Oral Argument Preview: Governmental Immunity for Maintaining Municipal Pool: Michael L. Hawsman v. City of Cuyahoga Falls

Update: On November 20, 2012, the Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On June 19, 2012, the Supreme Court of Ohio will hear oral argument in the case of Michael L. Hawsman v. City of Cuyahoga Falls, 2011-1588.  At issue in this case is whether the operation of an indoor municipal swimming pool is a governmental function, entitled to immunity under R.C. 2744.02(A)(1), the political subdivision immunity statute,  or whether the exception to immunity codified at R.C. 2744.02(B)(4) applies. (the (B)(4) exception). That exception imposes liability due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility.

Michael Hawsman, a minor, visited the City of Cuyahoga Falls Natatorium and Wellness Center in May of 2006.  He injured his knee while using the diving board at the Center.  The Center is owned by the City of Cuyahoga Falls and used as a community recreation center, which includes an indoor swimming pool and a diving board.  It is controlled and maintained by the City’s Park and Recreation Department.

Hawsman and his parents sued the City , claiming the diving board was negligently maintained, and thus Michael was injured  because of a physical defect on the premises. The Summit County Court of Common Pleas granted summary judgment in favor of the City and concluded it was entitled to political subdivision immunity provided by R.C. 2744.02(A)(1).  The court based its decision on the Ninth District Court of Appeals determination in Hopper v. Elyria that a swimming pool is not subject to the (B)(4) exception. The Ninth District Court of Appeals reversed the trial court and overruled its decision in Hopper.

The City appealed the decision.  The Supreme Court of Ohio accepted jurisdiction on the City’s proposition that under the Political Subdivision Tort Liability Act, an indoor municipal swimming pool is used for recreation and constitutes an immune government function not subject to any exception to immunity.  A second proposition of law advanced by the City was stricken on defendants’ motion because it was not raised in the memorandum in support of jurisdiction or considered by the lower courts.

The City argues that the Political Subdivision Tort Liability Act created immunity from tort liability for omissions in connection with governmental or propriety functions, with five exceptions, none of which apply here.  The City points to the holding in the Supreme Court’s decision in Cater v. Cleveland that the City of Cleveland’s operation of a municipal swimming pool was a governmental function, and was not subject to the (B)(4) exception. (the statute has since been amended to include the words “due to physical defects”).  In Cater, the court reasoned the an indoor pool is distinguishable from the types of buildings listed in R.C. 2744.02(B)(4) – which includes “courthouses, or office buildings where government business is conducted.”  By citing examples where liability may arise, the City argues that the General Assembly expressly clarified that not all properties used in a governmental function fall under the exception to liability.  Rather, it is buildings like courthouses and office buildings that are subject to liability; other buildings not of this type are meant to be excluded. Had the General Assembly wished to apply an exception to immunity to all governmental property, it would have written the statute to create an open ended list of exceptions.  Users of recreation properties, such as swimming pools, have a greater expectation of injury than those visiting City Hall and, thus, when voluntarily engaging in recreational activities there is an inherent risk – unlike that associated with attending such things as jury duty.

The City argues that the appellate court implicitly overruled Cater in its decision to overrule Hopper and that Cater is good law and well reasoned.  Although Cater is a plurality opinion, the City argues that it is used as the hallmark authority for review of immunity and retains stare decisis authority.  In overruling Hopper, the appeals court failed to provide a compelling reason for departing from precedent, particularly precedent that is so similar to the facts of the current case.

Hawsman argues that the City is asking the court to abandon well-settled principles of statutory construction and historical applications of stare decisis and that the Court of Appeals’ determination embodied a well-reasoned interpretation of the statute and followed precedent.  The (B)(4) exception to immunity clearly applies in this case. The proposition which restricts the statute to a non-exhaustive list of buildings was rejected in Moore v. Lorain Metropolitan Housing Authority.  The fact that specific properties are mentioned does not limit the application of the (B)(4) statute to properties that possess the same qualifications; it simply states a non-exhaustive list.  Additionally, Hawsman points out that interpreting the statute in this manner would not expose the City to unlimited liability—it would be liable only for injuries caused by physical defects on the premises, which a recreational user should normally not expect to encounter.

Finally, Hawsman contends the Court of Appeals was not compelled to follow Cater because it lacked a sufficient consensus from the Court on the issue of (B)(4) immunity to create binding precedent.  The lead opinion was not joined in its entirety by a single member of the Court and numerous explanations for the judgment were provided.  Under Ohio law, plurality decisions are not binding and thus Cater is not controlling in this case.

The Ohio Association for Justice (“OAJ”)  submitted an amicus curiae brief on behalf of Hawsman.  OAJ argued that Cater has caused substantial confusion through the judicial system and the time is ripe for change.  The Ninth District Court of Appeals adopted a workable and sensible interpretation of the statute.  OAJ contends that the General Assembly included the language of office buildings and courthouses as examples of, not limitations to the exceptions to immunity in (B)(4).

Student Contributor: Katlin Rust

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