COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67140 ANNABELLE HORWITZ, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION CITY OF CLEVELAND, ET AL., : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 16, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 246630 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Leon M. Plevin Ellen M. McCarthy Joel Levin NURENBERG, PLEVIN, HELLER & McCARTHY CO., L.P.A. The Standard Building 1370 Ontario Street - 1st Floor Cleveland, Ohio 44113-1792 For defendants-appellees: Malcolm C. Douglas Assistant Law Director City Hall - Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 -3- NAHRA, J.: Plaintiffs-appellants Annabelle and Morris Horwitz appeal from the trial court order which both denied their motion for summary judgment and granted defendant-appellee City of Cleveland's motion for summary judgment, thus terminating appellant's personal injury action. The facts relevant to this appeal follow. On July 14, 1992, appellant Annabelle Horwitz was injured while playing golf on the Highland Park golf course, which is owned and operated by appellee but located in Highland Hills, Ohio. Mrs. Horwitz sustained a fracture of her left elbow when she fell "in[to] a covered hole located in a grassy hazard area north of a bridge which crossed the culvert bisecting the 15th hole" of the 1 golf course. On February 19, 1993, Mrs. Horwitz and her husband filed a complaint in the Cuyahoga County Court of Common Pleas against appellee and the golf course. Count one alleged Mrs. Horwitz's injury was due to appellees' negligence in the maintenance and 2 upkeep of the golf course. Count two alleged a loss of consortium claim on behalf of Mr. Horwitz. 1 Quoted material is from appellee's statement of facts as set forth in its brief in support of its motion for summary judgment. Neither appellants themselves nor appellee provided any evidentiary material to the trial court concerning the incident itself. 2 The record reflects the complaint was amended at least once; in the first amended complaint appellants further alleged in count one that, appellees' negligent conduct in its "use of equipment and resources" was "wanton and/or reckless." -4- 3 Appellee's answer denied the allegations of negligence contained in the complaint and set up several affirmative defenses including, inter alia, failure to state a claim upon which relief may be granted, assumption of risk, and immunity pursuant to R.C. 2744 et seq. Thereafter, discovery was pursued in the action. On August 17, 1993, the trial court issued a journal entry which set the case for trial on February 10, 1994. On December 6, 1993, appellee filed a motion for summary judgment. In its brief in support of the motion, appellee did not dispute appellants' claim that Mrs. Horwitz was injured while playing at the golf course. Appellee even set forth the fact that Mrs. Horwitz broke her elbow when she fell into a "covered hole" near the golf course's fifteenth hole. Appellee stated that the trial court should also "assume[ ] for the purposes of the motion that Cleveland was negligent in the maintenance of the golf course." Appellee argued simply that it was entitled to summary judgment because liability was precluded by virtue of R.C. 2744.01(C)(2)(u) and R.C. 2744.02(A)(1). Appellee attached to its motion only copies of the relevant statutes. Appellants thereupon filed requests for a continuance of trial and for additional time to respond to appellee's motion. The trial court granted the requests. 3 Since appellee admitted ownership, operation and control of the golf course, appellee is hereinafter referred to in the singular. -5- On February 10, 1993, appellants contemporaneously filed the following, viz., a motion for summary judgment and a separate brief in opposition to appellee's motion. Appellants' motion for summary judgment was supported by a brief in which they first noted the "admissions" made by appellee in its brief in support of its motion. Appellants then proceeded to argue appellee's maintenance of the area in which Mrs. Horwitz fell was negligent and appellee was liable pursuant to R.C. 2744.02 4 "(C)(3)." Appellants attached to their motion only the following: 1) one page of deposition testimony and 2) two "expert" reports in 5 which the authors opined appellee was negligent. In their separate brief in opposition to appellee's motion for summary judgment, appellants again seized upon the statements made by appellee in its brief to argue appellee had admitted negligence. Appellants also agreed with other statements made by appellee in its brief, viz., that appellee's "operation of a golf course is a governmental function" and, further, that appellee was "immune from liability for damages caused during the course of performing governmental functions." Appellants argued, however, that R.C. 2744.02 "(C)(3)" created an exception to immunity which applied in this case on the following two bases: 1) the golf course constituted "public grounds within the political subdivision;" and 4 Since there is no subsection (C), it is apparent appellants were actually referring to R.C. 2744.02(B)(3). 