O'Brien v. Great Parks of Hamilton Cty.

O
         [Cite as O'Brien v. Great Parks of Hamilton Cty., 2020-Ohio-6949.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




ROBERT G. O’BRIEN,                                  :              APPEAL NO. C-190697
                                                                   TRIAL NO. A-1802615
  and                                               :

CHERYL O’BRIEN,                                     :                    O P I N I O N.

        Plaintiffs-Appellants,                      :

  vs.                                               :

GREAT PARKS              OF      HAMILTON           :
COUNTY,
                                                    :
    Defendant-Appellee,
                                                    :
  and
                                                    :
HUMANA, et al.,
                                                    :
         Defendants.




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 30, 2020


O’Connor, Accani & Levy, Dennis C. Mahoney and Amanda L. Patton, for Plaintiffs-
Appellants,

Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, Kurt M. Irey and
Sarah E. Schild, for Defendant-Appellee.
                       OHIO FIRST DISTRICT COURT OF APPEALS



WINKLER, Judge.

       ¶1    Robert and Cheryl O’Brien appeal the summary judgment entered by the

Hamilton County Court of Common Pleas in favor of the Great Parks of Hamilton County

(“Great Parks”) on the basis of immunity in a personal-injury action. Because the O’Briens

failed to present facts to support an exception to the general grant of immunity, we affirm

the trial court’s judgment.

                                 I. Facts and Procedure

       ¶2    Robert was golfing with two friends in May 2016 at the Miami Whitewater

Forest Golf Course, a facility owned and operated by Great Parks. According to Robert’s

deposition, after he hit his golf ball from the tee on the fourth hole, he stood near the golf

cart path waiting for his friends to take their turns.    While waiting, he heard and saw

Larry Vogt, a Great Parks golf course maintenance employee, pull up to the top of the hill

located behind the tee box on a riding lawnmower with a “deck” in front. Vogt stopped the

mower at the top of the hill and eventually turned off the engine. A short time later, when

Robert was watching the golfers, he heard a friend yell “look out!” As Robert turned

around, he saw the lawnmower with Vogt atop “flying down the hill” towards him. The

lawnmower made contact with a golf cart before reaching Robert and “knocking” him

“back onto the deck” of the mower as it traversed down the hill. At the bottom of the hill,

Robert flew off the lawnmower and into the weeds, injuring his shoulder.

       ¶3    Robert recalled that after the incident Vogt had driven the lawnmower to

the “club house” of the golf course and repeatedly said, “I’m sorry I ran you over.” Vogt

made no other statements to Robert.

       ¶4    The Ranger Department for Great Parks completed an incident report after

the accident, but that report was not made part of the trial court’s record. Great Parks’s




                                              2
                       OHIO FIRST DISTRICT COURT OF APPEALS



Risk Manager, Dave Bruce, investigated the accident. During his deposition, Bruce

revealed that the lawnmower was inspected after the accident, but that inspection did not

reveal the cause of the accident. Bruce also noted that the lawnmower showed “damage”

after the accident and he was not sure whether that “damage” was caused during the

accident. Although Bruce was not aware of the maintenance history for the lawnmower,

John Zinser, Great Parks’s golf course mechanic who serviced the lawnmower at regular

operation intervals and on a regular basis, was aware of the history. Zinser averred that

the mower had “no mechanical problems or condition issues beyond normal wear and

tear before the accident.”

       ¶5    The O’Briens filed a complaint against Great Parks asserting a claim for

negligence and a derivative claim for loss of consortium. The complaint did not contain an

allegation that an exception to political subdivision immunity applied. Great Parks filed a

motion for summary judgment asserting, among other things, statutory immunity

pursuant to R.C. Chapter 2744, the Political Subdivision Tort Liability Act. In opposition

to the summary-judgment motion, the O’Briens argued the general grant of immunity

undisputedly afforded Great Parks was removed because the claims fell within the

exception to immunity as set forth in R.C. 2744.02(B)(4). They additionally argued that

none of the statutory defenses applied to reinstate immunity. After briefing, the trial court

agreed with Great Parks’s contention that R.C. 2744.02(B)(4) did not apply to remove

Great Parks’s immunity and granted summary judgment in Great Parks’s favor.

