Injured at a City Pool or Rec Center? Ohio Supreme Court Narrows Government Immunity

Published November 29, 2012 · Ohio Supreme Court

Your son breaks his leg at the city's indoor pool. The lifeguard was not watching, the diving board was in poor shape, or the deck was slick where it should not have been. When you ask about a claim, the city's answer is one word: immunity. Last week the Supreme Court of Ohio said that answer is not good enough.

The decision: M.H. v. Cuyahoga Falls

On November 20, 2012, the Supreme Court of Ohio decided M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336. A minor, identified as M.H., suffered a broken knee at the city of Cuyahoga Falls' natatorium, an indoor swimming facility. He and his parents sued, alleging the injury was caused by the city's negligence in the care or control of its pool or diving board.

The city moved for summary judgment on the ground that it was immune under Ohio's political-subdivision immunity statute, R.C. Chapter 2744. The trial court agreed, reasoning that an indoor swimming pool did not fall within the exception to immunity for injuries inside government buildings. The Ninth District Court of Appeals reversed, and the city appealed to the Supreme Court.

The Supreme Court, in a unanimous opinion by Justice Pfeifer, affirmed the court of appeals. The city was not entitled to immunity as a matter of law. The case goes back to the trial court for the family to prove its negligence claim.

How Ohio's immunity statute works

R.C. Chapter 2744 is a three-step statute. First, R.C. 2744.02(A)(1) gives cities, counties, townships, and school districts (collectively, "political subdivisions") a general immunity from damages for injuries caused by their acts or omissions "in connection with a governmental or proprietary function." Second, R.C. 2744.02(B) lists five exceptions that restore liability. Third, R.C. 2744.03 lists defenses the subdivision can raise to get immunity back.

The exception at issue in M.H. is R.C. 2744.02(B)(4). It makes political subdivisions liable for injury caused by the negligence of their employees that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, "buildings that are used in connection with the performance of a governmental function." The statute gives office buildings and courthouses as examples and excludes jails and detention facilities.

Operating a municipal swimming pool is defined by R.C. 2744.01(C)(2)(u)(iv) as a governmental function. The city argued that this designation, combined with language in a 1998 Supreme Court decision suggesting that recreation centers are different from courthouses and office buildings, meant the building exception should not apply to an indoor pool.

What the Court held

The Court rejected the argument on the plain language of the statute. The natatorium is a building. The city uses it to perform a governmental function. M.H. was injured inside it, allegedly because of city employees' negligence. As the Court put it, the case "seems to fit clearly within the exception under R.C. 2744.02(B)(4)."

The Court addressed the 1998 case, Cater v. Cleveland, which involved a child who died after nearly drowning in a municipal pool. The lead opinion in Cater, which no other justice had joined, had worried that applying the building exception to indoor pools would create an artificial distinction between indoor and outdoor pools. The M.H. Court said it was "not persuaded that this language has ongoing relevance" and that the statute's plain words were enough to decide the case.

The practical holding: an injury caused by employee negligence inside a city-owned building used for a governmental function is not shielded by immunity, and a recreation building is a building like any other.

What this means for injuries at public facilities

The decision reaches well beyond swimming pools. Cities and townships across the Dayton area operate recreation centers, indoor pools, gymnasiums, senior centers, community buildings, libraries, and municipal offices. Under M.H., when a visitor is hurt inside one of those buildings because an employee was negligent, the city cannot end the case by invoking immunity. It has to defend the negligence claim on the merits.

Three cautions keep the decision in perspective:

The exception has two parts. R.C. 2744.02(B)(4) requires both that the injury be caused by employee negligence and that it be "due to physical defects within or on the grounds of" the building. The Supreme Court in M.H. did not separately analyze the physical-defect language, because the family's complaint alleged negligence in the care or control of the pool or diving board. Expect city attorneys to argue in future cases that a particular injury was not caused by a "physical defect." Cases involving a broken diving board, a defective ladder, a slick deck with inadequate drainage, or a malfunctioning door will fit the exception most comfortably.

Outdoor facilities are different. The exception is for buildings. Injuries at outdoor pools, ball fields, and parks raise different questions, and Ohio's recreational-user statute may also apply there. Whether the M.H. reasoning extends to grounds immediately surrounding a building is a question the courts will continue to work out.

The city can still raise defenses. After an exception applies, R.C. 2744.03 gives the subdivision defenses, including one for decisions involving the exercise of judgment or discretion in how to use equipment, personnel, and facilities. Immunity is removed as a matter of law under M.H., but the city will fight on.

Why this matters for families

Government immunity is the single biggest obstacle in injury claims against cities, as we have explained before in the context of police who released a drunk driver and a city water crew's open-and-obvious defense. Every exception the Supreme Court confirms is a door that stays open for injured people.

Children are the most frequent visitors to municipal pools and rec centers, and their injuries, from broken bones to drownings, are among the most serious we see. The same investigative work that goes into any premises liability case applies: photographs of the defect, incident reports, maintenance records, lifeguard schedules and training files, and witness statements. With a city defendant, public-records requests can obtain much of this early.

A two-year deadline generally applies to claims against political subdivisions, similar to the general injury deadline we described here. Because immunity issues are decided early and can be appealed immediately, these cases take time, and starting promptly matters.

What this means for you

• A city is not immune from a negligence claim for an injury inside a building it uses for a governmental function, including an indoor pool or recreation center.
• The exception requires employee negligence and a physical defect in or on the grounds of the building, so documenting the defect is essential.
• The city can still assert statutory defenses, and the family must still prove negligence.
• Immunity questions are complicated and are decided early. Call a lawyer who handles claims against the government soon after the injury.