What’s on Their Minds: Immunity or Not for the Operation of a Municipal Swimming 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.

On June 19, 2012, the Supreme Court of Ohio heard oral argument in the case of Michael L. Hawsman v. City of Cuyahoga Falls, 2011-1588.  Hawsman, a minor, injured his knee while using the diving board at the City of Cuyahoga Falls Natatorium and Wellness Center.  The Center is owned by the City of Cuyahoga Falls and includes an indoor swimming pool with a diving board.

Hawsman and his parents sued the City, claiming the diving board was negligently maintained, and that Michael was injured  because of a physical defect in the diving board. The trial court granted summary judgment in favor of the City, concluding that it was entitled to political subdivision immunity provided by R.C. 2744.02(A)(1). The Ninth District Court of Appeals reversed. Read the oral argument preview of the case here.

The parties in the case agree that the operation of a municipal swimming pool is a governmental function. The issue before the high court is whether the exception to immunity codified at R.C. 2744.02(B)(4) applies. That exception imposes liability for injuries caused by the negligence of city employees that occurs within or on the grounds of, and is 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.

The fundamental difference between the parties in this case is over the interpretation of the (B)(4) statutory exception language.

The City’s lawyer argued that the (B)(4) exception to immunity only applies to office buildings and courthouses, and an indoor swimming pool is neither. An indoor swimming pool may exist in a building, but it is not a building, in the sense that triggers an exception to immunity. The General Assembly simply did not intend for pools to be viewed the same way as office buildings or courthouses. One is recreactional, the other governmental.

Hawsman’s counsel argued that in Moore v. Lorain Metro. Hous. Auth. the Supreme Court rejected the argument that the (B)(4) exception applies only to buildings like courthouses and government buildings.  She argued that the City is asking the Court to rewrite the entire statute, changing the words “including, but not limited to” to “similar to”.  And the City is asking the Court to ignore the fact that the statute contains specific exclusions.

Amicus counsel for the Ohio Association for Justice, sharing time with Hawsman, argued that the only way the Court could side with the City is to interpret the words “including, but not limited to” to mean “limited to”—a reach clearly beyond what the legislature intended.  The plain meaning of the statute is to read “office buildings and courthouses” as examples, not as all the possibilities. What matters is whether there is a building being used in connection with a governmental function. He urged the Court to clarify the confusing plurality opinion in Cater v. Cleveland, and to adopt Chief Justice Moyer’s separate concurrence in that case. His position is that the purpose of the (B)(4) exception is to allow premises liability claims against political subdivisions in the same fashion as is permitted against all property owners, including the state.

Both sides agreed that if Hawsman prevails in this appeal, he would still need to prove that his injuries were caused by the negligence of a city employee and was due to a physical defect on the premises (the diving board in this case).  Those are contested issues of fact that were not resolved when the trial court granted summary judgment solely on the immunity issues.

Cater v. Cleveland

This 1998 unanimous, but totally fractured opinion, involved a 12 year old boy who died as a result of a near-drowning in a city-owned indoor swimming pool. The syllabus of this case holds that the operation of a municipal swimming pool, although defined as a governmental function in R.C. 2744.01(C)(2)(u), is subject to the exceptions to immunity set forth in former R.C. 2744.02(B) and to the available defenses enumerated in R.C. 2744.03. But the justices disagreed about which of the 2744.02 (B) exceptions applied in the case. Lead opinion author Francis Sweeney, who found that the (B)(3) exception applied, alone found that then-applicable (B)(4) exception would not apply to an indoor swimming pool. He wrote that “unlike a courthouse or office building where government business is conducted, a city recreation center houses recreational activities.” To him, applying the (B)(4) exception would unacceptably create liability for an indoor, but not for an outdoor pool, because the latter did not occur in a building. No other justice joined in that reasoning. Chief Justice Moyer wrote a separate concurrence, joined by two justices, arguing that the (B)(4) exception to immunity should apply in the case. He disagreed with the lead opinion that the application of the (B)(4) exception to this case would result in an artificial distinction between indoor and outdoor pools. He would find that both indoor and outdoor pools exist “within or on the grounds’ of buildings used in connection with the performance of the governmental function of operating a

What is a Building?

Justice Lanzinger asked if the real question is whether an indoor swimming pool is a building?

To Be Immune, or Not to Be  Immune. That is the Question. (Oy Vey, What Does this Statute Mean?)

Well, what about an escalator, asked Justice Stratton.  It isn’t listed in the statute, but it is clearly in a building. Or what about a pool in a separate section of an office building used for governmental functions?

But aren’t the purposes very different in operating a courthouse or office building than in operating a recreational facility where there is some recognition of assumption of risk, asked Chief Justice O’Connor. Not all buildings used in the performance of a governmental function have liability, she mused.  She also asked if the city was arguing that there is a blanket immunity for swimming pools owned and operated by a municipality, no matter where the pool is (answer: yes—it is a governmental function, regardless).

Even if someone drowns because the water is murky and there is no life guard on duty, asked Justice Pfeifer, a notorious sovereign-immunity hater.

Why doesn’t the exception apply in this case, asked Justice O’Donnell (answer from the city—because a swimming pool is not an office building).

Well, the pool is inside a building, noted Justice Cupp. Why aren’t the only exceptions to immunity the detention facilities listed at the end of the statute?

Justice McGee Brown asked the City’s lawyer if she contended that “including but not limited to” means “limited to” (yes)

So,  Justice Lanzinger asked the City’s lawyer, you are limiting the (B)(4) exception just to office buildings and courthouses (yes)

But the list of  specific exclusions that includes jails and places of detention doesn’t include natatoriums, said Justice O’Donnell.

Ahh, Precedent…

How on earth is the case like Moore Chief Justice O’Connor asked plaintiff’s counsel.  Isn’t an apartment building where children lost their lives in a fire inherently different from a natatorium where folks go for recreational activity? Where’s any assumption of the risk in a housing complex?

Should the Court just adopt Chief Justice Moyer’s concurrence in Cater asked Justice McGee Brown.

Swimming Away from the Issue at Hand…

Justice O’Donnell got into a lot of questions about the evidence of the physical defects on the premises.  Was there any? What was defective about the diving board? Was expert testimony needed to prove that? Was that evidence in this record? Does the City contest the defect issue? Are there factual disputes on the defect question?

Indoor Pool, Outdoor Pool—Does it Matter?

Is there a distinction between and indoor pool and an outdoor pool, asked Chief Justice O’Connor. If the same diving board was on an outdoor pool would the plaintiff be making the same argument? If there are buildings near an outdoor pool, how close would the buildings have to be to the pool to be considered part of it? Does it matter if the pool is enclosed within a building for the purpose of the plain meaning of the statute? What difference does that make when the focus is on the diving board?  Or whether there is a concession stand a few feet away?

How it Looks from the Bleachers

I’m not sure I see unanimity here, although a majority seems to be leaning toward interpreting the statute in a manner that does not limit the (B)(4) exception just to office buildings and courthouses, especially given the specific exclusions for detention facilities at the end of the statute.  A majority also seem inclined to  adopt then-Chief Justice Moyer’s position in Cater.  Chief Justice O’Connor and Justice Lanzinger seemed the most sympathetic to the City’s position recognizing a distinction between recreational and government use.  Justice Pfeifer, of course, legendarily disapproves of sovereign immunity, and is unlikely to interpret the statute in any way to add more immunity.  Ironically, the case in which he made his opposition to sovereign immunity so clear, Garrett v. Sandusky, 68 Ohio St.3d 139 (1994), involved a child drowning in a city-owned wave action pool. In that case, the Court held that a wave pool was not a swimming pool.

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