                                 II. Assignment of Error

       ¶6    In their sole assignment of error, the O’Briens argue the trial court erred by

granting summary judgment in favor of Great Parks because a genuine issue of fact exists




                                             3
                       OHIO FIRST DISTRICT COURT OF APPEALS



regarding the entitlement to immunity. We review the grant of summary judgment de

novo, applying the standards set forth in Civ.R. 56(C).

       ¶7    Summary judgment is appropriate if there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. Armstrong

v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088. While

the court must view the record in the light most favorable to the party opposing

summary judgment, and resolve all doubts in that party’s favor, summary judgment

should be used to terminate litigation when, as a matter of law, it appears that it

would be impossible for the party responding to the motion to produce evidence at

trial warranting a judgment in that party’s favor against the movant. See id. at ¶ 16.

                         A. Political Subdivision Immunity

       ¶8    The trial court granted summary judgment to Great Parks on the basis of

immunity. Under the Political Subdivision Tort Liability Act, political subdivisions of Ohio

are generally immune from liability for tort claims connected with a governmental or

proprietary function. R.C. 2744.02(A)(1). This broad grant of immunity is subject to

several exceptions, which are listed under R.C. 2744.02(B). If one of the R.C. 2744.02(B)

exceptions applies, a political subdivision may still have a defense under R.C. 2744.03.

See Kurz v. Great Parks of Hamilton Cty., 2016-Ohio-2909, 65 N.E.3d 96, ¶ 10 (1st Dist.);

R.K. v. Little Miami Golf Ctr., 2013-Ohio-4939, 1 N.E.3d 833, ¶ 8 (1st Dist.).

       ¶9    To begin, the O’Briens do not dispute that Great Parks established that it is

a political subdivision and its alleged negligence occurred in the course of its performance

of a governmental function, thus triggering the applicability of the general immunity

conferred under R.C. 2744.02(A)(1). See R.C. 2744.01(C)(2)(u)(v); R.K. at ¶ 13-14.




                                             4
                       OHIO FIRST DISTRICT COURT OF APPEALS



       ¶10 In its motion for summary judgment, Great Parks also explained that the

O’Briens had failed to assert in the complaint a specific statutory exception that could

render Great Parks liable for the claimed negligence. Because the O’Briens had referred to

“defective equipment” in the complaint, Great Parks addressed the applicability of the

physical-defect exception of R.C. 2744.02(B)(4). After citing testimony found in Robert’s

and Great Parks’s risk manager’s depositions, which Great Parks filed with the court,

Great Parks concluded that the physical-defect exception could not apply to remove

immunity.

       ¶11 Because Great Parks established the general grant of immunity for the

alleged negligence, and the O’Briens did not specifically plead any statutory exception to

that immunity as part of their negligence claim, the O’Briens arguably had the burden of

demonstrating the existence of an applicable R.C. 2744.02(B) exception to immunity. See

Summerville v. Columbus, 10th Dist. Franklin No. 04AP-1288, 2005-Ohio-5158, ¶ 17-18.

Even if the O’Briens had a lesser burden, limited to identifying the exception they sought

to proceed upon, Great Parks pointed to evidence affirmatively demonstrating that the

O’Briens could not prevail on the physical-defect exception. Thus, in this case, to avoid

summary judgment, the O’Briens had to show a genuine issue of fact remained to be tried

with respect to the identified exception to immunity by pointing to specific facts in the

record, in accordance with Civ. R. 56(E).

       ¶12 The O’Briens maintain that the physical-defect exception of R.C.

