COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59276 FRANK NOWAK, ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL RIES, MAYOR, : CITY OF PARMA : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 180403 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: CHARLES S. TRICARICHI, ESQ. CHRISTOPHER A. BOYKO 55 Public Square Bldg., #2120 LAW DIRECTOR, CITY OF PARMA Cleveland, Ohio 44113 ROBIN D. DEBELL ASSISTANT LAW DIRECTOR CITY OF PARMA 6611 Ridge Road Parma, Ohio 44129 - 1 - DYKE, J.: Appellants, Frank Nowak and Geri N. Nowak, served a complaint upon appellee, Michael Ries, Mayor of Parma, for damages suffered by Frank Nowak when he fell over rocks on a softball diamond in a Parma-owned and maintained park while playing in a league game in a Parma-sponsored softball league. Appellee's motion to dismiss argued three points: (1) a political subdivision is not liable for injury resulting from an exercise of a governmental function, R.C. 2744.02(A)(1), and "governmental function" includes maintenance of a park, playground or play field, R.C. 2744.01(C)(2)(u); (2) Ries, an employee, is not liable unless certain facts were pleaded and appellant failed to do so, R.C. 2744.03(A)(6); (3) Parma is not liable because Frank Nowak was a recreational user, R.C. 1533.181. Appellant's brief in opposition argued that under R.C. 723.01 and 2744.02(B)(3) political subdivisions are liable for injury resulting from an exercise of a governmental function if it involved the failure to keep public grounds open, in repair and free from nuisance. Appellant further contended that the complaint was filed against appellee in his representative capacity pursuant to Civ. R. 4.2 but moved to amend to add Parma. Last, appellant insisted that Mr. Nowak was not a recreational user under R.C. 1533.18(B) because his team's sponsor paid a fee to Parma to participate in the league. The - 2 - motion to dismiss was granted and on appeal appellant assigns three errors for review. I THE MAYOR OF PARMA, IN HIS REPRESENTATIVE CAPACITY, IS A PROPER DEFENDANT IN THIS ACTION. Appellant's complaint named only "Michael Ries, Mayor City of Parma" but appellants insist that Parma was sued pursuant to Civ. R. 4.2(13) which states as follows: Service of process, except service by publication as provided in Rule 4.4(A), pursuant to Rule 4 through Rule 4.6 shall be made as follows: ... (13) Upon a municipal corporation ... by serving the officer responsible for the administration of the office, department, agency, authority, institution or unit or by serving the city solicitor or comparable legal officer. That rule allows a party to serve a municipal corporation by serving an individual but the complaint must nevertheless name the city. Appellants' complaint names only the mayor, individually. After the motion to dismiss noted that the complaint was against Ries appellants stated in their brief in opposition that the action was filed against the Mayor as the person responsible for the administration of the city but if the court deemed that the city should be substituted appellants moved to do so. The motion was not ruled on and is presumed denied. Hayes v. Smith (1900), 62 Ohio St. 161 (re: objection not ruled - 3 - on), and Solon v. Solon Baptist Temple (1982), 8 Ohio App. 3d 347 (objections and motions). Appellants contend that the complaint is against Parma. Although the complaint failed to clearly state the name of Parma as a defendant it is apparent from a review of the complaint and the motion to dismiss that the complaint speaks only of the negligence of Parma and that Parma responded with a motion to dismiss Parma on the basis of immunity. We hold that the complaint stated a cause of action against Parma and therefore amendment was not necessary. Assignment of error No. I is sustained. II THE DOCTRINE OF GOVERNMENTAL IMMUNITY, O.R.C. 2744, DOES NOT SHIELD THE CITY OF PARMA FROM LIABILITY FOR INJURY SUSTAINED BY A REGISTERED PARTICIPANT IN A REGULARLY SCHEDULED CITY OF PARMA SPONSORED LEAGUE SOFTBALL GAME WHEN HE FELL OVER ROCKS ON A PLAYING FIELD OWNED BY THE CITY OF PARMA. R.C. 2744.02(A)(1) states as follows: Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function. (Emphasis added.) R.C. 2744.02(B) and (B)(3) state as follows: Subject to sections 2744.03 and 2744.05/1\ of the /1\ R.C. 2744.03 and 2744.05 are not applicable. - 4 - Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function as follows: * * * (3) Political subdivisions are liable for injury, death or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the public subdivision open, in repair, and free from nuisance .... (Emphasis added.) Appellants note that the Ohio Supreme court has held that a baseball diamond in a city park is a public ground. Kubitz v. Sandusky (1964), 176 Ohio St. 445 (paragraph two of the syllabus). Kubitz was construing R.C. 723.01 which preceded R.C. 2744.01 and 2744.02 and imposed a duty on a municipality to keep public grounds open, in repair and free from nuisance. That language is repeated in R.C. 2744.02(B)(3). However, Kubitz stated that the difference between a governmental function and a proprietary function was not material. Id. at 446. Since Kubitz the legislature has enacted R.C. 2744.02(A)(1), which grants immunity for damages for injury etc. caused by an act or omission of a political subdivision or its employee in connection with a governmental or a proprietary function, and R.C. 2744.01(C)(2), which defines "governmental function" as the maintenance of any park, playground or playfield. The more specific language of R.C. 2744.01(C)(2) (park, playground or playfield) prevails over R.C. 723.01 and R.C. 2744.02(B)(3) - 5 - (public ground). Parma was immune from appellants' suit and the motion to dismiss was properly granted. Assignment of error No. II is overruled. III WHERE PLAINTIFF'S TEAM HAD PAID $500.00 TO THE CITY OF PARMA FOR PARTICIPATION IN ITS LEAGUE GAMES, PLAINTIFF IS NOT A RECREATIONAL USER PURSUANT TO O.R.C. 1533.18 AND 1533.181. We address this assignment of error pursuant to App. R. 12(A). The complaint stated that Frank Nowak was injured while playing in a regularly scheduled game in Parma's league which played on Parma's softball diamond. The fee was paid by the team's sponsor. R.C. 1533.181 states as follows: (A) No owner, lessee, or occupant of premises: (1) Owes any duty to a recreational user to keep the premises safe for entry or use; (2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use; (3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user. R.C. 1533.181 provides derivative statutory immunity to municipalities and applies to private, state and municipal property. LiCause v. Canton (1989), 42 Ohio St. 3d 109. A person who enters or uses municipal land which is held open to the general public free of charge for recreational pursuit is a recreational user. (Johnson v. New London [1988], 36 Ohio St. 3d 60, 521 N.E. 2d - 6 - 793.) If such recreational user is injured while engaged in recreational pursuit on such land, the municipality is immune from an action brought under R.C. 723.01 due to the exemption from liability to recreational users in R.C. 1533.181. Id. at syllabus. R.C. 1533.18 states as follows: As used in sections 1533.18 and 1533.181 [1533.18] of the Revised Code. *** (B) "Recreational user" means a person to whom permission has been granted, without the payment of a fee or consideration to the owner, lessee, or occupant of premises, other than a fee or consideration paid to the state or any agency thereof, to enter upon premises to hunt, fish, trap, camp, hike, swim, or engage in other recreational pursuits. Appellants contended that Frank Nowak was not a recreational user because a fee was paid to play in the league and the softball diamond was not open to the general public. In determining whether a person is a recreational user under R.C. 1533.18(B) the analysis should focus on the character of the property upon which the injury occurs and the type of activities for which the property is held open to the public. (Light v. Ohio University [1986], 28 Ohio St. 3d 66, 28 OBR 165, 502 NO.E. 2d 611; Loyer v. Buchholz [1988], 38 Ohio St. 3d 65, 526 N.E. 2d 300; Fryberger v. Lake Cable Recreation Assn., Inc. [1988], 40 Ohio St. 3d 349; 533 N.E. 2d 738; Sorrell v. Ohio Dept. of Natural Resources [1988], 40 Ohio St. 3d 141, 532 N.E. 2d 722, construed.) A park which otherwise meets the definition of "premises" under the Ohio recreational-user statutes does not lose its immunity because (1) the park includes a softball field with dugouts, fences, base plates and similar man-made structures and (2) the plaintiff was engaged in a softball tournament played on those premises. Miller v. Dayton (1989), 42 Ohio St. 3d 113 (paragraph one and two of the syllabus). In Miller, the court concluded that a - 7 - plaintiff who was injured while playing on a softball diamond in a city park was a recreational user. However, in Miller the plaintiff's team had paid the entry fee to someone other than the city. The issue is whether a plaintiff is a recreational user when an entry fee was required (and paid) before a city would allow plaintiff's entrance but the fee was paid by someone other than the plaintiff. In Miller the plaintiff was a recreational user because the fee was not paid to the city. Here, Frank Nowak did not personally pay a fee or consideration to the city to gain entry. However, the statute does not define a recreational user as one to whom permission was granted without payment by that person. R.C. 1533.18(B) states that a recreational user is one to whom permission has been granted, without payment of a fee or consideration to the owner. That includes payment by another on that persons behalf. Here, appellant could not use the field unless appellee received money. The fact that someone else paid it for him does not alter the fact that this was not a situation in which Parma allowed the gratuitous use of its recreational land. It should not benefit from the statute passed to encourage landowners to allow the gratuitous use of their land for recreation. Had Parma not enjoyed immunity, assignment of error No. III would have been sustained. In light of our disposition of assignment of error Nos. I and II the judgment of the trial court is affirmed. - 8 - It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. J.F. CORRIGAN, J., CONCURS. FRANCIS E. SWEENEY, J., CONCURS IN JUDGMENT ONLY PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .