COURT OF COMMON PLEAS
FAIRFIELD COUNTY, OH
ROBERT A. NEINAST
Plaintiff,v.BOARD OF TRUSTEES OF THE
FAIRFIELD COUNTY DISTRICT
LIBRARY,
Defendants.
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Case No. 09 CV 0657
Judge Chris Martin
MOTION TO TAKE JUDICIAL NOTICE
Now comes Plaintiff Robert A. Neinast, who respectfully moves that this Court take judicial notice of two points of law: 1) That the Library is statutorily immune from liability regarding injuries on its property except for those caused by physical defects within or on the grounds of the library; and 2) That Library patrons are licensees, and the duty of care owed to a such a patron is a duty to avoid wanton, reckless, or willful conduct in disregard of the safety of such individuals. Determining these issues in advance of taking evidence at the evidentiary hearing will help focus the hearing on relevant evidence. A memorandum in support is attached.
Respectfully submitted,
_______________________
Robert A. Neinast, Plaintiff
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net
MEMORANDUM IN SUPPORT
Plaintiff believes that the resolution of two legal issues will help focus the evidentiary hearing on relevant evidence. They are 1) That the Library is statutorily immune from liability regarding injuries on its property except for those caused by physical defects within or on the grounds of the library; and 2) That Library patrons are licensees, and the duty of care owed to a such a patron is a duty to avoid wanton, reckless, or willful conduct in disregard of the safety of such individuals.
Statutory Immunity
The issue of statutory immunity was addressed in Plaintiff’s Motion for Summary Judgment, pp. 16-17. For convenience sake, the relevant portion of that is reproduced below.
The Library is statutorily immune from liability regarding injuries on its property except for those caused by “physical defects within or on the grounds of” the library. There is a three-tier analysis to determine whether a governmental entity is entitled to statutory immunity pursuant to Chapter 2744 of the Ohio Revised Code:
Determining whether a political subdivision is immune from tort liability pursuant to R.C. Chapter 2744 involves a three-tiered analysis. The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. R.C. 2744.02(A)(1). However, that immunity is not absolute. R.C. 2744.02(B) ***.
The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability. ***
If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability. (Internal citations omitted.)
Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, ¶14-16, quoting Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, ¶7-9. Revised Code 2744.02(B)(4), the only section regarding negligence in governmental building, says
(4) *** political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.
There are numerous court cases confirming that the Library would only be liable for injuries related to negligence due to physical defects, and only due to physical defects. See, for example, Howell v. City of Canton (5th Dist. 2008), 2008-Ohio-5558, Bolling v. North Olmsted City Schools Board of Education (8th Dist. 2008), 2008-Ohio-5347, Pepper v. Board of Education of the Toledo Public Schools (6th Dist. 2007), 2007-Ohio-203, Vento v. Strongsville Bd. of Edn. (8th Dist. 2007), 2007-Ohio-4172, Myrick v. City of Cincinnati (1st Dist. 2008), 2008-Ohio-6830.
Library Patrons are Licensees
Ohio adheres to the common-law classifications of invitee, licensee, and trespasser in cases of premises liability. Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 315. To be an invitee, the customer of a business or other entity must “come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner.” Id. This clearly does not apply to library patrons, since the library itself does not benefit from patron use of the library. This is affirmed in Souther v. Preble County District Library (Ohio App. Dist.12, 2006), 2006-Ohio-1893, ¶17:
Employing the proper standard in the present matter, the appropriate focus is not the purpose of the library but the benefits received in its use. Patrons primarily visit the library to take advantage of its free resources. Thus, the benefit retained is personal to these patrons and does not accrue to the library itself.
Since Library patrons are licensees, the duty of the Library is “to refrain from wanton, reckless, or willful conduct” which is likely to injure the licensee. Supra, at ¶18.
In conclusion, Plaintiff respectfully requests that this Court take judicial notice of these two points of law.
Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, pro se
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion was served, by regular U.S. mail, upon Mr. Jason M. Dolin, Assistant Prosecuting Attorney, Attorney for Defendants, 239 West Main Street — Suite 101, Lancaster, OH, 43130, this 22th day of February, 2011.
_______________________
Robert A. Neinast