As Passed by the House 1
123rd General Assembly 4
Regular Session H. B. No. 205 5
1999-2000 6
REPRESENTATIVES CORBIN-SALERNO-CALLENDER-WILLAMOWSKI-MEAD- 8
TIBERI-AUSTRIA-DePIERO-CORE 9
_________________________________________________________________ 10
A B I L L
To amend section 2744.01 of the Revised Code to 12
amend the definition of "governmental function" 13
in the political subdivision tort immunity law to
include the operation of all types of aquatic 14
facilities.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 16
Section 1. That section 2744.01 of the Revised Code be 18
amended to read as follows: 19
Sec. 2744.01. As used in this chapter: 28
(A) "Emergency call" means a call to duty, including, but 30
not limited to, communications from citizens, police dispatches, 31
and personal observations by peace officers of inherently 32
dangerous situations that demand an immediate response on the 33
part of a peace officer. 34
(B) "Employee" means an officer, agent, employee, or 36
servant, whether or not compensated or full-time or part-time, 37
who is authorized to act and is acting within the scope of the 39
officer's, agent's, employee's, or servant's employment for a 40
political subdivision. "Employee" does not include an 41
independent contractor and does not include any individual 42
engaged by a school district pursuant to section 3319.301 of the 43
Revised Code. "Employee" includes any elected or appointed 44
official of a political subdivision. "Employee" also includes a 45
person who has been convicted of or pleaded guilty to a criminal 46
offense and who has been sentenced to perform community service 47
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work in a political subdivision whether pursuant to section 48
2951.02 of the Revised Code or otherwise, and a child who is 49
found to be a delinquent child and who is ordered by a juvenile 50
court pursuant to section 2151.355 of the Revised Code to perform 51
community service or community work in a political subdivision. 52
(C)(1) "Governmental function" means a function of a 54
political subdivision that is specified in division (C)(2) of 55
this section or that satisfies any of the following: 56
(a) A function that is imposed upon the state as an 58
obligation of sovereignty and that is performed by a political 59
subdivision voluntarily or pursuant to legislative requirement; 60
(b) A function that is for the common good of all citizens 62
of the state; 63
(c) A function that promotes or preserves the public 65
peace, health, safety, or welfare; that involves activities that 66
are not engaged in or not customarily engaged in by 67
nongovernmental persons; and that is not specified in division 68
(G)(2) of this section as a proprietary function. 69
(2) A "governmental function" includes, but is not limited 71
to, the following: 72
(a) The provision or nonprovision of police, fire, 74
emergency medical, ambulance, and rescue services or protection; 75
(b) The power to preserve the peace; to prevent and 77
suppress riots, disturbances, and disorderly assemblages; to 78
prevent, mitigate, and clean up releases of oil and hazardous and 79
extremely hazardous substances as defined in section 3750.01 of 80
the Revised Code; and to protect persons and property; 81
(c) The provision of a system of public education; 83
(d) The provision of a free public library system; 85
(e) The regulation of the use of, and the maintenance and 87
repair of, roads, highways, streets, avenues, alleys, sidewalks, 88
bridges, aqueducts, viaducts, and public grounds; 89
(f) Judicial, quasi-judicial, prosecutorial, legislative, 91
and quasi-legislative functions; 92
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(g) The construction, reconstruction, repair, renovation, 94
maintenance, and operation of buildings that are used in 95
connection with the performance of a governmental function, 96
including, but not limited to, office buildings and courthouses; 97
(h) The design, construction, reconstruction, renovation, 99
repair, maintenance, and operation of jails, places of juvenile 100
detention, workhouses, or any other detention facility, as 101
defined in section 2921.01 of the Revised Code; 102
(i) The enforcement or nonperformance of any law; 104
(j) The regulation of traffic, and the erection or 106
nonerection of traffic signs, signals, or control devices; 107
(k) The collection and disposal of solid wastes, as 109
defined in section 3734.01 of the Revised Code, including, but 110
not limited to, the operation of solid waste disposal facilities, 111
as "facilities" is defined in that section, and the collection 112
and management of hazardous waste generated by households. As 113
used in division (C)(2)(k) of this section, "hazardous waste 114
generated by households" means solid waste originally generated 115
by individual households that is listed specifically as hazardous 116
waste in or exhibits one or more characteristics of hazardous 117
waste as defined by rules adopted under section 3734.12 of the 118
Revised Code, but that is excluded from regulation as a hazardous 119
waste by those rules. 120
(l) The provision or nonprovision, planning or design, 122
construction, or reconstruction of a public improvement, 123
including, but not limited to, a sewer system; 124
(m) The operation of a human services department or 126
agency, including, but not limited to, the provision of 127
assistance to aged and infirm persons and to persons who are 128
indigent; 129
(n) The operation of a health board, department, or 131
agency, including, but not limited to, any statutorily required 132
or permissive program for the provision of immunizations or other 133
inoculations to all or some members of the public, provided that 134
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a "governmental function" does not include the supply, 135
manufacture, distribution, or development of any drug or vaccine 136
employed in any such immunization or inoculation program by any 137
supplier, manufacturer, distributor, or developer of the drug or 138
vaccine; 139
(o) The operation of mental health facilities, mental 141
retardation or developmental disabilities facilities, alcohol 142
treatment and control centers, and children's homes or agencies; 143
(p) The provision or nonprovision of inspection services 145
of all types, including, but not limited to, inspections in 146
connection with building, zoning, sanitation, fire, plumbing, and 147
electrical codes, and the taking of actions in connection with 148
those types of codes, including, but not limited to, the approval 149
of plans for the construction of buildings or structures and the 150
issuance or revocation of building permits or stop work orders in 151
connection with buildings or structures; 152
(q) Urban renewal projects and the elimination of slum 154
conditions; 155
(r) Flood control measures; 157
(s) The design, construction, reconstruction, renovation, 159
operation, care, repair, and maintenance of a township cemetery; 160
(t) The issuance of revenue obligations under section 162
140.06 of the Revised Code; 163
(u) The design, construction, reconstruction, renovation, 165
repair, maintenance, and operation of any park, playground, 166
playfield, indoor recreational facility, zoo, zoological park, 167
bath, or swimming pool or, pond, and the operation and control of 169
any WATER PARK, WADING POOL, WAVE POOL, WATER SLIDE, AND OTHER 170
TYPE OF AQUATIC FACILITY, OR golf course; 171
(v) The provision of public defender services by a county 173
or joint county public defender's office pursuant to Chapter 120. 174
of the Revised Code; 175
(w) A function that the general assembly mandates a 177
political subdivision to perform. 178
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(D) "Law" means any provision of the constitution, 180
statutes, or rules of the United States or of this state; 181
provisions of charters, ordinances, resolutions, and rules of 182
political subdivisions; and written policies adopted by boards of 183
education. When used in connection with the "common law," this 184
definition does not apply. 185
(E) "Motor vehicle" has the same meaning as in section 187
4511.01 of the Revised Code. 188
(F) "Political subdivision" or "subdivision" means a 190
municipal corporation, township, county, school district, or 191
other body corporate and politic responsible for governmental 192
activities in a geographic area smaller than that of the state. 193
"Political subdivision" includes, but is not limited to, a county 194
hospital commission appointed under section 339.14 of the Revised 195
Code, regional planning commission created pursuant to section 196
713.21 of the Revised Code, county planning commission created 197
pursuant to section 713.22 of the Revised Code, joint planning 198
council created pursuant to section 713.231 of the Revised Code, 199
interstate regional planning commission created pursuant to 200
section 713.30 of the Revised Code, port authority created 201
pursuant to section 4582.02 or 4582.26 of the Revised Code or in 202
existence on December 16, 1964, regional council established by 203
political subdivisions pursuant to Chapter 167. of the Revised 204
Code, emergency planning district and joint emergency planning 205
district designated under section 3750.03 of the Revised Code, 206
joint emergency medical services district created pursuant to 207
section 307.052 of the Revised Code, a fire and ambulance 208
district created pursuant to section 505.375 of the Revised Code, 210
joint interstate emergency planning district established by an 212
agreement entered into under that section, county solid waste
management district and joint solid waste management district 213
established under section 343.01 or 343.012 of the Revised Code, 214
and a community school established under Chapter 3314. of the 215
Revised Code.
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(G)(1) "Proprietary function" means a function of a 217
political subdivision that is specified in division (G)(2) of 218
this section or that satisfies both of the following: 219
(a) The function is not one described in division 221
(C)(1)(a) or (b) of this section and is not one specified in 222
division (C)(2) of this section; 223
(b) The function is one that promotes or preserves the 225
public peace, health, safety, or welfare and that involves 226
activities that are customarily engaged in by nongovernmental 227
persons. 228
(2) A "proprietary function" includes, but is not limited 230
to, the following: 231
(a) The operation of a hospital by one or more political 233
subdivisions; 234
(b) The design, construction, reconstruction, renovation, 236
repair, maintenance, and operation of a public cemetery other 237
than a township cemetery; 238
(c) The establishment, maintenance, and operation of a 240
utility, including, but not limited to, a light, gas, power, or 241
heat plant, a railroad, a busline or other transit company, an 242
airport, and a municipal corporation water supply system; 243
(d) The maintenance, destruction, operation, and upkeep of 245
a sewer system; 246
(e) The operation and control of a public stadium, 248
auditorium, civic or social center, exhibition hall, arts and 249
crafts center, band or orchestra, or off-street parking facility. 250
(H) "Public roads" means public roads, highways, streets, 252
avenues, alleys, and bridges within a political subdivision. 253
"Public roads" does not include berms, shoulders, rights-of-way, 254
or traffic control devices, unless the traffic control devices 257
are mandated by the Ohio manual of uniform traffic control 258
devices.
(I) "State" means the state of Ohio, including, but not 260
limited to, the general assembly, the supreme court, the offices 261
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of all elected state officers, and all departments, boards, 262
offices, commissions, agencies, colleges and universities, 263
institutions, and other instrumentalities of the state of Ohio. 264
"State" does not include political subdivisions. 265
Section 2. That existing section 2744.01 of the Revised 267
Code is hereby repealed. 268
Section 3. It is the intent of the General Assembly in 270
amending division (C)(2)(u) of section 2744.01 of the Revised 271
Code in this act, in part, to supersede the effect of the holding 272
of Garrett v. Sandusky, (1994) 68 Ohio St. 3d 139, that a wave 273
pool is not a "swimming pool" within governmental functions for 274
which a city enjoys tort immunity.