# Cater v. City of Cleveland > Ohio Supreme Court · August 19, 1998 · 83 Ohio St. 3d 24 URL: https://www.frixlaw.com/law-library/cases/6777908 ## Case - **Full name:** Cater v. City of Cleveland - **Court:** Ohio Supreme Court - **Decided:** August 19, 1998 - **Citations:** 83 Ohio St. 3d 24 - **Precedential status:** Published - **Opinion:** Concurring in part by Moyer - **Judges:** Cook, Douglas, Hadley, Moyer, Only, Pfeifer, Resnick, Stratton, Sweeney, Syllabus, Third - **Cited by:** 246 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by M.H. v. City of Cuyahoga Falls, 134 Ohio St. 3d 65 (2012). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6777908 ## Opinion text Moyer, C.J., concurring in syllabus and judgment. 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. 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. 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 subdivi *35 sions 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 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. 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. 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. 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 totality might well conclude that the city had acted recklessly in exercising judgment or discretion in connection with the use of *36 pool equipment, personnel, and facilities, thereby precluding application of the defense provided by R.C. 2744.03(A)(5). I therefore concur in the syllabus and the judgment only. Hadley and Lundberg Stratton, JJ., concur in the foregoing concurring opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6777908. Public record. Not legal advice.