Cater v. Cleveland

[This opinion has been published in Ohio Official Reports at 83 Ohio St.3d 24.]

CATER ET AL., APPELLANTS, v. CITY OF CLEVELAND, APPELLEE.

[Cite as Cater v. Cleveland, 1998-Ohio-421.]

Municipal corporations—Tort liability—Operation of a municipal swimming

pool 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.

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.

(Nos. 97-1261 and 97-1488—Submitted May 13, 1998–Decided August 19,

1998.)

APPEAL from and CERTIFIED by the Court of Appeals for Cuyahoga County, No.

70674.

__________________

{¶ 1} On June 14, 1993, twelve-year-old Darrall A. Cater lost

consciousness from nearly drowning in the city of Cleveland’s Alexander Hamilton

indoor swimming pool. As a result of the near drowning, Darrall developed acute

bronchial pneumonia and was declared brain dead four days later. He died in the

hospital after being removed from life support systems. Darrall’s mother, Valerie

Cater, as administrator of Darrall’s estate, along with Darrall’s father, Lawrence

Cater, plaintiffs-appellants, brought this lawsuit against the city of Cleveland,

defendant-appellee, alleging that the city acted negligently and/or recklessly in

operating the swimming pool and causing Darrall’s death. The city of Cleveland

argued that it was immune from liability under R.C. Chapter 2744 and filed two

motions for summary judgment. The trial court denied both of these motions, and

the case proceeded to trial before a visiting judge.

SUPREME COURT OF OHIO

{¶ 2} At trial, the evidence established that the near drowning occurred on

the first day of the summer swim season at the Alexander Hamilton indoor

swimming pool. On that day, there were four Red Cross certified lifeguards on

duty. Lisa Hutson, a year-round physical director, was the senior guard. The other

lifeguards on duty were Willie Hodge, who was also an experienced year-round

physical director; Mark McDougall, who was hired as a summer lifeguard and had

ten years’ lifeguarding experience; and Damon Carter, who had recently been

certified as a lifeguard in May 1993, and was beginning his first day as a lifeguard.

{¶ 3} Open swim was scheduled to take place from 1:00 to 4:30 p.m. From

1:00 p.m. until about shortly after 3:00 p.m., all four guards patrolled the pool.

Hutson walked around the perimeter of the pool deck, while the other three guards

were stationed at the lifeguard chairs, two of which were located at the deep end

and one was located at the shallow end. At around 3:00 p.m., however, Hutson and

Hodge left their posts, and took an unauthorized lunch break. Even though it was

against pool policy to take lunch breaks during open swim periods, Hutson, who

was nearly nine months pregnant, asked Hodge to buy them lunch. When Hodge

returned around 3:30 p.m. with sandwiches, he and Hutson ate lunch in the lobby,

while the other two guards remained at the pool. Rookie guard Carter sat in the

high lifeguard chair at the deep end, while McDougall watched the shallow end of

the pool from his guard chair. A folding chair that was located at the deep end, and

which had previously been occupied by one of the other guards, was left empty.

{¶ 4} At approximately 3:40 p.m., swimmers notified McDougall and

Carter that there was a boy at the bottom of the pool. The boy, later identified as

Darrall Cater, was found at the bottom of the deep end, in seven feet of water, in an

area within five to fifteen feet from the previously occupied folding guard chair.

Carter explained that he had not seen Darrall in distress because glare interfered

with his visibility. The glare was caused by sunlight that reflected off a glass-

paneled wall that ran along the side of the pool, directly behind the high lifeguard

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chair where Carter sat. City employees, including the aquatics manager for the city

of Cleveland, were aware of the glare problem at the pool and conceded that there

was no training on how to deal with the glare.

{¶ 5} Upon seeing Darrall at the bottom of the pool, McDougall dove in the

water, pulled Darrall out of the pool and began CPR. Howard McKeller, the

recreation center manager for the pool, who was responsible for all pool employees

at that location, was returning to the facility when he heard the whistle blow. Upon

hearing the whistle and seeing commotion, McKeller ran to the pool area and

assisted McDougall with resuscitation attempts on Darrall.

{¶ 6} In the meantime, at least three city employees attempted to dial 911,

but were unable to get an outside phone line. Carter said that he tried to dial 911

five or six times but could not get through. Physical director Hutson and a

custodian made several attempts to dial 911, but they, too, did not know how to use

the phone system. These employees were never instructed on the use of 911 and

were never told that it was necessary first to dial a nine to get an outside line. When

asked about the lack of training, center manager McKeller testified that he just

assumed that the guards had been briefed how to get an outside line to dial 911.

