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Tudor v. Cincinnati12/18/1998
PAINTER, Judge.
Plaintiff-appellee Mitcheal B. Tudor filed a negligence lawsuit against defendant-appellant city of Cincinnati after he fell several stories down an empty, unguarded elevator shaft in Queensgate II Town Center ("Queensgate II"), a building held by the city for urban-renewal purposes. He claimed that he entered the building to avoid two men who he believed were following him and who he felt posed a danger to him. Although the building was fenced off, he claimed that he entered it through a gap in the fence and that there were not any visible "no trespassing" signs. He also claimed that on many occasions he had seen people on top of the building and that graffiti was visible on the building.
The city responded to Tudor's allegations with a motion for summary judgment. The city argued both that it was immune from Tudor's negligence claimsand that Tudor had not presented sufficient evidence to create a genuine issue of material fact regarding his negligence claims. The trial court, however,denied the city's motion. The city now appeals that decision under R.C. 2744.02(C), which provides that an order denying a political subdivision an alleged immunity from liability is a final order. The city asserts three assignments of error.
In the city's first assignment, it argues that the trial court erred by ruling that the city was not immune from Tudor's lawsuit. Under R.C. 2744.02(A)(1), the Political Subdivision Tort Liability Act, political subdivisions of Ohio are generally immune from liability for tort claims in connection with a governmental function. But an exception to this general rule exists for injuries that occur in buildings that are used in connection with a governmental function. Specifically, R.C. 2744.02(B)(4) provided:
" olitical subdivisions are liable for injury , death, or loss to persons or property that is caused by the negligence of their employees and that occurs 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, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code."
The city argues that the trial court incorrectly held that R.C. 2744.02(B)(4) applies in this case. We believe that the trial court was correct.
The city attacks the application of R.C. 2744.02(B)(4) on three grounds. First, the city argues that R.C. 2744.02(B)(4) applies only to "buildings" and that Queensgate II, which the city classifies as an open-air concrete structure, is not a building as envisioned by the statute. This argument, however, is without merit because words of a statute must be taken in their usual, normal, or customary meaning. Considering that Webster's Dictionary defines a building as "a constructed edifice designed to stand more or less permanently," which describes Queensgate II, we reject the city's first argument.
The city's second argument is that, even if Queensgate II is a building, R.C. 2744.02(B)(4) applies only to buildings that are open to the public. The only cases that support this proposition, however, are ones that involve private residences where governmental functions are performed. In these cases, the courts do suggest that R.C. 2744.02(B)(4) applies only to buildings that are open to the public. But these courts appear to suggest this proposition merely to distinguish private residences from public buildings--an example of wording that makes sense in the case being decided, but which can be misconstrued in future cases. We understand these cases
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