COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72070 JUDY BILFIELD, ET AL. : : : : Plaintiffs-appellants : : : -vs- : JOURNAL ENTRY : AND ORANGE BOARD OF EDUCATION : OPINION : Defendant-appellee : : DATE OF ANNOUNCEMENT : DECEMBER 11, 1997 OF DECISION CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 303638 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFFS-APPELLANTS: FOR DEFENDANT-APPELLEE: Scott I. Levey, Esq. Jennifer L. Vinciguerra, Esq. Frank P. Giaimo, Esq. 323 Lakeside Avenue, West, #410 Mondello & Levey Cleveland, Ohio 44113 55 Public Square, Suite 1700 Cleveland, Ohio 44113 -2- ROCCO, J.: Plaintiffs-appellants Judy Bilfield and her minor son Brandon Bilfield appeal from the trial court order which granted defendant- appellee Orange Board of Education's motion for summary judgment, thus terminating their personal injury action. Appellants argue material issues of fact remain concerning appellee's liability for the injury suffered by Brandon on appellee's property. This court has reviewed the record, finds the trial court did not err in granting appellee's motion, and therefore affirms the trial court's judgment. On the evening of May 13, 1992 Brandon, who was eight years old, attended a baseball game sponsored by his Little League, the Orange County Athletic Administration. The game was held at Brady Middle School, which is owned and operated by appellee. Brandon's team used the school's baseball field Number 8. Behind the batting area was a metal chain-link fence approximately six feet in height which served as a backstop. The fence also continued for a short distance along the first and third base lines. Players awaiting their turn to bat sat on a bench along the first base line behind the fence. At some point during the game, Brandon, whose team was at bat, noticed that some of his teammates were climbing the fence and then jumping down from it. Brandon chose to follow their example. The first time Brandon climbed the fence and jumped from it he did so without mishap. The second time, however, as Brandon leaped from -3- near the top of the fence, his hand became caught on a piece of metal sticking out. 1As a result, Brandon cut his wrist and hand. Brandon and his mother subsequently filed an action against appellee in the Cuyahoga County Court of Common Pleas. Appellants alleged in count one that appellee's negligent failure to maintain the fence in a safe condition and it's failure to warn Brandon of the hazardous condition was the proximate cause of Brandon's injury.2Count two alleged a loss of consortium claim on behalf of Brandon's mother. Appellee's answer denied the allegations of negligence contained in the complaint and set up several affirmative defenses including failure to state a claim upon which relief may be granted and immunity pursuant to R.C. 2744 et seq.3 Thereafter, discovery was pursued in the action. Prior to the date set for trial, appellee filed a motion for summary judgment. In its brief in support of the motion, appellee argued it was entitled to judgment because liability was precluded by virtue of R.C. 2744.01(C)(2)(u) and R.C. 2744.03(A)(5). 1Quotes are taken from evidentiary material filed in the trial court. 2Appellant's complaint contained no allegation that appellee's actions were done maliciously, recklessly or in bad faith. See, Doe v. Jefferson Area Local School Dist. (1994), 97 Ohio App.3d 11 at 15. 3 Appellee also filed a counterclaim for indemnity against one of Brandon's Little League coaches which appellee later dismissed with the trial court's approval. -4- Appellee attached to its brief a copy of Brandon's deposition testimony. Appellants responded with a brief in opposition to appellee's motion. Appellants first argued that an exception to the immunity provided in Chapter 2744 applied, viz., R.C. 2744.02(B)(2) through (4). Appellants also argued that the maintenance of the fence did not require an exercise of discretion within the meaning of R.C. 2744.03(A)(5). Finally, appellants argued the evidence demonstrated a question of fact concerning whether appellee acted in a malicious or reckless manner with regard to the fence.4 Appellants attached to their brief a copy of what purported to be an accident report dated 5-14-92 to the Orange Community Education and Recreation department from a Supervisor about Brandon's mishap.5In the portion requesting the author's opinion as to the cause of the accident, the author had noted the following: defective fence. Subsequently, the trial court issued an opinion and order granting appellee's motion for summary judgment. In so ruling, the trial court stated the following, which is set forth verbatim: Defendant's 12-16-97 Motion for Sumy Judgmt is granted. Pursuant to O.R.C. 2744.01(C)(2)(u), defendant's maintenance of a baseball field is a governmental function for which defendant is immune from liability pursuant to O.R.C. S2744.03(A)(5). Mackulin v. Lakewood Board of Education (Ct. of App. Cuy. Cty. 1995), Case No. 61808 (unreported); Balazs v. Kirtland Board of Education 4See footnote two. 5This document was neither verified nor authenticated; however, appellee did not object to it. -5- (Ct. of App. Cuy. Cty. 1995), Case No. 67263 (unreported). Defendant is entitled to summy judgment also based on Celotex Corp. v. Catrett (1986), 477 U.S. 317 and Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108. Plaintiff has offered no Rule 56(C) evidence to support a claim of malicious purpose, bad faith or wanton or reckless conduct. Appellants have filed a timely appeal from the foregoing order. They present two assignments of error which are addressed together as follows: I WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE GENUINE ISSUES OF MATERIAL FACT REMAIN FOR THE JURY. II WHETHER THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE THE DEFENSES AND IMMUNITIES CONTAINED IN R.C SECTION 2744.03(A)(5) DO NOT APPLY TO THE FACTS AT BAR. Appellants argue summary judgment was improperly granted to appellee for two reasons: 1) the evidence was sufficient to raise an issue of fact regarding appellee's liability under common law negligence principles; and 2) the evidence demonstrated an issue of fact concerning whether any immunity granted to appellee by R.C 2744 et seq. was qualified by the provisions of R.C 2744.02(B)(2) through (4). Appellants' argument is unpersuasive. R.C 2744.02 as passed by the Ohio Legislature and effective July 1, 1985, states in relevant part as follows: S2744.02 Classification of functions of political subdivisions; liability; exceptions. -6- (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) 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: * * * (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 grounds within the political subdivision open, in repair, and free from nuisance, ***. (4) *** political subdivisions are liable for injury, death, or loss to persons or property that is 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 ***. (Emphasis added.) R.C 2744.01, as it existed at the time of Brandon's injury, pertinently states: S 2744.01 Definitions As used in this chapter: -7- * * * (C)(1) Governmental function means a function of a political subdivision that is specified in division (C)(2) of this section ***. (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. (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 properly-supported 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. Dresher v. Burt (1996), 75 Ohio St.3d 280; 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. (1984), 15 Ohio St.3d 75. Appellants argue the accident report made after Brandon's injury demonstrates appellee had actual notice of the fence's condition and, thus, creates an issue of fact concerning appellee's breach of its duty toward invitees on its property under common law principles of negligence. Appellants' argument is flawed for two reasons. -8- First, unsworn documents dated subsequent to the incident created no issue of material fact. Logsdon v. Ohio Northern Univ. (1990), 68 Ohio App.3d 190; see, also, Lawrence R. Barker Co., L.P.A. v. Overseas Dev. Corp. (1989), 64 Ohio App.3d 545. Secondly, R.C 2744 et seq. have abrogated former case law and conditionally reinstated common law principles of sovereign immunity. Thus, the statutes provide immunity to political subdivisions in the performance of governmental functions; such immunity is subject only to delineated exceptions. See, e.g., Wilson v. Stark Cty. Dept. of Human Serv. (1994), 70 Ohio St.3d 450; Rahn v. Whitehall (1989), 62 Ohio App.3d 62 (motion to certify the record overruled (1989), 44 Ohio St.3d 709); Amborski v. Toledo (1990), 67 Ohio App.3d 47; Zellman v. Kenston Bd. of Edn. (1991), 71 Ohio App.3d 287; cf., Ross v. Bd. of Education of Solon City School Dist. (July 2, 1992), Cuyahoga App. Nos. 62978 and 63020, unreported. R.C. 2744.01(C)(2)(u) specifies the operation, repair and maintenance of a playfield as an activity which is shielded by the doctrine of sovereign immunity. When the legislature is specific, sovereign immunity stands. Nagorski v. Valley View (1993), 87 Ohio App.3d 605; Zellman v. Kenston Bd. of Edn., supra; Amborski v. Toledo, supra; Redd v. Springfield Twp. School (1993), 91 Ohio App.3d 88. Appellants further argue that the evidence demonstrated appellee's action in failing to maintain the fence, which was not actually a part of the playfield itself, brings it within the -9- exceptions to sovereign immunity contained in R.C 2744.02(B)(2) through (4). By their very terms, however, the exceptions set forth in R.C 2744.02(B)(2) through (4) are subject to R.C 2744.03. Since the words of a statute must be given their usual, normal or customary meaning, the immunities granted by R.C 2744.03(A) prevail over the liability imposed by R.C 2744.02(B)(4). State v. Cravens (1988), 42 Ohio App.3d 69; see, also Horwitz v. City of Cleveland (Mar. 16, 1995), Cuyahoga App. No. 67140, unreported; Lang v. Cesnik(Aug. 6, 1992), Cuyahoga App. No. 60882, unreported; Novak v. Reis (Dec. 30, 1991), Cuyahoga App. No. 59276, unreported; cf., Ross v. Board of Education of Solon City School District, supra. Appellee argued in its brief in support of its motion for summary judgment that the decision to place a chain link fence on the playfield fell within the immunity granted by R.C 2744.03(A)(5). That section states: S2744.03 Defenses or immunities of subdivision and employee. (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 propietary 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. -10- The decision to allocate limited resources toward installing a fence as a backstop for children playing ball on its playfield brings appellee's action squarely within R.C. 2744.03(A)(5). Balazs v. Kirtland Board of Education (Mar. 30, 1995), Cuyahoga App. No. 67263, unreported; Mackulin v. Lakewood Board of Education (Mar. 11, 1993), Cuyahoga App. No. 61808, unreported; see, also, Adams v. Willoughby (1994), 94 Ohio App.3d 367. Moreover, although R.C. 2744.02(B)(3) requires political subdivisions to keep public grounds in repair, it remains subject to the specific immunity granted by R.C. 2744.01(C)(2)(u) and R.C. 2744.03(A)(5). Horwitz v. The City of Cleveland (Mar. 16, 1995), Cuyahoga App. No. 67140, unreported; Stinehelfer v. Solon City Schools (Feb. 25, 1993), Cuyahoga App. No. 64097, unreported. The placement of a fence upon the playfield certainly may be considered to be an allocation of resources to facilitate the purpose of the play field. Koch v. Avon Bd. of Edn. (1989), 64 Ohio App.3d 78. This court must adhere to legislative enactments and to precedent as set by the Ohio Supreme Court and its own decisions. For this reason, appellants' reliance on authority from other appellate jurisdictions in Ohio is not persuasive. See, e.g., Wilson v. Stark Cuy. Dept. of Human Serv. supra; Nagorski v. Valley View, supra; cf., Hallett v. Stow Board of Education (1993), 89 Ohio App.3d 309. Since the evidence submitted to the trial court demonstrated Brandon's injury did not result from the breach of any duty owed by -11- appellee to him, appellee was immune from liability pursuant to R.C. 2774.01(C)(2)(u) and 2744.03(A)(5). Therefore, no genuine issues of material fact remained in this case and summary judgment was properly granted for appellee. Accordingly, appellants' assignments of error are overruled. Judgment affirmed. -12- It is ordered that appellee recover of appellant 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 Cuyahoga County 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. TIMOTHY McMONAGLE, P.J., AND LEO SPELLACY, J., CONCUR. JUDGE KENNETH A. ROCCO 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 .