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ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Monday, March 03, 2014 5:44:59 PM
CASE NUMBER: 2014 CV 00315 Docket ID: 18901588
GREGORY A BRUSH
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
JAMES GAMBLE, : CASE NO. 2014 CV 00315
:
Plaintiff, Judge Langer
:
vs. DEFENDANT’S REPLY IN
: SUPPORT TO THE MOTION TO
CITY OF DAYTON, OHIO, et al., DISMISS OF DEFENDANT CITY OF
: DAYTON, OHIO
Defendants.
:
I. INTRODUCTION
Plaintiff allegedly tripped on a Dayton sidewalk on bolts extending from where a Dayton
parking meter once stood. Plaintiff brought suit for his damages alleging that Dayton created a
tripping hazard on the sidewalk. (Compl. ¶2). Dayton filed a motion to dismiss because the City
is immune for claims involving governmental functions, and Ohio case law is clear that keeping
sidewalks free from obstructions or tripping hazards is a governmental function. Evans v. City of
Cincinnati, 1st Dist. 2013-CV-2063.
In response, Plaintiff concedes that Dayton is immune from claims involving
governmental functions. Plaintiff, however, erroneously argues that the accident was the result
of the maintenance and installation of parking meters, which Plaintiff claims are proprietary
functions. However, Plaintiff’s case law does not deal with obstructions sticking out of the
sidewalk as in this case, but with the deterioration of the municipal sewer or water systems that
the immunity statute specifically defines as a proprietary function. Plaintiff’s arguments are
erroneous and his claims should be dismissed because:
1. Case law directly on point has specifically rejected Plaintiff’s arguments, and held
that a political subdivision is immune from trip and fall claims on a sidewalk caused by
obstructions on the sidewalk, as keeping the sidewalks free from obstructions is part of the
governmentally immune function of maintaining and regulating the sidewalks; and
2. The maintenance and installation of parking meters is specifically defined as a
governmental function in R.C. Chapter 2744.01 because it involves the regulation of parking on
the streets and the enforcement of the parking laws.
As such, this Court should grant Dayton’s Motion to Dismiss.
II. DAYTON IS IMMUNE FOR TRIPPING HAZARDS IN THE SIDEWALKS.
Regardless of Plaintiff’s arguments to the contrary, the failure to keep sidewalks free of
obstructions falls under the governmental function of maintaining and regulating the sidewalks.
Ohio political subdivisions are presumed to be immune from tort claims, and the plaintiff has the
burden of proving an exception to immunity applies. Cater v. Cleveland (1998), 83 Ohio St.3d
24, 28, 697 N.E.2d 610. Ohio political subdivisions are generally immune from claims involving
governmental functions. Wilson v. Stark Cty. Dept. of Human Servs. (1994), 70 Ohio St.3d 450,
639 N.E.2d 105. R.C. 2744.01(C)(2) specifically provides that the “regulation and the use of,
and the maintenance and repair of…sidewalks” are governmental functions. Further, Ohio courts
are clear that the “failure to keep the sidewalk free of obstructions like jagged signposts or
manhole covers-falls within” this governmental function for which a political subdivision is
immune.” Evans v. City of Cincinnati, 1st Dist. 2010-Ohio-2063 at ¶12; Burns v. City of Upper
Arlington, 10th Dist. 2007-Ohio-797.
2
In Evans, the court of appeals affirmed immunity under the identical facts of this case,
and rejected the same arguments that Plaintiff makes to this court. Evans tripped on a broken off
sign post on a city sidewalk. The plaintiff argued that the city was not immune because the
injury resulted from the city’s failure to maintain the sign, and not from the maintenance of the
sidewalk. Specifically, the plaintiff argued that the maintenance of the sign was a proprietary
function because “public signs are placed for the safety of others and because signs…are
customarily maintained by private persons.” Id. at ¶11. The court rejected plaintiff’s arguments,
finding that “the failure to keep the sidewalk free of obstructions like jagged sign posts or
manhole covers—falls within” the governmental function of maintaining the sidewalks. Id. at
¶12. Likewise, the court held that because the obstruction fell within the parameters of the
governmental function of maintaining and regulating the sidewalks, it could not be found to be
proprietary. Specifically, the court noted that the immunity statute explicitly excluded actions
that are listed as governmental functions from being declared proprietary. Evans attempted to
appeal the case to the Ohio Supreme Court, citing the same cases and making the same
arguments that Mr. Gamble makes in this case. The Ohio Supreme Court let the decision stand
and refused to grant jurisdiction. See Evans v. Cincinnati, 137 Ohio St.3d 1461, 995 N.E.2d
1214.
