Further Update: This case was set for a jury trial on August 17, 2015, and settled on August 15.
Update: Read about Chapter III of this case here.
In May of 2006, M.H., then a minor, broke his knee in a diving board accident at the Cuyahoga Falls Natatorium and Wellness Center. The Center is owned by the City of Cuyahoga Falls, and is controlled and maintained by the city’s Parks and Recreation Department.
M.H. and his parents sued the City, claiming the diving board was negligently maintained, and that M.H. was injured because of a physical defect on the premises. The City argued it was entitled to political subdivision immunity provided by R.C. 2744.02(A)(1).
The trial court granted summary judgment to the City, holding that Cuyahoga Falls was entitled to political subdivision immunity. The Ninth District Court of Appeals reversed, finding the exception to immunity in R.C. 2744.02(B)(4) applied.
Pertinent Statutes and Case Law
This section provides cities with immunity from liability for injuries caused in connection with a governmental or proprietary function.
The design, maintenance, and operation of a municipal swimming pool are governmental functions.
This section provides an exception to immunity if the injury 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, as defined in section 2921.01 of the Revised Code.
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 exception to immunity set forth in former R.C. 2744.02(B)(3), but not to the exception contained in former R.C. 2744.02(B)(4).
On November 20, 2012 the Court handed down a merit decision in M.H. v. Cuyahoga Falls, 2012-Ohio-5336. In a unanimous opinion written by Justice Pfeifer, the Court held Cuyahoga Falls was not entitled to immunity. In doing so, the Court sidesteps the lead opinion in Cater v. Cleveland without explicitly overruling it. In Cater, the Court reasoned that 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.”
In the present case, the Court resolved the immunity issue under the plain language of the (B)(4) exception- the pool was within a building “used in connection with the performance of a governmental function.” Ultimately, the Court affirmed the Ninth District’s decision and the case was remanded back to the trial court. Read a complete analysis of the merit decision here.
What Happened on Remand
On remand, finding that the City was not immune from liability, the trial court analyzed the case as a standard negligence action. On September 16, 2013 the City once again moved for summary judgment, presenting three arguments.
First, the City argued that the plaintiff did not demonstrate that the injury occurred as a result of employee negligence or a physical defect. On this issue, the trial court found that questions of fact remained as to whether the conditions present and the state of the diving board’s maintenance could have caused the diving board’s non-slip surface to become slippery and denied the City summary judgment on this basis.
Second, the City argued that its employees had no actual or constructive knowledge as to the danger on the diving board. Again, the court denied summary judgment on this claim, holding that if the trier of fact were to find that the city’s employees created the dangerous situation in their failure to maintain the diving board properly, then the plaintiff need not show that the employees had specific knowledge or notice of the condition of the board.
Finally, the City argued that it was entitled to summary judgment based on the open and obvious doctrine, a no duty rule in Ohio. The trial court accepted the argument that slippery diving boards are an open and obvious hazard, holding that “any dangers associated with the diving board in this case were open and obvious at the time of the injury.” Thus the court found the City owned no duty to the then minor plaintiff here, and thus could not be found negligent.
Summary judgment was granted to the City on January 10, 2014. On January 23, 2014, the plaintiffs filed a notice of appeal. The City filed a cross appeal on the two grounds on which the trial court denied it summary judgment, sovereign immunity and actual or constructive notice. The case was argued May 29, 2014, but no decision has been handed down yet.
Student Contributor: Michael Elliott