[Cite as Cutlip v. Akron, 2020-Ohio-20.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

ANGELA CUTLIP, et al.                                 C.A. No.     29319

        Appellees

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CITY OF AKRON                                         COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CV-2017-10-4233

                                 DECISION AND JOURNAL ENTRY

Dated: January 8, 2020



        TEODOSIO, Presiding Judge.

        {¶1}     The City of Akron appeals the order of the Summit County Court of Common

Pleas denying the City of Akron’s motion for summary judgment. We affirm.

                                                 I.

        {¶2}     In October 2017, Angela and William Cutlip filed a complaint against the City of

Akron and multiple John Doe defendants alleging negligence after a bathroom stall door fell on

Ms. Cutlip’s foot at Firestone Stadium, a public stadium in Akron, Ohio. The City of Akron

moved for summary judgment on the basis of political subdivision immunity pursuant to R.C.

2744.02(A), which was denied by the trial court on January 25, 2019. The City of Akron now

appeals, raising one assignment of error.
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                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN DENYING SUMMARY JUDGMENT TO
       THE CITY OF AKRON BASED UPON THE DOCTRINE OF POLITICAL
       SUBDIVISON IMMUNITY.

       {¶3}    In its assignment of error, the City of Akron argues the trial court erred in denying

its motion for summary judgment as to the doctrine of political subdivision immunity. We

disagree.

       {¶4}    “The denial of a motion for summary judgment is not ordinarily a final,

appealable order.” Buck v. Reminderville, 9th Dist. Summit No. 27002, 2014-Ohio-1389, ¶ 5.

However, R.C. 2744.02(C) provides that “[a]n order that denies a political subdivision * * * the

benefit of an alleged immunity from liability as provided in this chapter or any other provision of

the law is a final order.” There is no dispute the City of Akron is a political subdivision of the

state of Ohio. Because the denial of the motion denied the City the benefit of the political

subdivision immunity, it is a final order. Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007-

Ohio-4839, ¶ 2. Our review, however, is limited to the alleged errors in the portion of the trial

court’s decision which denied the political subdivision the benefit of immunity; this Court lacks

jurisdiction to address any other interlocutory rulings the trial court made. Owens v. Haynes, 9th

Dist. Summit No. 27027, 2014-Ohio-1503, ¶ 8, quoting Makowski v. Kohler, 9th Dist. Summit

No. 25219, 2011-Ohio-2382, ¶ 7-8.

       {¶5}    Appellate review of an award of summary judgment is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56

when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of
                                               3


the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977),

citing Civ.R. 56(C). A court must view the facts in the light most favorable to the non-moving

party and must resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358–359 (1992). A trial court does not have the liberty to choose among

reasonable inferences in the context of summary judgment, and all competing inferences and

questions of credibility must be resolved in the nonmoving party’s favor. Perez v. Scripps–

Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988).

       {¶6}   The Supreme Court of Ohio has set forth the nature of this burden-shifting

paradigm:

       [A] party seeking summary judgment, on the ground that the nonmoving party
       cannot prove its case, bears the initial burden of informing the trial court of the
       basis for the motion, and identifying those portions of the record that demonstrate
       the absence of a genuine issue of material fact on the essential element(s) of the
       nonmoving party’s claims. The moving party cannot discharge its initial burden
       under Civ.R. 56 simply by making a conclusory assertion that the nonmoving
       party has no evidence to prove its case. Rather, the moving party must be able to
       specifically point to some evidence of the type listed in Civ.R. 56(C) which
       affirmatively demonstrates that the nonmoving party has no evidence to support
       the nonmoving party’s claims. If the moving party fails to satisfy its initial
       burden, the motion for summary judgment must be denied. However, if the
       moving party has satisfied its initial burden, the nonmoving party then has a
       reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that
       there is a genuine issue for trial and, if the nonmovant does not so respond,
       summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

       {¶7}   Ohio’s Political Subdivision Tort Liability Act, which governs political

subdivision liability and immunity, is codified in R.C. 2744.01 et seq. McNamara v. City of

Rittman, 125 Ohio App.3d 33, 43 (9th Dist.1998). “In order to determine whether a political

subdivision is immune from liability, we engage in a three-tiered analysis.” Moss v. Lorain Cty.
                                                 4


Bd. of Mental Retardation, 9th Dist. Lorain No. 13CA010335, 2014-Ohio-969, citing Cater v.

Cleveland, 83 Ohio St.3d 24, 28 (1998). First, “a political subdivision is not liable in damages in

a civil action for injury, death, or loss to person or property allegedly caused by any act or

omission of the political subdivision or an employee of the political subdivision in connection

with a governmental or proprietary function.” R.C. 2744.02(A)(1). Second, “this comprehensive

immunity can be abrogated pursuant to any of the five exceptions set forth at R.C. 2744.02(B).”

Shalkhauser v. Medina, 148 Ohio App.3d 41, 46 (9th Dist.2002). Third, “immunity may be

restored, and the political subdivision will not be liable, if one of the defenses enumerated in

R.C. 2744.03(A) applies.” Moss at ¶ 10.

       {¶8}    In denying the City of Akron’s motion for summary judgment, the trial court

found that an exception to immunity applied to the City under R.C. 2744.02(B)(2). The City of

Akron argues that this exception to immunity does not apply.

       {¶9}    R.C. 2744.02(B)(2) provides:

       Except as otherwise provided in sections 3314.07 and 3746.24 of the Revised
       Code, political subdivisions are liable for injury, death, or loss to person or
       property caused by the negligent performance of acts by their employees with
       respect to proprietary functions of the political subdivisions.

       {¶10} R.C. 2744.01(G) describes the meaning of “proprietary function,” providing:

       (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 [defining “government function”] and is not one
               specified in division (C)(2) of this section [listing “government
               functions”];

               (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.

       (2) A “proprietary function” includes, but is not limited to, the following:
                                                5



               (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.

       {¶11} The trial court found that the matter at hand involved “[t]he operation and control

of a public stadium” under R.C. 2744.01(G)(2)(e). The City of Akron contends that the issue

involves the “maintenance” of the stadium, and that because the Ohio Legislature did not include

“maintenance” in R.C. 2744.01(G)(2)(e) as it did in other sections, it deliberately excluded it.

We do not agree that this operates as expressio unius est exclusio alterius. “Under the general

rule of statutory construction expressio unius est exclusio alterius, the expression of one or more

items of a class implies that those not identified are to be excluded.” (Emphasis sic.) State v.

Droste, 83 Ohio St.3d 36, 39 (1998). “This maxim properly applies only when in the natural

association of ideas in the mind of the reader that which is expressed is so set over by way of

strong contrast to that which is omitted that the contrast enforces the affirmative inference that

that which is omitted must be intended to have opposite and contrary treatment.” Ford v. United

States, 273 U.S. 593, 611 (1927). We do not find here such a contrast between the inclusion of

operation and control and the exclusion of maintenance, thus the inference based on the maxim
                                                6


cannot be drawn here. The “operation and control” of a public stadium is reasonably construed

to include functions that render the stadium usable, which would include the maintenance of the

facility.

        {¶12} The City of Akron further argues that the maintenance of a public stadium falls

under R.C. 2744.01(C)(2)(e), to which immunity would attach, and which provides: “A

‘governmental function’ includes * * * [t]he regulation of the use of, and the maintenance and

repair of, roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, and

public grounds * * *.” The City of Akron would have us construe a public stadium as falling

within the category of a “public ground.” We decline to do so.

        {¶13} The Supreme Court of Ohio has stated: “The subject matter of the statute—

‘public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and

viaducts’—relates specifically to traditional areas used only for the purpose and means of travel.

The term, ‘public grounds,’ contemplates areas to which the public may resort and within which

it may walk, drive or ride, etc.” Std. Fire Ins. Co. v. Fremont, 164 Ohio St. 344, 347 (1955),

quoting R.C. 723.01. The City of Akron has failed to offer any substantive argument or point to

evidence in the record to support the notion that a public stadium falls within category of “public

grounds.” We therefore cannot conclude that a public stadium falls within the meaning of

“public grounds” as contemplated by R.C. 2744.01(C)(2)(e).

        {¶14} In addition to its immunity argument, the City of Akron argues that it owed no

duty to Ms. Cutlip under the public duty doctrine. “Once it is determined that the City may be

liable for injuries under R.C. 2744.02(B), the City may assert the public duty rule as a defense.”

Shepard v. City of Akron, 9th Dist. Summit No. 26266, 2012-Ohio-4695, ¶ 31, citing Rankin v.

Cuyahoga Cty. Dept. of Children and Family Servs., 118 Ohio St.3d 392, 2008–Ohio–2567, ¶
                                                  7


31. “The public duty rule does not create an independent cause of action; it is a way to negate

the duty element.” Id. “The public duty rule provides a defense independent of sovereign

immunity.” Id., quoting Swart v. Ohio Dept. of Rehab. & Corr., 133 Ohio App.3d 420, 423

(10th Dist.1999), citing Hurst v. Ohio Dept. of Rehab. & Corr., 72 Ohio St.3d 325, 329 (1995),

overruled on other grounds, Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002–

Ohio–4210. See also Elias v. City of Akron, 9th Dist. Summit No. 29107, 2019-Ohio-4657, ¶ 15.

           {¶15} This appeal is limited to the trial court’s denial of immunity. Because the public

duty rule is independent of immunity, the issue is outside the scope of this appeal. See Shepard

at ¶ 32.

           {¶16} The City of Akron’s assignment of error is overruled.

                                                 III.

           {¶17} The City of Akron’s assignment of error is overruled. The order of the Summit

County Court of Common Pleas denying the City of Akron’s motion for summary judgment as

to the issue of political subdivision immunity is affirmed.

                                                                               Judgment affirmed.




           There were reasonable grounds for this appeal.

           We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

           Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                8


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    THOMAS A. TEODOSIO
                                                    FOR THE COURT



CARR, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

EVE V. BELFANCE, Director of Law, and JOHN CHRISTOPHER REECE and MICHAEL J.
DEFIBAUGH, Assistant Directors of Law, for Appellant.

MICHELLE L. TRASKA and PETER D. TRASKA, Attorneys at Law, for Appellees.

JEREMY M. BURNSIDE, Attorney at Law, for Appellees.
