The opinion
[This opinion has been published in Ohio Official Reports at 89 Ohio St.3d 551.]
GREENE COUNTY AGRICULTURAL SOCIETY, APPELLEE, v. LIMING ET AL.,
APPELLANTS; MANGAN, APPELLEE.
[Cite as Greene Cty. Agricultural Soc. v. Liming, 2000-Ohio-486.]
Torts—Political subdivision tort liability—County agricultural society is a
political subdivision pursuant to R.C. 2744.01(F)—Conducting livestock
competition at county fair by county agricultural society is a proprietary
function pursuant to R.C. Chapter 2744.
1. A county agricultural society is a political subdivision pursuant to R.C.
2744.01(F).
2. The conducting of a livestock competition at a county fair by a county
agricultural society is a proprietary function pursuant to R.C. Chapter 2744.
(No. 99-1755—Submitted May 23, 2000—Decided September 6, 2000.)
APPEAL from the Court of Appeals for Greene County, No. 98-CA-119.
__________________
{¶ 1} This case centers on the showing of a hog, named “Big Fat,” by then
seventeen-year-old Laura Liming at the 1996 Greene County Fair. Laura Liming
entered Big Fat in the hog show at the July 1996 fair as part of a 4-H Club project.
Big Fat was named “Reserve Grand Champion,” the second highest award for a
hog at the show.
{¶ 2} After the conclusion of the fair, appellee Larry Mangan, the president
of appellee Greene County Agricultural Society (“the Society”), began an
investigation based on information he received indicating that Big Fat may not have
been eligible to compete in the hog show. Specifically, Mangan investigated
whether Laura Liming had violated an exhibition rule that required that all hogs
exhibited at the fair be purchased prior to May 15, 1996.
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{¶ 3} Mangan’s investigation raised suspicions that Big Fat may have been
the same hog that was shown under a different name by a different person at the
Clinton County Fair earlier in that summer of 1996, and that Laura Liming may
have purchased the hog after its showing at the Clinton County Fair. Mangan’s
investigation revealed that according to the rules of the Clinton County Fair, hogs
were required to be slaughtered after that fair’s hog show. Mangan became
convinced that the hog in question, after its showing at the Clinton County Fair,
was sold to Laura Liming rather than being slaughtered. Subsequently, it appears
that the Society adopted the report of its Livestock Committee, concluding at a
meeting on February 24, 1997, that Laura Liming had violated the fair’s rules by
purchasing Big Fat after the May 15 purchase deadline and showing the hog at the
fair.1
{¶ 4} The Society imposed sanctions against appellants Laura Liming and
her parents James and Diane Liming for their alleged roles in the incident. The
Society also sanctioned appellant Kenneth Smith, who allegedly had facilitated the
sale of Big Fat to Laura Liming and to whom hogs at the Clinton County Fair were
consigned for slaughter. The sanctions included ordering Laura Liming to return
all ribbons, trophies, and money received above the consignment price resulting
from her exhibition of Big Fat; barring the immediate family of James Liming from
participating in the 1997, 1998, and 1999 Greene County Fairs; barring the
immediate family of Kenneth Smith from participating in the 1997, 1998, and 1999
Greene County Fairs; and declaring that no individual or group associated with
Kenneth Smith would be awarded consignment of 4-H animals shown at the Greene
County Fair.
1. The parties seem to agree that in this suspected scenario, the act of showing a hog that had
previously been shown at another county’s fair did not itself specifically violate the rules of the
Greene County Fair.
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January Term, 2000
{¶ 5} On April 30, 1997, the Society filed suit against the Limings and
Smith in the Court of Common Pleas of Greene County in an apparent attempt to
enforce the sanctions. The Society also sought compensatory and punitive
damages.
{¶ 6} On July 17, 1997, the Limings and Smith filed an answer, a
counterclaim against the Society, and a third-party complaint against Mangan and
others, asserting that no violation of the fair’s rules had taken place and that the
Society and Mangan had violated their due-process rights and had defamed them
in articles about the incident published in the Xenia Daily Gazette. The Limings
and Smith sought compensatory and punitive damages and injunctive relief.
{¶ 7} The Limings and Smith moved for summary judgment on July 31,
1998, as to the claims in the Society’s complaint, arguing that the sanctions could
not be enforced because the Society had allegedly not followed its internal
procedures in considering the matter. On August 30, 1998, the Society and Mangan
moved for summary judgment on the claims raised against them in the counterclaim
and third-party complaint, arguing that pursuant to the doctrine of sovereign
immunity set forth in R.C. Chapter 2744, the Limings and Smith could not recover
on any of their claims.
{¶ 8} On September 30, 1998, in two separate decisions, the trial court ruled
on the summary judgment motions that had been filed by each side. In one decision,
the trial court ruled that the Society was a political subdivision that had engaged in
a governmental function, and so found the Society immune pursuant to R.C.
Chapter 2744 from all of the counterclaims put forth by the Limings and Smith, and
therefore entitled to summary judgment on those claims. Also in that decision, the
trial court granted summary judgment to Mangan on the claims raised against him
in the third-party complaint, finding that Mangan was entitled to immunity for the
claims raised against him individually. The trial court certified its decision pursuant
to Civ.R. 54(B).
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{¶ 9} In its other decision, the trial court overruled the motion for summary
judgment filed by the Limings and Smith, determining that genuine issues of
material fact existed as to the propriety of the Society’s investigation and sanctions.
The trial court set a date for trial on the claims raised in the Society’s complaint.
{¶ 10} The Limings and Smith appealed to the Court of Appeals for Greene
County from both decisions of the trial court. The court of appeals determined that
only the trial court’s summary judgment finding the Society and Mangan to be
immune was a final appealable order, and that the other decision denying summary
judgment to the Limings and Smith was not.2 Therefore, in its opinion, the court
of appeals addressed only the issues relating to the immunity of the Society and
Mangan. The court of appeals affirmed the judgment of the trial court on those
issues.
{¶ 11} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
__________________
Freund, Freeze & Arnold, Neil F. Freund and Lynnette Pisone Ballato, for
appellees Greene County Agricultural Society and Larry T. Mangan.
David M. Deutsch Co., L.P.A., and David M. Deutsch, for appellants.
Betty D. Montgomery, Attorney General, Barbara A. Servé and Peter M.
Thomas, Assistant Attorneys General, urging affirmance for amicus curiae Ohio
Department of Agriculture.
King & Blair and James F. Blair, urging affirmance for amicus curiae Ohio
Fair Managers Association.
__________________
ALICE ROBIE RESNICK, J.
2. Even though the trial court included Civ.R. 54(B) language in both of its decisions, only the one
involving issues of immunity was deemed to be a final appealable order by the court of appeals.
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{¶ 12} The sole issue presented for review is whether the Society is entitled
to immunity under R.C. Chapter 2744, so that summary judgment was appropriate
as a matter of law.3 In the circumstances of this case, this issue has two
components: (1) Is the Society a political subdivision for purposes of R.C. Chapter
2744? and (2) If the answer to the first question is yes, was the Society engaged in
a governmental function in performing the actions at issue? For the reasons that
follow, we find that the Society is not immune from suit, and accordingly reverse
the judgment of the court of appeals.
I
{¶ 13} Since R.C. Chapter 2744 deals with Political Subdivision Tort
Liability, the first question we must answer is whether the Society, as a county
agricultural society, is a “political subdivision.” If, as appellants contend, the
Society is not a political subdivision, then R.C. Chapter 2744 does not apply to it,
it is not immune from suit for that reason, and our inquiry is at an end. If, on the
other hand, the Society is a political subdivision, then we must further consider, as
the second component of our inquiry, how other provisions of R.C. Chapter 2744
apply to this case.
{¶ 14} R.C. 2744.01(F) defines a “political subdivision” as “a municipal
corporation, township, county, school district, or other body corporate and politic
responsible for governmental activities in a geographic area smaller than that of the
state.” R.C. 2744.01(F) then goes on to set forth a nonexhaustive list of particular
3. We note that appellants do not challenge the constitutionality of any aspect of R.C. Chapter 2744.
Therefore, our inquiry is confined solely to interpreting the provisions of the relevant statutes.
Furthermore, the decision in Dunn v. Brown Cty. Agricultural Soc. (1888), 46 Ohio St. 93, 18 N.E.
496, relied upon by appellants, predates R.C. Chapter 2744 by nearly one hundred years, and it
appears that a county agricultural society was not designated both “a body corporate and politic” by
the statutes in effect at the time governing such societies. (Emphasis added.) See 46 Ohio St. at 97-
98, 18 N.E. at 498. That the General Assembly has chosen to designate a county agricultural society
as a “body politic” in R.C. 1711.13 is an important factor in our decision.
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bodies that fall within the above definition. County agricultural societies are not
specifically mentioned in the statute.
{¶ 15} Since the Society does not fall within any of the other groups listed
in R.C. 2744.01(F), for it to be a political subdivision it must be a “body corporate
and politic responsible for governmental activities.” It is clear that a county
agricultural society exists “in a geographic area smaller than that of the state,” so
that statutory requirement is easily met.
{¶ 16} R.C. Chapter 1711 provides for the establishment, organization, and
functioning of county agricultural societies. R.C. 1711.13 explicitly provides that
“[c]ounty agricultural societies are hereby declared bodies corporate and politic.”
Therefore, if county agricultural societies are “responsible for governmental
activities,” then all requirements of R.C. 2744.01(F) are met to qualify the Society
for status as a political subdivision.
{¶ 17} Black’s Law Dictionary (7 Ed.1999) 167, defines “body politic” as
“[a] group of people regarded in a political (rather than private) sense and organized
under a single governmental authority.”
{¶ 18} This exact issue of whether a county agricultural society is a political
subdivision as contemplated in R.C. 2744.01(F) was considered by the Attorney
General of Ohio in 1988 Ohio Atty.Gen.Ops. No. 88-034. The issue arose in the
context of considering whether a county agricultural society was a political
subdivision that could establish and maintain a self-insurance program under R.C.
2744.08(A)(2)(a) to cover tort liability claims against it and whether a county
agricultural society was a political subdivision that could join with other political
subdivisions in establishing and maintaining a joint self-insurance pool under R.C.
2744.081(A) to pay tort judgments, settlements, and the like relating to acts or
omissions of the political subdivision or its employees. In order to undertake those
actions, a county agricultural society first had to qualify as a political subdivision
pursuant to R.C. 2744.01(F).
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{¶ 19} In that opinion, the Attorney General determined that a county
agricultural society is a political subdivision and so could undertake the insurance
actions at issue relating to tort claims against it. Similarly to the framework of the
discussion we have set out above, the Attorney General stated that the only
requirement of R.C. 2744.01(F) that required a “detailed analysis” was whether a
county agricultural society is responsible for governmental activities.
{¶ 20} The Attorney General acknowledged that “[c]ertainly, county
agricultural societies possess some characteristics that suggest that their activities
are not governmental.” However, the Attorney General nevertheless concluded that
county agricultural societies are responsible for governmental activities, and
therefore are political subdivisions under R.C. 2744.01(F).
{¶ 21} The Attorney General reasoned that “the primary purpose of county
agricultural societies has repeatedly been identified as education.” The Attorney
General quoted from State ex rel. Leaverton v. Kerns (1922), 104 Ohio St. 550,
554-555, 136 N.E. 217, 218: “[A]n agricultural fair is * * * a public institution
designed for public instruction, the advancement of learning and the dissemination
of useful knowledge.” The Attorney General also pointed out that under R.C.
1711.10, the Director of Agriculture may withhold funds for a particular county
agricultural society if it is shown that the fair put on by that agricultural society was
not of sufficient educational value to justify the expenditure of those funds. The
Attorney General further pointed out that “the promotion of educational goals
traditionally has been regarded as an appropriate governmental activity,” citing as
support for that statement Tilton v. Richardson (1971), 403 U.S. 672, 91 S.Ct. 2091,
29 L.Ed.2d 790; Hadley v. Junior College Dist. of Kansas City (1970), 397 U.S.
50, 90 S.Ct. 791, 25 L.Ed.2d 45; Green v. Thomas (1930), 37 Ohio App. 489, 175
N.E. 226; and Meyer v. Cleveland (1930), 35 Ohio App. 20, 171 N.E. 606.
