[Cite as Brister v. Cleveland, 2014-Ohio-1232.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 100016



                                        PAUL BRISTER

                                                        PLAINTIFF-APPELLANT

                                                  vs.

                         CITY OF CLEVELAND, ET AL.
                                                        DEFENDANTS-APPELLEES




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-12-783237

        BEFORE: E.A. Gallagher, J., S. Gallagher, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                       March 27, 2014
ATTORNEYS FOR APPELLANT

W. Craig Bashein
Thomas J. Sheehan
Bashein & Bashein Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, OH 44113

Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, OH 44113


ATTORNEYS FOR APPELLEES

Barbara A. Langhenry
Director of Law

BY: L. Stewart Hastings
Assistant Law Director
601 Lakeside Avenue, Room 106
Cleveland, OH 44114
EILEEN A. GALLAGHER, J.:

         {¶1} Appellant, Paul Brister, appeals the trial court’s order granting summary

judgment in favor of appellee, city of Cleveland (“the city”).   Brister argues that the trial

court erred when it determined that the city was entitled to political subdivision immunity

under R.C. Chapter 2744. For the following reasons, we reverse the decision of the trial

court.

         {¶2} Brister’s complaint against the city alleges that on May 23, 2011, he qualified

as an invitee of the city’s Thurgood Marshall Recreation Center, where he was exercising

on a back lateral machine.     His claim is that he suffered an injury when the machine’s

cable broke causing the machine’s bar to strike him on the head.     He alleges that the city

negligently maintained the exercise equipment at the Thurgood Marshall Recreation

Center because the city failed to inspect the machine before he used it.

         {¶3} Michael Wilcox, the regional manager for the Department of Public Works,

Division of Recreation, testified that the supervisors in charge of the recreational facility

are to visually examine the exercise equipment prior to their work shifts.   The supervisor

in charge of the facility on May 23, 2011 is no longer employed by the city and his

whereabouts are unknown.

         {¶4} The city moved for summary judgment asserting that it is entitled to political

subdivision immunity and that there is no proof that they negligently maintained the

exercise equipment. The trial court granted summary judgment without opinion and

Brister appealed asserting the following assignment of error:
       Given the disputed issues of material fact in the evidentiary record, the trial
       judge erred as a matter of law by granting summary judgment in favor of
       defendant-appellees.

       {¶5} Our review of a trial court’s grant of summary judgment is de novo. Grafton

v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241. Pursuant

to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of

material fact; (2) the moving party is entitled to judgment as a matter of law; and (3)

reasonable minds can come to but one conclusion and that conclusion is adverse to the

nonmoving party, said party being entitled to have the evidence construed most strongly

in his favor.   Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653

N.E.2d 1196, paragraph three of the syllabus; Zivich v. Mentor Soccer Club, 82 Ohio

St.3d 367, 1998-Ohio-389, 696 N.E.2d 201. The party moving for summary judgment

bears the burden of showing that there is no genuine issue of material fact and that it is

entitled to judgment as a matter of law.          Dresher v. Burt, 75 Ohio St.3d 280,

1996-Ohio-107, 662 N.E.2d 264.

       {¶6} The legislature has generally shielded political subdivisions such as the city

from tort liability.   Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551,

2000-Ohio-486, 733 N.E.2d 1141.         Chapter 2744 of the Revised Code sets forth a

three-tier analysis for determining whether a political subdivision is immune from

liability. The first step sets forth the general rule that political subdivisions are entitled

to broad immunity. R.C. 2744.02(A)(1) provides:

       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 an act or omission of the political subdivision
       or an employee of the political subdivision in connection with a
       governmental or proprietary function.

       {¶7} The parties do not dispute that the Thurgood Marshall Recreational Center is

an entity of the city and is a political subdivision under R.C. 2744.01(F).        Also, R.C.

2744.01(C)(2)(u)(ii) recognizes that the maintenance and operation of an indoor

recreational facility is a “governmental function.”

       {¶8} Under the second tier of the statutory analysis, once immunity is established,

a determination must be made as to whether any of the five exceptions to immunity listed

under R.C. 2744.02(B) apply. If one or more exceptions apply, the third tier of analysis

requires a determination of whether immunity may be reinstated because a defense

applies. Relevant here is the exception in R.C. 2744.02(B)(4), which states:

       [e]xcept as otherwise provided in section 3746.24 of the Revised Code,
       political subdivisions are liable for injury, death, or loss to person or
       property that is caused by the negligence of their employees and that occurs
       within or on the grounds of, and is due to physical defects within or on the
       grounds of, buildings that are used in connection with the performance of a
       governmental function.

       {¶9} The city argues that this exception to immunity is not applicable in the

present instance because, in the city’s view, it is limited to the real property or fixtures of

the buildings or grounds. We disagree. The statute states that the physical defect must

be located within or on the building or grounds. The Ohio Supreme Court has stated

that “under R.C. 2744.02(B)(4), a political subdivision can be held liable for injury

caused by the negligence of its employees that occurred within the grounds of buildings
used in performing a governmental function * * *.”     M.H. v. Cuyahoga Falls, 134 Ohio

St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 1.

       {¶10} This court previously rejected the argument presently offered by the city in

Williams v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga No. 92964,

2009-Ohio-6644. The plaintiff in Williams suffered an injury when a pool table in a

Cuyahoga Metropolitan Housing Authority (“CMHA”) recreation room suddenly, and

without notice, collapsed onto her leg. The plaintiff alleged that CMHA was negligent

in constructing, maintaining, and repairing the recreation room equipment and that the

defective pool table was a physical defect within the grounds of CMHA’s property. This

court refused to hold that the defective pool table could not constitute a “physical defect”

under R.C. 2744.02(B)(4), noting that the statute makes no distinction between the

alleged causes of injury. Id. at ¶ 13; see also Godfrey v. Cleveland, 8th Dist. Cuyahoga

No. 75754, 2000 Ohio App. LEXIS 3482 (Aug. 3, 2000) (involving an unsecured

picnic-style table in a visiting area); see also Bozeman v. Cleveland Metro. Hous. Auth.,

8th Dist. Nos. 92435 and 92436, 2009-Ohio-5491 (declining to grant judgment on the

pleadings despite the issue of whether the presence of lead paint constitutes a physical

defect).   Therefore, we find that the city’s argument that “physical defects” within the

meaning of R.C. 2744.02(B)(4) are strictly limited to fixtures to be without merit.

       {¶11} The city next argues that it is entitled to a specific grant of immunity by

application of R.C. 2744.01(C)(2)(u)(ii) for indoor recreation facilities. Relying on this

court’s decision in Bradley v. Cleveland, 8th Dist. Cuyahoga No. 83464,
2004-Ohio-2347, the city argues that if its actions fall under a specific governmental

function listed under R.C. 2744.01(C)(2), then it is not subject to the generalized

exceptions to immunity under R.C. 2744.02(B). However, the Ohio Supreme Court

invalidated the Bradley interpretation of R.C. Chapter 2744 in Moore v. Lorain Metro.

Hous. Auth., 121 Ohio St.3d at 457, 2009-Ohio-1250, 905 N.E.2d 606, as this court

recognized in Williams v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga No. 92964,

2009-Ohio-6644, ¶ 20. Thus, the city’s argument that it is entitled to a blanket grant of

immunity from the exceptions in R.C. 2744.02(B) is without merit.

       {¶12} Although the city could potentially be liable under R.C. 2744.02(B)(4) for

the negligent maintenance of the gym equipment, the city argues that it was not negligent

in this instance and that no genuine issues of material fact remain on the issue of

negligence.   We disagree.    The record is clear that the machine was of an age that

required it to be replaced.    In fact, five months prior to the accident, the city had

contracted to replace the exercise equipment at issue in this case and the replacement

equipment arrived three to four days after Brister’s injury. Although Wilcox testified

that the facility supervisors are responsible for visually examining the exercise equipment

prior to their work shifts, there is no evidence in the record to suggest that such an

inspection was actually performed by the supervisor in this instance.            In fact, the

supervisor on location at the time of the incident did not even generate an incident report

regarding Brister’s injury or inform Wilcox of the occurrence despite the fact that

Brister’s injury required him to be transported to a hospital in an ambulance.
      {¶13} Construing the evidence in a light most favorable to Brister, we find there is

enough circumstantial evidence in the record to create a genuine issue of material fact on

Brister’s negligence claim. We do not reach the question of whether an evidentiary

inference pursuant to Cherovsky v. St. Luke’s Hosp. of Cleveland, 8th Dist. Cuyahoga No.

68326, 1995 Ohio App. LEXIS 5530 (Dec. 14, 1995) would be appropriate in this case.

      {¶14} Brister’s assignment of error is sustained.

      {¶15} This cause is reversed and remanded            to the lower court for further

proceedings consistent with this opinion.

      It is ordered that appellant recover of   appellees his costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR
