COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 73716 ACCELERATED DOCKET MARK C. SCIULLI : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION CITY OF ROCKY RIVER : : PER CURIAM Defendant-appellant : : : DATE OF ANNOUNCEMENT : July 23, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-338507 : JUDGMENT : REVERSED AND FINAL JUDGMENT : ENTERED FOR APPELLANT. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: SCOTT I. LEVEY, ESQ. FRANK P. GIAIMO, ESQ. RON GLASSMAN, ESQ. 55 Public Square, Suite 1700 Cleveland, OH 44113-1901 For defendant-appellant: STEPHEN P. BOND, ESQ. Baumgartner & O'Toole 120 East Avenue Elyria, OH 44035 PER CURIAM: -2- This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Local Rule 25, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Plaintiff Mark Sciulli filed a complaint against defendant city of Rocky River alleging the city's negligence in failing to maintain a carpet at the Rocky River Recreation Center caused him to trip over a seam in the carpet and fall. In an amended complaint, plaintiff alleged the city's failure to maintain the carpet had been done with malicious purpose, in bad faith, or in a reckless and wanton manner. The city filed a Civ.R. 12(B)(6) motion to dismiss the complaint, claiming its immunity from suit under R.C. 2744.01(C)(2)(u) prevented plaintiff from stating a claim upon which relief could be granted. The court denied the city's motion to dismiss, finding the allegations taken as true state a claim for relief. The court stated it would consider a motion for summary judgment on the immunity issue after appropriate discovery. We have jurisdiction pursuant to R.C. 2744.02(C). As applicable here, the city is not liable in damages in a civil action for injury caused by any act or omission of the political subdivision in connection with the operation of the recreation center. The operation of a recreation center is a governmental function, so the city is exempt from liability. See R.C. 2744.01(C)(2)(u); Garret v. Sandusky (1994), 68 Ohio St.3d 139, 140. The statute, however, provides certain exceptions to these governmental functions. See R.C. 2744.02(B)(1)-(5). Once the city's operation of the recreation center has been shown to -3- fall within one of the established exceptions to R.C. 2744.02(B), the political subdivision may establish certain defenses or immunities. See R.C. 2744.03. The city argues that plaintiff has failed to allege in his complaint that any of the exceptions contained in R.C. 2744.02(B) exist, instead skipping to an allegation that the city maintained the carpet at the recreation center with malicious purpose, in bad faith, or in a wanton or reckless manner. Plaintiff maintains he is not required to make any specific allegation as to which exceptions apply when he has alleged malicious purpose, particularly since he has not been given the opportunity to engage in discovery. We reject plaintiff's argument for two reasons. First, plaintiff's allegation of malicious purpose is only relevant in response to a possible assertion of immunity by the city. The assertion of immunity only comes into play once the plaintiff has proven the existence of an exception sufficient to defeat the non- liability attaching to a governmental function. Farra v. Dayton (1989), 62 Ohio App.3d 487, 496-497. Alleging the existence of malicious purpose without first establishing an exception to the non-liabilityof a governmental function is irrelevant. Feitshans v. Darke Cty. (1996), 116 Ohio App.3d 14, 22. Second, even if plaintiff could use malicious purpose of R.C. 2744.03(A)(6) as a means to avoid having to set forth one of the exceptions to R.C. 2744.02(B), his complaint fails as a matter of law since he did not allege that any individuals acted with -4- malicious purpose. In Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 356, the Supreme Court stated: While we agree that individual employees may be held liable for their malicious, bad faith, wanton or reckless acts, R.C. 2744.03(A)(6) by its very terms applies only to individual employees and not to political subdivisions. It therefore has no effect on the liability of [the political subdivision.] See, also, Nungester v. Cincinnati (1995), 100 Ohio App.3d 561; Inghram v. Sheffield Lake (Mar. 7, 1996), Cuyahoga App. No. 69302. Plaintiff's complaint named only the city as a defendant, so his allegation of malicious purpose is irrelevant. We also reject plaintiff's argument that a Civ.R. 12(B)(6) dismissal is premature when he has not been afforded the opportu- nity to engage in discovery sufficient to determine whether one of the R.C. 2744.02(B) exceptions might apply. The primary purpose of governmental immunity is to conserve the fiscal integrity of political subdivisions. Wilson v. Stark Cty. Dept. of Human Services (1994), 70 Ohio St.3d 450, 453, citing Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27. We would ignore this precept were we to force the city to be haled into court and spend time and public money engaging in discovery so that plaintiff could try to establish the existence of an exception to the non-liability attaching to the city's operation of the recreation center. Cf. Siegert v. Gilley (1991), 500 U.S. 226, 236 (Kennedy, J., concur- ring in judgment). The allegations of the complaint, taken as true for purposes of this appeal, see Mitchell v. Lawson Milk Co. (1988), 40 Ohio -5- St.3d 190, 192, are that the city operated the Rocky River Recreation Center, plaintiff was a business invitee, he caught his left foot on a seam in the carpet, and fractured his left fibula. Plaintiff did not make any allegations to show what exceptions under R.C. 2744.02(B), if any, apply. His allegation of malicious purpose was not only premature to establishing why the city's operation of the recreation center should fall within one of the exceptions to R.C. 2744.02(A), it also became irrelevant in light of his failure to name any individual defendants. Hence, while plaintiff has asserted a claim for relief, the face of his complaint shows nothing to indicate that he could defeat the city's assertion of immunity; therefore, he has failed to demonstrate that the court could grant him any form of relief against the city. Accordingly, we find the court erred by refusing to grant the city's motion to dismiss the complaint. The assigned error is sustained and reversed. We hereby enter judgment for the appellant, city of Rocky River. Judgment entered for appellant. -6- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to 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. JOSEPH J. NAHRA, PRESIDING JUDGE JOHN T. PATTON, JUDGE MICHAEL J. CORRIGAN, 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 .