COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59360 WILLIE CADE : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : CLEVELAND REGIONAL TRANSIT : OPINION AUTHORITY : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 154,013. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: James R. Goldberg, Esq. Weisman, Goldberg, Weisman & Kaufman 1600 Midland Building Cleveland, OH 44115-1027 For Defendant-Appellee: Douglas A. Gonda, Esq. 615 Superior Avenue, N.W. Cleveland, OH 44113 -2- MATIA, P.J.: Plaintiff-appellant, Willie Cade, appeals from the judgment of the Cuyahoga County Court of Common Pleas which granted summary judgment on behalf of defendant-appellee, Greater Cleveland Regional Transit Authority. The appellant's appeal is not well taken. I. THE FACTS A. THE DEATH OF THE APPELLANT'S WIFE On May 31, 1985, Carol Cade, the wife of the appellant, was waiting at the East 79 Street Rapid Station platform for a rapid train. At approximately 12:56 p.m., Carol Cade was shot to death by an unknown individual. B. THE APPELLANT'S COMPLAINT FOR WRONGFUL DEATH On May 30, 1986, the appellant filed a complaint in the Cuyahoga County Court of Common Pleas based upon the claim of the wrongful death of Carol Cade. On October 2, 1987, however, the complaint was voluntarily dismissed without prejudice by the appellant pursuant to Civ. R. 41(A)(2). C. THE APPELLANT'S REFILED COMPLAINT FOR WRONGFUL DEATH On August 1, 1988, the appellant refiled his complaint in the Cuyahoga County Court of Common Pleas pursuant to the savings statute as contained in R.C. 2305.19. Again, the appellant in his complaint alleged the wrongful death of his wife, Carol Cade. D. THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT On June 7, 1989, the appellee filed a motion for summary judgment on the grounds that no genuine issue of material fact -3- existed for the trier of fact with regard to the appellant's claims and that the appellee was entitled to summary judgment as a matter of law. On August 2, 1989, the appellant filed his brief in opposition to the appellee's motion for summary judgment. E. THE TRIAL COURT RECONSIDERS AND GRANTS THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT On August 28, 1989, the trial court denied the appellee's motion for summary judgment. On January 3, 1990, the appellee filed a motion for reconsideration of the appellee's motion for summary judgment as denied by the trial court on August 28, 1989. On February 1, 1990, the trial court reconsidered the appellee's motion for summary judgment and upon reconsideration entered summary judgment on behalf of the appellee. F. THE APPELLANT'S TIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from the judgment of the trial court which granted summary judgment on behalf of the appellee. II. THE SOLE ASSIGNMENT OF ERROR The appellant's sole assignment of error is that: "THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT, GREATER CLEVELAND RAPID TRANSIT AUTHORITY'S MOTION FOR SUMMARY JUDGMENT BECAUSE OHIO REVISED CODE SECTION 2744.01 ET. SEQ. DOES NOT PROVIDE GOVERNMENTAL IMMUNITY TO A RAPID TRANSIT AUTHORITY." -4- A. ISSUE RAISED: TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT SINCE A REGIONAL TRANSIT AUTHORITY IS NOT A POLITICAL SUBDIVISION The appellant, in his sole assignment of error, argues that the trial court erred in granting the appellee's motion for summary judgment. Specifically, the appellant argues that the appellee was not entitled to judgment as a matter of law since the appellee was not a political subdivision which was entitled to sovereign immunity pursuant to the application of R.C. Chapter 2744. The appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW FOR A MOTION FOR SUMMARY JUDGMENT Civ. R. 56(C), which deals with motions for summary judgment, provides that: "*** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. ***" The Supreme Court of Ohio, with regard to the standard for granting a motion for summary judgment, has held that: -5- "'Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Petroff v. Commercial Motor Freight, Inc. (1960), 82 Ohio Law Abs. 433; Horvath v. Fisher foods, Inc. (1963), 93 Ohio Law Abs. 182; Norman v. Thomas Emery's Sons, Inc. (1966), 7 Ohio App. 2d 41; Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St. 2d 25. A successful motion for summary judgment rests on the two-part foundation that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Kwait v. John David Management Co. (1974), 42 Ohio App. 2d 63.' Vetovitz Bros., Inc. v. Kenny Constr. Co. (1978), 60 Ohio App. 2d 331, 332." Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St. 2d 1. In addition, a party who is opposing a motion for summary judgment may not rest upon the allegations or denials of his pleadings but must affirmatively demonstrate the existence of genuine issues of material fact in order to defeat a motion for summary judgment. "It should be noted that placing the above-mentioned requirements on the moving party does not mean the non-moving party bears no burden. Requiring that the moving party provide specific reasons and evidence gives rise to a reciprocal burden of specificity for the non-moving party. Civ. R. 56(E) provides in part: 'When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.' Rather than eliminate the non-moving party's -6- burden, the requirement that the moving party, here appellee, be specific in his reasons for requesting summary judgment provides the non-moving party with the information needed to formulate an appropriate response as required by Civ. R. 56(E)." Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112, at 115. C. A REGIONAL TRANSIT AUTHORITY IS A POLITICAL SUBDIVISION WHICH IS ENTITLED TO PROTECTION OF SOVEREIGN IMMUNITY STATUTES In the instant appeal, the appellant argues that the appellee was not entitled to summary judgment as a matter of law since the appellee is not a political subdivision which is immune from suit through the operation of R.C. Chapter 2744. In the case of Falzone v. Rutkowski (1988), 46 Ohio App. 3d 166, the Court of Appeals for Lucas County examined the issue of government tort liability and a regional transit authority. The Court of Appeals for Lucas County held that a regional transit authority is a political subdivision which is entitled to the protection of R.C. Chapter 2744, the sovereign immunity statutes. "In this case, appellants contend that appellee TARTA is not a political subdivision that should be shielded from liability by R.C. Chapter 2744. R.C. 2744.03 provides, in relevant part: "'(A) In a civil action brought against a political subdivision *** to recover damages for injury *** allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish non-liability: "'*** "'(5) The political subdivision is immune from liability if the injury, death, -7- or loss to persons or property resulted from the exercise of judgment or discretion *** unless the judgment *** was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.' "Appellants rely primarily on R.C. 2744.01(F) which provides a list of 'political subdivisions.' Appellants argue that because 'regional transit authority' is not specifically listed in this statute, policy decisions of appellee are not entitled to the immunity provided by R.C. 2744.03(A)(5). "Additional consideration of R.C. 2744.01 as well as case law indicates that a regional transit authority is among those entities granted sovereign immunity by the legislature. For instance, R.C. 2744.02(A)(1) provides, in part: "'For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. ***' (Emphasis added.) "According to R.C. 2744.01(G)(2)(c), '[a] "proprietary function" includes but is not limited to, the following: *** (c) The establishment, maintenance, and operation of a utility, including, *** a busline or other transit company ***[.]' "Additionally, in Spitaleri v. Metro RTA (1980), 67 Ohio App. 2d 57, 21 O.O. 3d 367, 426 N.E. 2d 183, decided prior to the enactment of R.C. Chapter 2744, the court held that a regional transit authority is a 'political subdivision of the state.' In reaching this conclusion, the court relied on R.C. 306.31, which provides: "'A regional transit authority may be created in the manner provided in section 306.32 of the Revised Code ***. A regional transit authority so created is a political subdivision of the state ***.' (Emphasis added.) -8- "In Schwenk v. Miami Valley RTA (C.P. 1975), 4 O.O. 3d 145, the court applied R.C. 306.31 and concluded, inter alia, that a regional transit authority is a political subdivision and therefore does not fall within the statutes setting forth the power to regulate public utilities. "Accordingly, appellee, a regional transit authority and a political subdivision, qualifies for sovereign immunity within R.C. 2744.03. Appellee's decision to exclude persons from its program providing door-to-door bus service for handicapped persons is therefore immune from appellants' challenge absent any finding of malicious purpose, bad faith or wanton or reckless misconduct." Falzone v. Rutkowski, supra, at 167. (Emphasis added.) D. THIS COURT'S PRIOR DECISION WITH REGARD TO THE APPLICATION OF SOVEREIGN IMMUNITY TO THE APPELLEE Finally, this Court of Appeals has on two separate occasions previously determined that sovereign immunity extends to the appellee-Greater Cleveland Regional Transit Authority in relation to the operation of a public transit system and injuries sustained by appellee's patrons as caused by outside criminal activity. "The Supreme Court of Ohio has recently ruled that a municipal corporation may not be found liable in negligence for its police department's failure to protect an individual from criminal activity absent a showing that the municipality owed a special duty of care to that individual. See Sawicki v. Ottawa Hills (1988), 37 Ohio St. 3d 222. This common law standard applies to those actions, including this action, which accrued prior to November 20, 1985, the effective date of the current law which defines political subdivision liability. Id., at 225; see, generally, R.C. 2744.01; R.C. 2744.02. -9- "The court recognized the continued vitality of the 'public duty rule' which immunizes government bodies from negligence liability for the failure to discharge a legally imposed duty owed to the general public. Id., at paragraph two of the syllabus. Implicit in this rule is the notion that no governmental entity can be held liable for making fundamental policy decisions which are characterized by a high degree of administrative judgment and discretion. Id., at 225-226. "The court stated the one exception to the rule. A municipal corporation may be held liable where a 'special duty' existed between the municipality and the injured party. "'In order to demonstrate a special duty or relationship, the following elements must be shown to exist: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.' "Id., at paragraph four of the syllabus. "We perceive no valid reason why the public duty rule and its exception as stated in Sawicki v. Ottawa Hills, supra, should be limited in their application to municipal corporations to the exclusion of regional transit authorities. Pursuant to R.C. 306.31, the transit authority is defined 'as a political subdivision of the state and a body corporate with all the power of a corporation ***.' The Revised Code authorizes the maintenance of security operations 'necessary for the protection of persons and property under [the transit authority's] jurisdiction and control.' R.C. 306.35(4). Accordingly, a transit -10- authority's duty to provide security within its jurisdiction differs in no significant respect to the general public duty a municipality has in providing security within municipal boundaries. "In concluding that the public duty rule applies in this case, we further determine that the special duty exception to the rule does not apply. Clearly, there is no evidence that the transit authority assumed through promises or actions an affirmative duty to protect the plaintiff in her individual capacity. There is no evidence that the plaintiff and the transit authority had any direct contact from which an expression of a security commitment could have been communicated. Further, there is no evidence that the plaintiff justifiably relied upon an affirmative promise of security by the transit authority. See Sawicki v. Ottawa Hills, supra, at paragraph four of the syllabus. "*** "However, to permit liability on this basis would invite an assault upon the public coffers. Every governmental body faces budgetary restrictions and few can afford to fund 'ideal' security operations. Liability cannot be predicated upon legislative and administrative allocations of scarce resources to security needs. Assuming arguendo that we would recognize liability on this basis, the plaintiff simply presented no evidence establishing the unreasonableness of the security budget in light of (1) other operational demands upon the transit authority budget, or (2) funding for security among similarly situated transit systems." Shelton v. Greater Cleveland Regional Transit Authority, et al. (Dec. 7, 1989), Cuyahoga App. Nos. 56287, 56431, unreported at 15. See also: Huggins v. Patton, et al. (May 31, 1990), Cuyahoga App. No. 58724, unreported. -11- E. TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT OF BEHALF OF THE APPELLEE Therefore, based upon the application of Falzone, Shelton and Huggins to the case sub judice, this court can but find that the appellant was barred from prosecuting his claims against the appellee and that the appellee was entitled to summary judgment as a matter of law. The trial court did not err in granting the appellee's motion for summary judgment and the appellant's sole assignment of error is not well taken. Judgment affirmed. -12- It is ordered that appellee recover of appellant his 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. Exceptions. SPELLACY, J. and HARPER, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .