As Reported by House Civil and Commercial Law Committee 1
123rd General Assembly 4
Regular Session H. B. No. 205 5
1999-2000 6
REPRESENTATIVES CORBIN-SALERNO-CALLENDER-WILLAMOWSKI 8
_________________________________________________________________ 9
A B I L L
To amend section 2744.01 of the Revised Code to 11
amend the definition of "governmental function" 12
in the political subdivision tort immunity law to
include the operation of all types of aquatic 13
facilities.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 15
Section 1. That section 2744.01 of the Revised Code be 17
amended to read as follows: 18
Sec. 2744.01. As used in this chapter: 27
(A) "Emergency call" means a call to duty, including, but 29
not limited to, communications from citizens, police dispatches, 30
and personal observations by peace officers of inherently 31
dangerous situations that demand an immediate response on the 32
part of a peace officer. 33
(B) "Employee" means an officer, agent, employee, or 35
servant, whether or not compensated or full-time or part-time, 36
who is authorized to act and is acting within the scope of the 38
officer's, agent's, employee's, or servant's employment for a 39
political subdivision. "Employee" does not include an 40
independent contractor and does not include any individual 41
engaged by a school district pursuant to section 3319.301 of the 42
Revised Code. "Employee" includes any elected or appointed 43
official of a political subdivision. "Employee" also includes a 44
person who has been convicted of or pleaded guilty to a criminal 45
offense and who has been sentenced to perform community service 46
work in a political subdivision whether pursuant to section 47
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2951.02 of the Revised Code or otherwise, and a child who is 48
found to be a delinquent child and who is ordered by a juvenile 49
court pursuant to section 2151.355 of the Revised Code to perform 50
community service or community work in a political subdivision. 51
(C)(1) "Governmental function" means a function of a 53
political subdivision that is specified in division (C)(2) of 54
this section or that satisfies any of the following: 55
(a) A function that is imposed upon the state as an 57
obligation of sovereignty and that is performed by a political 58
subdivision voluntarily or pursuant to legislative requirement; 59
(b) A function that is for the common good of all citizens 61
of the state; 62
(c) A function that promotes or preserves the public 64
peace, health, safety, or welfare; that involves activities that 65
are not engaged in or not customarily engaged in by 66
nongovernmental persons; and that is not specified in division 67
(G)(2) of this section as a proprietary function. 68
(2) A "governmental function" includes, but is not limited 70
to, the following: 71
(a) The provision or nonprovision of police, fire, 73
emergency medical, ambulance, and rescue services or protection; 74
(b) The power to preserve the peace; to prevent and 76
suppress riots, disturbances, and disorderly assemblages; to 77
prevent, mitigate, and clean up releases of oil and hazardous and 78
extremely hazardous substances as defined in section 3750.01 of 79
the Revised Code; and to protect persons and property; 80
(c) The provision of a system of public education; 82
(d) The provision of a free public library system; 84
(e) The regulation of the use of, and the maintenance and 86
repair of, roads, highways, streets, avenues, alleys, sidewalks, 87
bridges, aqueducts, viaducts, and public grounds; 88
(f) Judicial, quasi-judicial, prosecutorial, legislative, 90
and quasi-legislative functions; 91
(g) The construction, reconstruction, repair, renovation, 93
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maintenance, and operation of buildings that are used in 94
connection with the performance of a governmental function, 95
including, but not limited to, office buildings and courthouses; 96
(h) The design, construction, reconstruction, renovation, 98
repair, maintenance, and operation of jails, places of juvenile 99
detention, workhouses, or any other detention facility, as 100
defined in section 2921.01 of the Revised Code; 101
(i) The enforcement or nonperformance of any law; 103
(j) The regulation of traffic, and the erection or 105
nonerection of traffic signs, signals, or control devices; 106
(k) The collection and disposal of solid wastes, as 108
defined in section 3734.01 of the Revised Code, including, but 109
not limited to, the operation of solid waste disposal facilities, 110
as "facilities" is defined in that section, and the collection 111
and management of hazardous waste generated by households. As 112
used in division (C)(2)(k) of this section, "hazardous waste 113
generated by households" means solid waste originally generated 114
by individual households that is listed specifically as hazardous 115
waste in or exhibits one or more characteristics of hazardous 116
waste as defined by rules adopted under section 3734.12 of the 117
Revised Code, but that is excluded from regulation as a hazardous 118
waste by those rules. 119
(l) The provision or nonprovision, planning or design, 121
construction, or reconstruction of a public improvement, 122
including, but not limited to, a sewer system; 123
(m) The operation of a human services department or 125
agency, including, but not limited to, the provision of 126
assistance to aged and infirm persons and to persons who are 127
indigent; 128
(n) The operation of a health board, department, or 130
agency, including, but not limited to, any statutorily required 131
or permissive program for the provision of immunizations or other 132
inoculations to all or some members of the public, provided that 133
a "governmental function" does not include the supply, 134
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manufacture, distribution, or development of any drug or vaccine 135
employed in any such immunization or inoculation program by any 136
supplier, manufacturer, distributor, or developer of the drug or 137
vaccine; 138
(o) The operation of mental health facilities, mental 140
retardation or developmental disabilities facilities, alcohol 141
treatment and control centers, and children's homes or agencies; 142
(p) The provision or nonprovision of inspection services 144
of all types, including, but not limited to, inspections in 145
connection with building, zoning, sanitation, fire, plumbing, and 146
electrical codes, and the taking of actions in connection with 147
those types of codes, including, but not limited to, the approval 148
of plans for the construction of buildings or structures and the 149
issuance or revocation of building permits or stop work orders in 150
connection with buildings or structures; 151
(q) Urban renewal projects and the elimination of slum 153
conditions; 154
(r) Flood control measures; 156
(s) The design, construction, reconstruction, renovation, 158
operation, care, repair, and maintenance of a township cemetery; 159
(t) The issuance of revenue obligations under section 161
140.06 of the Revised Code; 162
(u) The design, construction, reconstruction, renovation, 164
repair, maintenance, and operation of any park, playground, 165
playfield, indoor recreational facility, zoo, zoological park, 166
bath, or swimming pool or, pond, and the operation and control of 168
any WATER PARK, WADING POOL, WAVE POOL, WATER SLIDE, AND OTHER 169
TYPE OF AQUATIC FACILITY, OR golf course; 170
(v) The provision of public defender services by a county 172
or joint county public defender's office pursuant to Chapter 120. 173
of the Revised Code; 174
(w) A function that the general assembly mandates a 176
political subdivision to perform. 177
(D) "Law" means any provision of the constitution, 179
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statutes, or rules of the United States or of this state; 180
provisions of charters, ordinances, resolutions, and rules of 181
political subdivisions; and written policies adopted by boards of 182
education. When used in connection with the "common law," this 183
definition does not apply. 184
(E) "Motor vehicle" has the same meaning as in section 186
4511.01 of the Revised Code. 187
(F) "Political subdivision" or "subdivision" means a 189
municipal corporation, township, county, school district, or 190
other body corporate and politic responsible for governmental 191
activities in a geographic area smaller than that of the state. 192
"Political subdivision" includes, but is not limited to, a county 193
hospital commission appointed under section 339.14 of the Revised 194
Code, regional planning commission created pursuant to section 195
713.21 of the Revised Code, county planning commission created 196
pursuant to section 713.22 of the Revised Code, joint planning 197
council created pursuant to section 713.231 of the Revised Code, 198
interstate regional planning commission created pursuant to 199
section 713.30 of the Revised Code, port authority created 200
pursuant to section 4582.02 or 4582.26 of the Revised Code or in 201
existence on December 16, 1964, regional council established by 202
political subdivisions pursuant to Chapter 167. of the Revised 203
Code, emergency planning district and joint emergency planning 204
district designated under section 3750.03 of the Revised Code, 205
joint emergency medical services district created pursuant to 206
section 307.052 of the Revised Code, a fire and ambulance 207
district created pursuant to section 505.375 of the Revised Code, 209
joint interstate emergency planning district established by an 211
agreement entered into under that section, county solid waste
management district and joint solid waste management district 212
established under section 343.01 or 343.012 of the Revised Code, 213
and a community school established under Chapter 3314. of the 214
Revised Code.
(G)(1) "Proprietary function" means a function of a 216
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political subdivision that is specified in division (G)(2) of 217
this section or that satisfies both of the following: 218
(a) The function is not one described in division 220
(C)(1)(a) or (b) of this section and is not one specified in 221
division (C)(2) of this section; 222
(b) The function is one that promotes or preserves the 224
public peace, health, safety, or welfare and that involves 225
activities that are customarily engaged in by nongovernmental 226
persons. 227
(2) A "proprietary function" includes, but is not limited 229
to, the following: 230
(a) The operation of a hospital by one or more political 232
subdivisions; 233
(b) The design, construction, reconstruction, renovation, 235
repair, maintenance, and operation of a public cemetery other 236
than a township cemetery; 237
(c) The establishment, maintenance, and operation of a 239
utility, including, but not limited to, a light, gas, power, or 240
heat plant, a railroad, a busline or other transit company, an 241
airport, and a municipal corporation water supply system; 242
(d) The maintenance, destruction, operation, and upkeep of 244
a sewer system; 245
(e) The operation and control of a public stadium, 247
auditorium, civic or social center, exhibition hall, arts and 248
crafts center, band or orchestra, or off-street parking facility. 249
(H) "Public roads" means public roads, highways, streets, 251
avenues, alleys, and bridges within a political subdivision. 252
"Public roads" does not include berms, shoulders, rights-of-way, 253
or traffic control devices, unless the traffic control devices 256
are mandated by the Ohio manual of uniform traffic control 257
devices.
(I) "State" means the state of Ohio, including, but not 259
limited to, the general assembly, the supreme court, the offices 260
of all elected state officers, and all departments, boards, 261
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offices, commissions, agencies, colleges and universities, 262
institutions, and other instrumentalities of the state of Ohio. 263
"State" does not include political subdivisions. 264
Section 2. That existing section 2744.01 of the Revised 266
Code is hereby repealed. 267
Section 3. It is the intent of the General Assembly in 269
amending division (C)(2)(u) of section 2744.01 of the Revised 270
Code in this act, in part, to supersede the effect of the holding 271
of Garrett v. Sandusky, (1994) 68 Ohio St. 3d 139, that a wave 272
pool is not a "swimming pool" within governmental functions for 273
which a city enjoys tort immunity.