COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72973 LEOLA JOLLY ACCELERATED DOCKET Plaintiff-appellant JOURNAL ENTRY vs. AND CITY OF CLEVELAND OPINION Defendant-appellee PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: MARCH 12, 1998 CHARACTER OF PROCEEDINGS: Civil appeal from Common Pleas Court Case No. CV-320868 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellee: MURRAY RICHELSON RENEE BACCHUS DAVID A. KATZ CO., L.P.A. Assistant Director of Law 842 Terminal Tower City of Cleveland Cleveland, Ohio 44113 City Hall - Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 -2- PER CURIAM: Plaintiff-appellant, Leola Jolly, was injured when she slipped and fell on the steps of Cleveland City Hall. Claiming that the city was negligent in designing and maintaining the steps, she filed a lawsuit against the city. After the trial court granted summary judgment in favor of the city, plaintiff appealed raising one assignment of error challenging the judgment of the court below. This assignment lacks merit because the City of Cleveland is entitled to the defense of sovereign immunity. The facts of this case are simple and straightforward. On May 3, 1995, plaintiff, while walking with a cane, slipped as she was descending the steps of Cleveland City Hall. The steps are marble and do not have any non-slip strips applied to them. Plaintiff does not allege that any foreign substances were present on the steps when she fell. On June 9, 1997, Cleveland moved for summary judgment arguing that (1) plaintiff's argument regarding maintenance fails because the step had no physical defect or debris on it, and (2) the city was immune from suit because the decision whether to place non-slip strips on the steps is a discretionary decision to which the city is entitled to immunity. Attached to this motion is the affidavit of Kenneth Nobilio who averred that the original blueprints for city hall provided for marble steps without the installation of a non-strip additive. Responding to the city's motion, plaintiff argued that the decision whether or not to place an abrasive surface on the steps is a maintenance decision for which the city -3- is liable. Attached to her motion was the report of Gerald S. Burko, a consulting safety engineer. He pointed out that stairs in general are a high risk hazard and that marble is unsafe for a walking surface. Burko then opined that in order to protect people who walk on these types of marble stairs, a non-slip additive should be applied to the horizontal surface of each horizontal element of the stairway, which includes the landing. The trial court granted Cleveland's motion for summary judgment. Plaintiff timely appeals raising the following assignment of error. I. THE TRIAL COURT ERRED IN HOLDING THAT THE CITY OF CLEVELAND IS IMMUNE PURSUANT TO R.C. 2744.03(A)(5) AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Under this assignment, plaintiff argues that the trial court erred by granting summary judgment in favor of the City of Cleveland. In support, plaintiff argues that the city is liable under R.C. 2744.02(B)(4) for injuries caused by the negligence of their employees. This argument does not warrant a reversal. Generally, political subdivisions are not liable in damages for injury or loss in connection with a governmental or proprietary function. R.C. 2744.02(A)(1). In certain situations, however, R.C. 2744.02(B) removes the cloak of immunity in the form of exceptions. Plaintiff argues that the City is subject to liability under one of these exceptions, R.C. 2744.02(B)(4). This statute states as follows: (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 that is caused by the negligence of their employees and that -4- 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. Plaintiff claims that the intent of this statute is to hold the city liable for negligence on its property. Plaintiff's argument fails. Revised Code 2444.02(B)(4) imposes liability for injury caused by the negligence of the subdivision's employees. This statute applies to the maintenance of government property, not to decisions regarding such property. Doe v. Jefferson Area Local School Dist. (1994), 97 Ohio App.3d 11, 13; Zellman v. Kenston Bd. of Edn. (1991), 71 Ohio App. 3d 287. In the case at bar, plaintiff has not alleged that specific acts of negligent maintenance by a Cleveland employee caused her injury; that is, she has not alleged that any city employee was required to place an abrasive strip on the step and failed to do so. Plaintiff's general claim is that the city itself, not its employees, was negligent in failing to authorize some type of abrasive material be placed on the steps. Therefore, the exception found in R.C. 2744.02(B)(4) does not apply.1 1 Plaintiff's claim would also fail if it were viewed alternatively as one of negligent design. The City attached to its motion the affidavit of Kenneth Nobilio, the City's Commissioner of the Division of Architecture. In this affidavit Nobilio states that the original blueprints indicate the front interior steps were to be built of marble, with no indication of any non-slip additive, and the steps were built according to these specifications. Revised Code 2744.02(A)(1) immunizes a city from damages that result from a governmental or proprietary function. Under R.C. 2744.01(C)(l), the planning, design, or construction of a (continued...) -5- Moreover, even if the exception found in R.C. 2744.02(B)(4) did apply, and it does not, the city is entitled to the defense found in R.C. 2744.03(A)(5): (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. In the case at bar, a decision whether or not to apply abrasive strips is an exercise of judgment on how to use the material, facilities, or other resources. Vance v. Jefferson Area Local School Dist. Bd of Edn. (Nov. 9, 1995), Ashtabula App. No. 94-A- 0041, unreported (political subdivision entitled to defense of R.C. 2744.03(A)(3) for decision whether or not to place padding on a basketball pole). The city is, therefore, immune under R.C. 2744.03(A)(5), because plaintiff has failed even to allege malicious purpose, bad faith or wanton or reckless manner. Accordingly, the trial court did not err in granting summary judgment in favor of the City of Cleveland. Plaintiff's assignment of error is overruled. Judgment affirmed. 1(...continued) public improvement is a governmental function to which the city is immune. Smith v. Cincinnati Stormwater Mgt. Div. (1996), 111 Ohio App.3d 502. -6- 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. ANN DYKE, PRESIDING JUDGE DIANE KARPINSKI, JUDGE JAMES D. SWEENEY, 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 journalization of this court's announcement of decision by the .