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Tuesday, June 19, 2012

Michael L. Hawsman, minor v. City of Cuyahoga Falls et al., Case no. 2011-1588
Ninth District Court of Appeals (Summit County)

City of Girard, Ohio v. The Youngstown Belt Railway Company et al., Case no. 2011-1850
Eleventh District Court of Appeals (Trumbull County)

In re: Application of Eric Wilson, Case no. 2012-0429
Board of Commissioners on Character and Fitness


Is Indoor City Swimming Pool a 'Government Building' Subject to Premises Liability Claims Under Sovereign Immunity Law?

Where Exception to Immunity Allows Claims Arising From 'Defect in Government Building'

Michael L. Hawsman, minor v. City of Cuyahoga Falls et al., Case no. 2011-1588
Ninth District Court of Appeals (Summit County)

ISSUE:  Does the exception to political subdivision immunity set forth in R.C. 2744.02(B)(4) for  “injury or loss due to physical defects within ... buildings that are used in connection with the performance of a governmental function, including but not limited to office buildings and courthouses ... ” apply to injuries suffered by a patron of a city-owned indoor swimming pool due to alleged faulty maintenance of a diving board?

BACKGROUND: Michael Hawsman, a minor, suffered a knee injury while using a diving board at the Cuyahoga Falls Natatorium, an indoor swimming pool and fitness center owned and operated by the City of Cuyahoga Falls. Hawsman and his parents subsequently filed a civil lawsuit against the city, alleging that Michael’s injury was the result of negligent maintenance of the diving board.

The city moved for summary judgment, claiming that it was immune from civil liability for Michael’s injury under the state’s political subdivision immunity statute, R.C. Chapter 2744.  It its pleadings, the city cited the Supreme Court of Ohio’s lead opinion in Cater v. Cleveland (1998), which held in part that the exception to immunity set forth in R.C. 2744.02(B)(4) for injuries incurred in a “government building” did not apply to an indoor swimming pool because a swimming pool is a recreational facility and thus not similar to an “office building or courthouse.” The trial court granted summary judgment in favor of the city, finding that it was immune from the claims asserted by the Hawsmans pursuant to the Cater decision.

The Hawsmans appealed. On review, the Ninth District Court of Appeals reversed the award of summary judgment in favor of the city and remanded the case to the trial court for further proceedings. In its opinion, the Ninth District noted that only one of the Supreme Court justices who decided Cater agreed with the lead opinion’s holding distinguishing buildings used for recreational purposes from other types of government buildings.  The court of appeals pointed out that a plurality of the justices in Cater joined a separate opinion indicating that they would hold the city was not immune from liability for injuries the plaintiff suffered in an indoor pool, but joined in the court’s judgment only because that judgment decided the case in favor of the plaintiff, who was permitted to pursue his lawsuit against Cleveland based on a different exception to sovereign immunity.

In light of the ambiguityof Cater regarding the proper application of R.C. 2744.02(B)(4), and a more recent Supreme Court decision, Moore v. Lorain Metro Housing Authority (2009), in which the court held that the exception to immunity for premises liability claims applied not only to injuries suffered in a government “office building or courthouse” but also to injuries suffered in a city-owned housing unit, the Ninth District declined to follow the lead opinion in  Cater and instead overturned the trial court’s ruling based on the plurality opinion in Cater and the legal analysis of Moore.

Cuyahoga Falls sought and was granted Supreme Court review of the Ninth District’s decision.

Attorneys for the city assert that in Cater the Supreme Court addressed a set of facts virtually identical to this case, and the Ninth District erred by failing to follow Cater’s holding, which has never been overruled or abandoned by the Supreme Court as binding precedent, that injuries incurred in an indoor swimming pool do not fall within the R.C. 2744.02(B)(4) exception to political subdivision immunity.

They also argue that, by placing specific language in the immunity statute that a city may be sued for premises liability claims that arise in buildings used for “governmental purposes” such as office buildings or courthouses, the legislature indicated its intent to preclude such claims if they arise from the public’s use of other types of government-owned facilities, such as those in which patrons voluntarily engage in athletic activities that present a much higher risk of injury.

Attorneys for the Hawsmans respond that if any part of the Cater decision has precedential standing, it is not be the lead opinion but rather the plurality holding that a city-owned  indoor swimming pool is a “building used in connection with a governmental function,” and that a city is therefore liable for premises liability claims arising from a plaintiff’s injury in such a building under the exception to immunity set forth in R.C. 2744.02(B)(4).

They point to the statutory language that specifically states the exception to immunity for premises liability claims “is not limited” to office buildings or courthouses, and  argue that nothing in the statute distinguishes between buildings used for the “governmental functions” of enacting and administering laws or hearing court cases and the “governmental function” of providing local residents with publicly funded facilities in which to engage in sports and other recreational activities.

Contacts
Hope L. Jones, 330.971.8190, for the City of Cuyahoga Falls.

Kimberly C. Young, 440.442.6677, for Michael Hawsman and family.

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Does Federal Law Preempt City's Suit in State Court to Appropriate Railroad Property for Use as Public Parkland?

