[Cite as Hignett v. Schwarz, 2011-Ohio-3252.]


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

CRAIG HIGNETT, et al.                                 C.A. No.       10CA009762

        Appellees

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
KELLY L. SCHWARZ, et al.                              COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellants                                    CASE No.   08CV158064

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2011



        DICKINSON, Judge.

                                            INTRODUCTION

        {¶1}    Craig Hignett fell off the back of a utility vehicle while it was going over a mogul

at the Lorain County Fair at 3:00 a.m. He sued the driver of the vehicle, the owner of the

vehicle, the Lorain County Agricultural Society, and one of the directors of the fair, asserting

negligence.    The Agricultural Society moved for summary judgment, asserting that it had

immunity, but the trial court denied its motion. The Agricultural Society has appealed, arguing

that the trial court incorrectly denied its motion for summary judgment. We affirm because

genuine issues of material fact exist regarding whether Mr. Hignett’s injuries were caused by the

negligent acts of one of the Agricultural Society’s directors.

                                            BACKGROUND

        {¶2}    For several years, Mr. Hignett worked as a member of the fair’s garbage crew.

During the fair, he stayed with his co-worker Michael Schaffer, whose family lived in a house
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that was on the fairgrounds. Tom Denes, who was one of the directors of the fair, stayed in a

trailer near Mr. Schaffer’s house during the fair.

       {¶3}    According to Mr. Hignett, on the second-to-last day of the 2006 fair, he worked

from 3:00 p.m. to 10:00 p.m. When his shift ended, he walked back to Mr. Schaffer’s house to

change and have a beer. Because it was the last night of the fair, Mr. Schaffer and he decided to

take a walk around the fairgrounds. When they returned, they had another beer. While they

were drinking, they noticed that the utility vehicle that Mr. Denes used during the fair was not at

his trailer. They, therefore, decided to take another walk. Mr. Hignett testified that they walked

to the grandstand, where workers were using heavy machinery to build a course for the next

day’s motocross event. When they walked onto the grandstand, they saw Mr. Denes’s utility

vehicle by the fairground’s electrical building and walked over to it.

       {¶4}    Mr. Hignett testified that, when they got to the electrical building, Mr. Denes was

sitting in the front of the utility vehicle with his girlfriend, Kelly Schwarz. Mr. Denes told them

that he had to put up a handicap sign and that they should hop in the bed of the vehicle. Mr.

Hignett said that, even though he was not on duty, he complied because Mr. Denes was a fair

director and the four of them drove off toward the motocross course.

       {¶5}    According to Mr. Hignett, instead of putting up the sign, Mr. Denes drove the

utility vehicle over the motocross course’s moguls, which are small dirt hills. Mr. Hignett said

that he was able to stay in the bed but, at one point, Mr. Schaeffer almost fell out of the vehicle.

After four or five times around the course, Mr. Denes drove back to the electrical building. Mr.

Hignett testified that everyone else got off the utility vehicle, but he stayed in the bed. He said

that Mr. Denes told them about a cooler of beer and that Mr. Schaffer brought him one.

According to Mr. Hignett, he had one sip of the beer and then Ms. Schwarz and Mr. Denes got
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back in the utility vehicle. He handed his beer back to Mr. Schaeffer, and they headed off again.

This time, Ms. Schwarz was driving and Mr. Denes was in the passenger seat.

       {¶6}     Mr. Hignett testified that, when they left the second time, he thought they were

going to put up the sign, since they had not done that the first time. Ms. Schwarz, however,

drove back to the motocross course and began to go over the moguls faster than Mr. Denes had.

At some point while the utility vehicle was going over the first mogul, he fell out of it, breaking

several of his vertebrae.

       {¶7}     Mr. Schaeffer’s testimony was similar to Mr. Hignett’s with some differences.

He testified that, when he and Mr. Hignett were taking their walk around the fairgrounds, they

stopped by a camper and had a beer with the occupants. He also said that, when Mr. Denes

drove them back to the electrical building after going around the motocross course, everyone got

off the utility vehicle. Mr. Schaeffer said that he did not get back on the utility vehicle for the

second trip because he had a feeling that Mr. Denes and Ms. Schwarz were going to go back to

the motocross course and he did not want to go over the moguls again. Mr. Schaeffer said that

he told Mr. Hignett not to get back on the utility vehicle and that the others teased him for not

joining them.

