COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70674 VALARIE CATER, ETC., ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : : OPINION CITY OF CLEVELAND : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MAY 8, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-260814. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: Robert F. Linton, Jr., Esq., 700 West St. Clair Avenue, #300, Cleveland, Ohio, 44113-1230, and Larry S. Klein, Esq., Lambros & Klein Co., L.P.A., 230 Leader Building, Cleveland, Ohio, 44114. For Defendant-appellee: Sharon Sobol Jordan, Director of Law; Malcolm C. Douglas and Ronald A. Mingus, Assistant Directors of Law, Room 106, City Hall, 601 Lakeside Avenue, Cleveland, Ohio, 44114. - 2 - SWEENEY, JAMES D., C.J.: Plaintiffs-appellants Valarie Cater, administratrix for the estate of Darrall A. Cater, and Lawrence Cater, who are the parents of the decedent, appeal from the directed verdict entered by the trial court at the close of plaintiffs' case in this wrongful death/survivorship action. For the reasons adduced below, we affirm. A review of the record on appeal indicates that on June 14, 1993, between 3:00 to 3:45 p.m., Darrall Cater, who was eleven years of age at the time, was swimming in the deep end at the Alexander Hamilton Recreation Center indoor swimming pool during a period referred to as an "open swim session." It was the first day of the pool season at the facility. The pool measured 75 feet in length and 42 feet in width, representing a surface area of 3,150 square feet, and was 30 inches deep at the shallow end and 7 feet deep at the deep end. A wall of glass panels ran along one of the long sides of the pool area, the sunlight coming through creating glare on the surface of the water. A floating rope divided the shallow end from the deep end. At that time, two lifeguards were on station overseeing the pool and the swimmers, who happened to number approximately one hundred at the time. Lifeguard Mark McDougall, who had been seasonally employed at the pool for twelve years, was guarding the shallow end of the pool. Lifeguard Damon Carter, whose first day of employment at the pool was on the date of the incident herein, was seated on a high guard chair monitoring - 3 - the deep end of the pool. Physical directors Lisa Hutson, who was in charge of the lifeguards at the pool at the time of the incident, and Willie Hodge, who were also on duty as lifeguards that day, were on an unauthorized lunch break at a table located outside the pool area during this time period. All four of these lifeguards were certified by the American Red Cross. City pool policy mandated one lifeguard for every 25 swimmers in the pool. This center and pool is owned and operated by defendant-appellee City of Cleveland ("City"). At approximately 3:40 p.m., lifeguard McDougall, who was guarding the shallow end of the pool where the majority of the swimmers were located, was alerted by swimmers to there being a boy's body at the bottom of the pool in the deep end, submerged in approximately seven feet of water, on the side opposite from where lifeguard Carter was stationed. Adjacent to this spot where the body was discovered, on the edge of the pool, was an unoccupied folding low chair which had recently been occupied by lifeguard Hodge. Lifeguard McDougall rushed to the spot, dove in and retrieved the boy from the water and initiated resuscitation efforts. A short time later, Mr. Howard McKellar, the center's manager, joined the resuscitation efforts. EMS personnel arrived on the scene no later than 4:10 p.m. according to Mr. McKellar; at 3:56 p.m. - 4 - 1 according to the EMS record of response time. The boy was transported to University Hospitals, where he died four days later on June 18, 1993. Immediately following the accident, the City conducted an administrative investigation into the incident and, approximately one week after the accident, disciplined the center's manager, Mr. McKellar, and physical directors Hutson and Hodge, for the following violations: (A) Mr. McKellar: Violating City Discipline Policy, Group I: No. 20, to-wit, unsatisfactory work or failure to maintain required standards of performance in not seeing that a lifeguard schedule and assignment sheet, indicating when lifeguards may take breaks, was posted at the facility. [Mr. McKellar's punishment was a 3-day suspension.] (B) Ms. Hutson: Violating City Discipline Policy, Group I: No. 8, to-wit, recurrent failure to make required reports; No. 9, to-wit, malicious mischief, horseplay, wrestling or other undesirable conduct; No. 10, to-wit, failure to show reasonable care in the use or operation of City property or equipment; No. 16, to-wit, failure to observe department rules; 1 Testimony revealed that several employees at the center attempted to telephone EMS by dialing 9-1-1. Several of these callers were unsuccessful in completing the call because they were unaware that they had to dial a 9 first to obtain an outside line, and then dial 9-1-1. - 5 - No. 20, to-wit, unsatisfactory work or failure to maintain required standards of performance; and Group II: No. 9, to-wit, threatening, intimidating, coercing or interfering with supervisors or co- workers; No. 11, to-wit, disregard or carelessness in observance of official safety rules, or disregard of common safety practices; No. 12, to-wit, wanton or willful neglect in the performance of assigned duties or in the care, use or custody of any City property or equipment. Abuse, or deliberate destruction in any manner of City property, tools, equipment or the property of employees; No. 22, to-wit, instigating, leading, or participating in any illegal walkout, strike, sit-down, stand-in, refusal to return to work at the scheduled time for the scheduled shift, or other concerted curtailment, restriction or interference with work in or about the City's work stations; and Civil Service Rule 9.10: No. 1, to-wit, neglect of duty; No. 3, to-wit, incompetency or inefficiency in performance of duties; No. 5, to-wit, conduct unbecoming an employee in the public service; and, No. 18, to-wit, for other failure of good behavior which is detrimental to the service, or for any other act of misfeasance, malfeasance or nonfeasance in office; and Division of Recreation Pool Policy Manual: Page 2 No. 7, to-wit, a lifeguard is always ready in: (1) she/he is prompt in reporting to the duty stations; (2) she/he maintains constant surveillance; and (3) she/he never - 6 - leaves the duty station except in the line of duty; Page 4 No. 7, to-wit, remaining at your pool post except in cases of emergency or when properly relieved; Page 35 No. 35, to-wit, ensuring that the pool is properly staffed at all times; Page 36 No. 5, to-wit, is the person responsible for and in charge of the operation of the pool; Page 36 No. 7, to-wit, sees that all policies, rules and regulations are enforced by the staff; Page 36 No. 10, to-wit, perform as a lifeguard; Page 36 No. 12, to-wit, establishes the working schedule of staff; and, Page 36 No. 19, to-wit, be responsible for the actions and work of all personnel assigned to the facility. [Miss Hutson's punishment was a suspension of 45 days.] (C) Mr. Hodge: Violating City Discipline Policy, Group I, Nos. 16 and 20, in addition to: No. 4, to-wit, leaving the job or work area during the regular working hours without authorization; and, No. 7, to-wit, neglect or carelessness in signing in or out; and Group II, Nos. 11 and 12, in addition to: No. 4, to-wit, leaving post of continuous operations position prior to being relieved by employee of incoming shift; and Division of Recreation Pool Policy Manual, Page 2 No. 7, Page 4 No. 7 and Page 36 No. 10, in addition to: - 7 - Page 35 No. 2, to-wit, ensuring that the pool is properly staffed and cleaned at all times; Page 38 No. 2a, to-wit, not leaving guard chair or pool deck without being properly relieved or dismissed; Page 39 No. 7, to-wit, keeping your eyes on the swimmers at all times with the entire pool in your field of vision; and, Page 40 No. 9, to-wit, never leaving the pool unguarded unless in an emergency, then only after clearing the pool. [Mr. Hodge's punishment was a suspension of 45 days.] Thereafter, plaintiffs filed their lawsuit against the City on November 8, 1993. The trial court conducted a jury trial commencing on April 15, 1996. At the close of plaintiffs' case on April 18, 1996, the City moved for a directed verdict pursuant to Civ.R. 50(A), arguing that the City was immune from liability under R.C. 2744, et seq. Subsequent to oral arguments by the parties, the trial court granted the motion for directed verdict, stating the following: The City of Cleveland has immunity under the political subdivision immunity chapter, 2744, that there was no evidence presented as to 2744.035 (sic-the correct citation is 2744.03[A][5]), that the City in any way hired improper personnel, did not provide an adequate facility, didn't provide adequate rules and regulations for the operation of that facility, that the plaintiffs (sic) own expert said that if all those rules and regulations were followed, that this incident would not have occurred. (R. 196, Explanation added.) On appeal, appellants present six assignments of error. - 8 - I THE TRIAL COURT ERRED IN DIRECTING A VERDICT IN FAVOR OF THE CITY OF CLEVELAND SINCE REASONABLE MINDS COULD FIND THAT THE CITY'S MANAGEMENT EXERCISED ITS DISCRETION IN A WANTON OR RECKLESS MANNER UNDER R.C. 2744.03(A)(5). Civ.R. 50(A)(4), which deals with a motion for a directed verdict, states: When granted on the evidence. When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain 2 R.C. 2744.03(A)(5), which addresses defenses or immunities of a political subdivision and its employee, provides: (A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to persons or property 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 nonliability: * * * (5) The political subdivision is immune from liability if the injury, death, or loss to persons or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources, unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner. (Emphasis added.) - 9 - the motion and direct a verdict for the moving party as to that issue. In considering a motion for directed verdict, the court does not weigh the evidence nor try the credibility of the witnesses. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284. The court is required to construe the evidence presented most strongly in favor of the non-moving party, and if there exists any evidence of substantial probative value in support of the non-moving party's claim, the motion should be denied. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 68-69. It is noted that the operation of a swimming pool and/or indoor recreational facility by a political subdivision is a "governmental function" pursuant to R.C. 2744.01(C)(2)(u) and is subject to sovereign immunity pursuant to R.C. 2744.02(A). Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 624 N.E.2d 704; Mills v. City of Cleveland (June 15, 1995), Cuyahoga App. No. 67665, unreported, 1995 WL 363839; R.C. 2744.01(C)(2)(u) and 2744.02(A). This absolute immunity provided under R.C. 2744.02(A) is subject to the five exceptions set forth in R.C. 2744.02(B)(1)-(5), which themselves are subject to the provisions of R.C. 2744.03 (defenses and immunities available for a municipality and its employee except in the exercise of judgment or discretion with a malicious purpose, in bad faith or in a wanton and reckless manner) and 2744.05 (damage award limitation). Appellants have chosen R.C. 2744.03(A)(5) as an exception to the general immunity enjoyed by the City in the operation of the - 10 - swimming pool. We note that this subdivision applies to the political subdivision, whereas its sister subdivision, at (A)(6), applies to the employee. This subdivision, (A)(5), provides a political subdivision immunity for judgmental or discretionary acts unless the judgment or discretion was "exercised with malicious purpose, in bad faith, or in a wanton or reckless manner." The evidence at trial demonstrated that the pool was staffed on the day of the accident with a sufficient number (four) of lifeguards, who were each certified by the American Red Cross. It was also demonstrated that the City operated the pool, and governed its lifeguards, pursuant to a written policy manual. There was no evidence that the City was in any way negligent in its decision to hire these four lifeguards. Additionally, plaintiffs' own expert testified that had the City's pool policy rules been complied with by the three parties at the pool who were ultimately disciplined for their acts, the accident would not have occurred. In summary, there was no evidence presented that the City acted in a wanton or reckless manner in its discretionary decision making in the operation of the pool. The first assignment of error is overruled. II THE TRIAL COURT ERRED IN GRANTING A DIRECTED VERDICT IN FAVOR OF THE CITY OF CLEVELAND SINCE R.C. 2744.02(B)(3) AND (4) IMPOSE LIABILITY FOR MAN-MADE NUISANCE ON PUBLIC GROUNDS AND IN A - 11 - BUILDING BEING USED FOR A GOVERNMENTAL FUNCTION. In this assignment, appellants argue that the immunity provided political subdivisions pursuant to the specific language 3 R.C. 2744.02(B)(3) and (4) provide: (B) Subject to sections 2744.03 and 2744.05 of the 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) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to persons or property caused by the 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, except that it is a full defense to such liability, when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge. (4) Except as otherwise provided in section 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to persons or property caused by the negligence of their employees and that occurs within or on the grounds of buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code. - 12 - contained in R.C. 2744.01(C)(2)(u) for the operation of a swimming pool is negated by the general provisions contained in R.C. 2744.02(B)(3) [the maintenance of a nuisance on public grounds providing an exception to immunity] and 2744.02(B)(4) [employee negligence on the grounds of a public building used in connection with a governmental function providing an exception to immunity]. Reading the three statutes together, the problem which develops is obvious. The General Assembly has specifically determined that the operation of a municipal swimming pool has immunity, R.C. 2744.01(C)(2)(u), and the Supreme Court of Ohio has endorsed this view in Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 140. Yet, the general provisions contained in R.C. 2744.02(B)(3) and (4), which would include by their general language public buildings or public grounds as being a municipal swimming pool, would seem to negate the application of the specific immunity contained in R.C. 2744.01(C)(2)(u). Fortunately, R.C. 1.51 provides the answer as to which competing statutory provision, the general or the specific, controls: If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail. - 13 - In the appeal sub judice, the competing statutory provisions are irreconcilable. Therefore, the special provision, R.C. 2744.01(C)(2)(u), prevails. The second assignment of error is overruled. III R.C. 2744.01, 2744.02 AND 2744.03 ARE UNCONSTITUTIONAL. In this assignment, appellants argue that the cited statutes are unconstitutional due to vagueness. Appellants make the blanket assertion that the statutes in issue unfairly impinge upon the individual rights contained in the Ohio Constitution, specifically Article I, Sections 1, 2, 5, 16, 19, 19(a), Article II, Section 26, and Article IV, Section 1. The authority relied upon by the appellants is the dissenting opinion in Gladon v. Greater Cleveland Regional Transit Authority (1996), 75 Ohio St.3d 312. Despite the fevered language of the appellants, we conclude that R.C. 2744, et seq., is not unconstitutional. See Gladon, supra; Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666; Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260; Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351; Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27. The third assignment of error is overruled. IV THE TRIAL COURT ERRED IN EXCLUDING OPINION TESTIMONY FROM THE PLAINTIFFS' AQUATICS SAFETY EXPERT CONCERNING THE CITY'S MAINTENANCE OF A NUISANCE IN ITS SWIMMING POOL, AND THE RECKLESS - 14 - AND WANTON MISCONDUCT OF THE CITY AND ITS MANAGEMENT. During the trial, plaintiffs' aquatics expert, Mr. Pia, testified through videotape deposition played for the jury. Appellants do not indicate with specificity what evidence was improperly excluded. It is clear from reading a transcript of Mr. Pia's deposition that Mr. Pia offered his opinion relative to the operation of the pool. The court excluded Mr. Pia's opinion testimony concerning the existence of a nuisance. See Pia deposition at 35-36. Given that the issue of nuisance could only be maintained as relevant in the event that the public grounds exception to immunity (R.C. 2744.02[B][3]) were to be found viable, which it was not in this case, we must conclude that the trial court did not err in excluding the opinion on nuisance. See Horwitz v. Cleveland (March 10, 1995), Cuyahoga App. No. 67140, unreported; Nowak v. Ries (December 19, 1991), Cuyahoga App. No. 52276, unreported. As to the alleged exclusion of opinion on "reckless and wanton misconduct," a review of Mr. Pia's deposition transcript fails to indicate any exclusion of testimony based on such a question. The fourth assignment of error is overruled. V THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE SHOWING ACTUAL DAMAGES SUFFERED BY OTHER NEXT- OF-KIN BENEFICIARIES UNDER OHIO'S WRONGFUL DEATH STATUTE, INCLUDING, GRANDPARENTS, AUNTS, AND COUSINS, WHO, ALTHOUGH NOT PRESUMED TO HAVE SUFFERED DAMAGES, MAY PROVE THAT THEY IN FACT - 15 - HAVE SUFFERED ACTUAL DAMAGES BY THE WRONGFUL DEATH OF THE DECEDENT. Appellants argue that the trial court erred in excluding the testimony of the decedent's next-of-kin concerning their mental anguish and loss of society. A review of the trial testimony of the decedent's mother, father, and both grandmothers indicates that plaintiffs' counsel elicited testimony concerning the effect of the loss of the decedent on the lives of the witnesses. The testimony which the court did exclude, which was minimal in nature, was cumulative to that testimony already in evidence on the issue of mental anguish and loss of society. Being cumulative in nature, the court did not abuse its discretion in excluding it from the record. See Evid.R. 403(B). The fifth assignment of error is overruled. VI THE TRIAL COURT ERRED IN EXCLUDING THE TREATMENT RECORDS OF A LICENSED CERTIFIED PROFESSIONAL COUNSELOR WHO PROVIDED TREATMENT FOR THE DECEDENT'S FAMILY AFTER THE INCIDENT, UNDER THE BUSINESS RECORD HEARSAY EXCEPTION, EVID.R. 803(6). The records referred to in this assignment are office records containing the narrative observations, treatments, opinions and diagnoses of Ms. Judy Gogolen, a clinical counselor at the Children's Guidance Center, who counseled the decedent's family. Reviewing the testimony of Ms. Gogolen, it is evident that the witness testified extensively on her counseling activities with the decedent's family. The records sought to be admitted, although a - 16 - business record under Evid.R. 803(6), were unnecessarily cumulative to the testimony of the witness. Accordingly, the trial court did not abuse its discretion in excluding these records from evidence. Additionally, it is noted that, unlike its federal counterpart, Ohio's Evid.R. 803(6) does not provide an exception to the hearsay rule for out-of-court medical opinions or diagnoses. See Evid.R. 803(6) Staff Note; Bush v. Burchett (June 13, 1995), Athens App. No. 94CA2237, unreported, 1995 WL 356527, citing Lambert v. Goodyear Tire & Rubber Co. (1992), 79 Ohio App.3d 15, 21. Since the records sought to be introduced contained medical opinions and diagnoses by the witness, the court did not abuse its discretion in excluding the records. The sixth assignment of error is overruled. 4 Judgment affirmed. 4 The City attempts to argue a separate assignment of error, to wit, that the City is additionally immunized from liability pursuant to the recreational user statutes, R.C. 1533.18 and .181. This argument will not be considered because the City failed to commence this cross-appeal by filing a notice of appeal as required by App.R. 4(B). Additionally, the applicability of the recreational user statute was not presented before the trial court and may not be advanced for the first time on appeal. See L.B. Folding Co., Inc. v. Gergel-Kellem Corp. (Cuyahoga, 1994), 94 Ohio App.3d 511. - 17 - It is ordered that appellee recover of appellant 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. Exceptions. KENNETH A. ROCCO, J., CONCURS; AUGUST PRYATEL, J.,(*) CONCURS IN JUDGMENT ONLY. (*) August Pryatel, Retired Judge of the Eighth District Court of Appeals, Sitting by Assignment. JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .