Honek v. Chidsey

2021 Ohio 3816, 182 N.E.3d 6

• Court: Ohio Court of Appeals
• Decided: October 28, 2021
• Docket: 109478, 109485, 109486
• Status: Published

Opinion

[Cite as Honek v. Chidsey, 2021-Ohio-3816.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

NORMAN G. HONEK, ET AL., :

Plaintiffs-Appellees, : Nos. 109478, 109485, and 109486

v. :

DONNA E. CHIDSEY, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: October 28, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-17-878598, CV-17-879674, and CV-17-882477

Appearances:

Merriman, Legando, Williams & Klang, L.L.C., and Tom C. Merriman; Grieco Law, L.L.C., and Paul Grieco, for appellees Norman Honek, Dora LoPiccolo, and Robert McDonald, etc.

Nurenberg, Paris, Heller & McCarthy Co., L.P.A., Brenda M. Johnson, Jamie R. Lebovitz, and Jeffrey M. Heller, for appellee Joseph Gielas, as Administrator of the Estate of Nancy Gielas, deceased.

Michael L. Morgan, for appellant City of Parma Heights.

KATHLEEN ANN KEOUGH, P.J.:

{¶ 1} Defendant-appellant, city of Parma Heights (“the city”) appeals the

denial of its motion for summary judgment based on recreational and/or political subdivision immunity against plaintiffs-appellees, the Estate of Nancy Gielas

(“Gielas”), Norman Honek (“Honek”), Dora LoPiccolo (“LoPiccolo”), and the Estate

of Kathleen McDonald (“McDonald”) (collectively “appellees”).1 For the reasons

that follow, we reverse the trial court’s decision and remand for the trial court to

enter judgment in favor of the city on the basis of political subdivision immunity.

I. Procedural and Factual History

{¶ 2} On August 21, 2016, the city hosted the final concert in its annual

Summer Band Concert series at Greenbriar Commons. The concert featured a Dean

Martin/Frank Sinatra tribute band, who performed in the gazebo, which is located

in the front corner of Greenbriar Commons off of Pearl Road in Parma Heights. The

gazebo sits on the grassy area between a parking lot and the library. Attendees of

the concert could sit in the grassy area around the gazebo to listen to the music and

watch the band’s performance. Additionally, attendees could dance on the portable,

temporary dance floor that the city constructed and placed in the parking lot directly

adjacent to the grassy seating area. The city placed removable wooden sawhorses

around the dance floor as a barrier. The parking lot area was not otherwise entirely

closed off, but it was open for the public, including the concert attendees, to park

their vehicles.

{¶ 3} During the concert, Donna E. Chidsey (“Chidsey”) voluntarily parked

her vehicle directly next to the sawhorses used to cordon off the dance floor. A

1During the pendency of the appeal, appellees Honek and LoPiccolo settled their case with the city. Accordingly, this appeal pertains only to appellees Gielas and McDonald. photograph produced during the deposition of several witnesses depicts Chidsey’s

vehicle perpendicular to the grass seating area, such that her vehicle was facing the

seating area of the concert. Around 7:00 p.m., Chidsey began to back her vehicle

out of her parking space. As she backed out of her parking space in a clockwise

direction, she pressed the accelerator instead of the brake pedal, causing her car to

accelerate backward across the dance floor and through the grass. Tragically, nine

people were injured as a result. LoPiccolo, Honek, and Gielas were dancing on the

dance floor when they were each struck by Chidsey’s car. All three were injured;

Gielas later died as a result of her injuries. McDonald was seated in the grass

listening to the music when she was struck by Chidsey’s car. She died as a result of

her injuries as well.

{¶ 4} Relevant to the appeal, both Gielas and McDonald sued Chidsey for

wrongful death, alleging negligence and negligence per se, and also asserting a

survival claim.2 The cases were consolidated, and in 2018, each filed amended

complaints to add the city and Coxcom, L.L.C., d.b.a. Coxcom Communications

(“Coxcom”) as new party defendants.3 The amended complaints also asserted

wrongful death and survival claims against the city and Coxcom. The amended

complaints alleged, in pertinent part, that the city was negligent “and/or exercised

2 Respectively, Cuyahoga C.P. Nos. CV-17-882477 and CV-17-879674.

3Coxcom is not a party to this appeal. The city solicited Coxcom as a sponsor for the summer concert series. malicious purpose, bad faith, and/or wantonness or recklessness in the planning

and organization of the August 21, 2016 summer concert event.”

{¶ 5} In September 2019, the city filed a motion for summary judgment

against appellees, contending that it was (1) entitled to immunity under the

recreational user statute — R.C. 1533.181; (2) entitled to statutory immunity

afforded to political subdivisions pursuant to R.C. 2744.02; and (3) not negligent

because the incident and resulting injuries were not foreseeable such that a duty of

care existed.

{¶ 6} The trial court denied the city’s motion, finding that genuine issues of

material fact exist as to whether (1) the recreational user statute applied, (2) the city

was engaged in a proprietary function that removed its entitlement to immunity;

and (3) the events were foreseeable.