       {¶8}     Mr. Denes testified that he helped with the combine demolition derby, then had a

couple of beers and went to bed. Ms. Schwarz woke him up around 2:30 a.m., and they decided

to take a look around the fairgrounds to make sure that everything was fine. They drove the

utility vehicle to the electrical building, which was near the motocross course. When they

arrived, he saw Mr. Hignett and Mr. Schaeffer, who were drinking. According to Mr. Denes,

Ms. Schwarz and he also started drinking and socializing. After a little while, Ms. Schwarz and
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he decided to drive the utility vehicle over the motocross jumps. Before they left, Mr. Hignett

and Mr. Schaeffer got in the bed of the vehicle.

        {¶9}    According to Mr. Denes, after he was finished driving over the jumps, he drove

back to the electrical building and continued socializing. About 20 minutes later, Ms. Schwarz

told him that she wanted to go back out on the course. Mr. Denes agreed and allowed her to

drive, even though he knew that he was the only one who was allowed to operate the utility

vehicle. Mr. Denes testified that Mr. Hignett got in the bed again, but Mr. Schaeffer declined

because he had hurt a rib the first time. Mr. Denes denied that there was a sign in the vehicle or

that he told Mr. Hignett or Mr. Schaeffer that they were going to be putting up a sign. Mr. Denes

testified that it was clear to everyone that it was a recreational trip.

        {¶10} Ms. Schwarz testified that Mr. Denes and she went to bed around 9:30 p.m. and

woke up around 2:00 a.m. Because it was the last night of the fair, they decided to go out and

see what was going on. They went to the campground first, but it was quiet, so they went to the

electrical building to see how the construction of the motocross course was coming along.

According to Ms. Schwarz, when they got to the electrical building, there was a group of people

socializing. Mr. Denes told the people who were socializing that he was going to drive the utility

vehicle over the moguls, and Mr. Schaeffer and Mr. Hignett jumped in the back of it. After they

went over a couple of the moguls, they returned to the electrical building and continued

socializing.

        {¶11} Ms. Schwarz testified that, after a little while, Mr. Denes and she decided to head

back to the trailer. She told Mr. Denes that she wanted to drive this time and to take the utility

vehicle over the moguls again. As they were backing out, Mr. Hignett jumped in the bed. Even

though Mr. Hignett had not been invited, Ms. Schwarz did not tell him to get out. She also
                                                  5


recalled Mr. Schaeffer telling Mr. Hignett not to get onto the utility vehicle. Ms. Schwarz did

not know why Mr. Hignett fell out of the bed. She also did not know how fast she was going

when she went over the mogul, but claimed that it was not the vehicle’s maximum speed.

According to Ms. Schwarz, she had a beer at the electrical building, but had not had any other

alcohol since 5:00 p.m. the previous day.

                            POLITICAL SUBDIVISION IMMUNITY

       {¶12} The Agricultural Society’s assignment of error is that the trial court incorrectly

denied its motion for summary judgment on the issue of immunity. “Determining whether a

political subdivision is immune from liability . . . involves a three-tiered analysis.” Lambert v.

Clancy, 125 Ohio St. 3d 231, 2010-Ohio-1483, at ¶8. “The starting point is the general rule that

political subdivisions are immune from tort liability[.]” Shalkhauser v. Medina, 148 Ohio App.

3d 41, 2002-Ohio-222, at ¶14. Under Section 2744.02(A)(1), “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 . . . in connection with a governmental or

proprietary function.” “At the second tier, this comprehensive immunity can be abrogated

pursuant to any of the five exceptions set forth at R.C. 2744.02(B).” Shalkhauser, 2002-Ohio-

222, at ¶16. “Finally, immunity lost to one of the R.C. 2744.02(B) exceptions may be reinstated

if the political subdivision can establish one of the statutory defenses to liability.” Id.; see R.C.

2744.03(A).

       {¶13} In its motion for summary judgment, the Agricultural Society argued that its

immunity was not abrogated under Section 2744.02(B)(1) of the Ohio Revised Code, which

provides that “political subdivisions are liable for injury . . . caused by the negligent operation of

any motor vehicle by their employees when the employees are engaged within the scope of their
                                                 6


employment and authority.” The Agricultural Society argued that the utility vehicle was not a

“motor vehicle” and that Ms. Schwarz was not one of its employees acting within the scope of

her employment. R.C. 2744.02(B)(1).

       {¶14} In his response to the Agricultural Society’s motion, Mr. Hignett argued that the

reason it does not have immunity is not because of Section 2744.02(B)(1), but Section

2744.02(B)(2), which provides that “political subdivisions are liable for injury . . . caused by the

negligent performance of acts by their employees with respect to proprietary functions of the

political subdivisions.” Mr. Hignett noted that the statutory definition of proprietary function

includes “[t]he operation and control of a public stadium,” and argued that this situation qualified

because the motocross course was constructed at the fairground’s grandstand.                   R.C.

2744.01(G)(2)(e). He also argued that Mr. Denes was an Agricultural Society employee who

negligently entrusted the utility vehicle to Ms. Schwarz.         See R.C. 2744.01(B) (defining

“[e]mployee” as “an officer, agent, employee, or servant . . .”). In its Reply, the Agricultural

Society argued that, even if its operation of the fair was a proprietary function, Mr. Hignett had

not established “that it was [Mr.] Denes’ negligent performance of one of his job duties that

caused [the] injury.”

       {¶15} In its appellate brief, the Agricultural Society has focused its argument, again, on

whether its immunity was abrogated under Section 2744.02(B)(1), the provision regarding motor

vehicles.   It has argued that the utility vehicle is not a “[m]otor vehicle” under Section

2744.01(E), and that, even if it is, Ms. Schwarz was not one of its employees. It has also argued

that Mr. Hignett failed to present any evidence that Mr. Denes’s negligence in the performance

of one of Mr. Denes’s duties caused his injuries.
                                                  7


       {¶16} Mr. Hignett has argued that the Agricultural Society does not have immunity

under Section 2744.02(B)(2) of the Ohio Revised Code because the operation or control of a

public stadium is a proprietary function, Mr. Denes was an employee of it, and Mr. Denes was

negligent in allowing Ms. Schwarz to operate the utility vehicle on the motocross course.

Regarding Mr. Denes’s negligence, Mr. Hignett has argued that, not only did he know that only

directors were allowed to operate utility vehicles at the fair, but also that Ms. Schwarz had been

drinking before operating the vehicle.

       {¶17} In its reply brief, the Agricultural Society has argued that driving a utility vehicle

over moguls in the middle of the night under the guise of erecting a handicap sign is not a

proprietary function. It has argued, instead, that “the erection or nonerection of traffic signs” is a

governmental function under Section 2744.01(C)(2)(j). It has also argued that Mr. Denes’s

activities should be characterized as “maintenance . . . of . . . public grounds,” which is a

governmental function under Section 2744.01(C)(2)(e).

       {¶18} Construing the evidence that was submitted under Rule 56 of the Ohio Rules of

Civil Procedure in a light most favorable to Mr. Hignett, we conclude that genuine issues of

material fact exist that preclude judgment for the Agricultural Society as a matter of law. In

determining whether a function is governmental or proprietary, we must look at the character of

the specific activity that resulted in the alleged injury. See Greene County Agric. Soc. v. Liming,

89 Ohio St. 3d 551, 560 (2000) (“[T]he issue here is not whether holding a county fair is a

governmental function; rather, it is the more specific question of whether conducting the hog

show at the county fair and conducting the investigation into the allegations of irregularity

surrounding the entry of Big Fat in that hog show are governmental functions.”). Although Mr.

Hignett claimed that he got in the utility vehicle because Mr. Denes told him he had to put up a
                                                 8


handicap sign, that is not the activity that they were engaged in at the time he was injured.

Rather, the undisputed evidence shows that Mr. Hignett was injured while Ms. Schwarz was

driving the utility vehicle over one of the motocross course’s moguls.

