The opinion
[Cite as Clemons v. Cardington, 2022-Ohio-513.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOYCE CLEMONS JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2021 CA 0008
VILLAGE OF CARDINGTON, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2019 CV 0020
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 18, 2022
APPEARANCES:
For Appellant For Appellee
MICHAEL J. VALENTINE SCOTT C. WALKER
MELVIN J. DAVIS COLIN R. BEACH
REMINGER CO., LPA WALKER NOVACK LEGAL GROUP, LLC
200 Civic Center Drive, Suite 800 5013 Pine Creek Drive
Columbus, Ohio 43215 Westerville, Ohio 43081
Morrow County, Case No. 2021 CA 0008 2
Wise, J.
{¶1} Defendant-Appellant, Village of Cardington (“Appellant”), appeals from the
June 7, 2021, Judgment Entry by the Morrow County Court of Common Pleas. Appellee
is Joyce Clemons. The relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 20, 2019, Appellee filed a Complaint alleging while attending a
festival in the Village of Cardington she fell while stepping on a catch basin set within
crumbling street pavement. As an exception to immunity, Appellee argued R.C.
2744.02(B)(3) applies, which imposes liability for a political subdivisions’ negligent failure
to keep public roads in repair.
{¶3} On January 25, 2021, Appellant moved for summary judgment arguing R.C.
2744(B)(3) did not apply because the catch basin was not in the street, but in an area
reserved for parking.
{¶4} On February 19, 2021, Appellee filed her memorandum opposing summary
judgment arguing there was a genuine issue of material fact as to whether or not Appellant
was entitled to political subdivision immunity from tort liability.
{¶5} On June 7, 2021, the trial court denied Appellant’s Motion for Summary
Judgment finding an exception to political subdivision immunity under R.C. 2744.02(B)(2),
negligence of a political subdivision’s employees during the performance of a proprietary
function, may apply. The trial court found a genuine issue of material fact exists as to
whether or not Appellant sponsored the street fair and subsequent fireworks display. The
trial court did not analyze an exception to political subdivision immunity from tort liability
pursuant to R.C. 2744(B)(3).
Morrow County, Case No. 2021 CA 0008 3
ASSIGNMENTS OF ERROR
{¶6} Appellant filed a timely notice of appeal and herein raises the following three
Assignments of Error:
{¶7} “I. THE TRIAL COURT ERRED BY DENYING THE VILLAGE OF
CARDINGTON POLITICAL SUBDIVISION IMMUNITY UNDER THE EXCEPTION
FOUND UNDER R.C. 2744.02(B)(2) BECAUSE THE VILLAGE OF CARDINGTON WAS
NOT ENGAGED IN A PROPRIETARY FUNCTION, NOR WAS IT ALLEGED THAT THEY
WERE.
{¶8} “II. THE TRIAL COURT ERRED BY FAILING TO CONDUCT AN
ANALYSIS OF WHETHER THE EXCEPTION TO IMMUNITY FOUND UNDER R.C.
2744.02(B)(3) WAS APPLICABLE TO THIS CASE.
{¶9} “III. THE TRIAL COURT ERRED BY DENYING THE VILLAGE OF
CARDINGTON POLITICAL SUBDIVISION IMMUNITY BECAUSE THERE WAS NO
EVIDENCE THAT THE VILLAGE OF CARDINGTON WAS NEGLIGENT.”
Standard of Review
{¶10} With regard to summary judgment, this Court applies a de novo standard of
review and reviews the evidence in the same manner as the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any
deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may grant
summary judgment if it determines: (1) no genuine issues as to any material fact remain
to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it
appears from the evidence that reasonable minds can come to but one conclusion and
Morrow County, Case No. 2021 CA 0008 4
viewing such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party. Temple v. Wean
United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274 (1977).
{¶11} The record on summary judgment must be viewed in the light most
favorable to the party opposing the motion. Williams v. First United Church of Christ, 37
Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).
{¶12} The moving party bears the initial responsibility of informing the trial court
of the basis for the motion and identifying those portions of the record before the trial court
which demonstrate the absence of a genuine issue of fact on a material element of the
nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996).
Once the moving party has met the burden, the nonmoving party then has a reciprocal
burden of specificity and cannot rest on the allegations or denials in the pleadings, but
must set forth “specific facts” by the means listed in Civ.R. 56(C) showing that a “triable
issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801
(1988).
I., III.
{¶13} In Appellant’s First and Third Assignments of Error, Appellant argues
Appellee failed to establish a genuine issue of material fact as to whether Appellant is
entitled to political subdivision immunity from tort liability. We disagree.
{¶14} A three-tiered analysis is required to determine whether a political
subdivision is immune from tort liability pursuant to R.C. 2744. Gattrell v. Utica, 5th Dist.
Licking No.15-CA-26, 2016-Ohio-792, 63 N.E.3d 461, ¶36-37, citing Greene Cty.
Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000); Smith
Morrow County, Case No. 2021 CA 0008 5
v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶13-15. The first tier is
the general rule that a political subdivision is immune from liability incurred in performing
either a governmental or a proprietary function. Greene Cty. Agricultural Society at 556-
557, 733 N.E.2d 1141; R.C. 2744.02(A)(1). That immunity, however, is not absolute. R.C.
2744.02(B); Cater v. Cleveland, 83 Ohio St.3d 24, 697 N.E.2d 610 (1998). “The second
tier of the analysis requires a court to determine whether any of the five listed exceptions
to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability.”
Greene Cty. Agricultural Society at 556-557, 733 N.E.2d 1141; R.C. 2744.02(A)(1). The
third tier is to determine whether the political subdivision is entitled to a defense or
qualified immunity under R.C. 2744.03(A). Vasquez-Comer v. City of Toledo, 6th Dist.
Lucas No. L-18-1266, 2019-Ohio-5149, ¶9.
First Tier Analysis
{¶15} In this case there is no dispute that Appellant is a political subdivision.
{¶16} R.C. 2744.01 defines “proprietary function,” to include,
(G)(1) “Proprietary function” means a function of a political
subdivision that is specified in division (G)(2) of this section or that satisfies
both of the following:
(a) The function is not one described in division (C)(1)(a) or (b) of this
section and is not one specified in division (C)(2) of this section;
(b) The function is one that promotes or preserves the public peace,
health, safety, or welfare and that involves activities that are customarily
engaged in by nongovernmental persons.
Morrow County, Case No. 2021 CA 0008 6
(2) A “proprietary function” includes, but is not limited to, the
following:
(a) The operation of a hospital by one or more political subdivisions;
(b) The design, construction, reconstruction, renovation, repair,
maintenance, and operation of a public cemetery other than a township
cemetery;
(c) The establishment, maintenance, and operation of a utility,
including, but not limited to, a light, gas, power, or heat plant, a railroad, a
busline or other transit company, an airport, and a municipal corporation
water supply system;
(d) The maintenance, destruction, operation, and upkeep of a sewer
system;
(e) The operation and control of a public stadium, auditorium, civic or
social center, exhibition hall, arts and crafts center, band or orchestra, or
off-street parking facility.
{¶17} R.C. 2744.01 defines a “governmental function” as “(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; [or] (c) [a] function that promotes or preserves
the public peace, health, safety, or welfare; that involves activities that are not engaged
in or not customarily engaged in by nongovernmental persons.”
{¶18} In Brown v. Lincoln Hts., 1st Dist. No. C-100699, 195 Ohio App.3d 149,
2011-Ohio-3551, 958 N.E.2d 1280, ¶20, the First District Court of Appeals held that,
Morrow County, Case No. 2021 CA 0008 7
“sponsoring of a festival is not one of the delineated governmental functions.” The Court
continued,
[t]he Defendant was not required by the state as a sovereign to
sponsor a festival. And the act of sponsoring the festival was not done for
the common good of all citizens of Ohio. Rather, it was performed for the
particular benefit of the village and its current and past inhabitants. Last,
although the sponsorship of a festival does promote public peace, health,
safety, and welfare, it is not a function in which nongovernmental persons
are not customarily engaged.
The First District, therefore, determined coordination and operation of the festival was a
proprietary function.
{¶19} In the case sub judice, the record shows Appellant participated in the
coordination and operation of the festival by blocking off roadways for use in the festival,
cleaning up before and after the festival, and providing on-duty police and EMS on
standby. As such, viewing the record most strongly in favor of Appellee, a genuine issue
of material fact exists as to whether or not the level of participation by Appellant in the
coordination and operation of the festival rises to the level of a proprietary function.
Second Tier Analysis
{¶20} The second step of the analysis is to determine whether any of the
exceptions to the general rule of immunity, contained in R.C. 2744.02(B) apply. Greene
Cty. Agricultural Society at 556-557, 733 N.E.2d 1141; R.C. 2744.02(A)(1). Under
R.C.2744.02(B)(2), a political subdivision loses its immunity and becomes liable for
damages resulting from the harm caused by the negligence of its employees in their
Morrow County, Case No. 2021 CA 0008 8
performance of proprietary functions. Brown v. Lincoln Hts., 1st Dist. No. C-100699, 195
Ohio App.3d 149, 2011-Ohio-3551, 958 N.E.2d 1280, ¶22. If the finder of fact determines
Appellant’s participation in the coordination and operation of the festival constitutes a
proprietary function, this exception will be applicable if there was negligence on the part
of Appellant.
{¶21} To prove negligence, Appellee has the burden to establish: (1) a duty of
care by Appellant to Appellee, (2) breach of that duty, and (3) injury proximately caused
from the breach. Vasquez-Cromer v. City of Toledo, 6th Dist. Lucas No. L-18-1266, 2019-
Ohio-5149, ¶16 citing Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472
N.E.2d 707 (1984). Where negligence revolves around the existence of a hazard or
defect, a duty of care does not arise unless the defendant has notice, either actual or
constructive, of such hazard or defect.” Cone v. City of Canton, 5th Dist. Stark
No.2017CA00043, 2017-Ohio-8035, ¶14 quoting Davis v. Akron, 9th Dist. Summit No.
19553, 2000 WL 254900, *1 citing Heckert v. Patrick, 15 Ohio St.3d 402, 473 N.E.2d 1204
(1984).
{¶22} In the case sub judice, Appellee alleges Appellant had notice of the defect,
supported by affidavits, that the area around the catch basin had been repaved several
times given the height of the pavement. However, Appellant never adjusted the height of
the catch basin grate. This caused Appellee’s fall resulting in a fractured left femur, left
foot, Appellee struck her head, and injured her right shoulder. Therefore, while viewing
the record in a light most favorable to Appellee, the trial court did not err when it found
there is a genuine issue of material fact whether Appellee’s damages were caused by the
negligence of Appellant’s employees in their performance of a proprietary function.
Morrow County, Case No. 2021 CA 0008 9
Third Tier Analysis
{¶23} There is no dispute that the defenses and immunities listed in R.C. 2744.03
do not apply.
{¶24} Viewing the current evidence in the light most favorable to Appellee, we find
there is a genuine issue of material fact whether Appellant is entitled to political
subdivision immunity pursuant to R.C. 2744.
II.
{¶25} In Appellant’s Second Assignment of Error, Appellant argues that Appellant
is entitled to political subdivision immunity pursuant to R.C. 2744, and that the exception
to political subdivision immunity pursuant to R.C. 2744.02(B)(3) does not apply. We
disagree.
{¶26} Appellant’s Assignment of Error states, “The trial court erred by failing to
conduct an analysis of whether the exception to immunity found under R.C. 2744.02(B)(3)
was applicable to this case.” However, Appellant does not cite any proposition of law
stating the trial court was required to perform such analysis. Instead, Appellant argued
the merits as to the applicability of R.C. 2744.02(B)(3).
Morrow County, Case No. 2021 CA 0008 10
{¶27} Due to our disposition of Appellant’s First and Third Assignments of Error,
we find it unnecessary to address Appellant’s Second Assignment of Error and therefore
decline to do so.
{¶28} For the foregoing reasons, the judgment of the Court of Common Pleas,
Morrow County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/br 0211