Summary
In Marshall, the common pleas court considered whether a parking lot used in connection with a municipal hospital constituted "public grounds."
Summary of this case from Alcus v. Bainbridge Twp.Opinion
No. 47505
Decided February 23, 1967.
Municipal corporations — Public grounds — Duty to keep in repair — Municipally owned and maintained parking lot "public ground" — Section 723.01, Revised Code.
A parking lot owned and maintained by a municipality adjacent to a municipal hospital for the benefit of members of the general public who desire to use it as patients, patrons, visitors and others having reason to visit the hospital, is within the purview of the term "public grounds" as used in Section 723.01, Revised Code.
Mr. E. G. Littleton and Messrs. Wilson, Wilson Wilson, for plaintiff.
Messrs. Miller, Searl Fitch, for defendant.
Plaintiff claims injuries by stepping into an alleged defect constituting a nuisance, in the surface of a parking lot, operated by the city of Portsmouth, Ohio, in connection with its municipal hospital. The answer raises, as one of defendant's defenses to the suit by plaintiff, the claim of governmental immunity. The defendant, by motion for summary judgment, has presented the question to the court as to whether the defense of governmental immunity extends to defects in the parking lot or whether, by virtue of Section 723.01, Revised Code, the lot is a "public ground" and the defense of governmental immunity is inapplicable.
The facts in question were presented by written stipulation which provides, in substance, the following. The city of Portsmouth operated as a governmental function the Portsmouth General Hospital, and that the city operated and maintained a parking lot located across a street bounding the hospital on the west, the lot being south of the hospital. The plaintiff was using the parking lot while visiting a relative who was a patient in the hospital. The lot was operated and maintained for the use and convenience of patients, patrons, visitors, and others having reason to visit the hospital and that the operation and maintenance of the lot was an exercise of a governmental function.
It needs no citation of authority that in Ohio, except as provided otherwise by statute, municipal corporations are free from liability in the performance or nonperformance of their governmental functions. The rule is contrary where the municipal functions are of a proprietary nature.
The relevant statute is Section 723.01, Revised Code, which provides:
"Municipal corporations shall have special power to regulate the use of the streets. The legislative authority of such municipal corporation shall have the care, supervision, and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts within the municipal corporation, and shall cause them to be kept open, in repair, and free from nuisance."
Rather obviously, if plaintiff is to avoid the defense of governmental immunity, the parking lot in question must fall within the term `public grounds' inasmuch as the other areas therein defined leave no room for construction that a parking lot is included.
Giving the term "public grounds" its widest meaning, it might be concluded that any ground owned by the public would be within the statute. That such a definition is improper is seen in the Supreme Court decisions wherein the grounds must be open to the public travel and the public invited to use it. City of Dayton v. Rhotehamel, Admr., 90 Ohio St. 75; Deering v. City of Cleveland, 102 Ohio St. 94.
The position of the defendant herein, as this court understands it, is that Section 723.01, Revised Code, is a statute in derogation of common law and must be strictly construed, that to be a "public ground" the area involved must be dedicated to use by the general public without restriction, and that where, as here, the parking lot in question was never dedicated and secondly it was for a restricted public use, it is not within the statute. Logically as this argument may appear, it must be tested by what was intended by the statute.
Judge Hart in Standard Fire Ins. Co. v. City of Fremont, 164 Ohio 344, analyzed the scope and purpose of the statute thusly:
"The subject matter of the statute — `public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts and viaducts' — relates specifically to traditional areas used only for the purpose and means of travel. The term, `public grounds,' contemplates areas to which the public may resort and within which it may walk, drive or ride, etc. It is apparent also that the terms, "street" and "sidewalk," have the connotation, not of platted street areas, but of areas actually used by the public in travel. Next, it is appropriate to note the scope and character of the duties imposed on a municipality by the statute — to keep these travel areas named `open' to public travel; `in repair,' so as to accomodate and make safe travel over such areas; and `free from nuisance,' which must relate back and be confined to the travel areas specifically named in the statute."
The Supreme Court has also required that the statute be applied only for the benefit of persons entitled to use and using the areas in question for the purposes for which they were created and established. Crisafi v. City of Cleveland, 169 Ohio St. 137.
It seems evident that the area in question bears a relationship to travel. As the Supreme Court of Missouri has aptly observed "traffic congestion has become an acute problem in many of the cities and towns in this state. The problem of parking or the temporary disposition of these vehicles during business hours when such vehicles are not in active operation is directly connected with the problem of transportation. The parking of such vehicles cannot be separated from their use in transportation and their operation upon streets and highways." Bowman v. Kansas City, 361 Mo. 14, at page 27, 233 S.W.2d 26. The basic purpose of parking lots is to facilitate travel by motor vehicle by providing a parking space for the vehicle at the point of destination. Further, a parking area contemplates that it be driven upon and, after parking, that further travel be by foot, the distance being great or small depending on the size of the lot.
There is nothing in the decisions, in considering the question of dedication, that this court has observed, that requires a common-law or statutory dedication. Certainly, the statute does not require it and the decisions thereunder place emphasis on simply an opening of the same by the public authority and inviting the public to use it. See City of Dayton v. Rhotehamel, supra.
Under the stipulation of facts the lot has a restricted use. The restriction was not, however, to certain named persons, but rather to that part of the general public that had occasion to use the hospital as a patient, patron, visitor or any other having reason to visit the hospital. No question exists that public parks are "public grounds." City of Cleveland v. Ferrando, 114 Ohio St. 207. Implied, if not expressed, in the invitation to the general public to use the parks, is that the use must conform to park purposes. Their basic purpose is recreation, thus, one could not operate a business therein. In a small city park without adequate facilities, one could not ride a horse therein for recreation. If baseball facilities were provided, one could not insist on using the same for tennis. The purpose of these illustrations is to demonstrate that while the general public is invited, only those persons may use it who desire to do so for the uses for which it was created. Logic requires a like application herein.
Summarizing, this court concludes (1) that the lot was intended to be used for travel in that it was to be driven on and walked on, (2) that it was opened to the public by municipal authorities, (3) that it was being used by the plaintiff in the ordinary mode and for the purpose for which it was created.
This court must hold therefore that the parking lot in question is a "public ground" within the spirit and purpose of the statute and that the motion for summary judgment should be denied.
Motion denied.