Here, just as in Evans, Dayton is immune from liability. As in Evans, the Plaintiff tripped
on a sidewalk on an alleged obstruction sticking up from the ground. Likewise, Plaintiff makes
the same argument that obstructions sticking out of the sidewalk are not related to the
governmental function of maintaining the sidewalk. However, as the Evans court found, keeping
the sidewalks free from obstructions like jagged sign posts, or in this case, bolts sticking up out
3
of the ground, falls within the governmental function of maintaining the sidewalks. As such, this
case involves a governmental function and Dayton is immune.
Plaintiff’s case law does not change this result. First, none of the cases Plaintiff cites
involve parking meters or obstructions sticking out of the ground. Instead, they all involve parts
of the municipal sewer or water distribution system that the immunity statute specifically defines
as proprietary. R.C. Section 2744.01(G)(1)(c) and (d); See Martin v. Gahanna, 2007-Ohio-2651
(10th Dist)( dealt with a missing sewer drain on the curb and not in the sidewalk; Scott v.
Columbus Dept. of Publ. Utilities, 2011-Ohio-677 (10th Dist) (dealt with an individual falling
through a deteriorated manhole cover; Parker v. Distel Construction, Inc., Jackson Cty. No.
10CA18 involved the plaintiff falling into a water meter pit). These cases do not involve tripping
on sidewalk hazards, which both Burns and Evans found to be within the governmental function
of maintaining and regulating the sidewalks. Therefore, Dayton is immune, and Plaintiff’s claim
should be dismissed.
III. MAINTENANCE AND INSTALLATION OF PARKING METERS ARE PART OF
THE GOVERNMENTAL FUNCTIONS OF REGULATING AND MAINTAING
THE STREETS AND ENFORCEMENT OF THE PARKING LAWS.
Not only is the City immune because the failure to remove obstructions from the sidewalk
is part of the governmental function of maintaining and regulating the sidewalk, but the
maintenance and installation of parking meters is in and of itself a governmental function. R.C.
Section 2744.01(G)(2) defines a proprietary function as one that is not otherwise described as a
governmental function by the statute and a function “customarily engaged in by nongovernmental
persons.” R.C. 2744.01(C)(2)(e) and (i) specifically define the “regulation of the use of…roads,
highways, streets..[and] avenues” as well as the “enforcement or nonperformance of any law” as
governmental functions.
4
Here, maintenance and installation of parking meters cannot be defined as a proprietary
function because it falls under the statutory definition of a governmental function and because the
maintenance and installation of parking meters is traditionally performed by government and not
customarily engaged in by private persons. First, the parking meters are unquestionably used in
governmental function of the regulation of the streets and on-street parking. They regulate the
location and amount of time that vehicles can park on the streets. Second, they are integral in the
governmental function of enforcement of the parking laws. Moreover, maintenance and
installation of public street parking meters cannot be a proprietary function because it is
traditionally performed by government and not customarily by private individuals. The case law
Plaintiff cites to the contrary does not involve parking meters in any way. Instead, they involve
the maintenance and operation of a sewer or water supply system that R.C. Chapter 2744
specifically defines as a proprietary function. See R.C. Section 2744.01(G)(2)(C) and (D).
Therefore, Plaintiff’s claims should be dismissed for this additional reason.
IV. CONCLUSION
Defendant City of Dayton, Ohio respectfully requests that this Court dismiss all
Plaintiff’s claims against it for failure to state a claim upon which relief may be granted because
it is immune from liability for maintaining the sidewalks. Statutory immunity for tort actions
against a political subdivision can only be removed upon allegations of negligent maintenance of
proprietary functions. Governmental functions, as defined by the statute, may not be considered
proprietary functions. Also, any alleged negligent maintenance of sidewalk hazards constitutes
the governmental function of sidewalk maintenance, and not proprietary functions. Plaintiff’s
claims against the City of Dayton are based on the alleged negligence of a governmental function
and should be dismissed.
