[Cite as Hawsman v. Cuyahoga Falls, 2011-Ohio-3795.]


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

MICHAEL L. HAWSMAN, minor, et al.                       C.A. No.      25582

        Appellants

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
CITY OF CUYAHOGA FALLS, et al.                          COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
        Appellees                                       CASE No.   CV 2009 07 5156

                               DECISION AND JOURNAL ENTRY

Dated: August 3, 2011



        MOORE, Judge.

        {¶1}    Appellants, Michael Hawsman, a minor, and his parents, appeal from the

judgment of the Summit County Court of Common Pleas granting summary judgment against

them on the basis of political subdivision immunity. This Court reverses.

                                                   I.

        {¶2}    The relevant facts, for purposes of context, are as follows. On May 12, 2006,

Michael Hawsman visited the Cuyahoga Falls Natatorium and Wellness Center. He injured his

knee while using the pool and diving board. The City of Cuyahoga Falls maintains and operates

the Natatorium. On July 10, 2009, Hawsman and his parents filed suit against the City and five

unidentified defendants alleging that the City negligently maintained the diving board.      After

filing a certification for leave to plead, the City filed its answer on September 9, 2009.

        {¶3}    On May 26, 2010, the City filed a motion for summary judgment claiming that it

was immune from suit. Specifically, it contended that the exception to political subdivision
                                                   2


immunity found in R.C. 2744.02(B)(4), as interpreted in Cater v. Cleveland (1998), 83 Ohio

St.3d 24, did not apply to indoor swimming pools. The Hawsmans filed a brief in opposition to

the motion and the City filed a reply brief. On August 17, 2010, the trial court granted summary

judgment in favor of the City.

         {¶4}     The Hawsmans timely filed a notice of appeal and raise one assignment of error

for our review.

                                                  II.

                                    ASSIGNMENT OF ERROR

         “THE TRIAL COURT ERRED IN FINDING THAT THE EXCEPTION TO
         POLITICAL SUBDIVISION IMMUNITY PROVIDED IN OHIO REVISED
         CODE §2744.0[2](B)(4) DOES NOT APPLY TO THE INDOOR SWIMMING
         POOL OPERATED BY [THE CITY].”

         {¶5}     In their first assignment of error, the Hawsmans contend that the trial court erred

in granting summary judgment to the City because the exception to political subdivision

immunity found in R.C. 2744.02(B)(4) does not apply to the City’s indoor swimming pool. We

agree.

         {¶6}     This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial court,

viewing the facts of the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio

App.3d 7, 12.

         {¶7}     Pursuant to Civ.R. 56(C), summary judgment is proper if:

         “(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) it appears from
         the evidence that reasonable minds can come to but one conclusion, and viewing
         such evidence most strongly in favor of the party against whom the motion for
                                                 3


       summary judgment is made, that conclusion is adverse to that party.” Temple v.
       Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

       {¶8}    The party moving for summary judgment bears the initial burden of informing

the trial court of the basis for the motion and pointing to parts of the record that show the

absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93.

Specifically, the moving party must support the motion by pointing to some evidence in the

record of the type listed in Civ.R. 56(C). Id. Once this burden is satisfied, the non-moving party

bears the burden of offering specific facts to show a genuine issue for trial. Id. at 293. The non-

moving party may not rest upon the mere allegations and denials in the pleadings but instead

must point to or submit some evidentiary material that demonstrates a genuine dispute over a

material fact. Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735.

       {¶9}    We begin by acknowledging that fewer than two years ago in Hopper v. Elyria,

9th Dist. No. 08CA009421, 2009-Ohio-2517, this Court decided a nearly identical issue in

reliance on the lead opinion from Cater v. Cleveland, supra. The vitality of the lead opinion in

Cater has been subjected to increasing skepticism in recent years, particularly with respect to its

treatment of municipal swimming pools. In Cater, a twelve-year-old boy lost consciousness and

nearly drowned in a city-owned indoor pool. Cater, 83 Ohio St.3d at 24. He developed

pneumonia and was declared brain-dead four days later. Id. Cater’s family sued. Id. At the

close of the family’s case, the City of Cleveland moved for a directed verdict on the basis of

immunity under R.C. Chapter 2744. Id. at 27. The trial court granted the motion and the court

of appeals affirmed. Id. We begin our analysis of this case with a brief review of the relevant

portions of R.C. 2744.02.
                                                  4


A.       Chapter 2744 Analytical Structure

         {¶10} Cater set forth an oft-cited explanation of the appropriate analysis of cases falling

under R.C. 2744.02. Cater observed that “[t]he Political Subdivision Tort Liability Act, as

codified in R.C. Chapter 2744, sets forth a three-tiered analysis for determining whether a

political subdivision is immune from liability.” Id. at 28. The first tier is the premise under R.C.

2744.02(A)(1) that: “[e]xcept 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 any act or omission of the political subdivision or an employee of the political

subdivision in connection with a governmental or proprietary function.” (Emphasis omitted.) Id.

at 28.

         {¶11} The second tier involves the five exceptions set forth in R.C. 2744.02(B), any of

which may abrogate the general immunity delineated in R.C. 2744.02(A)(1). Id. Lastly, under

the third tier, “immunity can be reinstated if the political subdivision can successfully argue that

one of the defenses contained in R.C. 2744.03 applies.” Id. The Supreme Court of Ohio has

repeatedly endorsed this approach. See, e.g., Hubbard v. Canton City School Bd. of Ed., 97 Ohio

St.3d 451, 2002-Ohio-6718.

B.       Applicability of R.C. 2744.02(B)(4) to Municipal Pools

         {¶12} In this case, the parties agree that maintenance of the pool and diving board is a

governmental function. Thus, the single issue for our determination is whether the exception to

immunity set forth in R.C. 2744.02(B)(4) applies. The exception to immunity found in R.C.

2744.02(B)(4) provides that “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
                                                5


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 * * *.”

       {¶13} In the court below, the City based its motion for summary judgment upon the

Supreme Court’s decision in Cater, which interpreted the applicability of R.C. 2744.02(B)(4) to

municipal pools, and this Court’s decision in Hopper, which followed the lead opinion. Justice

Sweeney, writing only for himself in the lead opinion, said that operation of an indoor municipal

swimming pool was subject to the immunity exception found in former R.C. 2744.02(B)(3),

which addressed nuisance conditions, but was not subject to the exception found in former R.C.

2744.02(B)(4).1 Cater, 83 Ohio St.3d at 30-32. The opinion examined the statutory language

from R.C 2744.02(B)(4) including “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 * * *.” The lead opinion then distinguished

recreational locations from business activity locations, saying that “[u]nlike a courthouse or

office building where government business is conducted, a city recreation center houses

recreational activities.” Id. at 31. The opinion continued in dicta that “if we applied former R.C.

2744.02(B)(4) to an indoor swimming pool, liability could be imposed upon the political

subdivision. However, there would be no liability if the injury occurred at an outdoor municipal

swimming pool, since the injury did not occur in a building.” Id.

       {¶14} Chief Justice Moyer concurred in the syllabus and judgment, expressing his belief

that R.C. 2744.02(B)(4) clearly applies to indoor and outdoor pools. Id. at 35. The Chief

Justice’s concurrence reasoned that indoor pools are naturally found within buildings and
                                                    6


outdoor pools “invariably are located on land that includes buildings[.]” Id. Two justices

concurred in this opinion and the syllabus, creating a plurality opinion. Id. at 34. The syllabus is

broad and states that municipal swimming pools are subject to the exceptions to immunity set

forth in R.C. 2744.02(B). Id. at the syllabus. The final two justices concurred in judgment only.

Id. at 34. Overall, four justices concurred in the broad syllabus statement that the operation of

municipal swimming pools is subject to the immunity exceptions found in R.C. 2744.02(B), one

justice in the lead opinion agreed that R.C. 2744.02(B)(4) did not provide an exception to

immunity in the case of municipal pools and distinguished between recreational and

governmental business buildings, two justices concurred in judgment only, and three justices

opined that R.C. 2744.02(B)(4) should apply to indoor and outdoor municipal pools. Against

this background, the holding of Justice Sweeney’s lead opinion in Cater has limited precedential

effect.

          {¶15} Further, the Supreme Court has since implicitly abandoned a distinction between

places of business and places of recreation in interpreting the applicability of R.C.

2744.02(B)(4). In Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250,

two children died as a result of a fire in an apartment owned by the housing authority. Id. at ¶2.

The lawsuit claimed that a housing authority employee removed the lone working smoke

detector in the apartment. Id. at ¶3. The housing authority argued that R.C. 2744.02(B)(4) only

applied to buildings similar to offices and courthouses. Id. at ¶23. The majority analyzed the

phrase “including, but not limited to” and observed that it “denotes a nonexclusive list of

buildings to which the exception may apply.” Id. at ¶24. On appeal, the Supreme Court seized

on the phrase “buildings that are used in connection with the performance of a governmental


          1
              The version of R.C. 2744.02(B)(4) in effect at the time did not include the clause “and
                                                 7


function” and concluded that units of public housing are used in connection with the

performance of a governmental function.        Id.   For that reason, the Court held that R.C.

2744.02(B)(4) created an exception to immunity in that case. Id. Although the Court did not

explicitly abandon the governmental-business-versus-recreational-use distinction, a housing

authority apartment is not a place where the public generally appears and government business

takes place.

        {¶16} In recent years, the rationale of Cater’s lead opinion has come under increasing

criticism from several appellate districts.   In 2005, the Third District Court of Appeals in

Thompson v. Bagley, 3d Dist. No. 11-04-12, 2005-Ohio-1921, questioned the continuing validity

of Cater. The Bagley court observed that, like in Moore, the Supreme Court in Hubbard

considered only the plain language of R.C. 2744.02(B)(4) and made no mention of a distinction

between recreational and governmental uses.          Id. at ¶34.   The Bagley court, however,

distinguished the case from Cater on the basis that Thompson was a fourth-grade student

involved in a school swim class at the time of his death. Bagley at ¶36. The court noted that

even teaching students how to swim “is much more akin to the governmental business conducted

in a courthouse or office building than the recreational activities of a municipal swimming pool.”

Id. On that basis, the Third District reversed the trial court’s grant of summary judgment in

favor of the school district. Id. at ¶59.

        {¶17} The Sixth District Court of Appeals addressed political subdivision immunity

related to a city-operated swimming pool in O’Connor v. City of Fremont, 6th Dist. No. S-10-

008, 2010-Ohio-4159. The majority affirmed the grant of summary judgment in favor of the city

on the basis of political subdivision immunity. Id. at ¶1. The majority relied upon Cater’s lead



is due to physical defects within or on the grounds of.”
                                                8


opinion and Hopper, specifically repeating that Cater constitutes binding precedent. Id. at ¶12.

The majority also relied on Hopper’s determination that Bagley was distinguishable on the basis

that a school is a place of governmental business as opposed to recreational activity, quoting that

“‘the analysis by the Thompson court does not implicate the reasoning in Cater.’” Id. at ¶13.

Judge Cosme, however, wrote a comprehensive dissent. First, the dissent observed that plurality

opinions are not binding authority and cited, among others, Hedrick v. Motorists Mut. Ins. Co.

(1986), 22 Ohio St.3d 42, 44. Id. at ¶17, 22. The dissent further observed that Cater’s lead

opinion did not obtain even plurality status because the lone concurring judge did not join on the

issue of R.C. 2744.02(B)(4)’s applicability. Id. at ¶22. The dissent also criticized Hopper’s

reliance on Cater’s governmental-business-versus-recreational-use distinction in light of

Moore’s implicit abandonment of this approach. Id. at ¶30. In light of the inherent conflict

between Cater’s lead opinion and Moore, the dissent would have relied upon the more recent

precedent and denied the city’s summary judgment motion. Id. at ¶32.

       {¶18} The Fourth District Court of Appeals faced an analogous situation in Mathews v.

City of Waverly, 4th Dist. No. 08CA787, 2010-Ohio-347. Although a municipal pool was not

involved, the two-judge majority affirmed a trial court’s order denying summary judgment to the

city on the basis that the exception in R.C. 2744.02(B)(4) applied to the negligent maintenance of

public parks. Id. at ¶36. The third judge dissented without opinion. In that case, “a tree limb

fell on Ms. Mathews while she stood in the parking lot of Canal Park, which the City of Waverly

owns and operates.” Id. at ¶3. The city moved for summary judgment on the basis that R.C.

2744.02(B)(4) does not apply as an exception to immunity because Mathews could not “show

that any building within the park was used in connection with the performance of a government

function.” Id. at ¶4. The Mathews court acknowledged the tension between Hopper and Bagley.
                                                 9


Id. at ¶33-34. The court also observed the tension between Cater and Moore. Id. at ¶32. The

majority criticized Cater because it “ignore[d] principles of statutory interpretation.” Id. at ¶30.

In interpreting R.C. 2744.02(B)(4) the court observed that “[t]he plain meaning of a

‘governmental function’ includes the operation of a swimming pool.             Inserting this latter

definition into R.C. 2744.02(B)(4) would mean that the statute applies to ‘buildings used in

connection with the performance of the operation of a swimming pool.’” Id. The court further

observed that Cater’s lead opinion never explained how it could “avoid a seemingly plain

application of the statute to conclude that that the General Assembly did not intend to include

buildings that house a municipal swimming pool from the reach of R.C. 2744.02(B)(4).” Id. If

the General Assembly intended a distinction between governmental business and recreational use

it could have used language to that effect. Id. The Fourth District determined that Moore was

more recent and its approach to R.C. 2744.02(B)(4) was more consistent with the plain language

of the statute. Id. at ¶35. The court held that “[a]lthough the city does not literally ‘maintain’ or

‘operate’ the park from the shelter houses or the roofed pagodas, those buildings are used in

connection with the performance of the operation of the park.” Id. at ¶36. Consequently,

Mathews was not barred by political subdivision immunity from pursuing a claim because the

plain language of the statute and the Supreme Court’s straightforward interpretation of that

language in Moore were held not to support a distinction between buildings used for recreational

purposes and those used for government business. Id.

       {¶19} Hopper is presently binding precedent in this district. Hopper’s son drowned in a

city-owned pool. Hopper, at ¶6. The case was disposed of on a motion to dismiss pursuant to

Civ.R. 12(B)(6), but the complaint alleged that the city failed to post proper warning signs and

failed to secure the premises against unauthorized entry. Id. The trial court declined to dismiss
                                                 10


the suit and the city appealed. Hopper contended that Hubbard calls into question the reasoning

behind Cater. Id. at ¶15. This Court observed that Hubbard cited Cater as authority for the

three-tiered analysis used in determining immunity and that Hubbard did not attempt to discuss

or distinguish its reasoning from Cater. Id. This Court also rejected the conclusion reached in

Bagley, reasoning that Bagley involved an office building, a school, in which a governmental

function is performed, the education of children. Id. at ¶17. In Hopper this Court reaffirmed the

authority of Cater and reversed the trial court’s denial of the city’s motion to dismiss on the basis

of immunity. Id. at ¶18. Upon considered review, the criticisms of Cater by the various courts

of appeal, however, are well-reasoned and compelling.

C.     Hopper Overruled

       {¶20} Because Hopper relied on the lead opinion in Cater, an opinion not joined by any

other justice, as binding authority, it was wrongly decided. Hopper is overruled. In so holding,

we rely on the authority of Moore and the applicable statutory language of R.C. 2744.02(B)(4).

Moore implicitly discarded the distinction between recreational use and governmental business.

Moore at ¶24. Moore instead focused on the clear language of R.C. 2744.02(B)(4): “buildings

that are used in connection with the performance of a governmental function.” Id.               Moore

observed that the additional language of R.C. 2744.02(B)(4) “including, but not limited to,”

office buildings and courthouses “denotes a nonexclusive list of buildings to which the exception

may apply.” Id. It held that injuries occurring within or on the grounds of these buildings, in

that case public housing authority apartments, are not subject to immunity.               Id.    R.C.

2744.01(C)(2)(u)(iv) defines the “* * * repair, maintenance, and operation of * * * [a] swimming

pool, * * * water park, * * * wave pool, water slide, or other type of aquatic facility[,]” as a

governmental function.     The facility in which Hawsman was injured, the Cuyahoga Falls
                                                11


Natatorium, contains a swimming pool that the City repairs, maintains, and operates, and is,

therefore, a building used in connection with the performance of a governmental function.

Accordingly, the exception to immunity found in R.C. 2744.02(B)(4) applies and the City is not

immune from suit by the Hawsmans. Although the trial court could not have predicted that we

would overrule Hopper, its judgment must be reversed.

       {¶21} The Hawsmans’ single assignment of error is sustained.

                                                III.

       {¶22} The Hawsmans’ single assignment of error is sustained. The judgment of the

Summit County Court of Common Pleas is reversed and the cause remanded for further

proceedings consistent with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       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

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.
                                          12




      Costs taxed to Appellees.




                                               CARLA MOORE
                                               FOR THE COURT



BELFANCE, P. J.
DICKINSON, J.
CONCUR

APPEARANCES:

PETER D. TRASKA and WILLIAM J. PRICE, Attorneys at Law, for Appellant.

PAUL A. JANIS, Law Director, and HOPE L. JONES, Deputy Law Director, for Appellee.
