[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 NO VACK LEGAL GROUP, LLC 200 Civic Center Drive, Suite 800 5013 Pine Creek Drive Columbus, Ohio 43215 Westerville, Ohio 43081Morrow County, Case No. 2021 CA 0008 2

Wise, J. {¶1} Defendant-Appellant, Village of Cardington (“Appellant”), appea ls from the June 7, 2021, Judgment Entry by the Morrow County Court of Comm on 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 att ending a festival in the Village of Cardington she fell while stepping o n a catch basin set within crumbling street pavement. As an exception to immunity, Appelle e 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 argui ng 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 su mmary judgment arguing there was a genuine issue of material fact as to whether or not Appellant was entitled to political subdivision immunity from tort liabil ity. {¶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 pe rformance of a proprietary function, may apply. The trial court found a genuine issue of m aterial fact exists as to whether or not Appellant sponsored the street fair and subseque nt fireworks display. The trial court did not analyze an exception to political subdivisi on 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 CARDINGTO N 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 s tandard 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 (4 th 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 a s a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion andMorrow County, Case No. 2021 CA 0008 4
viewing such evidence most strongly in favor of the party again st whom the motion for summary judgment is made, that conclusion is adverse to that pa rty. 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 t he record before the trial court which demonstrate the absence of a genuine issue of fact on a m aterial 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 t hen has a reciprocal burden of specificity and cannot rest on the allegations or den ials in the pleadings, but must set forth “specific facts” by the means listed in Civ.R. 5 6(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 a s 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 poli tical subdivision is immune from tort liability pursuant to R.C. 2744

. Gattrell v. Utica , 5 th 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); SmithMorrow County, Case No. 2021 CA 0008 5

v. McBride , 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶13-15. Th e first tier is the general rule that a political subdivision is immune from li ability 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, howeve r, 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 polit ical 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 , 6 th 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 sectio n 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 sec tion; (b) The function is one that promotes or preserves the public p eace, health, safety, or welfare and that involves activities that ar e customarily engaged in by nongovernmental persons.Morrow County, Case No. 2021 CA 0008 6
(2) A “proprietary function” includes, but is not limited to, t he following: (a) The operation of a hospital by one or more political subdiv isions; (b) The design, construction, reconstruction, renovation, repai r, maintenance, and operation of a public cemetery other than a to wnship cemetery; (c) The establishment, maintenance, and operation of a utility, including, but not limited to, a light, gas, power, or heat pla nt, a railroad, a busline or other transit company, an airport, and a municipal c orporation water supply system; (d) The maintenance, destruction, operation, and upkeep of a se wer 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] func tion 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 act ivities that are not engaged in or not customarily engaged in by nongovernmental persons.” {¶18} In Brown v. Lincoln Hts. , 1 st 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 governme ntal 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 perform ed for the particular benefit of the village and its current and past inha bitants. Last, although the sponsorship of a festival does promote public peac e, health, safety, and welfare, it is not a function in which nongovernmen tal persons are not customarily engaged. The First District, therefore, determined coordination and oper ation 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 road ways for use in the festival, cleaning up before and after the festival, and providing on-dut y 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 parti cipation by Appellant in the coordination and operation of the festival rises to the level o f 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. 2 744.02(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 a nd becomes liable for damages resulting from the harm caused by the negligence of its employees in theirMorrow County, Case No. 2021 CA 0008 8
performance of proprietary functions. Brown v. Lincoln Hts. , 1 st Dist. No. C-100699, 195 Ohio App.3d 149, 2011-Ohio-3551, 958 N.E.2d 1280, ¶22. If the f inder of fact determines Appellant’s participation in the coordination and operation of the festival constitutes a proprietary function, this exception will be applicable if ther e 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 , 6 th 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 existen ce 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 , 5 th Dist. Stark No.2017CA00043, 2017-Ohio-8035, ¶14 quoting Davis v. Akron , 9 th 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 h ad been repaved several times given the height of the pavement. However, Appellant neve r 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 cou rt did not err when it found there is a genuine issue of material fact whether Appellee’s da mages were caused by the negligence of Appellant’s employees in their performance of a p roprietary 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 App ellee, 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 tha t 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 Assignmen ts 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.

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