5
Respectfully submitted,
JOHN J. DANISH #0046639
CITY ATTORNEY
By S/ JOHN C. MUSTO
John C. Musto 0071512
Assistant City Attorney
101 West Third Street
P.O. Box 22
Dayton, Ohio 45401
Tel. (937) 333-4100
Fax (937) 333-3628
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing was sent via the Court’s ECF System on this
3rd day of March 2014:
Michael J. Hallee
1 North Main Street
P.O. Box 910
Middletown, Ohio 45042
S/ JOHN C. MUSTO
John C. Musto 0071512
Assistant City Attorney
6
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ELECTRONICALLY FILED COURT OF COMMON PLEAS Monday, March 03, 2014 5:44:59 PM CASE NUMBER: 2014 CV 00315 Docket ID: 18901588 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION JAMES GAMBLE, : CASE NO. 2014 CV 00315 : Plaintiff, Judge Langer : vs. DEFENDANT’S REPLY IN : SUPPORT TO THE MOTION TO CITY OF DAYTON, OHIO, et al., DISMISS OF DEFENDANT CITY OF : DAYTON, OHIO Defendants. : I. INTRODUCTION Plaintiff allegedly tripped on a Dayton sidewalk on bolts extending from where a Dayton parking meter once stood. Plaintiff brought suit for his damages alleging that Dayton created a tripping hazard on the sidewalk. (Compl. ¶2). Dayton filed a motion to dismiss because the City is immune for claims involving governmental functions, and Ohio case law is clear that keeping sidewalks free from obstructions or tripping hazards is a governmental function. Evans v. City of Cincinnati, 1st Dist. 2013-CV-2063. In response, Plaintiff concedes that Dayton is immune from claims involving governmental functions. Plaintiff, however, erroneously argues that the accident was the result of the maintenance and installation of parking meters, which Plaintiff claims are proprietary functions. However, Plaintiff’s case law does not deal with obstructions sticking out of the sidewalk as in this case, but with the deterioration of the municipal sewer or water systems that the immunity statute specifically defines as a proprietary function. Plaintiff’s arguments are erroneous and his claims should be dismissed because: 1. Case law directly on point has specifically rejected Plaintiff’s arguments, and held that a political subdivision is immune from trip and fall claims on a sidewalk caused by obstructions on the sidewalk, as keeping the sidewalks free from obstructions is part of the governmentally immune function of maintaining and regulating the sidewalks; and 2. The maintenance and installation of parking meters is specifically defined as a governmental function in R.C. Chapter 2744.01 because it involves the regulation of parking on the streets and the enforcement of the parking laws. As such, this Court should grant Dayton’s Motion to Dismiss. II. DAYTON IS IMMUNE FOR TRIPPING HAZARDS IN THE SIDEWALKS. Regardless of Plaintiff’s arguments to the contrary, the failure to keep sidewalks free of obstructions falls under the governmental function of maintaining and regulating the sidewalks. Ohio political subdivisions are presumed to be immune from tort claims, and the plaintiff has the burden of proving an exception to immunity applies. Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610. Ohio political subdivisions are generally immune from claims involving governmental functions. Wilson v. Stark Cty. Dept. of Human Servs. (1994), 70 Ohio St.3d 450, 639 N.E.2d 105. R.C. 2744.01(C)(2) specifically provides that the “regulation and the use of, and the maintenance and repair of…sidewalks” are governmental functions. Further, Ohio courts are clear that the “failure to keep the sidewalk free of obstructions like jagged signposts or manhole covers-falls within” this governmental function for which a political subdivision is immune.” Evans v. City of Cincinnati, 1st Dist. 2010-Ohio-2063 at ¶12; Burns v. City of Upper Arlington, 10th Dist. 2007-Ohio-797. 2 In Evans, the court of appeals affirmed immunity under the identical facts of this case, and rejected the same arguments that Plaintiff makes to this court. Evans tripped on a broken off sign post on a city sidewalk. The plaintiff argued that the city was not immune because the injury resulted from the city’s failure to maintain the sign, and not from the maintenance of the sidewalk. Specifically, the plaintiff argued that the maintenance of the sign was a proprietary function because “public signs are placed for the safety of others and because signs…are customarily maintained by private persons.” Id. at ¶11. The court rejected plaintiff’s arguments, finding that “the failure to keep the sidewalk free of obstructions like jagged sign posts or manhole covers—falls within” the governmental function of maintaining the sidewalks. Id. at ¶12. Likewise, the court held that because the obstruction fell within the parameters of the governmental function of maintaining and regulating the sidewalks, it could not be found to be proprietary. Specifically, the court noted that the immunity statute explicitly excluded actions that are listed as governmental functions from being declared proprietary. Evans attempted to appeal the case to the Ohio Supreme Court, citing the same cases and making