[Cite as Frenz v. Springvale Golf Course & Ballroom, 2012-Ohio-3568.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 97593


                              MEGAN FRENZ, ET AL.

                                                          PLAINTIFFS-APPELLEES

                                                    vs.

                       SPRINGVALE GOLF COURSE &
                           BALLROOM, ET AL.
                                                          DEFENDANTS-APPELLANTS




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-747131

        BEFORE: Stewart, P.J., Rocco, J., and Keough, J.

        RELEASED AND JOURNALIZED:                         August 9, 2012
ATTORNEYS FOR APPELLANT

Cara M. Wright
James A. Climer
John T. McLandrich
Frank H. Scialdone
Mazanec, Raskin & Ryder Co., L.P.A.
100 Franklin’s Row
34305 Solon Road
Cleveland, OH 44139


ATTORNEYS FOR APPELLEES

W. Craig Bashein
Anthony N. Palombo
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
MELODY J. STEWART, P.J.:

       {¶1} Defendant-appellant city of North Olmsted 1 appeals from the trial court’s

denial of its motion for summary judgment. The city complains that the trial court erred

by not finding that the claims of plaintiff-appellee Megan Frenz are barred by

governmental immunity. For the following reasons, we affirm.

       {¶2} While attending a wedding reception at the Springvale Country Club, a

facility owned and operated by the city of North Olmsted, Frenz removed her shoes and

joined other guests on the dance floor in the club’s ballroom. She dislocated her elbow

when she slipped and fell on the floor.

       {¶3} Frenz, and her husband Jonathan, filed suit against the city and fictitious

“John Doe” defendants, alleging negligence and loss of consortium. In her complaint,

Frenz asserts that: (1) excessive or unsuitable polish was used to maintain the ballroom

floor and created a “defective and/or dangerous and hazardous condition,” (2) the city

was aware of the unsafe condition, and (3) the city was negligent for failing to remedy the

condition and/or warn the patrons of the danger. The city moved for summary judgment

after discovery was completed, and its motion was denied without explanation.



        Named defendants Springvale Golf Course and Ballroom, Springvale Country Club, and
       1


Springvale Ballroom, are not sui juris; thus, the city is the sole defendant in this suit.
        {¶4} In its sole assignment of error, the city argues that the trial court erred in

denying its motion because it is immune from liability pursuant to R.C. Chapter 2744.

        {¶5} We review the trial court’s denial of summary judgment under a de novo

standard and address questions of sovereign immunity as a matter of law. Conley v.

Shearer, 64 Ohio St.3d 284, 292, 1992-Ohio-133, 595 N.E.2d 862.

        {¶6} Civ.R. 56(C) states that summary judgment may be granted when there are no

genuine issues of material fact and reasonable minds could find that the moving party is

entitled to judgment as a matter of law. We make an independent review of the record

by viewing the evidence in a light most favorable to the nonmoving party, and uphold the

denial of summary judgment when there exists an issue of material fact. Civ.R. 56(C).

The moving party must present specific facts showing a right to summary judgment, and

is not entitled to judgment as a matter of law when reasonable minds could differ on

whether to rule in its favor. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996);

Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6.

        {¶7} In Swanson v. Cleveland, 8th Dist. No. 89490, 2008-Ohio-1254, we reiterated

that:

        the Ohio Supreme Court established a three-tiered analysis for determining
        whether a political subdivision is immune from liability under Chapter
        2744. The first tier provides a general grant of immunity, stating that “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). The second tier involves an analysis of whether any of the
        exceptions to immunity, located in R.C. 2744.02(B), apply. Finally, in the
        third tier of analysis, if it appears one of the stated exceptions to immunity
       applies, immunity may be reinstated if the political subdivision can
       successfully assert one of the defenses to liability listed in R.C. 2744.03.

Id. at ¶ 10.

       {¶8} For the first tier of our analysis, the city of North Olmsted is a municipal

corporation and therefore a political subdivision as defined by R.C. 2744.01(F). As

such, the general grant of immunity contained in R.C. 2744.02(A)(1) applies in this case.

       {¶9} Although Frenz asserts in her brief that “[t]his court need not reach the

second stage of the [immunity] test, as the first is dispositive,” we must indeed do so.

Frenz mistakenly argues that because the operation of the club is not a governmental

function, it is proprietary and therefore not subject to immunity.          However, R.C.