Where City's Plan Would Preserve Future Use of Tracks for Rail Transportation

City of Girard, Ohio v. The Youngstown Belt Railway Company et al., Case no. 2011-1850
Eleventh District Court of Appeals (Trumbull County)

ISSUE:  When an Ohio city files suit in state court seeking to exercise its eminent domain authority to appropriate property owned by a railroad company for use as public parkland, and the city’s appropriation plan excludes the portions of the property occupied by railroad tracks and preserves the potential future use of those tracks for rail transportation, does a state court have jurisdiction to hear and decide the eminent domain action, or is such an action preempted by the federal Interstate Commerce Commission Termination Act (ICCTA)?

BACKGROUND: The City of Girard filed a lawsuit in the Trumbull County Court of Common Pleas seeking to exercise its authority under Ohio’s eminent domain statutes to appropriate for use as public parkland approximately 41 acres of vacant property within the city that was part of a 55 acre parcel owned by the Youngstown Belt Railway Company (YBR).  The city’s plan excluded the land  along the eastern and western edges of the YBR parcel that were occupied by railroad tracks, and a 100-foot right of way alongside the tracks, thereby preserving the potential for the tracks to be used for rail transportation in the future.

In its pleadings opposing the eminent domain action, YBR moved for summary judgment dismissing the city’s petition on the basis that state court actions to appropriate railroad property had been preempted by Congress when it enacted the ICCTA. The railroad argued that under the ICCTA, all such cases fall under the exclusive jurisdiction of the STB. After initially declining to rule on YBR’s jurisdictional challenge, but having the case remanded by the Eleventh District Court of Appeals, the trial court ruled that the ICCTA preempted the jurisdiction of state courts to hear suits seeking to appropriate railroad lands, and granted summary judgment in favor of the railroad.

On review, the Eleventh District voted 2-1 to affirm the trial court’s decision. The city sought and was granted Supreme Court review of the case.

Attorneys for Girard cite court decisions holding that the federal preemption of jurisdiction over appropriation of railroad property applies only in cases where a state regulator is attempting to take action that would “unreasonably interfere” with the use of railroad property for transportation purposes.  Because the city’s plan in this case proposes only to acquire the land between YBR’s tracks, and would not interfere with the future use of the tracks and adjoining right-of-way for transportation purposes, they argue that the trial court erred in holding that it lacked jurisdiction to consider the city’s eminent domain petition.

They also point out that, prior to the filing of Girard’s appropriation action, YBR had indicated its intent to abandon any future use of its tracks for general transportation purposes by entering into a preliminary agreement with a private buyer to sell the entire 55 acre parcel for use as a construction waste disposal landfill.

Attorneys for YBR  urge the court to affirm the Eleventh District’s holding that the ICCTA gives the federal government exclusive jurisdiction over legal disputes involving property used in connection with rail transportation. They argue that YBR has used a portion of the property Girard seeks to acquire  for temporary storage of rails, ties and other materials used in the repair and maintenance of its tracks elsewhere, and say the loss of use of that land would interfere with the company’s overall rail transportation activities, thereby invoking federal preemption over the appropriation dispute.

They also assert that, if successful, Girard’s effort to appropriate YBR’s land would interfere with YBR’s plans to provide on-site transportation for the company planning to buy that property and use it as a landfill for construction and demolition debris delivered by rail from remote locations.

Contacts
Frank R. Bodor, 330.399.2233, for the City of Girard.

C. Scott Lanz, 330.743.1171, for Youngstown Belt Railway Co.

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Application to Take Bar Examination

In re: Application of Eric Wilson, Case no. 2012-0429
Board of Commissioners on Character and Fitness

The Board of Commissioners on Character and Fitness has recommended that the court disapprove the current application of Eric Wilson of Cincinnati to take the state bar examination, and that Wilson be permitted to reapply for the February 2016 examination pending his completion of all required application procedures and a new review of his character and fitness for admission to the bar by the appropriate local bar association admissions committee.

The board based its current negative recommendation on inaccurate statements included in Wilson’s 1992 application for admission to the Detroit College of Law, his defaults and failure to make payments on multiple delinquent student loans dating from the 1980s to as recently as 2009, his  failure to obtain fulltime employment between 2003 and 2010, and his failure to provide documents requested by the Dayton Bar Association admissions committee or to present exhibits or testimony supporting his character and fitness at a 2011 hearing before the board.

Wilson has filed objections to the board’s recommendation, asserting that most of the reasons cited by the board and by the Dayton Bar Association admissions committee for their  negative recommendation on his current application are based on events that took place during the 1980s and early 1990s.  He contends that his failure to provide documents requested by the admissions committee and board in connection with his applications to take the 2009 and 2011 bar examinations were the result of faulty communications and the unavailability of records documenting his law school applications and other matters that transpired 20 or more years in the past.

He urges the court to consider his current absence of overdue consumer accounts or credit card debt as evidence of his present fiscal responsibility, and argues that his failure to pay down his delinquent student loans is a direct result of the denial of his 2009 and 2011 applications to take the bar examination so that he may obtain fulltime employment as an attorney.

Contacts
Eric Wilson, pro se: 312.282.1167.

Gretchen M. Treherne, 937.223.3277, for the Dayton Bar Association.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.