Garrett v. City of Sandusky

Per Curiam. ' Today we consider whether Mr. Garrett is entitled to pursue his wrongful death action against the city for the losses incurred as a result of his son’s death, which the city admits was caused by its own negligence. In order to avoid liability for its negligence at the Surfs Up wave pool, the city relies on R.C. 2744.01(C)(2)(u), formerly 2744.01(C)(2)(t), which states that a “swimming pool” is a “governmental” and not a “proprietary” function, and which the city contends exempts it from liability. This portion of the statute became effective three days before the Garrett child’s traumatic episode at Surfs Up. I Under Ohio law, is the city immune from suit? We conclude that it is not, because a wave pool is not a “swimming pool” pursuant to R.C. 2744.01(C)(2)(u). R.C. Chapter 2744, with exceptions, immunizes those municipal functions which are classified as “governmental,” and exposes to liability those functions classified as “proprietary.” The statutory definition of “governmental” functions includes: “The design, construction, reconstruction, renovation, repair, maintenance, and operation of any park, playground, playfield, indoor recreational facility, zoo, zoological park, bath, or swimming pool or pond, and the operation and control of any golf course[.]” (Emphasis added.) R.C. 2744.01(C)(2)(u). In the present case, the Surfs Up Aquatic Center operated by the city was not merely a “swimming pool.” The wave activation device at this facility materially transformed the pool from a placid body of water, commonly known as a swimming pool, to a potentially hazardous body of churning water. A wave pool is more akin to. an amusement ride, which is not an immunized municipal function according to R.C. Chapter 2744. We, therefore, affirm the judgment of the court of appeals on this issue. [141] II In his proposition of law, Mr. Garrett claims that the trial court improperly granted a motion in limine, which in part requested the court to exclude all evidence relating to the details of the Garrett child’s death. While the record of this case creates serious doubts about the extent to which the city’s motion in limine was actually granted, for purposes of this opinion, we assume it was granted in full. Even under this assumption, however, the granting of this motion alone does not constitute a final appealable order. In State v. Grubb (1986), 28 Ohio St.3d 199, 28 OBR 285, 503 N.E.2d 142, we held that “it is incumbent upon a [party] who has been temporarily restricted from introducing evidence by virtue of a motion in limine, to seek the introduction of the evidence by proffer or otherwise in order to enable the court to make a final determination as to its admissibility and to preserve any objection on the record for purposes of appeal.” Id. at paragraph two of the syllabus. Because the record indicates that the appellant failed to proffer any evidence allegedly excluded by the trial court, Mr. Garrett has waived his right to argue this evidentiary issue on appeal. Judgment affirmed. A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., dissents.