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Padilla v. YMCA of Sandusky Cty.3/13/1992
Per Curiam.
This case is an appeal from a judgment of the Sandusky County Court of Common Pleas. On February 21, 1991, the trial court granted summary judgment in favor of appellee, the Sandusky County Park District, on the ground that the park district was immune from the wrongful death action brought by appellants, Maria Fortier (both individually and as administrator of the estate of Angel Padilla) and Alfred Fortier. For the reasons discussed below, we affirm the trial court's decision.
The facts of this case are as follows. White State Park is operated by the Sandusky County Park District. In 1987, the YMCA of Sandusky County leased a portion of White State Park from the park district in order to operate a summer day camp. Although the swimming area was not included in the lease, the park district permitted the YMCA day campers to use the swimming facilities at White State Park without charge.
On August 28, 1987, Angel Padilla, a YMCA day camper, drowned in the swimming area of White State Park. Angel Padilla's mother and stepfathersMaria and Alfred Fortier, subsequently brought the present wrongful death action against the Sandusky County Park District. The trial court rendered summary judgment on the ground that the park district was immune from suit under the Political Subdivision Immunity Act, R.C. Chapter 2744.01.
It is from such judgment that the Fortiers raise the following two assignments of error:
"1. The trial court erred in ruling that O.R.C. Section 2744.01 granted immunity to defendant, Sandusky County Park District, because it was operating a `proprietary' swimming/ recreational facility as part of its sponsorship of a day camp.
"2. Ohio's Political Subdivision Immunity Act, O.R.C. Section 2744.01 et seq. violates the mandate of Article I, Section 16 of the Ohio Constitution in light of the unambiguous language waiving immunity and the clear intent as expressed by the delegates to the Ohio Constitutional Convention of 1912."
As their first assignment of error, the Fortiers argue that the trial court erred in finding that the Sandusky County Park District's operation of White State Park was a governmental function and, therefore, the park district was immune from suit under R.C. 2744.02.
R.C. 2744.01(C)(2)(u) extends immunity from liability to political subdivisions for several governmental functions including the following:
"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 pond; and the operation and control of any golf course." (Emphasis added.)
However, in Amerson v. Dayton (Sept. 19, 1989), Montgomery App. No. 11460, unreported, 1989 WL 109291, the court distinguished between the operation of a day camp within a public park and the operation of the park itself. The Amerson court held that the city of Dayton's operation of a day camp, even though located in a city-owned park, was different from the operation of the park itself. Therefore, because the operation of a day camp was not listed as a governmental function under R.C. 2744.01, the Amerson court concluded that Dayton was not immune from suit.
In the present case, the Fortiers argue that the Sandusky County Park District was operating a day camp and, therefore, was not immune from suit under Amerson. However, we find no evidence that the park district was operating a day camp and find Amerson inapplicable. The YMCA of Sandusky operated a day camp program for the summer of 1987. In order to operate its day camp,
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