COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72646 ACCELERATED DOCKET KELLY ANN NEELON, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellees : : and -vs- : : OPINION WALTER R. CONTE, JR., ET AL. : : PER CURIAM Defendants-Appellants : : DATE OF ANNOUNCEMENT NOVEMBER 13, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-328957 JUDGMENT: Reversed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee For Defendant-Appellant Kelly Ann Neelon: Walter R. Conte, Jr.: BENITO C.R. ANTOGNOLI, ESQ. ALBERT L. PUROLA, ESQ. Weisman Goldberg & Weisman 8500 Station Street, 1600 Midland Building Suite 265 101 Prospect Avenue, W. Mentor, Ohio 44060 Cleveland, Ohio 44115 For Defendant-Appellant For Defendant-Appellant Euclid-Lyndhurst Bd. Ed: S. Euclid-Lyndhurst Bd. Ed: JEFFREY J. WEDEL, ESQ. DAVID K. SMITH, ESQ. Squire Sanders & Dempsey Baumgartner & O'Toole 4900 Key Tower 502 Broadway 127 Public Square Lorain, Ohio 44052 Cleveland, Ohio 44114-1304 PER CURIAM: Appellant South Euclid-Lyndhurst Board of Education ( Board ) raises the following assignment of error for our review: 2 THE TRIAL COURT ERRED IN DENYING SOUTH EUCLID- LYNDHURST BOARD OF EDUCATION'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT AGAINST IT WHERE THERE WAS ALLEGED NO EXCEPTION TO THE GRANT OF SOVEREIGN IMMUNITY PURSUANT TO OHIO REVISED CODE (ORC) CHAPTER 2744. Appellant challenges the trial court's denial of its motion to dismiss a complaint filed by Brush High School cheerleader Kelly Ann Neelon and her parents against the Board, the South Euclid- Lyndhurst School District, Brush High School principal Walter Conte, Jr. and his wife, Susan. The Neelons alleged negligence and emotional distress in connection with the clandestine videotaping of Neelon while she changed clothes in the bathroom of the Conte home during a party. Appellant moved to dismiss under sovereign immunity R.C. 2744. Neelon argued that this was a proprietary function of which the Board is not immune. The trial court denied the Board's motion and this appeal followed. For the reasons below, we reverse the trial court's decision and enter judgment for the Board. R.C. 2744.02(A)(1) provides, in pertinent part: ***[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. R.C. 2744.02(B)lists five exceptions to the general rule of immunity including injuries caused by the negligent performance of acts by employees with respect to the subdivision's proprietary functions and injuries caused by the negligence of their employees 3 that occur within or on the grounds of buildings used in connection with a governmental functions. The dispute between the parties centers around whether the Board was engaged in a proprietary function or a governmental function at the time of the incident that resulted in Neelon's injury. A proprietary function is defined as one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by a non- governmental person. R.C. 2744.01(G)(1)(b). Proprietary functions include the operation of a hospital, a public cemetery, a utility such as a light, gas, power, or heat plant, a railroad, a busline or other transit company, an airport, and a municipal corporation water supply system, a sewer system, a public stadium, auditorium, civic or social center, exhibition hall, arts and crafts center, band or orchestra, or off-street parking facility. A governmental function is one 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; a function that is for the common good of all citizens of the state; and 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 non- governmental persons and is not specified as a proprietary function. R.C. 2744.01(C)(1)(a)-(c). Governmental functions include the provision of a system of public education and the maintenance and repair of public roads. 4 We conclude that, at the time of the incident which gave rise to Neelon's injuries, the Board was engaged in a governmental function the provision of a system of public education. The Board acknowledges that it was aware of the parties in Conte's home and that it allowed Board school buses to be used to transmit students to Conte's home. The party was an extracurricular activity conducted with the knowledge and cooperation of the Board. In Hackathorn v. Springfield Local School Dist. Bd. Of Edn. (1994), 94 Ohio App.3d 319, the court held that a vocational class' construction project at a private home was a governmental function. Hackathorn was killed when she fell through a hole cut in her floor of her home as part of a construction class remodeling project to install a staircase in her home. In Hackathorn, the court held that the School Board was not liable for the plaintiff's injuries because the activity did not take place in a building used in connection with the performance of a governmental function. R.C. 2744.02(B)(4) includes a general description, buildings that are used in connection with the performance of a governmental function, as well as two specific examples, office buildings and courthouses. The specific inclusion must be contrasted with the statute's specific exclusion of jails, places of juvenile detention, workhouses, or any other detention facility. Construing the inclusion and exclusion together, we find that the statute's general classification is limited to the class which is similar to office buildings and courthouses. Unlike the excluded class of buildings, office buildings and courthouses are buildings that are open to the public. The decedent's private home was not open to the public generally and is not similar in kind to an office building or a courthouse. 5 Id. at 325. In light of our determination that the Board was involved in a governmental function at the time of Neelon's injury, and that the incident did not occur at a building used in connection with a governmental function, we conclude Neelon failed to establish an applicable exception to the general rule of immunity set forth in R.C. 2744.02(A)(1). Accordingly, we reverse the decision of the trial court. Judgment reversed and judgment entered for the School Board. consistent with the opinion herein. It is ordered that appellants recover of appellees their costs herein taxed. It is ordered that a special mandate issue out of this Court directing said 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. ______________________________ PATRICIA A. BLACKMON, P. JUDGE ______________________________ JOSEPH J. NAHRA, JUDGE ______________________________ JOHN T. PATTON, JUDGE 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 .