2744.02(A)(1) specifically absolves a political subdivision from liability for injury

allegedly caused by any act or omission involving “a governmental or proprietary

function.” (Emphasis added.) If we were to end our analysis here, the city would

clearly prevail. Even if the operation of the club is a proprietary function, the plain

wording of the statute grants the city immunity.

       {¶10} However, under the second tier of the analysis, if the operation of the club

or ballroom is deemed to be a proprietary function, R.C. 2744.02(B)(2) provides an

exception to immunity, and states that: “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.” We must

therefore determine whether the city was engaged in a proprietary or a governmental

function.
       {¶11} Proprietary functions are functions that are either (1) specifically listed in

R.C. 2744.01(G)(2) (setting forth examples of proprietary functions) or (2) not described

in R.C. 2744.01(C)(1)(a), (b), or (C)(2) and “promotes or preserves the public peace,

health, safety, or welfare and * * * involves activities that are customarily engaged in by

nongovernmental persons.” R.C. 2744.01(G)(1). “Proprietary functions” include, but

are not limited to, “[t]he operation and control of a[n] * * * auditorium, civic or social

center * * *.” R.C. 2744.01(G)(2)(e).

       {¶12} Governmental functions are defined in R.C. 2744.01(C)(1) and specific

examples are listed in (C)(2). R.C. 2744.01(C) provides two routes to determine whether

a given function is governmental. First, a function is governmental if it meets one of

three enumerated independent standards contained in R.C. 2744.01(C)(1)(a) through (c);

namely, if it is (1) imposed upon the state as an obligation of sovereignty, (2) carried out

for the common good of all state citizens, or (3) not customarily engaged in by

nongovernmental entities. Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455,

2009-Ohio-1250, 905 N.E.2d 606, ¶ 11-12.

       {¶13} “In the absence of an explicit statutory definition, whether a function is

governmental or proprietary must be determined by ‘defining what it is that the political

subdivision is actually doing when performing the function.’” Kenko Corp. v. Cincinnati,

183 Ohio App.3d 583, 2009-Ohio-4189, 917 N.E.2d 888, ¶ 27 (1st Dist.), quoting Allied

Erecting & Dismantling Co. v. Youngstown, 151 Ohio App.3d 16, 2002-Ohio-5179, 783

N.E.2d 523, ¶ 23 (7th Dist.).
       {¶14} The rental of a government-owned facility to accommodate a private

wedding reception is not a duty imposed by the state; only benefits some, and not all of

the state’s citizens; is a function customarily engaged in by profit-making businesses as

opposed to governmental entities; and is not designated by statute in the list of specified

governmental functions. See, e.g., Peart v. Seneca Cty., 808 F.Supp.2d 1028 (N.D.Ohio

2011) (“renting jail space to the federal government in a profit-making venture is more

properly considered a proprietary function than a governmental one for the purposes of §

2744 immunity”).

       {¶15} The hall rental does not fall within the definition of government functions

because the activity is not listed in R.C. 2744.01(C)(1)(a), (b), or (C)(2). The activity

involves an undertaking customarily engaged in by nongovernmental entities. We agree

with Frenz that the exception to immunity contained in R.C. 2744.02(B)(2) applies

because the rental and operation of Springvale Ballroom to host wedding receptions falls

within the statutorily-defined category of a “civic or social center,” and the “operation

and control” of such constitutes a proprietary function.

       {¶16}    However, in Parker v. Distel Constr., Inc., 4th Dist. No. 10CA18,

2011-Ohio-4727, the court held that “before R.C. 2744.02(B)(2) will remove a political

subdivision’s immunity, the plaintiff must establish * * * the elements required to sustain

a negligence action — duty, breach, proximate cause, and damages [as well as showing]

that the negligence arose out of a ‘proprietary function.’” Id. at ¶ 13.
       {¶17} The city concedes in its motion for summary judgment, that it had “a duty

of ordinary care to maintain the ballroom in a reasonably safe condition so that the

customers are not exposed to unnecessary danger.” Frenz alleges that the city created an

unsafe condition by maintaining “very slick conditions as the result of [a] highly

polished/buffed floor,” and negligently failed to remedy the situation and/or warn patrons

concerning the same. She relies in part on the deposition testimony of facility manager

Martin Young to demonstrate that the city breached its duty of care to maintain the

ballroom floor in a reasonably safe condition. In Young’s deposition, he outlined the

floor maintenance protocols followed and chemicals used when cleaning and polishing

the ballroom dance floor.

       {¶18} Frenz supports her theory of proximate causation with the deposition

testimony of her mother and sister as well as event coordinator Sarah Barnhart, all of

whom stated that the floor surface was “slippery.”

       {¶19} We find that Frenz has demonstrated an exception to immunity pursuant to

R.C. 2744.02(B)(2).2 The trial court’s decision, therefore, must be upheld unless the city

has established an affirmative defense to the exception.




       Frenz alternatively argues that the “physical defect” exception to immunity
       2


contained in R.C. 2744.02(B)(4) is applicable if this court finds that the alleged
negligence involves the maintenance of a recreational facility, an undertaking
designated by statute to be a governmental function. In light of our determination
that the city was engaged in a proprietary function, we need not address this
argument.
       {¶20} Under the third tier of an immunity analysis, the city argues that its summary

judgment motion should be granted because it:

       is immune from liability if the action or failure to act by the employee

       involved that gave rise to the claim of liability was within the discretion of

       the employee with respect to policy-making, planning, or enforcement

       powers by virtue of the duties and responsibilities of the office or position

       of the employee. R.C. 2744.03(A)(3).

       {¶21} The city contends that the use and application of floor wax on the ballroom

floor was not a routine endeavor, but instead was an undertaking requiring specialized

knowledge due to the historic nature of the building. Therefore, the floor maintenance

constituted an immune discretionary function encompassed within the duties and

responsibilities of the facilities manager.

       {¶22} In Hall v. Ft. Frye Loc. School Dist. Bd. of Edn., 111 Ohio App.3d 690, 676

N.E.2d 1241 (4th Dist.1996), the court noted that “[i]mmunity operates to protect political

subdivisions from liability based upon discretionary judgments concerning the allocation

of scarce resources; it is not intended to protect conduct which requires very little

discretion or independent judgment.” Hall at 699. See also Kettering ex rel. Moser v.

Kettering, 2d Dist. No. 10596,1988 WL 10121, at *3, rev’d on other grounds, 37 Ohio

St.3d 233, 525 N.E.2d 490 (1988) (R.C. 2744.03(A)(3) applies to budgeting,

management, or planning). Property maintenance does not involve “the type of judgment

or discretion contemplated by R.C. 2744.03(A)(3) * * *.” Hall at 702.
       {¶23} The affirmative defense listed in R.C. 2744.03(A)(3) is inapplicable to the

facts of the case before us because the negligence alleged does not involve

“policy-making, planning, or enforcement powers.” Floor maintenance is janitorial work

involving routine, everyday matters.

       {¶24} The city alternatively asserts that R.C. 2744.03(A)(5) applies and that it is

immune from liability if Frenz’s injury:

       resulted 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.

The city points out that Frenz’s complaint failed to allege that the floor was waxed with a

malicious purpose, in bad faith, or in a wanton or reckless manner.

       {¶25} Immunity pursuant to R.C. 2744.03(A)(5) relates to activities that require

the balancing of alternatives or making decisions involving a heightened amount of

official judgment or discretion. Inland Prods., Inc. v. Columbus, 193 Ohio App.3d 740,

2011-Ohio-2046, 954 N.E.2d 141, ¶ 62 (10th Dist.). Discretion, in reference to R.C.

2744.03(A)(5), involves the exercise of independent judgment and policymaking.

Hacker v. Cincinnati, 130 Ohio App.3d 764, 770, 721 N.E.2d 416 (1st Dist.1998).

“[R]outine decisions requiring little judgment or discretion and that, instead, portray

inadvertence, inattention, or unobservance, are not covered by the defense provided by

R.C. 2744.03(A)(5).”     Hubbell v. Xenia, 175 Ohio App.3d 99, 2008-Ohio-490, 885

N.E.2d 290, ¶ 22 (2d Dist.).
      {¶26} Decisions concerning maintenance of the ballroom floor do not involve

policymaking or a high degree of discretion, and therefore, the affirmative defense

contained in R.C. 2744.03(A)(5), likewise, does not apply to this case. The trial court

properly denied the city’s motion for summary judgment.

      {¶27} Judgment affirmed.

      It is ordered that appellees recover of appellant their 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.




MELODY J. STEWART, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
