Update: Read what happened on remand in this case here and here.

On November 20, 2012 the Court handed down a merit decision in M.H. v. Cuyahoga Falls, 2012-Ohio-5336. (when the case was originally argued, the minor’s name was in the caption, but due to a rule change, initials have been substituted.) The case was argued June 19, 2012. In a unanimous opinion written by Justice Pfeifer, the Court held Cuyahoga Falls was not entitled to immunity in this diving board accident case. Read the oral argument preview here and the analysis of the oral argument here.

Pertinent Statutes and Case Law

Chapter 2744-Political Subdivision Tort Liability

R.C. 2744.02(A)(1) confers immunity from liability to a city for injury caused in connection with a governmental or proprietary function.

R.C. 2744.02(B)(4) provides an exception to immunity if the injury is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code

Cater v. Cleveland, 83 Ohio St.3d 24 (1998)

This 1998 unanimous, but totally fractured opinion, involved a 12 year old boy who died as a result of a near-drowning in a city-owned indoor swimming pool. The syllabus of that case holds that the operation of a municipal swimming pool, although defined as a governmental function, 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. But the justices disagreed about which of the 2744.02 (B) exceptions applied in the case. Lead opinion author Francis Sweeney, who found that the (B)(3) exception applied, also took the position that the then-applicable (B)(4) exception would not apply to an indoor swimming pool. He wrote that “unlike a courthouse or office building where government business is conducted, a city recreation center houses recreational activities.” To him, applying the (B)(4) exception would unacceptably create liability for an indoor, but not for an outdoor pool, because the latter did not occur in a building. No other justice joined in that reasoning. Then Chief Justice Moyer wrote a separate concurrence, joined by two justices, arguing that the (B)(4) exception to immunity should apply in the case. He disagreed with the lead opinion that the application of the (B)(4) exception to this case would result in an artificial distinction between indoor and outdoor pools. He would find that 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.”

Case Background

M.H. broke his knee in a diving board accident at the Cuyahoga Falls natatorium. The trial court granted summary judgment to the city, on the grounds of political subdivision immunity (cities are political subdivisions and Cuyahoga Falls is a city.) The Ninth District Court of Appeals reversed, finding the exception to immunity in R.C. 2744.02(B)(4) applied.

Chapter 2744

The parties in the case agreed that the operation of a municipal swimming pool is a governmental function. They disagreed about whether the exception to immunity codified at R.C. 2744.02(B)(4) applies in this case.

Justice Pfeifer, the legendary hater of all things sovereign immunity, did a quick knife job in this case, finding the (B)(4) exception to liability applied in this case, and that the court of appeals was correct in reversing summary judgment for the city.

Since Cuyahoga Falls is a city, it clearly has the right to assert immunity.  And it was uncontroverted in the case that the operation of the natatorium is a governmental function. But for the Cater case, which the Court banishes without specifically overruling, Pfeifer found the case easy to resolve under the plain language of the (B)(4) exception—the pool was within a building “used in connection with the performance of a governmental function.”

No Ongoing Relevance for Cater

So, then there’s Cater. While the syllabus of that case held that the operation of a municipal swimming pool is defined as a governmental function, and was subject to the exceptions to immunity and available defenses found in R.C. 2744, there was no agreement about whether the (B)(4) exception to immunity applied.  The author of the lead opinion found that it did not, because “unlike a courthouse or office building where government business is conducted, a city recreation center houses recreational activities.” (The lawyer for Cuyahoga Falls repeatedly made this same argument in the M.H. case). The lead opinion in Cater went on to express concern about drawing “an artificial distinction” between injuries in indoor pools (which are in a building, hence exception to immunity applies) and outdoor pools, which are not (hence exception to immunity would not apply).

Justice Pfeifer noted that no justice joined this part of the lead opinion in Cater and concluded that the Court “was not persuaded that this language has ongoing relevance.” Instead, the plain language of the (B)(4) exception, which imposes liability for injury that “occur[ed] within or on the grounds of a building that was used in connection with the performance of a governmental function” controls the outcome of this case.

The case was remanded back to the trial court. In order to recover the plaintiffs will still have to prove that the diving board was negligently maintained, and that M.W. was injured because of a physical defect in the diving board or elsewhere on the premises.

Case Syllabus

None

Concluding Observations

This decision has a bit of a rushed feel to it. A cleaner handling of Cater would have been to adopt the reasoning of then-Chief Justice Moyer’s separate concurrence in the case, as urged by amicus counsel for M.H. at argument. All the justices seemed inclined to do that, although Chief Justice O’Connor did express concerns over different results for indoor and outdoor pools, as Justice Sweeney had expressed in Cater.