COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67543 BEATRICE SMITH, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-243585 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: WALLACE R. STEFFEN (#0003934) 330 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee, City of Cleveland: LUANN A. POLITO (#0051236) Assistant Law Director Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 For Defendant-Appellee, Cleveland Board of Education: WILLIAM A. VISCOMI (#0017425) KEVIN C. ALEXANDERSEN (#0037312) GALLAGHER, SHARP, FULTON & NORMAN Seventh Floor, Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 Also listed, For Carolyn Gray: Harvey Kugelman 800 Standard Building 1370 Ontario Street Cleveland, Ohio 44114 - 2 - 2 SPELLACY, P.J.: Plaintiffs-appellants Beatrice and Ora Smith ("appellants") appeal the grant of summary judgment in favor of defendants- appellees the City of Cleveland and the Cleveland Board of Education. Appellants had sought to recover for injuries suffered by Beatrice when she was struck by an automobile when crossing a street on her way to school. Appellants assign the following error for review: THE LOWER COURT'S JUDGMENT GRANTING THE APPELLEES' MOTIONS FOR SUMMARY JUDGMENT WAS AS A MATTER OF LAW PREJUDICIAL ERROR BECAUSE: (1) THERE WERE GENUINE ISSUES OF MATERIAL FACT WHICH UNDER CIV.R. 56(C) PRECLUDED THE GRANTING OF THE MOTIONS FOR SUMMARY JUDGMENT; AND (2), R.C. CHAPTER 2744 DOES NOT AFFORD TO APPELLEES STATUTORY IMMUNITY IN THE FACT SITUATION SUB JUDICE. Finding the assignment of error to lack merit, the judgment of the trial court is affirmed. I. On December 12, 1990, the then nine-year old Beatrice left her Cleveland home at 8:55 a.m. accompanied by two friends to walk to school. The three children arrived at the school crosswalk on East 105th Street and discovered the crossing guard was not present. The children saw an automobile stopped at a traffic light down the street. The girls joined hands and began to run across the street. Beatrice lost a shoe in the middle of the street and stopped to retrieve it. The other children continued on to the other side of the street. Beatrice was struck by a car driven by Carolyn Gray - 3 - 3 sustaining severe injuries. Crossing Guard Carrie Gamble arrived after the accident occurred. Beatrice and her mother Ora Smith filed a complaint against the City of Cleveland, The Cleveland Board of Education and Carrie Gamble. A separate action was brought against Carolyn Gray. The two cases were consolidated. Cleveland, the Board of Education, and Gamble filed motions for summary judgment claiming immunity under R.C. Chapter 2744. The trial court granted the motions for summary judgment. Appellants have appealed the judgments in favor of Cleveland and the Board of Education but not that concerning Gamble. The action against Gray still is pending. II. In their assignment of error, appellants contend the trial court erred in granting the motions for summary judgment as genuine issues of material fact remain in dispute requiring resolution at trial. Appellants also assert the activity of assisting children to cross a street is a proprietary and not a governmental function pursuant to R.C. Chapter 2744. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most - 4 - 4 strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Sum- mary judgment is a procedural device designed to terminate liti- gation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judg- ment is not appropriate where the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. Appellants point to issues of fact they assert remain in dispute. These facts pertain to what time the guard was required to be at her post and what time the children arrived at the cross- walk; whether a crossing guard was statutorily required of the state and was an obligation of sovereignty for the common good of all citizens; whether the assistance of children to cross streets is customarily performed by non-governmental persons; whether the Board of Education voluntarily aided the city in furnishing the guards so that the guard was an agent of the Board as well as an employee of the city; and whether Ora Smith relied on the guard's presence to assist Beatrice across the street. All of these issues are material if Cleveland and the Board of Education are or are not afforded immunity under R.C. Chapter 2744. Appellants argue the furnishing of a school crossing guard is a proprietary function and that the defendants are not immune under the statute but would be liable for negligence. Appellants' - 5 - 5 position is that Cleveland has voluntarily assumed the duty of providing guards to assist school children to cross streets and that, without the guards, this assistance would be provided by non- governmental persons such as parents. As a general rule, a political subdivision is not liable for an injury, death or loss to persons or property caused by an act or omission of its employees or agents in connection with a govern- mental or proprietary function. R.C. 2744.02(A)(1). However, a political subdivision is liable in damages in a civil action for any injury 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 if that act or omission falls within one of the five categories enumerated under R.C. 2744.02(B)- (1) through (5). Appellants maintain R.C. 2744.02(B)(2) is applicable. It states: 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. In order to determine whether the function is governmental or proprietory, the definitions set forth in R.C. 2744.01 must be utilized. R.C. 2744.01(C)(1) provides: "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: - 6 - 6 (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 activities that are not engaged in or not customarily engaged in by nongovern- mental persons; and that is not specified in division (G)(2) of this section as a propri- etary function. R.C. 2744.01(C)(2)(c) includes the provision of a system of public education as a governmental function. R.C. 2744.01(C)(2)(j) provides the regulation of traffic is a governmental function. R.C. 2744.01(G)(j)(1) states: "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 per- sons. (2) A "proprietary function" includes, but is not limited to, the following: (a) The operation of a hospital by one or more political subdivisions; (b) The design, construction, reconstruc- tion, renovation, repair, maintenance, and operation of a public cemetery other than a township cemetery; (c) The establishment, maintenance, and operation of a utility, including, but not limited to, a light, gas, power, or heat plant, a railroad, a busline or other transit company, an airport, and a municipal corporation water supply system; - 7 - 7 (d) The maintenance, destruction, opera- tion, and upkeep of a sewer system; (e) The operation and control of a public stadium, auditorium, civic or social center, exhibition hall, arts and crafts center, band or orchestra, or off-street parking facility. Appellants contend the provision of school crossing guards is a proprietary function because it promotes public safety and is an activity engaged in by nongovernmental persons. Appellants argue that, because parents routinely help small children to safely cross the street, the activity is not a governmental function. Cleveland is responsible for hiring and equipping the school crossing guards. The guards are a part of Cleveland's Division of Police. Cleveland places guards at the various crosswalks and provides them with instructions relating to the guard's duties. The schools inform the guards of when to be at their posts and the the guards sign time sheets at the schools about once every two weeks. Appellants argue the above factors create some sort of agency relationship between the Board of Education and crossing guard Carrie Gamble. The only control the school exercised regarding Gamble was to tell her when to be at the crosswalk. Gamble was hired, assigned, equipped, and paid by Cleveland. The control of the school over Gamble regarding her duty times is too tenuous to establish an agency relationship. There is no other evidence showing Gamble was an agent of the Board of Education. The trial court did not err in granting the Board of Education's motion for summary judgment. - 8 - 8 The main thrust of appellants' argument is that the provision of school crossing guards is a proprietary and not a governmental function because, in the absence of the school cross guards, parents would undertake the duty. Appellants assert this fulfills the definition of a proprietary function under R.C. 2744.01(G)(1)(b) as the function is one preserving public safety and is customarily engaged in by nongovernmental persons. However, parents customarily assist their own children to safely cross the street. They do not normally present themselves at school crosswalks to help any child either safely arrive or leave a school. This is not an activity normally engaged in by nongovernmental persons. Further, under R.C. 2744.01(C)(2)(j), the regulation of traffic is a governmental function. Although appellants assert this section is inapplicable because the guards prevent the children from crossing if traffic is present, we find the guards do regulate traffic as vehicles must stop when the guard is in the street holding up a stop sign while the children cross. Appellants even argue that the driver Carolyn Gray would have been able to stop in time to avoid hitting Beatrice if Gray would have seen the crossing guard in the street. Thus, to this extent, the crossing guards regulate traffic. The provision of school crossing guards falls within the defi- nition found in R.C. 2744.01(C)(1)(c) in that it promotes public safety and is not customarily engaged in by nongovernmental per- - 9 - 9 sons. It also fulfills the requirements of R.C. 2744.01(C)(1)(b) in that the guards are a function for the common good of all of Ohio citizens. Although appellants argue the crossing guards only are for the good of those children using the crosswalk, we find that all citizens have an interest in the safety of Ohio's school children. The provision of school crossing guards by Cleveland is a governmental function. Cleveland was afforded immunity pursuant to R.C. 2744.02(A)(1). None of the exceptions listed in R.C. 2744.02(B) are applicable. The trial court did not err in granting Cleveland's motion for summary judgment. Appellants' assignment of error is overruled. Judgment affirmed. - 10 - 10 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. BLACKMON, J. and NAHRA, J., CONCUR. LEO M. SPELLACY 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. .