Eventually, someone was able to make the 911 call. However, paramedics did not

arrive at the pool until about 4:10 p.m., nearly thirty minutes after Darrall’s body

was discovered at the bottom of the pool.

{¶ 7} One of Darrall’s treating physicians at the hospital testified that

Darrall had been deprived of oxygen for at least five minutes before resuscitation

attempts were underway. According to the coroner, Darrall died as a result of the

near drowning. Frank Pia, plaintiff’s aquatics expert, testified that without proper

oxygenation, irreversible brain damage occurs in a drowning within four to seven

minutes. In Pia’s expert opinion, the conduct of the physical directors and the

failure to have in place an effective rescue plan, including the proper use of 911,

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was reckless. Pia also testified that the glare spot in the pool created a nuisance;

however, the trial court excluded that testimony.

{¶ 8} Following an internal investigation by the city, physical directors

Hutson and Hodge, and the center’s manager, McKeller, were found to have

violated several city policies by failing to ensure that the pool was properly staffed

at all times; wantonly or willfully neglecting the performance of their assigned

duties; leaving the job or work area during regular working hours without

authorization; failing to remain at their posts except in cases of emergency or when

properly relieved; failing to maintain required standards of performance; and failing

to observe official safety rules or common safety practices. 1 Due to their

misconduct, Hutson and Hodge were each suspended for forty-five days. McKeller

was suspended for three days.

{¶ 9} At the close of the plaintiffs’ case, defense counsel moved for a

directed verdict, again arguing that the city was immune from liability under R.C.

Chapter 2744. Following oral arguments on this point, the trial court granted the

1. These individuals were cited for the following violations: leaving the job or work area during

regular working hours without authorization (Hodge); neglect or carelessness in signing in or out

(Hodge); recurrent failure to make required reports (Hutson); malicious mischief, horseplay,

wrestling, or other undesirable conduct (Hutson); failing to show reasonable care in the use or

operation of city property or equipment (Hutson); failing to observe department rules (Hodge,

Hutson); unsatisfactory work or failure to maintain required standards of performance (McKeller,

Hutson, Hodge); leaving post of continuous operations position prior to being relieved by employee

or incoming shift (Hodge); threatening, intimidating, coercing, or interfering with supervisors or co-

workers (Hutson); disregard or carelessness in observance of official safety rules, or disregarding

of common safety practices (Hodge, Hutson); wanton or willful neglect in the performance of

assigned duties in the care, use, or custody of any city property or equipment (Hodge, Hutson);

refusal to work at the scheduled time for the scheduled shift (Hutson); failure to remain ready as a

lifeguard (Hodge, Hutson); failing to remain at post except in cases of emergency or when properly

relieved (Hodge, Hutson); failing to ensure that the pool is properly staffed at all times (Hodge,

Hutson); failing to be responsible for and in charge of pool (Hutson); failing to see that all policies,

rules, and regulations are enforced by staff (Hutson); failing to perform as a lifeguard (Hodge,

Hutson); failing to establish the working schedule of staff (Hutson); failing to be responsible for the

actions and work of all personnel assigned to facility (Hutson); leaving pool guard chair or pool

deck without being properly relieved or dismissed (Hodge); failing to keep eyes on swimmers at all

times (Hodge); and leaving pool unguarded unless in an emergency, and then only after clearing the

pool (Hodge).

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motion for directed verdict, noting that the city had hired qualified personnel, had

proper rules and regulations in place, and did not act in a reckless or wanton

manner.

{¶ 10} The court of appeals affirmed. In finding the city immune from

liability under R.C. 2744.02(A), the court reasoned that the operation of an indoor

municipal swimming pool is a governmental function under R.C. 2744.01(C)(2)(u),

and that, therefore, no exceptions to immunity apply. Furthermore, the court held

that the city did not act in a wanton or reckless manner in its discretionary decision

making in the operation of the pool. See R.C. 2744.03(A)(5).

{¶ 11} This court accepted jurisdiction of this case in case No. 97-1261,

upon the allowance of a discretionary appeal. The case was then certified to this

court as being in conflict with Hall v. Ft. Frye Local School Dist. Bd. of Edn.

