material fact whether Appellant is entitled to political 

subdivision immunity pursuant to R.C. 2744. 

II. 

{¶25} In Appellant’s Second Assignment of Error, Appellant argues that Appellant 

is entitled to political subdivision immunity pursuant to R.C. 2744, and that the exception 

to political subdivision immunity pursuant to R.C. 2744.02(B)(3) does not apply. We 

disagree. 

{¶26} Appellant’s Assignment of Error states, “The trial court erred by failing to 

conduct an analysis of whether the exception to immunity found under R.C. 2744.02(B)(3) 

was applicable to this case.” However, Appellant does not cite any proposition of law 

stating the trial court was required to perform such analysis. Instead, Appellant argued 

the merits as to the applicability of R.C. 2744.02(B)(3). 

 
Morrow County, Case No. 2021 CA 0008 10

{¶27} Due to our disposition of Appellant’s First and Third Assignments of Error, 

we find it unnecessary to address Appellant’s Second Assignment of Error and therefore 

decline to do so. 

{¶28} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Morrow County, Ohio, is hereby affirmed. 

By: Wise, J. 

Gwin, P. J., and 

Delaney, J., concur. 

JWW/br 0211