2744.02(B)(4) applies to reinstate their claims. Additionally, for the first time, they argue

that the motor-vehicle exception of R.C. 2744.02(B)(1) also applies.




                                             5
                      OHIO FIRST DISTRICT COURT OF APPEALS



                     1. Physical-Defect Exception to Immunity

       ¶13 The physical-defect exception to immunity abrogates the general grant

of immunity afforded political subdivisions engaged in a governmental activity only

if an injury, death, or loss “(1) resulted from employee negligence, (2) occurred

within or on the grounds of buildings used in connection with a governmental

function, and (3) resulted from a physical defect within or on the grounds of

buildings used in connection with a governmental function.” R.K., 2013-Ohio-4939,

1 N.E.3d 833, at ¶ 15. The injured party must establish all three circumstances to

defeat the immunity afforded the political subdivision under the first step of the

immunity analysis.

                             A. Location Requirement

       ¶14 We start our analysis by addressing the second requirement of the

physical-defect exception. The physical-defect exception does not apply unless the

alleged injury occurs at a specified location: within or on the grounds of a building

used in a governmental function.      R.C. 2744.02(B)(4).    The O’Briens presented

evidence that Great Parks performs the governmental function of operating and

maintaining the Miami Whitewater Forest Golf Course out of a “clubhouse” building

on the golf course and that Robert had suffered an injury on the golf course.

       ¶15 This court has already held that an injury occurring on the golf course

of a Great Parks “golf center” occurs on the grounds of a building used in the

governmental function of operating a golf course. R.K. at ¶ 28. The “clubhouse”

referred to in this case is equivalent to the “golf center” in R.K.—the place where the

pro shop is located and golf fees are paid. See id. Because the O’Briens presented

evidence of an injury occurring near the teeing area on the fourth hole of the golf




                                          6
                      OHIO FIRST DISTRICT COURT OF APPEALS



course, which is within or on the grounds of the Miami Whitewater Forest Golf

Course clubhouse, they satisfied the second requirement of the physical-defect

exception when responding to the motion for summary judgment.

                         B. Physical-Defect Requirement

       ¶16 The third requirement of the physical-defect exception focuses on the

cause of the injury at the requisite location. The statute removes immunity for

negligence at the requisite location only when “the injury is due to physical defects

within or on the grounds of a building” used in a governmental function. See R.C.

2744.02(B)(4); Dornal v. Cincinnati Metro. Hous. Auth., 1st Dist. Hamilton No. C-

100172, 2010-Ohio-6236, ¶ 10-11.

                              i. “Within or On” not “Of”

       ¶17 Great Parks takes the position that the statute requires a defect in a

static object that is confined or installed in the requisite building or the grounds of

such a building. To accept the position of Great Parks, however, we would have to

rewrite the statute to read “the injury is due to physical defects of a building used in a

governmental function or of the grounds of that building,” essentially removing

“within or on” and replacing it with “of.” If the language of a statute is clear and

unambiguous, a court must apply the statute as written without making “additions”

or “subtractions” from the language used. See Hubbard v. Canton City School Bd. of

Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶ 14; Portage Cty. Bd. of

Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52. Here,

the statute is not ambiguous in this regard, so we apply it as written.

       ¶18 Moreover, at least one court has held that a physical defect in a

transient object such a lawnmower, located on the grounds of a building used in a




                                            7
                     OHIO FIRST DISTRICT COURT OF APPEALS



governmental function, and that results in an injury, can satisfy the third

requirement of the physical-defect exception. See DeMartino v. Poland Local School

Dist., 7th Dist. Mahoning No. 10MA19, 2011-Ohio-1466. Thus, we hold that the

lawnmower at issue in this case, though transient, could satisfy the physical-defect

requirement for the exception.

                       ii. Evidence of Physical Defect

       ¶19 Next we address what is meant by the requirement of a “physical

defect,” a term not defined by statute. This court has defined the term “physical

defect” as “a perceivable imperfection that diminishes the worth or utility of the

object at issue.” R.K., 2013-Ohio-4939, 1 N.E.3d 833, at ¶ 16, following Leasure v.

Adena Local School Dist., 2012-Ohio-3071, 973 N.E.2d 810, ¶ 19 (4th Dist.); Duncan

v. Cuyahoga Community College, 2012-Ohio-1949, 970 N.E.2d 1092, ¶ 26 (8th

Dist.); Gibbs v. Columbus Metro. Hous. Auth., 10th Dist. Franklin No. 11AP-711,

2012-Ohio-2271, ¶ 13; Hamrick v. Bryan City School Dist., 6th Dist. Williams No.

WM-10-014, 2011-Ohio-2572, ¶ 28.

       ¶20 In responding to the summary-judgment motion, the O’Briens argued

the lawnmower’s brakes were faulty and thus constituted a physical defect.        In

support of this contention, they cited deposition testimony from the risk manager for

Great Parks, who acknowledged that “damage” to the lawnmower was discovered

after the accident. The risk manager’s testimony, however, did not disclose any

information about the “damage” observed on the lawnmower, which undisputedly

struck a golf cart before it reached Robert.     Further, Great Parks refuted any

inference of defective brakes by submitting the unchallenged affidavit of the

maintenance mechanic at the golf course who stated the lawnmower did not have




                                         8
                      OHIO FIRST DISTRICT COURT OF APPEALS



any mechanical problems or condition issues before the accident.                The risk

manager’s testimony, therefore, does not create a material issue of fact with respect

to a physical defect and does not preclude summary judgment in this case.

       ¶21 The O’Briens additionally argued the record contained evidence that

the golf course maintenance employee involved in the accident “admitted” the brakes

on the lawnmower were not working that day. But this admission is found nowhere

in the record. Robert did not testify that this statement was made to him, and the

record contains no deposition testimony or averments by the golf course

maintenance employee. Finally, Robert’s own testimony indicating that the golf

course maintenance employee had stopped the lawnmower atop the hill just before

the accident further undermines the argument that the brakes were faulty. When

this evidence is viewed in the light most favorable to the O’Briens, no reasonable trier

of fact could determine that Robert’s injury was the result of faulty brakes.

       ¶22 The O’Briens now suggest that the golf course maintenance employee’s

failure to use a properly working brake could be a physical defect under the

exception. The O’Briens did not present this discrete argument in the trial court.

They did argue, however, that a physical defect could be manmade, citing

DeMartino, 7th Dist. Mahoning No. 10MA19, 2011-Ohio-1466.

       ¶23 In DeMartino, a student in a marching band was injured when a lawn

tractor, allegedly operated by a school employee without a required discharge chute,

ejected a metal object that hit the student in the head. Id. at ¶ 3-6. The court found

the plaintiff’s allegations met the physical-defect requirement. Id. at ¶ 31.

       ¶24 The O’Briens’ reliance on DeMartino is misplaced, however, because

in DeMartino, the allegation was that the employee had improperly assembled the




                                           9
                       OHIO FIRST DISTRICT COURT OF APPEALS



lawn tractor. See id. at ¶ 3-5. That act had resulted in a tangible condition in the

structure of the machine that diminished its worth and utility. In this case, the

O’Briens assert that the golf course maintenance employee failed to properly use the

brakes of the fully operational lawnmower, not that the lawnmower was improperly

assembled.

          ¶25 An employee’s “[m]ethod or ‘use’ is not a ‘physical defect’ for purposes

of [the physical-defect] exception.” Shields v. Plummer, 10th Dist. Franklin No.

20AP-214, 2020-Ohio-5449, ¶ 20.           The physical-defect exception to statutory

immunity for political subdivisions performing a governmental function does not

apply in a negligence action against the operator of a public golf course by a patron

struck by a riding lawnmower on the golf course, absent some evidence that the

lawnmower was broken or improperly assembled such that the worth or utility of the

lawnmower was diminished at the time of the incident.          Thus, assuming that the

O’Briens preserved the issue, we conclude that the argument is unfounded.

          ¶26 Finally, the O’Briens argue that because the accident has not been

explained, there is a genuine issue of material fact as to what occurred, preventing

summary judgment on the physical-defect issue. But the O’Briens had the reciprocal

obligation under Civ.R. 56(E) to demonstrate a defect in the lawnmower and cannot

rely on speculation to establish that Robert’s injury was the result of a physical

defect.

          ¶27 Ultimately, the O’Briens failed to present evidence demonstrating that

the lawnmower had a physical defect that resulted in Robert’s injury.




                                            10
                         OHIO FIRST DISTRICT COURT OF APPEALS



                         2. Waiver of Motor-Vehicle Exception

       ¶28 The motor-vehicle exception to the general grant of immunity conferred by

R.C. 2744.02(A)(1) requires threshold proof of an injury or loss to a person or property

caused by a political subdivision’s employee’s “negligent operation” of a “motor vehicle.”

R.C. 2744.02(B)(1). According to the O’Briens, a riding lawnmower should be classified

as a “motor vehicle” and, therefore, the motor-vehicle exception could apply to remove

immunity in this case.

       ¶29 Great Parks argues the O’Briens failed to raise this issue below when

opposing summary judgment and cannot raise it for the first time on appeal. In their

reply brief, the O’Briens contend waiver is not warranted because they raised the issue at

oral argument on the summary-judgment motion. The record, however, does not contain

a transcript from that hearing to confirm this disputed contention, and the record we do

have, including the complaint and the memorandum opposing summary judgment,

contains no reference to the motor-vehicle exception. It is well settled that a party cannot

raise issues for the first time on appeal. See, e.g., U.S. Bank Natl. Assoc. v. Broadnax, 1st

Dist. Hamilton No. C-180650, 2019-Ohio-5212, ¶ 13; Midwestern Indemn. Co. v. Video

Features, Inc., 1st Dist. Hamilton No. C-930401, 1994 WL 603152 (Nov. 2, 1994). This is

particularly true of exceptions to immunity.

       ¶30 To allow the O’Briens to raise this issue now undermines the policy of

determining the issue of immunity at the earliest opportunity. See Summerville v. Forest

Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 39; Hahn v. Groveport,

10th Dist. Franklin No. 07AP-27, 2007-Ohio-5559, ¶ 12; Columbus, Franklin App. No.

04AP-1288, 2005-Ohio-5158, at ¶ 12, citing Conley v. Shearer, 64 Ohio St.3d 284, 292,




                                               11
                       OHIO FIRST DISTRICT COURT OF APPEALS



595 N.E.2d 862 (1992), citing Roe v. Hamilton Cty. Dept. of Human Serv., 53 Ohio

App.3d 120, 126, 560 N.E.2d 238 (1st Dist.1988).

       ¶31 Moreover, even on appeal, the O’Briens do not address the other

requirements of the motor-vehicle exception in the context of this case, including the

requirement that an employee was “operating” the motor vehicle.

       ¶32    We hold the O’Briens’ failure to raise the issue of the motor-vehicle

exception when opposing summary judgment on the basis of immunity constitutes a

waiver of this issue on appeal.

                                      III. Conclusion

       ¶33 Great Parks met its burden of demonstrating that it was entitled to the

general grant of immunity afforded a political subdivision under R.C. 2744.02(A)(1), and

the O’Briens failed to point to facts in the record showing they could prevail at a trial on

the issue of an exception to that immunity. Consequently, we conclude that the trial court

properly granted summary judgment in favor of Great Parks on the basis of immunity.

Therefore, we overrule the O’Briens’ assignment of error and affirm the trial court’s

judgment.

                                                                       Judgment affirmed.

MOCK, P.J., and ZAYAS, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                            12

Add comment