(1996), 111 Ohio App.3d 690, 676 N.E.2d 1241, and Siebenaler v. Montpelier

(1996), 113 Ohio App.3d 120, 680 N.E.2d 654, in case No. 97-1488, and is now

before this court upon our determination that a conflict exists.

__________________

Linton & Hirshman and Robert F. Linton, Jr.; Klein & Carney Co., L.P.A.,

and Larry S. Klein, for appellants.

Mark W. Ruf, urging reversal for amicus curiae, Ohio Academy of Trial

Lawyers.

Isaac, Brant, Ledman & Teetor, Mark Landes and Steven G. LaForge,

urging affirmance for amicus curiae, County Commissioners Association of Ohio.

John E. Gotherman and Daniel J. O’Loughlin, urging affirmance for amici

curiae, Ohio Municipal League and Ohio Municipal Attorneys Association.

R. Todd Hunt, urging affirmance for amicus curiae, Cuyahoga County Law

Directors Association.

__________________

FRANCIS E. SWEENEY, SR., J.

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{¶ 12} The certified issue is “whether a governmental function and the

absolute immunity provided it under R.C. 2744.01(C)(2)(u) [are] still subject to the

exceptions to immunity provided in R.C. 2744.02(B)(3) and (4).” We find that the

operation of an indoor municipal swimming pool, although defined as a

governmental function under R.C. 2744.01(C)(2)(u), is still subject to the exception

to immunity found in former R.C. 2744.02(B)(3), but not to the exception contained

in former R.C. 2744.02(B)(4).

{¶ 13} We also find that a directed verdict was improper in this case, since

reasonable minds can differ as to whether the city acted in a wanton or reckless

manner under R.C. 2744.03(A)(5), by failing to institute policies or training

regarding the use of 911.2 Accordingly, we reverse the judgment of the court of

appeals and remand the cause to the trial court for a new trial.

{¶ 14} The Political Subdivision Tort Liability Act, as codified in R.C.

Chapter 2744, sets forth a three-tiered analysis for determining whether a political

subdivision is immune from liability. First, R.C. 2744.02(A) sets forth the general

rule of immunity, that political subdivisions are not liable in damages for the

personal injuries or death of a person. R.C. 2744.02(A)(1) provides:

“For purposes of this chapter, the functions of political subdivisions are

hereby classified as governmental functions and proprietary functions. Except as

provided in division (B) of this section, a political subdivision is not liable in

damages in a civil action for injury, death, or loss to person or property allegedly

caused by any act or omission of the political subdivision or an employee of the

political subdivision in connection with a governmental or proprietary function.”

(Emphasis added.)

2. Appellants and amicus curiae Ohio Academy of Trial Lawyers also challenge the

constitutionality of R.C. Chapter 2744. However, we need not address that issue based upon our

disposition of the issues raised.

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{¶ 15} The immunity afforded a political subdivision in R.C. 2744.02(A)(1)

is not absolute, but is, by its express terms, subject to the five exceptions to

immunity listed in former R.C. 2744.02(B). Hill v. Urbana (1997), 79 Ohio St.3d

130, 679 N.E.2d 1109. Thus, once immunity is established under R.C.

2744.02(A)(1), the second tier of analysis is whether any of the five exceptions to

immunity in subsection (B) apply. Former R.C. 2744.02(B)(1) through (5).

Finally, under the third tier of analysis, immunity can be reinstated if the political

subdivision can successfully argue that one of the defenses contained in R.C.

2744.03 applies.

{¶ 16} Despite the structure of the Act, appellee, city of Cleveland,

maintained below that it had absolute immunity in this case, and that it was not

responsible for the negligent acts arising out of the operation of a municipal

swimming pool. Since the General Assembly has already classified the operation

of a municipal swimming pool as a governmental function under R.C.

2744.01(C)(2)(u), the city asserted that no consideration be given to the Act’s

exceptions. The court of appeals agreed with appellee and refused to apply the

potential exceptions to immunity. The court reasoned that the statutory provisions

conflict and that, pursuant to R.C. 1.51, the specific provision (R.C.

2744.01[C][2][u]) prevails over the general provisions (former R.C. 2744.02[B][3]

and [4]), which are exceptions to the general grant of immunity.

{¶ 17} The court of appeals mistakenly relied on R.C. 1.51 to reach its

result. R.C. 1.51 provides that if there are conflicting statutory provisions, effect

should be given to both the general provision and special or local provision, if

possible. Thus, under the cardinal rule of statutory construction, “all statutes which

relate to the same general subject matter must be read in pari materia.” Johnson’s

Markets, Inc. v. New Carlisle Dept. of Health (1991), 58 Ohio St.3d 28, 35, 567

N.E.2d 1018, 1025. In construing statutes together, this court must give full

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application to both statutes unless they are irreconcilable and in hopeless conflict.

Id., citing Couts v. Rose (1950), 152 Ohio St. 458, 40 O.O. 482, 90 N.E.2d 139.

{¶ 18} R.C. 1.51 is inapplicable here because there is no conflict between

R.C. 2744.01(C)(2)(u) and former R.C. 2744.02(B)(3) or (4). R.C. 2744.01(C) is

simply a section of the Act that defines which activities are governmental and which

are proprietary. In that context, a municipal swimming pool is included within the

definition of governmental functions. 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. Thus, the city’s assertion that it

has absolute immunity runs contrary to the express language of the Act. By

structuring the Act in the manner that it did, the General Assembly clearly did not

intend to immunize political subdivisions for all negligent actions that arise out of

a governmental function. Rather than absolve a municipality from all

responsibility, the General Assembly recognized that political subdivisions must be

held accountable for some of their actions. This case exemplifies one such

situation.

{¶ 19} Therefore, we agree with those appellate decisions certified as being

in conflict with this case that have held that even if an activity is defined as a

governmental function, it is still subject to the five exceptions of former R.C.

2744.02(B)(1) through (5). See Siebenaler v. Montpelier (1996), 113 Ohio App.3d

120, 680 N.E.2d 654; Hall v. Ft. Frye Local School Dist. Bd. of Edn. (1996), 111

Ohio App.3d 690, 676 N.E.2d 1241.3

3. The current version of R.C. 2744.02(B)(3), effective June 30, 1997, omits any reference to

nuisance, and no longer refers to “public grounds.” The newly enacted version of R.C.

2744.02(B)(4) is now applicable only to negligence that occurs within or on the grounds of “and is

due to physical defects within or on the grounds of, buildings used in connection with the

performance of a governmental function * * *.” (Emphasis added.)

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{¶ 20} In this case, appellants argue that two exceptions to immunity apply,

former R.C. 2744.02(B)(3) and (B)(4). Former R.C. 2744.02(B)(3) provided:

“Political subdivisions are liable for injury, death, or loss to persons or

property caused by their failure to keep public roads, highways, streets, avenues,

alleys, sidewalks, bridges, viaducts, or public grounds within the subdivisions open,

in repair, and free from nuisance * * *.”4

{¶ 21} Appellants contend that under former R.C. 2744.02(B)(3), a fact

issue is presented as to whether the glare conditions at the pool constitute a nuisance

on public grounds. Pursuant to this exception to immunity, a political subdivision

is obligated to keep its public grounds free from nuisance. The phrase “public

grounds” has been interpreted to include such areas as municipally owned and

controlled parks that are established and maintained for the general public.

Cleveland v. Ferrando (1926), 114 Ohio St. 207, 150 N.E. 747. We find that an

indoor municipal swimming pool, which is open to the general public, also falls

within the definition of “public grounds.” We must next decide whether there was

sufficient evidence presented of a nuisance to overcome the city’s motion for a

directed verdict.

{¶ 22} The phrase “free from nuisance” in former R.C. 2744.02(B)(3) has

been interpreted most often by this court in the context of an alleged failure by a

political subdivision to keep its roads and highways free from physical obstructions

that interfere with visibility and create an unsafe condition. Classic examples of

nuisances include a malfunctioning traffic light, a pothole in the roadway, or an

overhanging tree limb. See Franks v. Lopez (1994), 69 Ohio St.3d 345, 632 N.E.2d

502.

4. In Siebenaler, a child lost his footing on the ladder of a high diving board and fell to the pool

deck while taking swimming lessons in a village swimming pool. Although the court of appeals

ultimately found that the village of Montpelier was immune from suit, due to a lack of evidence

regarding the presence of a nuisance, the court acknowledged that the nuisance exception of former

R.C. 2744.02(B)(3) was relevant.

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{¶ 23} In Manufacturer’s Natl. Bank of Detroit v. Erie Cty. Rd. Comm.

(1992), 63 Ohio St.3d 318, 587 N.E.2d 819, we held that a fact issue remained as

to whether corn growing in the road’s right-of-way was a nuisance, since it

obstructed the visibility of drivers on the roadway, making the roadway unsafe for

travel. Although factually distinguishable from the case at hand, we think that it is

pertinent since, in this case, we are also presented with the issue of an obstruction

to visibility. Here, there was evidence presented that glare emanating from the wall

of glass panels obstructed the lifeguard’s view and prevented him from seeing

Darrall struggling in the water and ultimately lying at the bottom of the pool.

Furthermore, had the court allowed appellants’ expert to testify, he would have

stated that the glare in this case was a nuisance. This expert testimony is relevant,

and the trial court improperly excluded it from the jury.

{¶ 24} Not only was there testimony that the glare obstructed the lifeguards’

view, but there was also evidence that the city was aware that glare was a problem

at the pool. Both the aquatics manager for the city of Cleveland and the recreation

center manager testified that they knew that glare was a problem and conceded that

lifeguards had not been instructed on how to deal with the glare. They also

acknowledged that there were no pool policies addressing this concern. For liability

to be imposed on a political subdivision for a nuisance, the political subdivision

must have had “ ‘either actual or constructive knowledge of the nuisance.’ ” Franks

v. Lopez, 69 Ohio St.3d at 349, 632 N.E.2d at 505, quoting Vogel v. Wells (1991),

57 Ohio St.3d 91, 97, 566 N.E.2d 154, 160. There was sufficient evidence presented

to satisfy this notice requirement.

{¶ 25} We recognize that glare can exist at all pools (as the aquatics

manager testified). Nevertheless, we are not testing the merits of the underlying

claim here. Instead, we are deciding whether the trial court erred in directing a

verdict for the city, which we believe it did. Consequently, we find that former

R.C. 2744.02(B)(3) is applicable here, and that it is for the trier of fact to determine

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whether the city created an unreasonable risk of harm by maintaining hazardous

glare conditions in the pool.

{¶ 26} Appellants also argue that former R.C. 2744.02(B)(4) is applicable

to this case. This exception to immunity provides:

“Political subdivisions are liable for injury, death, or loss to persons or

property that is caused by the negligence of their employees and that occurs 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.”

{¶ 27} Although former R.C. 2744.02(B)(4) may be applicable to other

governmental functions not specifically listed in the statute, we believe that it does

not apply to an indoor swimming pool. (See, also, Mattox v. Bradner [Mar. 21,

1997], Wood App. No. WD-96-038, unreported, 1997 WL 133330, which held that

the exception enumerated in R.C. 2744.02[B][4] is inapplicable to injuries

sustained in a municipal swimming pool.) Unlike a courthouse or office building

where government business is conducted, a city recreation center houses

recreational activities. Furthermore, if we applied former R.C. 2744.02(B)(4) to an

indoor swimming pool, liability could be imposed upon the political subdivision.

However, there would be no liability if the injury occurred at an outdoor municipal

swimming pool, since the injury did not occur in a building. We do not believe that

the General Assembly intended to insulate political subdivisions from liability

based on this distinction. Therefore, we reject appellants’ contention that former

R.C. 2744.02(B)(4) applies to an indoor municipal swimming pool.

{¶ 28} Appellants further contend that R.C. 2744.03(A)(5) provides an

independent basis for imposing liability on the city. We reject this contention. In

Hill v. Urbana, supra, 79 Ohio St.3d 130, 679 N.E.2d 1109, a similar argument was

made. However, R.C. 2744.03(A)(5) is a defense to liability; it cannot be used to

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establish liability. Id. at 135, 679 N.E.2d at 1113, fn. 2 (Lundberg Stratton, J.,

concurring in part and dissenting in part); id. at 138-139, 679 N.E.2d at 1116

(Moyer, C.J., dissenting). Therefore, appellants can only argue that the city is not

entitled to the defense of R.C. 2744.03(A)(5) because the city acted in a reckless or

wanton manner. Appellants do, in fact, contend that a jury question arises as to

whether the city acted recklessly in its use of its facility and equipment, in its failure

regarding the use of 911 on its emergency phone system.5

{¶ 29} R.C. 2744.03(A)(5) provides:

“The political subdivision is immune from liability if the injury [or] death

* * * resulted from the exercise of judgment or discretion in determining whether

to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and

other resources unless the judgment or discretion was exercised with malicious

purpose, in bad faith, or in a wanton or reckless manner.”

{¶ 30} The evidence overwhelmingly established that three city employees

were unable to contact 911, despite several attempts to do so. It was further shown

that these employees were never trained on the use of the phone system. As a result

of their failure to contact 911, there was about a thirty-minute delay in Darrall’s

treatment.

{¶ 31} The fact that the city had no policy in place or training regarding 911

is appalling. The seriousness of these omissions is highlighted by the fact that more

than one hundred swimmers, mostly children unaccompanied by adults, frequented

the city pool that day. However, something as basic and important as dialing 911

5. Appellants also argue that the city was reckless or wanton in the use of its lifeguard personnel.

However, any negligence on the part of the lifeguards falls under R.C. 2744.03(A)(6), not

2744.03(A)(5). See Fabrey v. McDonald Village Police Dept. (1994), 70 Ohio St.3d 351, 356, 639

N.E.2d 31, 35. Appellants further argue that the city was reckless or wanton in its use of its facility,

by failing to institute a policy concerning the recognition and monitoring of known glare spots.

However, we find dispositive the issue of the city’s allegedly reckless or wanton use of its

equipment, in failing to institute a training policy regarding the use of the 911 emergency phone

system.

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was not within the city employees’ grasp. Not only did two of the senior lifeguards

create a dangerous situation by leaving the pool area during an open swim session,

but the city, in its admitted failure to train its employees on the use of 911, left them

without the knowledge necessary to handle the emergency as it arose. We are

unwilling to grant immunity to the city under this provision, and to find, as argued,

that the city did nothing wrong on the day Darrall suffered a near drowning.

{¶ 32} This court has defined the term “reckless” to mean that the conduct

was committed “ ‘knowing or having reason to know of facts which would lead a

reasonable man to realize, not only that his conduct creates an unreasonable risk of

physical harm to another, but also that such risk is substantially greater than that

which is necessary to make his conduct negligent.’ ” Marchetti v. Kalish (1990),

53 Ohio St.3d 95, 96, 559 N.E.2d 699, 700, fn. 2, quoting 2 Restatement of the Law

2d, Torts (1965) 587, Section 500. The conduct by the city regarding its lack of

training on the use of 911 presents a question of fact for the jury to consider, which

was improperly disposed of by granting the city’s motion for directed verdict.

{¶ 33} The standard for directing a verdict is well established. Civ.R.

50(A)(4) provides:

“When a motion for a directed verdict has been properly made, and the trial

court, after construing the evidence most strongly in favor of the party against

whom the motion is directed, finds that upon any determinative issue reasonable

minds could come to but one conclusion upon the evidence submitted and that

conclusion is adverse to such party, the court shall sustain the motion and direct a

verdict for the moving party as to that issue.”

{¶ 34} In deciding a motion for a directed verdict, neither the weight of the

evidence nor the credibility of the witnesses is to be considered. Strother v.

Hutchinson (1981), 67 Ohio St.2d 282, 284, 21 O.O.3d 177, 179, 423 N.E.2d 467,

469. Instead, “[w]hen a motion for a directed verdict is entered, what is being tested

is a question of law; that is, the legal sufficiency of the evidence to take the case to

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the jury.” Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 68, 23 O.O.3d

115, 116, 430 N.E.2d 935, 938. The motion for directed verdict must be denied “if

there is substantial competent evidence to support the party against whom the

motion is made, upon which evidence reasonable minds might reach different

conclusions.” Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115, 4 O.O.3d 243, 244,

363 N.E.2d 367, 368.

{¶ 35} Since reasonable minds can differ as to whether the city allowed a

nuisance to exist and as to whether the city acted in a wanton or reckless manner in

its use of its facilities and equipment under R.C. 2744.03(A)(5), by failing to

institute policies or training regarding the use of the 911 emergency number, we

find that the trial court erred in directing a verdict for the city.

{¶ 36} Accordingly, we reverse the judgment of the court of appeals and

remand the cause to the trial court for a new trial.

Judgment reversed

and cause remanded.

PFEIFER, J., concurs and concurs separately.

MOYER, C.J., HADLEY and LUNDBERG STRATTON, JJ., concur in syllabus

and judgment.

DOUGLAS and RESNICK, JJ., concur in judgment only.

RONALD E. HADLEY, J., of the Third Appellate District, sitting for COOK, J.

__________________

Pfeifer, J., concurring.

{¶ 37} I concur because of my belief that Ohio’s sovereign immunity statute

is unconstitutional. See Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 141, 624

N.E.2d 704, 706 (Pfeifer, J., concurring).

__________________

MOYER, C.J., concurring in syllabus and judgment.

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{¶ 38} I believe, as does the majority, that the certified issue should be

answered in the affirmative, thereby establishing the legal principle that “a

governmental function and the absolute immunity provided it under R.C.

2744.01(C)(2)(U) [are] still subject to the exceptions to immunity provided in R.C.

2744.02(B)(3) and (4).” I therefore concur in the syllabus.

{¶ 39} In applying that syllabus to the case before us, however, I do not

believe that the facts of this case fall within the scope of the exception in former R.C.

2744.02(B)(3) for nonliability based on a city’s failure to keep public grounds free

from nuisance. I disagree with the majority that the existence of glare on the pool

water surface establishes a question of fact as to the existence of a nuisance. As

acknowledged by the majority, the existence of glare on the water of swimming pools,

whether operating in direct or indirect sunlight, is a common and nearly universal

phenomenon. While failure to provide procedures to accommodate glare so as to

promote safe swimming might arguably constitute negligent operation of a pool, I

cannot subscribe to the conclusion that the existence of glare on a swimming pool

surface can itself constitute a legal nuisance. To do so would be to effectively endorse

the proposition that operation of any swimming pool may be equivalent to maintaining

a nuisance.

{¶ 40} Rather, I believe that the city’s potential liability is based in former

R.C. 2744.02(B)(4), which provided at the time of Cater’s drowning: “Political

subdivisions are liable for injury, death, or loss to persons or property caused by the

negligence of their employees and that occurs within or on the grounds of buildings

that are used in connection with the performance of a governmental function * * *.”

(Emphasis added.) As the lead opinion acknowledges, operation of a swimming pool

has been expressly designated a governmental function. R.C. 2744.01(C)(2)(u). It

follows that liability potentially exists where death is caused by the negligence of city

employees on swimming pool property. Although I acknowledge the existence of

case law from the courts of appeals to the contrary, in my view both indoor and

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outdoor pools exist “within or on the grounds” of buildings used in connection with

the performance of the governmental function of operating a pool. Indoor pools

clearly are “within” buildings. Outdoor pools, while not located within buildings

themselves, invariably are located on land that includes buildings, such as bathhouses,

shelters, restrooms, storage areas, and offices. I therefore do not accept the conclusion

of the majority that application of (B)(4) to this case would result in our creation of an

artificial distinction between indoor and outdoor pools in applying the relevant

immunity statutes.

{¶ 41} I write separately, as well, to express my disagreement with the

majority’s analysis of the applicability of the defense provided by R.C. 2744.03(A)(5)

to this case. That statute provides immunity to a political subdivision where injury or

death “result[s] from the exercise of judgment or discretion in determining whether to

acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other

resources unless the judgment or discretion was exercised with malicious purpose, in

bad faith, or in a wanton or reckless manner.” (Emphasis added.) It follows that

where decisions as to these matters are made recklessly, the “judgment or discretion”

defense is not available to a political subdivision.

{¶ 42} The majority concludes that reasonable minds might find recklessness

on the part of the city based solely on its alleged failure to effectively instruct

employees in the use of pool telephones to contact emergency services by dialing 911.

{¶ 43} I need not endorse such a conclusion on this record. Determining the

point at which behavior rises from the merely negligent to the level of reckless

behavior is in every instance problematic. In this case, the plaintiffs produced a litany

of facts of decisions and acts demonstrating questionable decision-making on the part

of city employees as to, e.g., understaffing of lifeguards, failure to compensate for the

existence of glare on the water, and inadequate training in emergency procedures. The

decision need not be made in this case whether each of these circumstances, standing

alone, rises to the level of recklessness. Here a jury viewing all of the facts in their

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totality might well conclude that the city had acted recklessly in exercising judgment

or discretion in connection with the use of pool equipment, personnel, and facilities,

thereby precluding application of the defense provided by R.C. 2744.03(A)(5).

{¶ 44} I therefore concur in the syllabus and the judgment only.

HADLEY and LUNDBERG STRATTON, JJ., concur in the foregoing concurring

opinion.

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