Adams v. Willoughby12/19/1994
Division (B) of the statute designates five exceptions to this grant of immunity. The second of these, R.C. 2744.02(B)(2), expressly states that political subdivisions are liable for the negligence of their employees with respect to proprietary functions.
"There is, however, no such general exception for governmental functions. Consequently, except as specifically provided in R.C. 2744.02(B)(1), (3), (4) and (5), with respect to governmental functions, political subdivisions retain their cloak of immunity from lawsuits stemming from employees' negligent or reckless acts. See Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 624 N.E.2d 704." Wilson, 70 Ohio St.3d at 452, 639 N.E.2d at 107.
R.C. 2744.01(C)(2)(u) specifies that the following activities fall under the rubric of "governmental function":
"The design, construction, reconstruction, renovation, repair, maintenance, and operation of any park, playground, playfield, indoor recreational facility, zoo, zoological park, bath, or swimming pool or bond, and the operation and control of any golf course[.]"
Appellants' complaint avers that the cliff upon which the injuries occurred is located within a 48.539-acre tract of land comprising Osborne Park. Nevertheless, it is argued that the cliff was not held out by appellee as being suitable for recreational use, and thus does not qualify as "park" grounds within the meaning of subdivision (u). The statutory language employed by the legislature compels the conclusion that all lands geographically located within a public park qualify for treatment under subdivision (u). The fact that certain areas of a park present dangers to the public does not remove such areas from the immunity provided to the subdivision, regardless of the existence or lack of safety precautions or warnings.
It is clear that any misfeasance or nonfeasance alleged in the complaint involves issues of the reconstruction, renovation, repair, maintenance or operation of Osborne Park. Therefore, any acts or omissions of the subdivision implicated in this action constitute governmental functions. Cf. Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 624 N.E.2d 704; Padillo v. YMCA of Sandusky Cty. (1992), 78 Ohio App.3d 676, 605 N.E.2d 1268.
Appellants argue, however, that the exception to immunity set forth in R.C. 2744.02(B)(3) is applicable. This provision states that:
"Political subdivisions are liable for injury , death, or loss to persons or property caused by their failure to keep * * * public grounds within the political subdivision open, in repair, and free from nuisance * * *."
The construction of this exception advanced by appellants, however, is at odds with the express intention of the legislature. Am.Sub.H.B. No. 205, 141 Ohio Laws, Part II, 2685, effective June 7, 1986, which first designated acts or omissions in connection with a park as a governmental function, states in Section Five:
"This act is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, and safety. The reasons for the necessity are that, under the Political Sovereign Immunity Law, political subdivisions are civilly liable for injuries, death, or loss to persons or property negligently caused by their employees in connection with the operation of parks, playgrounds, playfields, and other recreational facilities that at least one political subdivision has been unable to procure insurance at affordable rates to cover this potential civil liability, and consequently has closed its recreational facilities rather than operate without liability insurance; and that, due to the potential unavailability of affordabl
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