{¶ 22} We are in agreement with the court of appeals that appellants’
arguments based on Hamilton Cty. Bd. of Mental Retardation & Developmental
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Disabilities v. Professionals Guild of Ohio (1989), 46 Ohio St.3d 147, 545 N.E.2d
1260, are not on point. The issue in that case was whether the county board was a
“person” for purposes of R.C. 119.01(F) who could appeal a decision of the State
Employment Relations Board. The issue was not whether the county board was a
political subdivision.
{¶ 23} We see no reason to disagree with the conclusion reached by the
Attorney General in 1988 Ohio Atty.Gen.Ops. No. 88-034 on this point, the first
component of our inquiry.4 We hold that a county agricultural society is a political
subdivision pursuant to R.C. 2744.01(F). We thus agree with the decision of the
court of appeals upholding the ruling of the trial court on this question.
II
{¶ 24} Having found that the Society is a political subdivision, we must ask,
as the next component of our inquiry, whether the Society is entitled to immunity
under the provisions of R.C. Chapter 2744.
{¶ 25} R.C. Chapter 2744 sets out the method of analysis, which can be
viewed as involving three tiers, for determining a political subdivision’s immunity
from liability. First, R.C. 2744.02(A)(1) sets out a general rule that political
subdivisions are not liable in damages. In setting out this rule, R.C. 2744.02(A)(1)
classifies the functions of political subdivisions into governmental and proprietary
functions and states that the general rule of immunity is not absolute, but is limited
by the provisions of R.C. 2744.02(B), which details when a political subdivision is
not immune. Thus, the relevant point of analysis (the second tier) then becomes
4. As further support for the Society’s status as a political subdivision, appellees point out that in
1992 Ohio Atty.Gen.Ops. No. 92-078, the Attorney General determined that a county agricultural
society’s board of directors is a “public body” pursuant to R.C. 121.22 and is subject to the open
meeting requirements of that statute. Although we recognize that a “public body” for purposes of
R.C. 121.22 is definitely not coextensive with a “political subdivision” pursuant to R.C. Chapter
2744, and we further note that this opinion of the Attorney General relied on the earlier Attorney
General opinion in 1988 Ohio Atty.Gen.Ops. No. 88-034 (which appellants argue was wrongly
decided), we agree with appellees that the decision in 1992 Ohio Atty.Gen.Ops. No. 92-078 does
provide some additional support for the proposition that the Society is a political subdivision.
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whether any of the exceptions in R.C. 2744.02(B) apply. Furthermore, if any of
R.C. 2744.02(B)’s exceptions are found to apply, a consideration of the application
of R.C. 2744.03 becomes relevant, as the third tier of analysis. 5 See Cater v.
Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610, 614-615. See, also, Harp
v. Cleveland Hts. (2000), 87 Ohio St.3d 506, 509, 721 N.E.2d 1020, 1023; Hill v.
Urbana (1997), 79 Ohio St.3d 130, 133, 679 N.E.2d 1109, 1112.
{¶ 26} The exception in R.C. 2744.02(B) implicated by this case that
potentially defeats the Society’s immunity under the analysis discussed above is
R.C. 2744.02(B)(2), which provides that political subdivisions are liable for
“negligent performance of acts by their employees with respect to proprietary
functions.” Appellants claim that the Society was engaged in proprietary functions
when it conducted the hog show and the investigation of the alleged Big Fat
incident at issue, so that the Society is not immune, and the judgment of the court
of appeals should be reversed. Appellees, on the other hand, claim that the Society
engaged in governmental functions. If appellees are correct, then R.C.
2744.02(B)(2)’s exception to immunity does not apply, R.C. 2744.02(A)(1)’s
general rule of immunity is not defeated, and we must affirm the judgment of the
court of appeals.
{¶ 27} The mutually exclusive definitions of “governmental function” and
“proprietary function” are set out in R.C. 2744.01. R.C. 2744.01(C)(2) lists specific
functions expressly designated as governmental functions, and R.C. 2744.01(G)(2)
lists specific functions that are expressly designated as proprietary functions. The
activities of the Society at issue in the present case do not fall within either R.C.
2744.01(C)(2) or 2744.01(G)(2). Therefore, to classify the Society’s activities, we
look to R.C. 2744.01(C)(1)’s definition of “governmental function,” which we set
out below. See, also, R.C. 2744.01(G)(1)(b), which for our inquiry here defines a
5. At some point, R.C. 2744.05 may also become relevant, as R.C. 2744.02(B) is expressly made
subject to that section as well.
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“proprietary function” as a function that “promotes or preserves the public peace,
health, safety, or welfare and that involves activities that are customarily engaged
in by nongovernmental persons.”
{¶ 28} R.C. 2744.01(C)(1) provides that a governmental function is one that
satisfies any of the following tests:
“(a) A function 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;
“(c) A function that promotes or preserves the public peace, health, safety
or welfare [and] that involves activities that are not engaged in or not customarily
engaged in by nongovernmental persons * * *.”
{¶ 29} R.C. Chapter 2744 was the General Assembly’s response to judicial
abolishment of the doctrine of sovereign immunity. See Franks v. Lopez (1994),
69 Ohio St.3d 345, 347, 632 N.E.2d 502, 504. In making the distinction between
governmental functions and proprietary functions a key component of R.C. Chapter
2744 when it was enacted in 1985, the General Assembly has chosen to embrace a
concept that was developed through the case law of this court prior to the adoption
of that chapter, even though the concept has been criticized by numerous judges
and commentators.6 See Comment, The Ohio Political Subdivision Tort Liability
Act: A Legislative Response to the Judicial Abolishment of Sovereign Immunity
(1986), 55 U.Cin.L.Rev. 501, 505-507, 510-521. Those earlier cases can be
instructive in illustrating the rationale behind the distinction.
6. See, e.g., Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 29, 2 OBR 572, 574, 442
N.E.2d 749, 752 (“Attempts to classify municipal functions into these two categories have caused
confusion and unpredictability in the law.”); Hack v. Salem (1963), 174 Ohio St. 383, 394, 23
O.O.2d 34, 40, 189 N.E.2d 857, 864 (Gibson, J., concurring in judgment) (attempted distinction
between governmental and proprietary functions is a “morass of conflict and confusion,” “has been
difficult and frequently leads to absurd and unjust consequences,” and is a “ ‘bramble bush’ * * *
which is both faulty and unsuited to modern * * * life”).
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{¶ 30} For example, in Wooster v. Arbenz (1927), 116 Ohio St. 281, 284-
285, 156 N.E. 210, 211-212, a case considering the immunity of a municipality,
this court stated:
“In performing those duties which are imposed upon the state as obligations
of sovereignty, such as protection from crime, or fires, or contagion, or preserving
the peace and health of citizens and protecting their property, * * * the function is
governmental, and if the municipality undertakes the performance of those
functions, whether voluntarily or by legislative imposition, the municipality
becomes an arm of sovereignty and a governmental agency and is entitled to * * *
immunity * * *. If, on the other hand, there is no obligation on the part of the
municipality to perform them, but it does in fact do so for the comfort and
convenience of its citizens * * * and the city has an election whether to do or omit
to do those acts, the function is private and proprietary.
“Another familiar test is whether the act is for the common good of all the
people of the state, or whether it relates to special corporate benefit or profit.”
{¶ 31} The Wooster court expounded that “[i]f the function being exercised
is proprietary and in pursuit of private and corporate duties, for the particular
benefit of the [municipal] corporation and its inhabitants, as distinguished from
those things in which the whole state has an interest, the city is liable.” 116 Ohio
St. at 284, 156 N.E. at 211.
{¶ 32} When a political subdivision’s acts go beyond governmental
functions (and when it acts in a proprietary nature) there is little justification for
affording immunity to that political subdivision. “Having entered into activities
ordinarily reserved to the field of private enterprise, a [political subdivision] should
be held to the same responsibilities and liabilities as are private citizens.”
Schenkolewski v. Cleveland Metroparks Sys. (1981), 67 Ohio St.2d 31, 37, 21
O.O.3d 19, 24, 426 N.E.2d 784, 788.
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{¶ 33} With the above considerations in mind, we consider the application
of R.C. 2744.01(C)(1).
{¶ 34} We summarily agree with the court of appeals’ determination that
the Society’s activities implicated in this case do not fall within R.C.
2744.01(C)(1)(a). The functions at issue clearly are not ones “imposed upon the
state as an obligation of sovereignty.”
{¶ 35} As to R.C. 2744.01(C)(1)(b), the trial court based its decision finding
the Society immune on this provision, determining that the Society’s activities at
issue here were “for the common good of all citizens of the state.” The court of
appeals expressed reservations about the trial court’s conclusion in this regard, but
declined to definitively rule on the propriety of the trial court’s determination,
because the court of appeals affirmed the trial court’s ruling on other grounds.
{¶ 36} We specifically find that the Society’s activities do not fall within
R.C. 2744.01(C)(1)(b). We agree with the concern voiced by the court of appeals
that the trial court’s definition of what is for the common good of all citizens of the
state is too broad because it would subsume the definition of a governmental
function found in R.C. 2744.01(C)(1)(c). As aptly stated by the court of appeals,
“Any activity that promotes or preserves the public peace, health, safety, and
welfare would also fall within a broad definition of what is for the common good
of all citizens of the state, thus obscuring the legislature’s purpose in crafting a
distinction between activities engaged in or customarily engaged in by
nongovernment persons and those that are not. See R.C. 2744.01(C)(1)(c) and
(G)(1)(b).” When an appropriately narrow definition of “for the common good of
all citizens” is applied, the Society’s activities do not fall within R.C.
2744.01(C)(1)(b). The activities at issue benefit only some of the citizens of the
state, not all citizens.
{¶ 37} The pivotal provision to construe in determining whether the Society
engaged in governmental or proprietary functions is R.C. 2744.01(C)(1)(c). The
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court of appeals concluded that the Society’s activities at issue fall within R.C.
2744.01(C)(1)(c)’s definition of a “governmental function.” In reaching this
conclusion, the court of appeals reasoned that a county fair promotes the public
welfare by educating the public about agriculture and other matters, and further
reasoned that a livestock competition is an activity not engaged in or not
customarily engaged in by nongovernmental persons.
{¶ 38} As we acknowledged above in considering whether the Society is a
political subdivision, there is an educational component to the Society’s activities.
See Leaverton, 104 Ohio St. at 554-555, 136 N.E. at 218. This educational
component may perhaps be sufficient to support a finding that the activities at issue
promote the public welfare. However, R.C. 2744.01(C)(1)(c) is phrased in the
conjunctive, so that the obvious question that must be decided is whether the
Society’s activities at issue can be classified as governmental functions because
they involve “activities that are not engaged in or not customarily engaged in by
nongovernmental persons.” R.C. 2744.01(C)(1)(c). See, also, R.C.
2744.01(G)(1)(b) (proprietary function involves “activities that are customarily
engaged in by nongovernmental persons”).
{¶ 39} In resolving this question, we must first recognize that a central
consideration within the structure of R.C. Chapter 2744 is the premise that some
activities of a political subdivision may be governmental functions, while some
other activities are not. Thus, the issue here is not whether holding a county fair is
a governmental function; rather, it is the more specific question of whether
conducting the hog show at the county fair and conducting the investigation into
the allegations of irregularity surrounding the entry of Big Fat in that hog show are
governmental functions.
{¶ 40} It is apparent to us that even though conducting a county fair may be
an activity not customarily engaged in by nongovernmental persons, conducting a
livestock competition is an activity customarily engaged in by nongovernmental
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persons. Any organization, whether private or public, can hold a competition of
this type. The consideration that many such competitions are conducted within
county fairs cannot change the fact that there is nothing inherently governmental
about them. In this situation, educational value alone is not enough to convert what
otherwise would not be a governmental function into something that is a
governmental function. We see no reason to distinguish a livestock competition at
a county fair from any other similar competition, such as a livestock competition
held elsewhere than at a county fair, or a dog or cat show, or an art show, or a chili
cook-off, or a beauty pageant, or a car show.
{¶ 41} In a situation such as the present case, when the political subdivision
at issue is not one of the bodies specifically mentioned within R.C. 2744.01(F), the
exceptions to immunity of R.C. 2744.02(B) should be construed in a way that leads
to a finding of immunity for only the central core functions of the political
subdivision. If the exceptions in R.C. 2744.02(B) are interpreted too expansively
in this situation, the balance of competing interests reflected in the structure of R.C.
Chapter 2744 is undermined.
{¶ 42} Unlike the court of appeals, we determine that the Society’s
activities at issue do not constitute governmental functions, but instead are
proprietary functions. We hold that the conducting of a livestock competition at a
county fair by a county agricultural society is a proprietary function pursuant to
R.C. Chapter 2744. We reverse the judgment of the court of appeals on this issue
and remand this cause to the trial court for further proceedings.
{¶ 43} Since we have determined that an R.C. 2744.02(B) exception to
immunity applies to the circumstances at issue, our analysis has progressed to the
point where the “third tier” of consideration set forth in Cater now becomes
relevant. As to R.C. 2744.03’s application to the Society’s immunity, we find that
none of the defenses of R.C. 2744.03 applies to this case. The nonliability
provisions of that statute must be read more narrowly than the liability provisions
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of R.C. 2744.02(B), or the structure of R.C. Chapter 2744 makes no sense at all.
See Hall v. Ft. Frye Loc. School Dist. Bd. of Edn. (1996), 111 Ohio App.3d 690,
699, 676 N.E.2d 1241, 1247; Hallett v. Stow Bd. of Edn. (1993), 89 Ohio App.3d
309, 313, 624 N.E.2d 272, 274; Stuckey v. Lawrence Twp. Bd. of Trustees (Aug.
24, 1992), Stark App. No. 8806, unreported, 1992 WL 214485 (Milligan, J.,
dissenting).
{¶ 44} However, the question of Mangan’s personal liability, and how R.C.
2744.03 applies to that, requires a different analysis than we employ with regard to
R.C. 2744.03’s application to the Society. Of course, if we had found that the
Society is not a political subdivision, then Mangan could not qualify as an employee
of a political subdivision for R.C. Chapter 2744 purposes, and the trial court’s
finding that he is immune from suit under R.C. 2744.03(A)(6) on the claims raised
against him individually could not stand. However, since we have found that the
Society is a political subdivision pursuant to R.C. 2744.01(F), R.C. 2744.03(A)(6)
is relevant to the question of Mangan’s personal liability.
{¶ 45} R.C. 2744.03(A) specifies that the defenses and immunities
contained within that section may be asserted “in connection with a governmental
or proprietary function.” Therefore, regardless of whether the Society engaged in
governmental or proprietary functions in conducting the activities at issue, Mangan
will be immune in his individual capacity unless his acts satisfy the standards of
R.C. 2744.03(A)(6) exposing him to personal liability. See Fabrey v. McDonald
Village Police Dept. (1994), 70 Ohio St.3d 351, 356, 639 N.E.2d 31, 35.
{¶ 46} The trial court granted summary judgment to Mangan on the issue
of his personal immunity, finding that none of the requirements for imposing
personal liability on an employee under R.C. 2744.03(A)(6) was met. The trial
court specifically found that summary judgment was appropriate because, even if
Mangan’s conduct may have been negligent, “reasonable minds cannot differ that
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[his conduct] did not rise to the level of and constitute malice, bad faith, or reckless
conduct.”
{¶ 47} Appellants, as part of their appeal to the court of appeals, challenged
the trial court’s finding that Mangan was entitled to personal immunity under R.C.
2744.03(A)(6). The court of appeals affirmed the judgment of the trial court on
this issue, finding that there was no evidence that Mangan acted with ill will,
malice, or bad faith in conducting his investigation, that reasonable minds could
not differ on whether Mangan acted recklessly in his investigation, and that there
was no genuine issue of material fact that any comments Mangan made were
outside the scope of his employment or made with ill will or malice.
{¶ 48} Because we have found that the Society is not immune, and because
this matter is being remanded to the trial court for further proceedings, further facts
may emerge regarding the propriety and details of Mangan’s actions. Given this
scenario, we vacate at this time the trial court’s determination (and the court of
appeals’ subsequent affirmance) that Mangan is individually immune. We view
the lower courts’ decisions on this issue as premature. We stress that, upon remand,
Mangan’s personal immunity is an open question, at this time neither established
nor foreclosed. We additionally emphasize that our holding that the Society is not
immune is solely on that question of law, and should not be read as having any
bearing on the resolution of the merits of the claims of any party.
{¶ 49} In conclusion, the judgment of the court of appeals that the Society
is immune from suit is reversed, and this cause is remanded to the trial court for
further proceedings.
Judgment reversed
and cause remanded.
F.E. SWEENEY, J., concurs.
DOUGLAS and PFEIFER, JJ., concur in the syllabus and judgment.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
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DOUGLAS, J., concurring.
{¶ 50} I concur with the syllabus and judgment of the majority. While I do
so, I continue to adhere to my dissent in Gladon v. Greater Cleveland Regional
Transit Auth. (1996), 75 Ohio St.3d 312, 323, 662 N.E.2d 287, 296.
PFEIFER, J., concurs in the foregoing concurring opinion.
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COOK, J., dissenting.
{¶ 51} I agree with the majority’s conclusion that the Agricultural Society
is a political subdivision, but I dissent from the holding that the Society activities
pertinent to this case are proprietary rather than governmental.
{¶ 52} The majority states that the important question here is not whether
the holding of the county fair is a governmental function, but whether the holding
of a hog show at the county fair and the subsequent investigation into allegations
of wrongdoing associated with that hog show were governmental functions. First,
I see no basis for distinguishing the county fair from a hog show held as a part of
the fair. The majority approvingly reviews a 1988 Attorney General opinion in
which the Attorney General determined that a county agricultural society is a
political subdivision because its main purpose is education. 1988 Ohio
Atty.Gen.Ops. No. 88-034. If the promotion of educational goals of a county fair
is a governmental function and renders a county agricultural society a political
subdivision, how can a livestock competition held as part of the fair, serving the
same kinds of educational purposes as does the fair and conducted by the same
entity that holds the fair, be distinguished from the fair as a whole for purposes of
governmental immunity? What happens at a county agricultural fair that makes it
educational, if not agricultural exhibits, demonstrations, events, and contests? It
seems to me that a livestock competition is an important part of what makes the
holding of the fair itself a governmental function. For our purposes here, then, we
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must view the hog competition as part and parcel of the fair itself. I would hold,
therefore, that the hog show is a governmental function.
{¶ 53} The majority attempts to support its holding that the hog show is a
proprietary function by asserting that “[a]ny organization, whether private or
public, can hold a competition of this type.” The test, however, is not whether a
nongovernmental person (or entity) can conduct the activity in question. Rather, it
is whether the activity is, in fact, “customarily engaged in by nongovernmental
persons.” (Emphasis added.) R.C. 2744.01(C)(1)(c). The majority concedes that
“many such competitions are conducted within county fairs.” County agricultural
fairs could conceivably be held by private, nongovernmental organizations. The
fact appears to be, though, that they are not, and that is a critical difference under
the statute.
{¶ 54} The majority goes on to state that “[t]he consideration that many
such competitions are conducted within county fairs cannot change the fact that
there is nothing inherently governmental about them.” While it is true that the fact
that an event takes place within a county fair does not automatically render it a
governmental function, the evidence here is that “such competitions” are
customarily conducted by county fairs. And whether an activity is “inherently
governmental” is not the test.
{¶ 55} Finally, the majority concludes that there is “no reason to distinguish
a livestock competition at a county fair from any other similar competition, such as
a livestock competition held elsewhere than at a county fair, or a dog or cat show,
or an art show, or a chili cook-off, or a beauty pageant, or a car show.” But a
livestock competition held elsewhere might still be a governmental function, or it
might not, depending on who was conducting it and what the purposes of the show
were. And dog or cat shows, chili cook-offs, beauty pageants, and car shows, aside
from the fact that their primary purposes are less likely to be educational and more
likely to be commercial, entertainment-oriented, or otherwise private, are
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January Term, 2000
customarily held by nongovernmental persons. There is good reason to distinguish
between the hog show at issue here and the other kinds of shows and contests
mentioned by the majority.
{¶ 56} Because I would hold the county fair livestock competition to be a
governmental function, I would affirm the judgment of the court of appeals that the
Society is immune from liability in this case. I therefore respectfully dissent.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
dissenting opinion.
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