As the population ages political subdivisions are finding ways to improve the quality of life for our older citizens; one such way is by providing transportation services. Typically, a political subdivision enjoys governmental immunity, pursuant to ORC § 2744.02, for acts related to governmental or proprietary functions. The Eighth District Court of Appeals recently decided Dub v. City of Beachwood involving political subdivision immunity relating to the operation of such a transportation service.
In Dub v. City of Beachwood, 191 Ohio App.3d 238, 2010-Ohio-5135, the Plaintiff sued the City of Beachwood for damages resulting from a fall when she stepped off the steps of a transportation van onto icy pavement. The City of Beachwood, through the Beachwood Human Services Department, offered a complimentary senior van service; the service is free, but residents need to fill out an application before beginning to use the service and are given literature regarding the service. The literature explains that passengers must bring their own escorts if they require assistance; drivers are not required to offer or provide assistance, and usually remains seated while residents enter or exit the van unless the resident is in a wheelchair.
Plaintiff had used the transportation service on many occasions prior to the day of her fall. During discovery Plaintiff acknowledged that the weather on the day of her fall was very bad. She was able to board the van from her apartment on her own; she did not bring an escort with her, and carried an oxygen tank, her purse and a cane. The transport van drove her to a nearby grocery store and parked within a few feet of the entrance. Plaintiff proceeded to exit the van; as she stepped off the last step onto the pavement, she slipped on ice and fell resulting in a broken leg.
The trial court granted summary judgment in favor of Defendants. Plaintiff appealed, asserting two assignments of error. In her first assignment, Plaintiff argued that the City of Beachwood was not entitled to immunity, while in the second assignment of error Plaintiff asserts that she established a prima facie case of negligence.
The Eighth District first analyzed the issue of sovereign immunity by performing a three tier analysis as set forth by the Ohio Supreme Court: determine immunity, determine whether any exceptions to immunity apply, and finally, determine whether a defense applies to reinstate immunity. Because the transportation service was a function of the Beachwood Human Services Department and is overseen by that department, the first tier was determined to be satisfied. Thus, it was incumbent upon Plaintiff to establish that one of the exceptions to immunity applied. Plaintiff argued that ORC § 2744.02(B)(1) should apply; that section provides for liability “caused by the negligent operation of any motor vehicle.” However, the Eighth District properly determined that this exception was not applicable since the vehicle was not moving. The Eighth District cited an Ohio Supreme Court decision from 2009 wherein the Supreme Court stated “the exception to immunity in R.C. 2744.02(B)(1) for the negligent operation of a motor vehicle pertains only to negligence in driving or otherwise causing the vehicle to be moved.”
Likewise, the Eighth District disagreed with Plaintiff’s second assignment of error. Plaintiff asserted that the driver failed to assist her in exiting the transport van. However, the Court focused on the literature provided to each resident upon registering for the service. Specifically, the literature required passengers to bring their own escorts. Hence, the Eighth District determined that there was no duty for drivers to provide an escort or to assist passengers in exiting the van. The Court also focused on the fact that the ice was on the pavement, not on the steps of the van.
Throughout the opinion, the Eighth District focused on the facts of the case to suggest that a different result could be reached under different circumstances. Specifically, a question of fact to overcome summary judgment may be raised if: (1) a transportation service requires drivers to assist passengers on and off the van; (2) the dangerous condition, such as ice, was on the steps of the van; (3) the vehicle was actually moving at the time a passenger exits; (4) the passengers are non-adults or adults that are under direct supervision of the driver.
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