Gilbert v. Cleveland

[Cite as Gilbert v. Cleveland, 2019-Ohio-3517.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

BELINDA GILBERT, :

Plaintiff-Appellant, :
No. 107934
v. :

CITY OF CLEVELAND, :

Defendant-Appellee. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 29, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-18-892645

Appearances:

Robert R. Lucarelli Co., L.P.A., and Robert R. Lucarelli,
for appellant.

Barbara A. Langhenry, Cleveland Director of Law, and
Elizabeth M. Crook, and Wesley M. Kretch, Assistant
Directors of Law, for appellee.

KATHLEEN ANN KEOUGH, J.:

Plaintiff-appellant, Belinda Gilbert, appeals the trial court’s decision

granting summary judgment in favor of defendant-appellee, the city of Cleveland.

For the reasons that follow, we affirm the trial court’s decision.
 On July 18, 2014, Gilbert went to R.J. Taylor Park in Cleveland, Ohio

to watch her sons play basketball. When she exited the vehicle she was riding in, she

stepped onto the concrete walkway entrance of the park. She saw her sons and

began waving at them. However, after taking four or five steps, she suddenly fell

after stepping into a hole that was exposed in the concrete walkway — her entire leg

was submerged into the hole. As a result, she suffered serious injury to her leg.

Gilbert testified at deposition that she did not see the hole in the concrete walkway

because she was looking ahead.

Gilbert’s leg fell into a hole that was exposed when a city of Cleveland

employee, in order to gain access inside the park with a large city vehicle, removed

the wooden barrier or post from into the hole that was located in the middle of the

walkway entrance. Gilbert testified that as she was receiving assistance with

removing her leg from the hole, city of Cleveland employees approached her,

apologized to her, and reinserted the removed wooden post. In addition to the

wooden post in the middle of the walkway entrance, there were other posts along

the entrance of the park; those posts were intact. The purpose of the wooden

barriers or posts is to prevent vehicles from driving into the park area where

pedestrians and users of the park may be present.

Gilbert’s children who accessed the park earlier that day and in the

same area as their mother, also testified at deposition. One of her sons testified

that when he entered the park that morning, he noticed the wooden barrier was

removed from the hole and he saw a city truck in the park.
 Carlton Boone, an employee with the city of Cleveland for 27 years,

testified at deposition that he did not recall working in the park on the day that

Gilbert fell, but stated that the employees who mow the park would need to remove

the barrier in the middle of the entranceway for the larger truck and trailer to gain

access to the park. He stated that no policy or procedure exists whether the

wooden barrier should be immediately reinserted into position after the city

workers enter the park, but that the post should be reinserted when the workers

leave the park.

In February 2018, Gilbert filed a complaint against the city for the

injuries she sustained at the park. She claimed the “direct and proximate cause of

the accident * * * was the recklessness, willfulness, wantonness, carelessness,

maliciousness, intentional conduct and/or negligence of [the city],” and that based

on this conduct, she suffered serious injury.

The city moved for summary judgment, contending that it is

immune from liability based on R.C. Chapter 2744, Political Subdivision Tort

Immunity, and R.C. 1533.181, the recreational-user statute.

The trial court granted the city’s motion for summary judgment,

finding that “the City is entitled to political subdivision immunity under R.C.

2744.02(A)(1) and none of the exceptions in R.C. 2744.02(B) apply. The City is

also entitled to immunity under Ohio’s recreational user statute, R.C. 1533.181.”

Gilbert now appeals, raising as her sole assignment of error that the

trial court erred when it granted the city’s motion for summary judgment because
the facts and circumstances of this case do not demonstrate that immunity applies

as a matter of law.

Questions of immunity are matters of law, so they are particularly

apt for resolution by way of summary judgment. FirstEnergy Corp. v. Cleveland,

179 Ohio App.3d 280, 2008-Ohio-5468, 901 N.E.2d 822, ¶ 7 (8th Dist.). We review

a trial court’s decision on a motion for summary judgment de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary

judgment is appropriate when, construing the evidence most strongly in favor of

the nonmoving party, (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 only

reach a conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer

Club, 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).

The party moving for summary judgment bears the burden of

demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75

Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The moving party has the initial

responsibility 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 elements of the nonmoving party’s claims.