5 These documents were neither verified nor authenticated; however, appellee did not object to them. -6- 2) the golf course's maintenance did not involve any "authorized exercise" of appellee's discretion. Significantly, appellants also stated in a footnote as follows: Because the facts as set forth by Defendant are acceptable to Plaintiff for purposes of this Brief, and because those facts clearly entitle the Plaintiff, not the Defendant, to Summary Judgment, Plaintiff has not filed supporting affidavits with this brief in Opposition. The purpose of supporting affidavits is to set forth in sworn form facts sufficient to defeat the Motion for Summary Judgment (Rule 56 of the Ohio Rules of Civil Procedure. In this case, where the facts defendant alleges so clearly controvert its motion, no additional facts need be presented. (Emphasis added.) Subsequently, the trial court issued an opinion and order denying appellants' motion for summary judgment but granting appellee's motion. In so ruling, the trial court stated in pertinent part: Both plaintiff (sic) and defendants have moved for summary judgment. Plaintiff bases her motion on the assertions that there is no dispute as to negligence on the part of the City and that: * * * this case falls squarely within an exception to sovereign immunity provided for in O.R.C. 2744.02(C)(3) (sic), which reads, in pertinent part, as follows: Political subdivisions are liable for injury, death or loss to persons or property caused by their failure to keep * * * public grounds within the political subdivision open, in repair, and free from nuisance * * * * (Emphasis in Plaintiff's Brief in Support of her Motion for Summary Judgment) Although this point is not addressed by the City of Cleveland, the Court notes that plaintiff's motion fails to set forth any evidence that the Highland Golf Course in fact lies "within the public subdivision", i.e., within the corporate limits of the City of Cleveland itself. More to the point, both the -7- Complaint and Amended Complaint allege that the incident occurred in Highland Hills, Ohio, and not in Cleveland. Thus, no public grounds in the City of Cleveland are involved, R.C. 2744.02(C)(3) (sic) does not apply, and plaintiff's Motion for Summary Judgment must be denied. As noted supra, the City of Cleveland also has moved for summary judgment. It asserts that it enjoys immunity from suit, pursuant to R.C. 2744.01(C)(2) and .02(A)(1). * * * The City cites * * * to Nowak v. Ries (Dec. 30, 1991) Cuyahoga Co. App. No. 59276, (unreported) for the proposition that the more specific language of 2744.01(C)(2), referring to park, playground, or playfield (or here, a golf course), prevails over the more general language of either 723.01 or its more recent incarnation in 2744.02(B)(3) as to public grounds. The City further notes that 2744.01(G)(1)(e) originally included the operation and control of public golf courses as a proprietary function, but that this section was specifically amended in 1987 to convert this function from a proprietary to a governmental function. (H.B. 295, 1987 Sessions Laws) As the City points out, this evidences the clear intent of the General Assembly that the operation of a public golf course is to be considered as a governmental function. This Court is not empowered to overlook the manifest intent and clear language of the General Assembly, nor to ignore the unambiguous precedent of our Court of Appeals in a recent case which is substantially analogous to that before us. * * * For the reasons set forth herein the Court has no alternative but to deny the Motion of Plaintiff for Summary Judgment and to grant that of the City of Cleveland. IT IS SO ORDERED. (Emphasis in original, underscoring added.) After filing an unsuccessful motion for reconsideration of the foregoing order in the trial court, appellants filed a timely appeal in this court. Appellants present two assignment of error for this court's review which are addressed together as follows: A. THE TRIAL COURT ERRED IN FINDING THAT NO GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO -8- WHETHER THE POLITICAL SUBDIVISION TORT LIABILITY ACT (O.R.C. 2744 ET SEQ) RELIEVES THE CITY OF CLEVELAND FROM LIABILITY FOR THE INJURIES OF PLAINTIFFS ANNABELLE AND MORRIS HORWITZ. B. THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON GROUNDS NOT RAISED IN DEFENDANT'S MOTION. Although appellants present two assignments of error, they are essentially arguing that summary judgment was improperly granted for appellee in this case for three reasons, viz., 1) the immunity conferred upon appellee by R.C. 2744.02(A)(1) is qualified by R.C. 2744.02(B)(3); 2) R.C. 2744.02(B)(3) is applicable in spite of the geographical location of the golf course; and 3) they were denied an adequate opportunity to make the second argument in the trial court. R.C. 2744.02 as passed by the Ohio legislature and effective July 1, 1989, states in relevant part as follows: 2744.02 Classification of functions of political subdivisions; liability; exceptions. (A)(1) For the purpose of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. 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. * * * (B) * * * [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 -9- employees in connection with a governmental or proprietary function, as follows: * * * (2) Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions. (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 political subdivisions open, in repair, and free from nuisance, * * * * (Emphasis added.) R.C. 2744.01, as it existed at the time of Mrs. Horwitz's 6 injury, pertinently states: 2744.01 Definitions. As used in this chapter: * * * (C)(1) "Governmental function" means a function of a political subdivision that is specified in division (C)(2) of this section or that satisfies any of the following: (a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement; (b) A function that is for the common good of all citizens of the state; (c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves 6 The legislative history of this statute indicates it was modified six times between its original enactment in 1985 and the effective date of this version. It has since been modified again. -10- activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function. (2) A "governmental function" includes, but is not limited to, the following: * * * (u) 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; * * * (G)(1) "Proprietary function" means a function of a political subdivision that is specified in division (G)(2) of this section or that satisfies both of the following: (a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section; (b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons. (Emphasis added.) Civ.R. 56(C) makes summary judgment proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. To sustain a claim of negligence, one must first show the existence of a duty. See Menifee v. Ohio Welding Products, Inc. -11- (1984), 15 Ohio St.3d 75. Appellants argue that the words "public grounds" contained in R.C. 2744.02(B)(3) apply in this case to the Highland golf course, creating a duty on the part of appellee which negates the immunity conferred by R.C. 2744.02(A)(1). To support this argument, appellants cite numerous cases which are not clearly applicable to the facts of this case and are from other appellate jurisdictions in Ohio. Nevertheless, this court must adhere to legislative enactments and to precedent as set by the Ohio Supreme Court and its own decisions. R.C. 2744.02(A)(1) provides immunity to political subdivisions in the performance of governmental functions; such immunity is subject only to delineated exceptions. See, e.g., Rahn v. Whitehall (1989), 62 Ohio App.3d 62 (motion to certify the record overruled (1989), 44 Ohio St.3d 709); Zellman v. Kenston Bd. of Edn. (1991), 71 Ohio App.3d 287. R.C. 2744.01(C)(2)(u) specifies the operation of a public golf course as an activity which is shielded by the doctrine of sovereign immunity. When the legislature is specific, sovereign immunity is not abrogated. Nagorski v. Valley View (1993), 87 Ohio App.3d 605; Zellman v. Kenston Bd. of Edn., supra; Amborski v. Toledo (1990), 67 Ohio App.3d 47; cf., Redd v. Springfield Twp. School (1993), 91 Ohio App.3d 88. This court has previously so held when addressing an argument substantially the same as the one raised by appellants herein. In Nowak v. Ries (Dec. 30, 1991), Cuyahoga App. No. 59276, unreported, plaintiff was injured when he fell over rocks on a city-owned -12- softball field; he appealed the dismissal of his case against the city of Parma, arguing that pursuant to R.C. 723.01 and R.C. 2744.02(B)(3), the city was not entitled to immunity. In response, this court stated: 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)[u] (park, playground, or playfield) prevails over R.C. 723.01 and R.C. 2744.02(B)(3) (public ground). Parma was immune from appellants' suit and the motion to dismiss was properly granted. (Underscoring in original; emphasis added.) Therefore, appellee was immune because of the specificity of R.C. 2744.01(C)(2)(u) as applied to R.C. 2744.02. Moreover, appellants' argument that the immunity granted to the appellee with regard to the maintenance of a golf course is qualified by R.C. 2744.01(B)(3), taken to its logical conclusion, causes the words "public grounds" to be irreconcilable with the words "public golf course." In such a situation, R.C. 1.52(A) mandates the statute "latest in date of enactment" prevails. Thus, -13- in this case, appellee is entitled to immunity on this ground as well. Appellants make two further arguments, viz., that 1) the trial court mistakenly interpreted a portion of R.C. 2744.02(B)(3) by requiring the "public grounds" to be geographically located within the city; and 2) the trial court did not permit them the opportunity to respond to that interpretation. Neither argument has merit. As the trial court noted, appellants emphasized that very portion of the language of the statute in their briefs to the trial court. Hence, there should be no surprise that the trial court focused on those words. See, e.g., Celotex Corp. v. Catrett (1986), 477 U.S. 317 at 326; State ex rel. Lowrey v. Cleveland (1993), 67 Ohio St.3d 126. Furthermore, since the trial court was correct in its assessment that appellee was statutorily immune from liability, any argument concerning the trial court's interpretation of the words "within the political subdivision" is moot. There was no genuine issue of material fact in the case, therefore, neither further argument nor further evidence was necessary for the trial court to make its decision. Celotex Corp. v. Catrett, supra. See, also, Lester v. State Farm Mut. Auto Ins. Co. (1989), 64 Ohio App.3d 52; Miller v. McGovern (10th Cir. 1990), 907 F.2d 957; cf., Mitseff v. Wheeler (1988), 38 Ohio St.3d 112. "An appellate court must affirm a trial court's judgment if any valid grounds are found on review to support it." Redd v. -14- Springfield Twp. School Dist., supra, at footnote 1, citing Joyce v. General Motors Corp. (1990), 49 Ohio St.3d 93. It is clear from a review of the record in this case and the relevant law that the trial court did not err in either granting appellee's motion for summary judgment or denying appellants' motion for summary judgment. Accordingly, appellants' assignments of error are overruled. The judgment of the trial court is affirmed. -15- It is ordered that appellees recover of appellants their 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. PORTER, P.J., and DYKE, J., CONCUR. JOSEPH J. NAHRA 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. .