the same arguments that Mr. Gamble makes in this case. The Ohio Supreme Court let the decision stand and refused to grant jurisdiction. See Evans v. Cincinnati, 137 Ohio St.3d 1461, 995 N.E.2d 1214. Here, just as in Evans, Dayton is immune from liability. As in Evans, the Plaintiff tripped on a sidewalk on an alleged obstruction sticking up from the ground. Likewise, Plaintiff makes the same argument that obstructions sticking out of the sidewalk are not related to the governmental function of maintaining the sidewalk. However, as the Evans court found, keeping the sidewalks free from obstructions like jagged sign posts, or in this case, bolts sticking up out 3 of the ground, falls within the governmental function of maintaining the sidewalks. As such, this case involves a governmental function and Dayton is immune. Plaintiff’s case law does not change this result. First, none of the cases Plaintiff cites involve parking meters or obstructions sticking out of the ground. Instead, they all involve parts of the municipal sewer or water distribution system that the immunity statute specifically defines as proprietary. R.C. Section 2744.01(G)(1)(c) and (d); See Martin v. Gahanna, 2007-Ohio-2651 (10th Dist)( dealt with a missing sewer drain on the curb and not in the sidewalk; Scott v. Columbus Dept. of Publ. Utilities, 2011-Ohio-677 (10th Dist) (dealt with an individual falling through a deteriorated manhole cover; Parker v. Distel Construction, Inc., Jackson Cty. No. 10CA18 involved the plaintiff falling into a water meter pit). These cases do not involve tripping on sidewalk hazards, which both Burns and Evans found to be within the governmental function of maintaining and regulating the sidewalks. Therefore, Dayton is immune, and Plaintiff’s claim should be dismissed. III. MAINTENANCE AND INSTALLATION OF PARKING METERS ARE PART OF THE GOVERNMENTAL FUNCTIONS OF REGULATING AND MAINTAING THE STREETS AND ENFORCEMENT OF THE PARKING LAWS. Not only is the City immune because the failure to remove obstructions from the sidewalk is part of the governmental function of maintaining and regulating the sidewalk, but the maintenance and installation of parking meters is in and of itself a governmental function. R.C. Section 2744.01(G)(2) defines a proprietary function as one that is not otherwise described as a governmental function by the statute and a function “customarily engaged in by nongovernmental persons.” R.C. 2744.01(C)(2)(e) and (i) specifically define the “regulation of the use of…roads, highways, streets..[and] avenues” as well as the “enforcement or nonperformance of any law” as governmental functions. 4 Here, maintenance and installation of parking meters cannot be defined as a proprietary function because it falls under the statutory definition of a governmental function and because the maintenance and installation of parking meters is traditionally performed by government and not customarily engaged in by private persons. First, the parking meters are unquestionably used in governmental function of the regulation of the streets and on-street parking. They regulate the location and amount of time that vehicles can park on the streets. Second, they are integral in the governmental function of enforcement of the parking laws. Moreover, maintenance and installation of public street parking meters cannot be a proprietary function because it is traditionally performed by government and not customarily by private individuals. The case law Plaintiff cites to the contrary does not involve parking meters in any way. Instead, they involve the maintenance and operation of a sewer or water supply system that R.C. Chapter 2744 specifically defines as a proprietary function. See R.C. Section 2744.01(G)(2)(C) and (D). Therefore, Plaintiff’s claims should be dismissed for this additional reason. IV. CONCLUSION Defendant City of Dayton, Ohio respectfully requests that this Court dismiss all Plaintiff’s claims against it for failure to state a claim upon which relief may be granted because it is immune from liability for maintaining the sidewalks. Statutory immunity for tort actions against a political subdivision can only be removed upon allegations of negligent maintenance of proprietary functions. Governmental functions, as defined by the statute, may not be considered proprietary functions. Also, any alleged negligent maintenance of sidewalk hazards constitutes the governmental function of sidewalk maintenance, and not proprietary functions. Plaintiff’s claims against the City of Dayton are based on the alleged negligence of a governmental function and should be dismissed. 5 Respectfully submitted, JOHN J. DANISH #0046639 CITY ATTORNEY By S/ JOHN C. MUSTO John C. Musto 0071512 Assistant City Attorney 101 West Third Street P.O. Box 22 Dayton, Ohio 45401 Tel. (937) 333-4100 Fax (937) 333-3628 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was sent via the Court’s ECF System on this 3rd day of March 2014: Michael J. Hallee 1 North Main Street P.O. Box 910 Middletown, Ohio 45042 S/ JOHN C. MUSTO John C. Musto 0071512 Assistant City Attorney 6