{¶ 7} The city appeals, raising the following three assignments of error.4

I. The journal entry of the trial court is not sufficiently detailed for [the appellate] court to conduct an appellate review.

II. The trial court erred in denying that portion of [the city’s] motion for summary judgment predicated upon recreational immunity under R.C. 1533.181(A)(1) and R.C. [1533].181(A)(5).

III. The trial court erred in denying that portion of [the city’s] motion for summary judgment predicated upon political subdivision immunity under R.C. [Chapter] 2744.

Finding the city’s third assignment of error dispositive, it will be addressed first.

4 An order that denies a political subdivision the benefit of an alleged immunity is a final appealable order. R.C. 2744.02(C). II. Standard of Review

{¶ 8} Questions of immunity are matters of law, so they are particularly apt

for resolution by way of summary judgment. FirstEnergy Corp. v. Cleveland, 179

Ohio App.3d 280, 2008-Ohio-5468, 901 N.E.2d 822, ¶ 7 (8th Dist.). We review a

trial court’s decision on a motion for summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is

appropriate when, construing the evidence most strongly in favor of the nonmoving

party, (1) there is no genuine issue of material fact; (2) the moving party is entitled

to judgment as a matter of law; and (3) reasonable minds can only reach a

conclusion that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club,

82 Ohio St. 3d 367, 369-370, 696 N.E.2d 210 (1998).

{¶ 9} The party moving for summary judgment bears the burden of

demonstrating that no material issues of fact exist for trial. Dresher v. Burt, 75 Ohio

St.3d 280, 292-293, 662 N.E.2d 264 (1996). The moving party has the initial

responsibility of informing the trial court of the basis for the motion, and identifying

those portions of the record that demonstrate the absence of a genuine issue of

material fact on the essential elements of the nonmoving party’s claims. Id. After

the moving party has satisfied this initial burden, the nonmoving party has a

reciprocal duty to set forth specific facts by the means listed in Civ.R. 56(C) showing

that there is a genuine issue of material fact. Id.

{¶ 10} In a de novo review, this court affords no deference to the trial court’s

decision and we independently review the record to determine whether the denial of summary judgment is appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282,

2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th Dist.).

III. Political Subdivision Immunity Under R.C. Chapter 2744

{¶ 11} In its third assignment of error, the city argues that it was entitled to

absolute immunity because hosting a summer concert series on city-owned property

is a governmental function. Alternatively, the city contends that if this court finds

that the city was acting in a proprietary function, appellees have failed to establish

an exception to immunity that would allow the city to be held liable. Finally, the city

contends that even if the appellees establish an exception, then immunity is

reinstated under R.C. 2744.02(A)(3) or (5).

{¶ 12} Determining whether a political subdivision is immune from tort

liability involves a three-step analysis. Elston v. Howland Local Schools, 113 Ohio

St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First, R.C. 2744.02(A)(1) sets

forth the general blanket immunity applicable to political subdivisions. It provides

that a political subdivision is generally not liable in a civil action for injury, death, or

loss to person or property incurred while performing governmental or proprietary

functions. To overcome this statutory immunity, a plaintiff must show that one of

the five exceptions contained in R.C. 2744.02(B) applies. These exceptions are:

1. negligent operation of a motor vehicle;

2. negligent conduct of employees while carrying out a proprietary function;

3. a municipality’s failure to keep roads and sidewalks free from nuisance; 4. injury or loss that occurs due to physical defects within or on the grounds of buildings used for governmental functions, and is caused by the negligence of the municipality’s employees; and

5. any other situation in which liability is expressly imposed by the Revised Code.

{¶ 13} If a plaintiff demonstrates that one of the five enumerated exceptions

to political subdivision immunity applies, a political subdivision may then assert one

of the defenses set forth in R.C. 2744.03(A) to revive or reinstate its immunity.

{¶ 14} There is no dispute that the city is a political subdivision pursuant to

R.C. 2744.01(F). Consequently, the city is generally immune from liability for tort

claims unless one of the five exceptions in R.C. 2744.02(B) applies.

{¶ 15} In this case, the city contends that none of the exceptions apply

because the claims raised against the city relate to governmental functions — the

operation of public grounds or a recreational area during a public concert.

Moreover, it contends that even if the city was engaged in a proprietary function, it

is still immune from liability because negligence cannot be shown. Appellees

contend, however, that hosting a summer concert series on city-owned property is a

proprietary function. According to appellees, the city is stripped of immunity under

the exception found in R.C. 2744.02(B)(2) — “political subdivisions are liable for

injury, death, or loss to person or property caused by the negligent performance of

acts of their employees with respect to proprietary functions of the political

subdivisions.” Accordingly, under the second tier of the analysis, this court must

first determine whether the city was acting in a governmental or proprietary

function. {¶ 16} R.C. 2744.01(C)(1) sets forth the definition of “governmental

function.” Under this section, a “governmental function” is defined as either those

that are specifically enumerated in (C)(2) or that satisfies one of the following three

enumerated independent standards:

(a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement;

(b) A function that is for the common good of all citizens of the state;

(c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) as a proprietary function.

R.C. 2744.01(C)(1)-(2). Relevant to the city’s arguments, a governmental function

includes the regulation of the use of public grounds (R.C. 2744.01(C)(2)(e)), and the

operation of any recreational area or facility, including a park (R.C.

2744.01(C)(2)(u)).

{¶ 17} A “proprietary function” means a function that is specified in division

(G)(2) or one in which both of the following are true:

(a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2);

(b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons.

R.C. 2744(G)(1)-(2).

{¶ 18} “‘In the absence of an explicit statutory definition, whether a function

is governmental or proprietary must be determined by “defining what it is that the political subdivision is actually doing when performing the function.”’” Frenz v.

Springvale Golf Course & Ballroom, 8th Dist. Cuyahoga No. 97593, 2012-Ohio-

3568, ¶ 13, quoting Kenko Corp. v. Cincinnati, 183 Ohio App.3d 583, 2009-Ohio-

4189, 917 N.E.2d 888, ¶ 27 (1st Dist.), quoting Allied Erecting & Dismantling Co. v.

Youngstown, 151 Ohio App.3d 16, 2002-Ohio-5179, 783 N.E.2d 523, ¶ 23 (7th Dist.).

{¶ 19} Several courts have found that a political subdivision is acting in a

proprietary function when it holds an event like a concert, festival, fair, or similar

event. See Monteith v. Delta Prods., 3d Dist. Crawford Nos. 3-07-35 and 3-07-36,

2008-Ohio-1997 (the city was acting in proprietary function when it held a concert);

Brown v. Lincoln Hts., 195 Ohio App.3d 149, 2011-Ohio-3551, 958 N.E.2d 1280 (1st

Dist.) (the village was acting in a proprietary function when putting on a community

festival); Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 559, 733

N.E.2d 1141 (2000) (putting on a hog show is a proprietary function).

{¶ 20} In Ryll v. Columbus Fireworks Display Co., 95 Ohio St.3d 467, 2002-

Ohio-2584, 769 N.E.2d 372, the Supreme Court analyzed the definition of

governmental function to determine whether hosting a fireworks display was

governmental or proprietary in nature. The court found that R.C. 2744.01(C)(1)(a)-

(c) did not apply because the state did not require the city to hold fireworks, the

fireworks display benefited only some but not all of the citizens of the state, and

sponsoring a fireworks display is an activity normally engaged in by

nongovernmental persons. Based on those findings, the court found that

sponsoring a fireworks display was a proprietary function. Id. at ¶ 24. {¶ 21} The same reasoning applies to the summer concert series in this case.

While the city was utilizing public grounds in arguably a park area, it was actually

hosting a summer concert when the injury occurred. See Liming (hosting a fair is a

governmental function, but conducting and subsequently investigating the

propriety of the hog show is a proprietary function). Examining the “proprietary

function” criteria of R.C. 2744.01(G) against the facts of this case, we find that the

city is not required to sponsor or host the summer concert series. Additionally, the

act of hosting the event was designed to benefit some but not all citizens of the state

— it was performed for the benefit the citizens of the city and its neighbors. Finally,

although sponsoring a concert promotes public peace, health, safety, or welfare, it is

something typically done by nongovernmental persons or entities — private

organizations customarily sponsor and host concerts. Accordingly, the city acted in

a proprietary function by hosting a summer concert on city-owned property.

{¶ 22} This determination, however, does not end the analysis. Before R.C.

2744.02(B)(2) will remove the city’s immunity, the appellees “‘must establish * * *

the elements required to sustain a negligence action — duty, breach, proximate

cause, and damages, [as well as showing] that the negligence arose out of a

“proprietary function.”’” Frenz at ¶ 16, quoting Parker v. Distel Constr., Inc., 4th

Dist. Jackson No. 10CA18, 2011-Ohio-4727, ¶ 13. “The duty a defendant owes to the

plaintiffs depends upon (1) the relationship between the parties, and (2) the

foreseeability of injury.” Id., citing Thayer v. B.L. Bldg. & Remodeling, L.L.C., 8th Dist. Cuyahoga No. 105950, 2018-Ohio-1197, ¶ 24, citing Simmers v. Bentley

Constr. Co., 64 Ohio St.3d 642, 597 N.E.2d 504 (1992).

{¶ 23} Individuals who come onto another’s land are traditionally classified

into one of three categories: invitee, licensee, or trespasser. Gladon v. Greater

Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996).

The category determines the scope of the legal duty a landowner owes to the entrant.

Sharpley v. Bole, 8th Dist. Cuyahoga No. 83436, 2004-Ohio-5729, ¶ 13; citing

Gladon at id.

{¶ 24} The city contends that appellees were licensees; appellees contend

that they were invitees. An invitee is one who enters the property or premises of

another by express or implied invitation for some purpose that is beneficial to the

owner. Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). A licensee

is “a person who enters the premises of another by permission or acquiescence for

his own pleasure or benefit, and not by invitation.” Turner v. Cathedral Ministries,

2015-Ohio-633, 27 N.E.3d 586, ¶ 13 (6th Dist.) citing Light, at id. Typically, visitors

on state or local government property are generally classified as licensees. Souther

v. Preble Cty. Dist. Library, 12th Dist. Preble No. CA2005-04-006, 2006-Ohio-

1893, ¶ 15, citing Provencher v. Ohio DOT, 49 Ohio St.3d 265, 267, 551 N.E.2d 1257

(1990) (rejecting the concept of “public invitee” in deciding that persons utilizing a

state highway rest stop are licensees because no economic benefit is conferred to the

owner, i.e. the state of Ohio); Anthony v. Cleveland State Univ., Ct. of Cl. No. 2012-

01741-AD, 2012-Ohio-3244 (attendee of free public concert was a licensee). {¶ 25} In this case, the city promoted the event to the public to attend the

city’s summer concert series, and appellees have offered no evidence that the city

obtained any economic or tangible benefit from the attendees. Although the city

may have received a donation for the event from Cox Communications, the focus on

the duty owed is the relationship between the injured party and the property owner.

And it is undisputed that appellees chose to attend the concert for their own pleasure

or benefit. Accordingly, appellees would not be invitees under Ohio law, but rather

licensees.

{¶ 26} A landowner owes no duty to a licensee except to refrain from willful,

wanton, or reckless conduct that is likely to injure him. Gladon, 75 Ohio St.3d at

317, 662 N.E.2d 287, citing Soles v. Ohio Edison Co., 144 Ohio St. 373, 59 N.E.2d

138 (1945), paragraph one of the syllabus. Licensors are “not liable for ordinary

negligence.” Light at 68; Anthony at ¶ 8. Additionally, “a licensee takes his license

subject to its attendant perils and risks.” Hannan v. Ehrlich, 102 Ohio St. 176, 131

N.E. 504 (1921), paragraph four of the syllabus. However, a “licensee should not be

exposed to hidden dangers, pitfalls or obstructions.” Id.

{¶ 27} In this case, appellees do not contend that the city failed to warn them

of any hidden dangers. The placement of the concert seating area and the dance

floor were open and obvious to all attendees.5 Rather, appellees alleged in their

5 Deposition testimony from LoPiccolo revealed that when she attended this concert and prior concerts held at Greenbriar Commons, she danced on the dance floor, despite being aware that it was in a parking lot, and aware that cars were parked close to the dance floor. amended complaints that the city was “negligent and/or exercised malicious

purpose, bad faith, and/or wantonness or recklessness in the planning or

organization of the August 21, 2016 summer concert event, including, but not

limited to, the design, layout, placement, installation, and implementation of the

[dance floor and seating area] provided for the use of attendees at the event.” See

Gielas Amended Complaint, paragraph 14; McDonald Amended Complaint,

paragraph 16.6 The conduct specifically complained of included (1) placing the

dance floor and concert seating area in an operational emergency services parking

lot and in an area of motor vehicle traffic; and (2) failing to place proper barriers,

traffic control devices, and other protective devices between the parking lot, and the

dancing and seating areas. Id. According to appellees, it was foreseeable that the

city’s conduct placed concert attendees at risk of being struck by motor vehicles. Id.

{¶ 28} The city contends in its motion for summary judgment that no

evidence exists demonstrating that it acted maliciously, in bad faith, wantonly, or

recklessly in its placement of the concert seating area in the grass next to the gazebo,

or the dance floor in the corner of the parking lot adjacent to the seating area. The

city further contends that it did not breach its duty of care by placing portable

sawhorses as a protective barrier around the dance floor because the injury

complained of was unforeseeable. In support, the city provided deposition

6 Gielas’s and McDonald’s amended complaints are nearly identical, except that McDonald includes the concert seating area as an area that the city allegedly failed to protect and secure. Unlike Gielas, who was dancing on the dance floor when the injury occurred, McDonald was seated in the grass adjacent to the dance floor. testimony from Thomas Moran (“Moran”), then-recreation director of the city, and

Vaughn McTaggart (“McTaggart”), a 2016 summer employee for the city. Both

testified that someone driving onto the dance floor and into the seating area was

unforeseeable based on their prior experiences with the city’s summer concert

series.

{¶ 29} Appellees contend, however, that Moran’s and McTaggart’s

deposition testimonies present a question of fact whether the city’s decision to place

the dance floor in the parking lot adjacent to the grassy area without any additional

protective barriers was wanton or reckless conduct.7 Additionally, appellees

maintain that its experts’ reports demonstrate that the decisions made by Moran

and the city ─ including its decision to even host the concert without consulting

proper authorities on safety and security — were reckless, and that the injury was

entirely foreseeable considering that the concert attracted senior citizens, the dance

floor was placed in an active parking lot, and insufficient protective barriers were

used to separate the dancing and seating area from the parking lot.

{¶ 30} In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983

N.E.2d 266, the Ohio Supreme Court clarified that the terms wanton and reckless

are not interchangeable. Id. at paragraph one of the syllabus. The court explained:

Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result. Hawkins, 50 Ohio St.2d at 117-118, 363 N.E.2d 367; see also Black’s Law Dictionary 1613-1614 (8th

7 In their respective opposition motions for summary judgment, the appellees did not allege that the city’s conduct was willful. Ed.2004) (explaining that one acting in a wanton manner is aware of the risk of the conduct but is not trying to avoid it and is indifferent to whether harm results).

Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct. Thompson, 53 Ohio St.3d at 104-105, 559 N.E.2d 705, adopting 2 Restatement of the Law 2d, Torts, Section 500 at 587 (1965); see also Black’s Law Dictionary 1298-1299 (8th Ed.2004) (explaining that reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a conscious disregard of or indifference to the risk, but the actor does not desire harm).

Id. at ¶ 33-34.

{¶ 31} Recklessness necessarily requires something more than mere

negligence. Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356, 639

N.E.2d 31 (1994). In fact, “the actor must be conscious that his conduct will in all

probability result in injury.” Id. “Although the determination of recklessness is

typically within the province of the jury, the standard for showing recklessness is

high, so summary judgment can be appropriate in those instances where the

individual’s conduct does not demonstrate a disposition to perversity.” Id.

{¶ 32} In this case, no evidence was presented to create a genuine issue of

material fact that the city’s conduct was substantially greater than negligent conduct

— there was no evidence that Moran or anyone else employed by the city failed to

exercise any care whatsoever (wanton misconduct), or consciously disregarded a

known or obvious risk such that it knew or should have known there was a greater

probability of substantial harm to anyone due to their actions or inactions (reckless

conduct). {¶ 33} It is undisputed that the concert occurred during the early evening on

a Sunday. Moran testified at deposition that the parking area where the dance floor

was positioned and the concert seating bordered, was primarily used for concert

attendees, and not for any emergency service vehicles. In fact, the police station and

other city service buildings were located across the parking lot — on the opposite

side from where the concert took place.

{¶ 34} Moran testified at deposition that he purchased a portable dance floor

specifically for the summer concert series. He stated that he and his staff

constructed and positioned the dance floor in the exact same spot for every concert.

Moran testified that on a prior occasion, he attempted to place the portable dance

floor in the grass by the gazebo, but discovered that the ground was uneven, which

caused the dance floor to be “structurally [un]sound.” (Moran Deposition, tr. 136-

140, 158.) Therefore, he made the decision to construct the dance floor in the front

corner of the parking lot directly next to the concert seating area where the area was

level and sturdier.

{¶ 35} Exhibit No. 5 from Moran’s deposition depicted that two sides of the

dance floor were not directly exposed to the parking lot — one side abutted the

concert seating area, the other bordered an area with fixed trash receptacles and a

large rock in the grass. The other two sides were cordoned from the parking lot with

removable wooden sawhorses ─ one side was parallel with the marked parking

spaces; the other next to a single-lane driving lane. Moran testified that he had no

concerns that cars would be driving in the single driving lane because the driving lane was blocked with his vehicle and the band’s vehicles near the exit, thus

preventing cars from utilizing that exit of the lot. He testified that he used wooden

sawhorses to cordon off the dance floor; the only other alternatives available to the

city were hollowed orange barrels or cones.

{¶ 36} Moran admitted that the wooden sawhorses were movable and would

not have stopped a vehicle from entering the dance area. He testified, however, that

they would have alerted drivers that the area was cordoned off from vehicle traffic.

Moran stated that the thought of a vehicle entering the dance area never entered his

mind; thus he stated that the purpose of the sawhorses was to prohibit or divert

pedestrian traffic away from the dance floor.

{¶ 37} McTaggart testified at deposition that he worked during the concert

and remembered Chidsey’s parked car that day. He identified photographs, marked

as exhibit Nos. 1 and 2, that Moran took moments before the accident. The

photographs showed Gielas on the dance floor and Chidsey seated in her car.

McTaggart testified from the picture and his recollection, that Chidsey’s car was

parked directly next to the placed sawhorses, which was the first parking spot next

to the dance floor. He stated that he did not know if anyone told Chidsey to park in

that spot, but he did not tell Chidsey to move her car and believed that she did not

exit her vehicle. According to McTaggart, he believed the presence of the sawhorses

indicated that the area was barricaded from vehicle traffic, but admitted that the

sawhorses would not hold the force of a car. {¶ 38} Appellees contend that Moran’s deposition testimony creates a

genuine issue of material fact regarding whether he should have known that a

greater risk of substantial harm was possible because he knew the concert attracted

a senior crowd, and that he had a general awareness of the risk of elderly drivers and

of news media stories of errant drivers in parking lots or other venues. Additionally,

appellees contend that Moran should have known the risks of not providing

sufficient barriers around the dance floor and seating area because Moran testified

that he would have concerns if cars were travelling down the single lane driveway

next to the dance floor when employees were setting up the dance floor and during

the concert. However, Moran stated immediately prior that through traffic was not

an actual concern during the concert because his vehicle and the band’s vehicles

blocked the single-lane exit, thus diverting traffic away from travelling next to the

dance floor.

{¶ 39} The deposition testimony identified by appellees does not create a

genuine issue of material fact that Moran or anyone else from the city (1) failed to

exercise any care or (2) consciously disregarded a known or obvious risk, or that

Moran should have known that there was a greater likelihood of substantial harm to

the concert attendees by failing to provide additional barriers around the dance floor

and concert seating area. At best, the evidence demonstrates that the city and Moran

acted negligently. Accordingly, the appellees have failed to withstand their

reciprocal burden of presenting Civ.R. 56 evidence creating a genuine issue of material fact that the city breached its duty of care by acting wantonly or recklessly

such that an exception to general immunity applies.

{¶ 40} Moreover, no genuine issue of material fact exists establishing that

Chidsey’s conduct or appellees’ injury and death were foreseeable. “An act is

foreseeable if a reasonably prudent person, under the same or similar circumstance,

would have anticipated the injury to the plaintiff as a result of his actions.” Sanders

v. Anthony Allega Contrs., 8th Dist. Cuyahoga No. 74953, 1999 Ohio App. LEXIS

6359, 12 (Dec. 30, 1999), citing Commerce & Industry Ins., Co. v. Toledo, 45 Ohio

St.3d 96, 98, 543 N.E.2d 1188 (1989); Jeffers v. Olexo, 43 Ohio St.3d 140, 539

N.E.2d 614 (1989), syllabus. The foreseeability of harm usually depends on the

defendant’s knowledge ─ a person cannot guard against risks he does not know

about. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707

(1984). In determining whether an injury was foreseeable, a court may consider

“only those circumstances which [the defendant] perceived, or should have

perceived,” at the time of the alleged negligent act. Id. “Until specific conduct

involving an unreasonable risk is made manifest by the evidence presented, there is

no issue to submit to the jury.” Id.

{¶ 41} In support of their argument that a vehicle driving through the dance

floor and concert seating area was entirely foreseeable based on the attendees of the

concert and the character of the dance floor, appellees cite Lemley v. Strittmatter,

9th Dist. Summit No. 12510, 1987 Ohio App. LEXIS 7752 (June 17, 1987). In that

case, Lemley, a wedding reception guest who was standing on an outside patio, was struck by a vehicle driven by an intoxicated wedding guest. The evidence showed

that the driver intentionally drove his car toward a guest in the parking lot, and then

drove his car directly toward the open end of the patio — striking one guest outside

of the protective fence — and then proceeded to drive through the fence, striking

Lemley. He sued the owners of the venue, alleging that they failed to provide

reasonably safe business premises and failed to protect him from foreseeable

dangers, such as vehicles crashing into the patio.

{¶ 42} The owners contended that the act of the driver intentionally driving

through the fence and onto the patio was unforeseeable as a matter of law. Lemley

contended that his injury was entirely within the realm of foreseeable risks

considering the proximity of the parking lot to the patio, the fact that the facility

served alcohol, and an inadequate barrier separating the patio from the parking lot.

The Lemley Court upheld the denial of a directed verdict in favor of the owners,

holding that in light of the character of the business, the fact that alcohol would be

served, the proximity of the parking lot to the patio, and the inadequate barrier

separating the two, reasonable minds could reach different conclusions regarding

foreseeability. Id. at 15.

{¶ 43} We find that while Lemley is instructive, it is factually distinct from

the case before this court and thus, distinguishable. The distinguishing factors in

Lemley are alcohol and the court’s analysis of the venue’s duty under that owed to

an invitee. {¶ 44} First, the venue sold alcohol and indisputably knew that its invitees

may consume alcohol. Accordingly, it was entirely foreseeable that impaired guests

would drive from the venue. Accordingly, the character of the venue itself created

an awareness of potential harm that is not present in the case before this court.

{¶ 45} Here, the city hosted a free concert at Greenbriar Commons where

attendees could sit in the grassy area around the gazebo and dance on the portable

dance floor that was placed in the corner of a parking lot directly adjacent to the

seating area. No alcohol was offered by the city for purchase; rather, the city offered

complimentary frozen ice cream treats. Accordingly, unlike Lemley, where the

business owners contributed to the impairment of the third party who caused the

injury, the city did not contribute to Chidsey’s negligent operation of her vehicle.

{¶ 46} Additionally, in Lemley, the duty owed was that to an invitee, which

is the duty of ordinary care. The court, relying on Comment f. to Section 344 of

Restatement of the Law 2d, Torts, also determined “either past experience of the

business owner, or the character of the business itself, can make a careless or

criminal act of a third party reasonably foreseeable.” Id. at 12.

{¶ 47} In this case, the duty the city owed to appellees was that of a licensee

— to refrain from willful, wanton, or reckless conduct that is likely to injure

appellees. Even applying the instructive factors relied on in Lemley, no evidence

was presented that the city contributed to Chidsey’s conduct, or that it knew or had

reason to know from past experience that errant drivers could endanger the safety

of the concert attendees. The testimony was undisputed that neither Moran nor the city had any relevant past experience, prior incidents, or even complaints of

perceived danger. Additionally, the place or character of the venue was a free public

concert hosted by the city in a city center complex, which included many facets of a

public park.

{¶ 48} The appellees further contend that a genuine issue of material facts

exists regarding whether the injury was foreseeable based on the expert reports

submitted. Brad Avrit, a safety engineer expert, provided a report regarding the

standard safety measures that the city should have implemented in its placement of

the dance floor, and the management of both vehicle and pedestrian traffic during

the course of the concert. His report was based on his experiences with pedal

misapplication errors in parking lots. He opined that based on a reasonable degree

of scientific certainty, the city’s actions and inactions amounted to wanton and

reckless misconduct.

{¶ 49} Additionally, Russell Kolins, a security professional, provided a

report on the safety and security measures that the city should have implemented.

He concluded that (1) Moran lacked sufficient knowledge and security training to

oversee the event; (2) with today’s terrorist climate, hosting a community event

necessitated communication and planning with safety and security officers,

including the U.S. Department of Homeland Security, to host and monitor the event;

and (3) the placement of the dance floor and planning of the concert, itself, violated

reasonable safety standards. Based on his conclusions, Kolins opined that the city

“seriously failed to meet the applicable security standards, laws and regulations, [and] substantially breached their duty to undertake reasonable care to provide a

safe place for patrons and in protecting patrons from a known and foreseeable

harm.”

{¶ 50} Whether an act is foreseeable is based on whether a reasonably

prudent person, under the same or similar circumstance, would have anticipated the

injury to the plaintiff as a result of his action or inaction. Accordingly, the experts’

opinions regarding what Moran should or should not have done based on their own

expertise in their fields does not equate to whether Moran should have foreseen the

injury based on his own experiences and knowledge. See, e.g., Roberts v. Boehl, 12th

Dist. Clermont No. CA2017-08-039, 2018-Ohio-1118 (although qualified as an

expert, he has no greater insight into the mind of the defendant regarding whether

something was foreseeable).

{¶ 51} Moreover, although Moran testified at deposition that he had a

“general awareness” based on the media and acts of terrorism that vehicles could

drive into crowds, and that he understood the risk of elderly drivers, this “general

awareness,” does not create a genuine issue of material fact whether he failed to

exercise any care or that he consciously disregarded a known risk that he was placing

the attendees of a summer concert in substantial risk of harm of errant drivers by

failing to close the parking lot or place additional protective barriers around the

dance floor or concert seating area. No evidence was presented that Moran should

have been aware of any terroristic threats made toward the city or surrounding areas

that would have necessitated him to consult with the U.S. Department of Homeland Security regarding preventive measures to counteract such threats for the summer

concert series, or any other activities under the recreation department’s control.

{¶ 52} The evidence presented demonstrates that neither Moran nor any

other employee would have anticipated this type of accident or injury at the concert.

In fact, both Moran and McTaggart testified at deposition that they never would

have anticipated a car would back into or drive onto the dance floor and the concert

seating area. See Moran deposition p. 66 (“No, it didn’t enter my mind.”);

McTaggart deposition p. 54 (“I would have never guessed that someone would come

ramming into [the sawhorses or dance floor].).”

{¶ 53} Finally, although this factor does not automatically negate any duty

owed, the city successfully hosted over 15 concerts on this premises without any

other similar incidents. And of these concerts, the city constructed its portable

dance floor in the exact spot in the parking lot for all of the 2016 concert series, and

the two or three years prior. Had there been evidence that similar accidents

previously occurred at these concerts or at Greenbriar Commons and the city chose

to ignore those incidents and continued acting in accord with its prior practice, then

a question of fact may exist whether the city acted wantonly or with reckless

disregard of a known risk, or whether the injury was foreseeable.

{¶ 54} Accordingly, even viewing the evidence in favor of appellees, we find

that no genuine issue of material fact exists demonstrating that the city breached its

duty of care, such that it acted wantonly or recklessly by failing to close the relevant

parking area or place additional protective barriers around the dance floor or seating area. The evidence demonstrates that while Moran may have acted negligently in

failing to cordon off the entire parking area, this inaction did not rise to the level of

reckless conduct, and it was unforeseeable that an errant driver would drive through

wooden barriers to enter onto the dance floor area and into the seating area on the

grass causing serious and fatal injuries to concert attendees. Because no genuine

issue of material fact exists that the city breached its duty of care to appellees, the

exception found under R.C. 2744.02(B)(2) does not apply, and the city is immune

from liability.

IV. Conclusion

{¶ 55} Based on the foregoing, we find that the trial court erred in denying

the city’s motion for summary judgment as to political subdivision immunity.

Finding merit to the city’s third assignment of error, its remaining assignments of

error are hereby rendered moot.

{¶ 56} Judgment reversed and remanded.

It is ordered that appellant recover from appellees costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., CONCURS; EMANUELLA D. GROVES, J., DISSSENTS WITH SEPARATE OPINION

EMANUELLA D. GROVES, J., DISSENTING:

{¶ 57} I respectfully dissent from the majority’s opinion. This is not one of

those instances where a political subdivision should be covered with the cloak of

immunity. This cloak protects political subdivisions when they have properly

clothed themselves with the required duty of care and secured the appropriate lens

to envision injury to their attendees as a result of their actions or inactions. Where

a political subdivision fails to properly clothe and envision, it must be exposed to the

liability for the harm it caused. Otherwise, a political subdivision is given full

immunity rendering the exceptions meaningless. To ensure enforceability of the

exceptions to full immunity, I would have affirmed the trial court’s decision in

denying the motion for summary judgment.

{¶ 58} After a thorough review of the evidence, I believe genuine issues of

material fact remain as to whether Parma Heights acted with recklessness or wanton

disregard and whether the sustained harm was foreseeable in this matter.

{¶ 59} Summary judgment should be granted with caution, resolving all

doubts in favor of the nonmoving party. Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St.3d 215, 217, 520 N.E.2d 198 (1988). “The purpose of summary

judgment is not to try issues of fact but is rather to determine whether triable issues

of fact exist.” Lakota Local Schools Dist. Bd. of Edn. v. Brickner 108 Ohio App.3d

637, 643, 671 N.E.2d 578 (6th Dist. 1996), citing Fuller v. German Auto Sales, Inc.,

51 Ohio App.3d 101, 103, 554 N.E.2d 139 (1st Dist. 1988).

{¶ 60} There is a genuine dispute whether Parma Heights acted with reckless

and/or wanton disregard to the protection of the attendees to the summer concert.

Appellees submitted sufficient evidence to warrant a jury’s consideration of the

issue. Whether or not conduct rises to the level of wanton or reckless behavior is a

question to be determined by the jury. Schoenfield v. Navarre, 164 Ohio App.3d

571, 2005-Ohio-6407, 843 N.E.2d 234, ¶ 24 (6th Dist.).

{¶ 61} The summer concert series was well attended, drawing approximately

150 people, mostly senior citizens. In my view, the decision to hold this event in a

public parking lot without exercising due diligence to ensure the safety of the

participants is arguably reckless and/or wanton behavior. While the majority points

to the testimony of Thomas Moran, and the extent to which it shows a lack of

recklessness or wanton disregard, his testimony also calls those same issues into

question. Moran testified that the public safety department was tasked with

analyzing traffic and pedestrian flow for events and yet Moran did not discuss the

planning of the summer concert series with public safety, or any other department.

In fact, Parma Heights averred in interrogatories that they did not do any benefit-

risk analysis, hazard-risk analysis, or any other analysis to determine, reduce and/or eliminate foreseeable injuries that could occur during the concerts. Furthermore,

Moran testified that he failed to obtain permits for the event or any events as director

of recreation. Additionally, he acknowledged that city ordinances included rules for

the placement of barricades, the ability to designate streets as “in use” for

assemblages, that the summer concert series qualified as an “assemblage,” and that

public safety had the authority to create play streets and limit traffic in those areas.

{¶ 62} In his deposition testimony, Moran indicated that he was generally

aware of the possibility of harm, but he did not foresee the need to incorporate any

more precautions than the ones he instituted; i.e., the placement of sawhorses

around the dance floor. Moran testified that attendees parked in the same parking

lot as where the dance floor was located. As the majority noted, McTaggart, one of

Parma Heights summer employees, testified that Chidsey’s car was parked next to

one of the sawhorses surrounding the dance floor. McTaggart also indicated that he

did not advise Chidsey to move her car, nor did anyone advise him to direct traffic

or instruct people where to park.

{¶ 63} Regardless of whether Moran’s and/or the band's vehicles provided

some barriers to traffic, attendees had access to the parking lot and were permitted

to park near the dance floor. Besides the sawhorses, there was no other barrier

between cars and the concert because there were no curb stops to prevent cars from

moving from the parking lot onto the grass.

{¶ 64} As for the issue of foreseeability, a reasonably prudent person could

foresee that there was a risk of harm to 150 senior citizen concert attendees where the concert is in an open parking lot that is not properly secured. Moran

acknowledged that Greenbrier Commons housed the public library, the historical

society, the police department, fire department, recreation department, and the

park itself. The potential for vehicular traffic to any of those venues is obvious.

Furthermore, Moran testified that he was aware of the city’s procedure for “street

parties” which involved the distribution of barricades to block traffic. The existence

of the ordinance establishes the city’s awareness of the possibility of harm when a

party is held on a city street or other right-of-way.

{¶ 65} Given the totality of the circumstances, there were genuine issues of

material facts in regard to both wanton or reckless conduct and foreseeability of

harm. Therefore, I agree with the trial court’s findings that there was a general issue

of material fact as to whether Parma Heights was entitled to political subdivision

immunity.

{¶ 66} I would further find that Parma Heights’ second assignment of error

is without merit, and they are not entitled to recreational immunity. Looking at the

evidence in a light most favorable to the appellees, the location of the incident was

not a premises held open for recreational use. The dance floor was portable and only

used in the parking lot during the summer concert series. In his deposition, Moran

testified that the parking area was mostly for police personnel, however, it was also

for the general public who had business with the police department. Parking spots

were not marked or restricted, so members of the public visiting other venues in the

Greenbrier Commons parked there as well. In addition to the police department, the fire department and the recreation department were housed in that area. The

only time that portion of the parking lot was used for recreational purposes was

during the summer concert series, which consisted of five concerts each summer.

{¶ 67} I would find that because the premises did not qualify under the

recreational use statute, neither R.C. 1533.181(A)(1) nor 1533.181(A)(3) apply and

would overrule Parma Heights’ second assignment of error.

{¶ 68} Accordingly, I would have affirmed the trial court’s decision.