Id. After the moving party has satisfied this initial burden, the nonmoving party

has a reciprocal duty to set forth specific facts by the means listed in Civ.R. 56(C)

showing that there is a genuine issue of material fact. Id.
 The city contended that it was entitled to summary judgment as a

matter of law for three reasons: (1) the operation of a park and maintenance of a

sidewalk are governmental functions for which the city is entitled to immunity under

R.C. Chapter 2744, and no exception to that immunity applies; (2) the city is

immune from Gilbert’s intentional tort claims because none of those claims fall

within any exception to immunity under R.C. Chapter 2744; and (3) Gilbert’s claims

are prohibited under R.C. 1533.181 because Gilbert was a recreational user of R.J.

Taylor Park.

Because we find that the trial court did not err in granting summary

judgment in favor of the city on the basis of R.C. 1533.181, the recreational-user

statute, we need not address whether the city would also be immune from liability

under R.C. Chapter 2744.1

Despite the enactment of R.C. Chapter 2744 that provides tort

immunity to political subdivisions, Ohio courts still apply R.C. 1533.181 as a

derivative tort immunity to municipalities and other political subdivisions. See,

e.g., Pauley v. Circleville, 137 Ohio St.3d 212, 2013-Ohio-4541, 998 N.E.2d 1083

(city immune from liability where recreational user of a city park was injured

following striking debris while sledding).

1 We note that Ohio courts have consistently held that political subdivisions are
immune under R.C. 2744.02 from intentional tort claims. Thornton v. Cleveland, 176
Ohio App.3d 122, 2008-Ohio-1709, 890 N.E.2d 353, ¶ 6 (8th Dist.). In her brief in
opposition to the city’s motion for summary judgment, Gilbert clarifies that her causes of
action against the city are not claims of intentional tort, but only for negligent conduct.
 R.C. 1533.181(A) states:

No owner, lessee, or occupant of premises:

(1) Owes any duty to a recreational user to keep the premises safe for
entry or use;

(2) Extends any assurance to a recreational user, through the act of
giving permission, that the premises are safe for entry or use;

(3) Assumes responsibility for or incurs liability for any injury to
person or property caused by any act of a recreational user.

R.C. 1533.18 provides:

As used in sections 1533.18 and 1533.181 * * * :

(A) “Premises” means all privately owned lands, ways, and waters, and
any buildings and structures thereon, and all privately owned and
state-owned lands, ways, and waters leased to a private person, firm,
or organization, including any buildings and structures thereon.

(B) “Recreational user” means a person to whom permission has been
granted, without the payment of a fee or consideration to the owner,
lessee, or occupant of premises, other than a fee or consideration paid
to the state or any agency of the state, or a lease payment or fee paid
to the owner of privately owned lands, to enter upon premises to * * *
engage in other recreational pursuits.

“Premises” under R.C. 1533.18(A) includes land owned by

municipalities and the state. Pauley, 137 Ohio St.3d 212, 2013-Ohio-4541, 998

N.E.2d 1083 at ¶ 15, citing LiCause v. Canton, 42 Ohio St.3d 109, 110, 537 N.E.2d

1298 (1989).

Immunity afforded by the recreational user statute is not absolute;

rather it limits liability of landowners from injuries to the recreational user that

arises from the condition of the premises, i.e. lands, ways, waters, and any

buildings or structures thereon. Combs v. Ohio Dept. of Natural Resources, 146
Ohio St.3d 271, 2016-Ohio-1565, 55 N.E.3d 1073, ¶ 16; Pauley, 137 Ohio St.3d 212,

2013-Ohio-4541, 998 N.E.2d 1083.

In determining whether immunity applies, the analysis should focus

on the character of the property upon which the injury occurs and the type of

activities for which the property is held open to the public. Miller v. Dayton, 42

Ohio St.3d 113, 114, 537 N.E.2d 1294 (1989), paragraph one of the syllabus. The

property must be held open to the public for recreational use, free of charge. See

LiCause at syllabus. The character of the premises envisioned by the recreational-

user statute involves “the true outdoors,” because “[m]ost of the recreational

activities enumerated in R.C. 1533.18(B) are generally conducted in ‘the wide open

spaces,’ such as parks or wilderness tracts * * *.” Loyer v. Buchholz, 38 Ohio St.3d

65, 67, 526 N.E.2d 300 (1988); Miller at 114. However, “[t]o qualify for recreational-

user immunity, the property need not be completely natural, but its essential

character should fit within the intent of the statute.” See, e.g., Miller (softball field);

compare Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986)

(gymnasium is not a “premises” under R.C. 1533.18(A)).

Additionally, the type of recreational activities that qualify expressly

under the recreational-user statute involve those primarily conducted outdoors,

and includes the general language — “and other recreational pursuits,” which

courts have broadly construed to include spectating others engaged in recreational

activity. See, e.g., Fetherolf v. Ohio Dept. of Natural Resources, 7 Ohio App.3d

110, 454 N.E.2d 564 (10th Dist.1982) (watching others swim); Buchanan v.
Middletown, 12th Dist. Butler No. CA86-10-156, 1987 Ohio App. LEXIS 8436

(Aug. 24, 1987) (watching others play baseball).

In this case, Gilbert entered R.J. Taylor Park, a municipal-owned

park, for the sole purpose of observing her children playing basketball inside the

park. The parties agree that the park was outdoors, open to the public, and no fee

was charged for using the park. Accordingly, no genuine issue of material fact

exists that R.J. Taylor Park is the type of premises covered under R.C. 1533.18(A).

Additionally, no genuine issue of material fact exists that Gilbert was a recreational

user of the park pursuant to R.C. 1533.18(B) because the park was open to the

public, she did not pay a fee, and she was engaging in a recreational activity.

Gilbert contends, however, that the city is not immune because the

employees created the condition of the park that caused her injury. In support,

Gilbert cites Combs, 146 Ohio St.3d 271, 2016-Ohio-1565, 55 N.E.3d 1073.

In Combs, a user of a park operated by the Ohio Department of

Natural Resources (“ODNR”) was struck by a rock projectile that was thrown from

the lawnmower a park employee was operating. ODNR maintained that it was

immune from liability pursuant to R.C. 1533.181 for Combs’s injury because Combs

was a recreational user of the property. The Ohio Supreme Court held that ODNR

was not immune because the injury was caused not by a condition of the premises,

but from the negligence of the park worker who mowed over loose stones along the

waterway.
 A similar result was reached in Ryll v. Columbus Fireworks Display

Co., Inc., 95 Ohio St.3d 467, 2002-Ohio-2584, 769 N.E.2d 372. In Ryll, a spectator

was fatally injured by a piece of firework shrapnel while observing a city-sponsored

fireworks display. The spectator’s estate sued the city, which asserted it was

immune from liability under the recreational-user statute. The Ohio Supreme

Court held that the recreational-user statute immunizes property owners from

injuries that arise from a defect in the premises, and because the shrapnel was not

a defect in the premises, immunity did not apply.

The defect in this case, unlike those in Combs and Ryll, was in the

premises — a hole in the pedestrian walkway of the park that was exposed when the

city worker removed the barrier post. We find the Ohio Supreme Court’s decision

in Pauley, 137 Ohio St.3d 212, 2013-Ohio-4541, 998 N.E.2d 1083, persuasive and

controlling.

In Pauley, a young man went to a city park for the purpose of

engaging in the recreational activity of sledding. As he sledded down one of the

hills at the park, he struck an immovable object, later discovered to be a railroad

tie that was embedded in topsoil that the city had accepted from a construction site

and deposited at the city park. As a result, Pauley was severely injured. He and

his mother filed a complaint alleging that the city acted negligently, recklessly, and

wantonly in dumping debris in the park, which resulted in a physical defect that

caused Pauley’s injuries. The complaint alleged that “waste and debris * * * created

an inherently dangerous situation which no user of the park could have anticipated
and thus substantially altered the nature and characteristic of the public property.”

The Ohio Supreme Court upheld the grant of summary judgment in favor of the

city, finding that because Pauley was a recreational user within R.C. 1533.181, the

city owed him no duty to keep the premises safe, and the city’s alleged creation of

a hazard on the premises did not affect its immunity. The court stated that the

railroad-tie-like object embedded in a mound of dirt that caused the injury “was

part of the park”; thus, “the injury was caused by a defect in the premises.” Id. at

¶ 32.

In this case, a city employee removed the wooden post from the hole

in the pedestrian walkway to access the inside of the park with a vehicle. The

employee did not immediately replace the post, thus keeping the hole exposed.

Arguably, the employee created the hazard that caused Gilbert’s injuries, but much

like in Pauley, “the city’s alleged creation of a hazard on the premises does not

affect [the city’s] immunity.” Id. at ¶ 22.

Accordingly, because Gilbert’s injury was caused by the condition of

the premises and she was a recreational user of the park, the city is immune from

liability pursuant to R.C. 1533.181. The trial court did not err in granting summary

judgment in favor of the city. The assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.
 It is ordered that a special mandate be sent to said court 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.

KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR