[Cite as McGuire v. Lorain,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

DOROTHY MCGUIRE C.A. No. 10CA009893

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE CITY OF LORAIN, OHIO COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 09CV162719

DECISION AND JOURNAL ENTRY

Dated: August 8, 2011

DICKINSON, Judge.

INTRODUCTION

{¶1} Dorothy McGuire was marching in a Memorial Day parade when she stepped into

an uncapped monument box in the middle of the street and broke her ankle. A monument box is

a lidded cast-iron container that houses a property pin. She sued the City of Lorain for failing to

properly maintain the parade route. The City moved for summary judgment, arguing that it is

immune from liability and that the uncapped box was an open and obvious hazard. The trial

court denied the motion because it determined that there were genuine issues of material fact.

The City has appealed, assigning as error that it has recreational user and political subdivision

immunity and that the monument box hazard was open and obvious. We affirm because we do

not have jurisdiction to address the City’s open and obvious argument, Ms. McGuire was not a

recreational user under Section 1533.18.1 of the Ohio Revised Code, and there are genuine

issues of material fact in dispute regarding whether the City has political subdivision immunity. 2

OPEN AND OBVIOUS

{¶2} The City’s second assignment of error is that the trial court incorrectly determined

that the open and obvious doctrine does not apply to an uncapped monument box in the middle

of the street as a matter of law. According to it, a reasonable person in Ms. McGuire’s position

would have seen the open monument box. We do not have jurisdiction regarding this assignment

of error.

{¶3} “Generally, the denial of summary judgment is not a final, appealable order.”

Hubbell v. City of Xenia,

, 2007–Ohio–4839, at ¶9. “[If] a trial court denies a

motion in which a political subdivision . . . seeks immunity,” however, its “order denies the

benefit of an alleged immunity and is therefore a final, appealable order pursuant to R.C.

2744.02(C).”

at syllabus. We have held that “an appeal from such a decision is limited to the

review of alleged errors in the portion of the trial court’s decision which denied the political

subdivision the benefit of immunity.” Makowski v. Kohler, 9th Dist. No. 25219, 2011-Ohio-

2382, at ¶7 (citing Essman v. City of Portsmouth, 4th Dist. No. 08CA3244, 2009–Ohio–3367, at

¶10; CAC Bldg. Props. v. City of Cleveland, 8th Dist. No. 91991, 2009–Ohio–1786, at ¶9 n.1;

Carter v. Complete Gen. Constr. Co., 10th Dist. No. 08AP–309, 2008–Ohio–6308, at ¶8); see

also Deveaux v. Albrecht Trucking Co. Inc., 9th Dist. No. 09CA0069-M,

, at ¶7

(concluding that we did not have jurisdiction to address assumption of risk assignment of error in

appeal under Section 2744.02(C)). Accordingly, we will not address the City’s second

assignment of error. See Makowski,

(concluding we did not have

jurisdiction to consider statute of limitations argument in appeal filed under Section 2744.02(C)). 3

RECREATIONAL USER IMMUNITY

{¶4} The City’s first assignment of error is that the trial court incorrectly concluded

that it did not have immunity under the recreational user statute, Section 1533.18.1 of the Ohio

Revised Code. Under Section 1533.18.1, “[n]o owner . . . of premises: (1) [o]wes any duty to a

recreational user to keep the premises safe for entry or use; (2) [e]xtends any assurance to a

recreational user . . . that the premises are safe for entry or use; [or] (3) [a]ssumes responsibility

for or incurs liability for any injury to person or property caused by any act of a recreational

user.” For purposes of Section 1533.18.1, “‘[r]ecreational user’ means a person to whom

permission has been granted, without the payment of a fee or consideration . . . , other than a fee

or consideration paid to the state or any agency of the state . . . to enter upon premises to hunt,

fish, trap, camp, hike, or swim, or to operate a snowmobile, all-purpose vehicle, or four-wheel

drive motor vehicle, or to engage in other recreational pursuits.” R.C. 1533.18(B).

{¶5} The City has argued that parade participants are recreational users under Section

1533.18(B). The Ohio Supreme Court, noting that the statute identifies a number of particular

recreational uses, has held that courts must apply the doctrine of ejusdem generis in determining

whether an activity is included within its catch-all “engaged in other recreational pursuits”

language. Light v. Ohio University,

(1986). Under that doctrine, if

“general words follow the enumeration of particular classes of things, the general words will be

construed as applying only to things of the same general class as those enumerated.”

The

Court reasoned that its conclusion that the doctrine of ejusdem generis applies “is supported by

the fact that R.C. 1533.18(B) is included in Title 15 of the Revised Code, having to do with

conservation of natural resources and is part of R.C. Chapter 1533, dealing with fishing and

hunting.”

In Light, the Supreme Court concluded that a minor who was injured in the locker 4

room of a university gymnasium was not a recreational user under Section 1533.18(B) because

“working out in a gymnasium is not within the contemplation of the recreational-user statutes.”

{¶6} In Miller v. City of Dayton,

(1989), the Supreme Court

acknowledged a caveat to the rule it set out in Light.

. It held that, if the premises

where an injury occurred have generally been held out to the public for recreational uses, “[t]he

existence of statutory immunity does not depend upon the specific activity pursued by the

plaintiff at the time of the plaintiff's injury.”

“For example, we recognize immunity to the

owner of a park (which qualifies as recreational premises), whether the injury is to one who is

jogging in the park, tinkering with a model airplane or reading poetry to satisfy a school

homework assignment.”

{¶7} In Fuehrer v. Westerville City School District Board of Education,

(1991), the Supreme Court demonstrated the application of Light and Miller. A child died

on a school soccer field while he and his friends were attempting to raise a goal they had

previously knocked over. The child’s mother sued the school district, which argued that it had

immunity under Section 1533.18.1. The Supreme Court held that the child was not a recreational

user under Section 1533.18(B), noting that “[r]oughhousing on a soccer goal is not a recreational

activity of the type contemplated by the statute.”

. It also held that, unlike “[p]arks[,

which] exist for persons to enjoy many different kinds of recreational pursuits[,] [a] soccer field

exists for one purpose—to play soccer.”

It, therefore, concluded that the school district did

not have immunity under Section 1533.18.1.

It did, however, conclude that the school

district owed no duty to the child because he had entered the soccer field at his own peril.

5

{¶8} Similar to Fuehrer, the City’s argument fails both parts of the Section 1533.18.1

analysis. First, although marching in a parade could be considered a recreational activity, it is

not similar in nature to the type of recreational pursuits identified in Section 1533.18(B). Light

v. Ohio University,

(1986). Second, the City has not persuaded us that a

four-lane state route running through the heart of a city qualifies as “recreational premises.”

Miller v. City of Dayton,

(1989). At the very least, there is no evidence

in the record that the road on which Ms. McGuire was injured is open to the public for

recreational uses other than parades. Accordingly, we conclude that the trial court correctly

denied the City immunity under Section 1533.18.1. The City’s first assignment of error is

overruled.

POLITICAL SUBDIVISION IMMUNITY

{¶9} The City’s third assignment of error is that the trial court incorrectly concluded

that it was not entitled to immunity under Sections 723.01 and 2744.02(B)(3) of the Ohio

Revised Code. Under Section 723.01, “the legislative authority of a municipal corporation shall

have the care, supervision, and control of the public highways, streets, avenues, alleys, [and]

sidewalks . . . within the municipal corporation. The liability or immunity from liability of a

municipal corporation for injury, death, or loss to person or property allegedly caused by a

failure to perform the responsibilities imposed by this section shall be determined pursuant to

divisions (A) and (B)(3) of section 2744.02 of the Revised Code.” Under Section 2744.02(B)(3),

“political subdivisions are liable for injury, death, or loss to person or property caused by their

negligent failure to keep public roads in repair and other negligent failure to remove obstructions

from public roads[.]” 6

{¶10} The City has argued that it can not be held liable for an injury caused by the

uncapped monument box unless it had notice and a reasonable time to repair the defect before

the injury occurred. See Vogel v. Wells,

(1991) (interpreting prior version

of R.C. 723.01). According to the City, there is no evidence that it had actual notice of the

defect. Regarding constructive notice, the City has argued that, because it is not known how

long the monument box was uncovered, there are no facts under which Ms. McGuire can show

that it could or should have known of the defect.

{¶11} We agree that Ms. McGuire has not presented any evidence to show that the City

had actual notice of the open monument box. According to workers from the City’s engineering

and streets departments, the City has not used that particular monument box in over 20 years.

The employee who paints lane markings for the City `testified that the lid was in place when he

painted the street the previous summer. According to him, because the monument box is in the

center of the road, if the lid had been missing when he painted the road, the small guiding wheel

on his paint assembly would have fallen into it and broken the assembly. He had no record of

that happening when he last painted the street.

{¶12} It also appears undisputed that the City does not have exclusive access to the

monument boxes but that private surveyors can remove the lids if they need access to property

pins. City workers also testified that passing vehicles sometimes break or knock the lids off the

boxes. Workers from the streets department who replaced the missing lid after Ms. McGuire’s

fall were unable to determine what had happened to the previous lid because they did not find its

remnants inside the box or find it in the vicinity.

{¶13} Regarding whether the City had constructive knowledge of the missing lid, city

employees testified that workers from the streets department drove up and down the parade route 7

checking for hazards the Friday before the parade. Early on the morning of the parade, while it

was still dark, two workers drove street sweepers up and down the parade route, preparing it for

the parade. The workers who operated the sweepers testified that they did not see an open

monument box along the route, although they admitted that their attention was on the edges of

the street. There is also testimony that, an hour before the parade began, the City’s auxiliary

police force blocked off the parade route to normal traffic and went over the route to make sure it

was clear of parked cars. There is also testimony that there were two auxiliary police officers in

cruisers driving very slowly at the front of the parade, who were assigned, as one of their

primary duties, to make sure the parade route was safe for its participants. The chief of the

auxiliary police force, who was in one of the cruisers, testified that he is familiar with monument

boxes and would have had the hole marked with a cone if he had seen it because it would have

been foreseeable that someone would step in it.

{¶14} A city has constructive knowledge of a hazard if it was of a nature that it could or

should have been discovered, if it existed long enough to have been discovered, and if its

discovery would have created a reasonable apprehension of danger. Harp v. City of Cleveland

Hts.,

(2000) (quoting Franks v. Lopez,

(1994)).

Viewing the evidence in a light most favorable to Ms. McGuire, we conclude that there are

genuine issues of material fact regarding whether the uncapped monument box was discoverable,

whether the hazard existed for sufficient time that the City could or should have discovered it,

and whether, if discovered, it would have created a reasonable apprehension of a potential

danger. Even if a passing vehicle knocked the cover off after the City did its review of the

parade route three days before the event, a reasonable finder of fact could find that the auxiliary

police officers at the front of the parade, who were driving very slowly within a couple feet of 8

the center of the road, should have seen the eight-inch by eight-inch square hole that had been

created by the missing cover in the middle of the road.

{¶15} The trial court correctly concluded that there are genuine issues of material fact in

dispute and that the City was not entitled to judgment on its political subdivision immunity

defense as a matter of law. The City’s third assignment of error is overruled.

CONCLUSION

{¶16} On an appeal under Section 2744.02(C) of the Ohio Revised Code, this Court

only has jurisdiction over issues regarding immunity. The trial court correctly concluded that the

City is not entitled to immunity under Section 1533.18.1 or Section 2744.02 as a matter of law.

The judgment of the Lorain County Common Pleas Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 9

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT

BELFANCE, P. J. WHITMORE, J. CONCUR

APPEARANCES:

GEOFFREY R. SMITH, Attorney at Law, for Appellant.

THOMAS G. MACKIN, Attorney at Law, for Appellees.

PATRICK C. MACKIN, Attorney at Law, for Appellees.