          {¶19} Regarding the Agricultural Society’s argument that Mr. Denes was not operating

or controlling a public stadium, Mr. Denes testified that the reason that he got up at 2:30 a.m.

was because workers were in the process of constructing the motocross track and he wanted to

make sure everything was fine. According to Mr. Denes, one of his duties was to make sure that

“nothing happened out of the ordinary at night.” We, therefore, conclude that a genuine issue of

material fact exists regarding whether Mr. Denes was operating or exercising control over a

public stadium when he allowed Ms. Schwarz to drive the utility vehicle on the motocross

course.

          {¶20} Regarding the Agricultural Society’s argument that Mr. Hignett can not prove that

Mr. Denes was negligent because he can not establish the elements of negligent entrustment, the

Ohio Supreme Court has held that, “[i]n an action against the owner of a motor vehicle for injury

arising from its entrustment for operation, the burden is upon the plaintiff to establish that the

motor vehicle was driven with the permission and authority of the owner; that the entrustee was

in fact an incompetent driver; and that the owner knew at the time of the entrustment that the

entrustee had no driver’s license, or that [s]he was incompetent or unqualified to operate the

vehicle, or had knowledge of such facts and circumstances as would imply knowledge on the

part of the owner of such incompetency.” Gulla v. Straus, 154 Ohio St. 193, paragraph five of

the syllabus (1950). The plaintiff must also show that the driver negligently operated the

vehicle. Mastran v. Urichich, 37 Ohio St. 3d 44, 48 (1988).
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          {¶21} Despite arguing elsewhere in its brief that the utility vehicle was not a motor

vehicle, the Agricultural Society has argued that the Gulla test applies. Assuming, without

deciding, that it is correct, Mr. Denes testified that he knew Ms. Schwarz consumed alcohol

while she was at the electrical building. We, therefore, conclude that there is a genuine issue of

material fact regarding whether Mr. Denes knew or should have known that she was incompetent

to operate the utility vehicle. See Gulla v. Straus, 154 Ohio St. 193, paragraph four of the

syllabus (1950) (identifying intoxication as a disability that may make a driver incompetent);

Williamson v. Eclipse Motor Lines Inc., 145 Ohio St. 467, 472 (1945) (“In the cases involving

the entrustment of a motor vehicle to an intoxicated driver . . . it is generally held that the owner

assumes the risk of recklessness of such driver[.]”). A genuine issue of material fact also exists

regarding whether Mr. Denes violated his duty to ensure that “nothing happened out of the

ordinary at night” when he allowed a non-employee to drive a utility vehicle on the motocross

course.

          {¶22} The Agricultural Society has also argued that, even if Section 2744.02(B)(2)

applies, its immunity is restored by Section 2744.03(A)(5) because Mr. Hignett’s injuries were

the result of an individual employee’s exercise of discretion in determining how to use its

equipment. The Agricultural Society, however, did not make this argument in its motion for

summary judgment, and it may not raise the issue for the first time on appeal. State v. Schwarz,

9th Dist. No. 02CA0042-M, 2003-Ohio-1294, at ¶14 (“Courts have consistently held that

arguments which are not raised below may not be considered for the first time on appeal.”).

          {¶23} An Agricultural Society director allowed Ms. Schwarz to drive Mr. Hignett

around the fair’s motocross course in the bed of a utility vehicle even though he knew that she

was not authorized to operate the vehicle, that she had been drinking, and that the bed of the
                                                10


vehicle was not designed for passengers. We conclude that the trial court correctly determined

that the Agricultural Society was not entitled to judgment on the issue of immunity as a matter of

law. The Agricultural Society’s assignment of error is overruled.

                                         CONCLUSION

       {¶24} The trial court properly denied the Agricultural Society’s motion for summary

judgment. The judgment of the Lorain County Common Pleas Court 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 Lorain, 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

period for review shall begin to run. App.R. 22(E). 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.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT
                                                11



BELFANCE, P. J.
CONCURS

CARR, J.
DISSENTS, SAYING:

       {¶25} I respectfully dissent because the Agricultural Society met its initial burden to

demonstrate that it qualified for blanket immunity under R.C. 2744.02(A)(1) and Hignett failed

to meet his reciprocal burden to raise a factual issue that his claims against it fell within any of

the R.C. 2744.02(B) exceptions to immunity.

       {¶26} Through its motion for summary judgment, the Agricultural Society argued,

among other things, that it was entitled to immunity under R.C. 2744.02(A)(1), and pointed to

evidence that it qualified as a political subdivision and that Hignett’s only claims against it were

that his injuries were caused by the alleged negligence of its employee in connection with a

governmental or proprietary function.      That was sufficient to satisfy its initial burden on

summary judgment that it qualified for immunity under the first tier of immunity analysis. See,

e.g., Cornelison v. Colosimo, 11th Dist. No. 2009-T-0099, 2010-Ohio-2527, at ¶34-35; Harris v.

Sutton, 183 Ohio App.3d 616, 2009-Ohio-4033, at ¶13-14; Summerville v. Columbus, 10th Dist.

No. 04AP-1288, 2005-Ohio-5158, at ¶17.

       {¶27} It is the burden of the plaintiff to move on to the second tier of analysis and raise a

genuine issue of material fact that an exception to immunity applies; the political subdivision has

no burden to demonstrate that the plaintiff’s claims do not fall within any of the exceptions under

R.C. 2744.02(B). See id; see, also, Wolford v. Sanchez, 9th Dist. No. 05CA008674, 2005-Ohio-

6992, at ¶31. Nonetheless, the Agricultural Society argued that Hignett’s claims failed to qualify

for the immunity exception set forth in R.C. 2744.02(B)(1) because the gator was not a motor
                                               12


vehicle and it was not operated by its employee or one who was engaged within the scope of

employment.

       {¶28} After the Agricultural Society demonstrated that it was entitled to blanket

immunity under R.C. 2744.02(A)(1), the burden on summary judgment shifted to Hignett to raise

a genuine issue of material fact as to whether his claims fell within one of the exceptions to

immunity set forth in R.C. 2744.02(B). See Cornelison; Harris; Summerville; Wolford. Hignett

conceded that his claims against the Agricultural Society did not fall within the immunity

exception set forth in R.C. 2744.02(B)(1), but maintained instead that they fell within R.C.

2744.02(B)(2), which provides that “political subdivisions are liable *** for injury *** caused

by the negligent performance of acts by their employees with respect to proprietary functions of

the political subdivisions.” R.C. 2744.01(B) defines an “employee” as one “who is authorized to

act and is acting within the scope of the *** employee’s *** employment for a political

subdivision.”

       {¶29} After quoting the above language, Hignett pointed only to evidence to

demonstrate that Denes was employed by the Agricultural Society, that he may have been

negligent in allowing Schwartz to drive the gator, and that Schwartz was driving when he

sustained his injuries. Despite quoting the definition of “employee” that required that Denes also

be acting within the scope of his employment and with the authority of the political subdivision,

Hignett failed to point to any evidence that Denes was authorized by the Agricultural Society to

allow a nonemployee to drive the gator or that he was acting within the scope of his employment

when he did so.

       {¶30} In its reply brief, the Agricultural Society explicitly noted that Hignett had failed

to meet his summary judgment burden in this regard because he had not pointed to any evidence
                                               13


that his injury had been caused by Denes’ negligent performance of one of his job duties. In fact,

it emphasized that “the evidence overwhelmingly demonstrates that at the time of the alleged

incident, all individuals were engaged in personal activities and not in the performance of any of

their job functions.”

       {¶31} Because Hignett failed to satisfy his burden on summary judgment to raise a

genuine factual issue that his claims against the Agricultural Society fell within an exception to

immunity set forth in R.C. 2744.02(B), the trial court erred in denying the motion for summary

judgment. I would sustain the assignment of error and reverse the trial court’s judgment.


APPEARANCES:

GREGORY A. BECK and ANDREA K. ZIARKO, Attorneys at Law, for Appellant.

ABRAHAM CANTOR, Attorney at Law, for Appellant.

DARREL A. BILANCINI, Attorney at Law, for Appellant.

BRENT L. ENGLISH, Attorney at Law, for Appellant.

MICHAEL J. DUFF, Attorney at Law, for Appellees.
