Brown v. Village of Lincoln Heights

2011 Ohio 3551, 195 Ohio App. 3d 149
CourtOhio Court of Appeals
DecidedJuly 20, 2011
DocketC-100699 and C-100721
StatusPublished
Cited by16 cases

This text of 2011 Ohio 3551 (Brown v. Village of Lincoln Heights) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Village of Lincoln Heights, 2011 Ohio 3551, 195 Ohio App. 3d 149 (Ohio Ct. App. 2011).

Opinions

Fischer, Judge.

{¶ 1} Plaintiff-appellant and cross-appellee, Addie Brown, filed suit against defendant-appellee and cross-appellant, the village of Lincoln Heights, asserting a claim of negligence after Brown was injured at a community festival in the village. Brown alleged that the village had been negligent in permitting a hazard [152]*152on the festival grounds and in failing to warn of the hazard. The village filed a motion for summary judgment, arguing that it was entitled to both governmental immunity under R.C. 2744.01 et seq. and recreational-user immunity under R.C. 1533.181. The trial court denied the village’s motion on the grounds of governmental immunity after concluding that there existed genuine issues of material fact on whether the village was entitled to that immunity. But the court granted the village’s motion for summary judgment based on its assertion of recreational-user immunity after determining that it was entitled to the protections found in R.C. 1533.181.

{¶ 2} Brown now appeals from the trial court’s entry granting the village’s motion for summary judgment on the basis of recreational-user immunity under R.C. 1533.181. In her appeal, she presents one assignment of error. She argues that the affirmative defense of recreational-user immunity, upon which the judgment was based, was not timely raised in accordance with Civ.R. 8(C). We agree and reverse the court’s decision to grant summary judgment on this ground.

{¶ 3} In a cross-appeal, the village contests the trial court’s denial of summary judgment on the assertion of governmental immunity under R.C. Chapter 2744. Generally, the denial of a motion for summary judgment is not a final, appealable order. But it is reviewable when there is, as here, an otherwise final, appealable order entered in the case. Further, R.C. 2744.02(C) states that an order denying a political subdivision the benefit of immunity from liability is a final order,1 and consequently this court has jurisdiction over the cross-appeal.

{¶ 4} The village presents two assignments of error in its cross-appeal. It argues that the trial court erred in denying summary judgment under R.C. Chapter 2744 and that the trial court erred in failing to determine whether the village had breached a duty of care to Brown so as to invoke the exception to immunity under R.C. 2744.02(B)(2). We overrule both assignments of error and affirm the trial court’s denial of summary judgment under R.C. Chapter 2744 because there are issues of material fact that must first be presented to a jury for determination.

Factual Background

{¶ 5} On August 31, 2008, Brown attended the Lincoln Heights Day Festival and was injured when she tripped and fell while crossing an empty lot that had been used for parking and providing services for festival workers. Although she had rented a booth at the festival, Brown had not been working at her booth prior to or at the time of her injury. Rather, she had purchased bread from [153]*153another booth and was en route to deliver it to her daughter’s booth when she tripped over a grounding rod and attached wire and fell, injuring her wrist. Both the grounding rod and attached wire had been placed in the ground for purposes of providing electricity to the festival booths. Although the grounding rod had been permanently implanted in the ground, the wire was capable of being removed following each year’s festival.

{¶ 6} Brown asserted that the lot in which her injury occurred was part of the festival area held open to the public and that the village had provided no warning or indication that a hidden danger existed on the lot. Brown additionally presented an affidavit from Christina Brooks, a patron of the festival, that corroborated Brown’s statement that the area in which her injury occurred had not been cordoned off. But Ernest McCowen Jr., a former police chief of the village and a member of the festival committee, stated in his deposition that the area at issue had been cordoned off with orange cones and police tape. McCowen had been responsible for setting up the booths and attaching the wire to the grounding rod.

Standard of Review

{¶ 7} In accordance with Civ.R. 56(C), the entry of summary judgment is proper if the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party carries the burden to show that no genuine issue of fact exists, and all reasonable inferences should be construed most strongly in favor of the nonmoving party.2 An appellate court reviews a trial court’s ruling on a motion for summary judgment de novo.3

Recreational-User Immunity

{¶ 8} In her sole assignment of error, Brown argues that the trial court erred in granting the village’s motion for summary judgment. She asserts that the village waived the affirmative defense of recreational-user immunity under R.C. 1533.181 by failing to raise the defense in its answer. We agree.

{¶ 9} In its answer, the village included the statement that “[pjlaintiff s claims are precluded by virtue of the immunity provided by O.R.C. §§ 2744.01 et seq., and all other applicable statutory immunity.”4 The village argues that this [154]*154statement was sufficient to raise and preserve the affirmative defense of recreational-user immunity.

{¶ 10} Case law on the immunity doctrine has established that immunity is an affirmative defense under Ohio law.5 Civ.R. 8(C) requires that a defendant set forth any affirmative defense in its answer. The failure to timely raise an affirmative defense, other than those listed in Civ.R. 12(B), either in the answer or by amendment under Civ.R. 15, results in a waiver of the defense.6 Here, we determine that the village did not timely raise the defense of recreational-user immunity in its answer to the complaint under Civ.R. 8 and that it did not move to amend to include it as a defense.

{¶ 11} The village contends that the language “and all other statutory immunity” contained in its answer was sufficient to put Brown on notice of what defenses were being asserted, including recreational-user immunity. We disagree. Pleadings of the parties need only be made in generic terms, and it is acceptable to make fair interpolations of more specific defenses that might naturally be included in an asserted defense.7 However, it is not acceptable to extrapolate from an asserted affirmative defense something that is simply not stated in the pleadings.8 In this case, neither the term “recreation” nor the term “user” was used; thus it would be inequitable to conclude that the phrase “and all other applicable statutory immunity” served as adequate notice that recreational-user immunity was going to be raised as a defense. To conclude otherwise would put an onerous burden on the opposing party to determine which of the many statutory immunities might be “applicable” in a given case.

{¶ 12} The dissent cites two cases in support of its argument that inclusion of the phrase “and all other applicable statutory immunity” in the answer was sufficient to raise the defense of recreational-user immunity. But each of these cases is easily distinguishable. Gallagher v. Cleveland Browns Football Co.,9

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Cite This Page — Counsel Stack

Bluebook (online)
2011 Ohio 3551, 195 Ohio App. 3d 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-village-of-lincoln-heights-ohioctapp-2011.