As Passed by the Senate 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-SENATORS LATTA-HORN 9
_________________________________________________________________ 11
A B I L L
To amend section 2744.01 of the Revised Code to 13
amend the definition of "governmental function" 14
in the political subdivision tort immunity law to
include the operation of all types of aquatic 15
facilities.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 17
Section 1. That section 2744.01 of the Revised Code be 19
amended to read as follows: 20
Sec. 2744.01. As used in this chapter: 29
(A) "Emergency call" means a call to duty, including, but 31
not limited to, communications from citizens, police dispatches, 32
and personal observations by peace officers of inherently 33
dangerous situations that demand an immediate response on the 34
part of a peace officer. 35
(B) "Employee" means an officer, agent, employee, or 37
servant, whether or not compensated or full-time or part-time, 38
who is authorized to act and is acting within the scope of the 40
officer's, agent's, employee's, or servant's employment for a 41
political subdivision. "Employee" does not include an 42
independent contractor and does not include any individual 43
engaged by a school district pursuant to section 3319.301 of the 44
Revised Code. "Employee" includes any elected or appointed 45
official of a political subdivision. "Employee" also includes a 46
person who has been convicted of or pleaded guilty to a criminal 47
offense and who has been sentenced to perform community service 48
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work in a political subdivision whether pursuant to section 49
2951.02 of the Revised Code or otherwise, and a child who is 50
found to be a delinquent child and who is ordered by a juvenile 51
court pursuant to section 2151.355 of the Revised Code to perform 52
community service or community work in a political subdivision. 53
(C)(1) "Governmental function" means a function of a 55
political subdivision that is specified in division (C)(2) of 56
this section or that satisfies any of the following: 57
(a) A function that is imposed upon the state as an 59
obligation of sovereignty and that is performed by a political 60
subdivision voluntarily or pursuant to legislative requirement; 61
(b) A function that is for the common good of all citizens 63
of the state; 64
(c) A function that promotes or preserves the public 66
peace, health, safety, or welfare; that involves activities that 67
are not engaged in or not customarily engaged in by 68
nongovernmental persons; and that is not specified in division 69
(G)(2) of this section as a proprietary function. 70
(2) A "governmental function" includes, but is not limited 72
to, the following: 73
(a) The provision or nonprovision of police, fire, 75
emergency medical, ambulance, and rescue services or protection; 76
(b) The power to preserve the peace; to prevent and 78
suppress riots, disturbances, and disorderly assemblages; to 79
prevent, mitigate, and clean up releases of oil and hazardous and 80
extremely hazardous substances as defined in section 3750.01 of 81
the Revised Code; and to protect persons and property; 82
(c) The provision of a system of public education; 84
(d) The provision of a free public library system; 86
(e) The regulation of the use of, and the maintenance and 88
repair of, roads, highways, streets, avenues, alleys, sidewalks, 89
bridges, aqueducts, viaducts, and public grounds; 90
(f) Judicial, quasi-judicial, prosecutorial, legislative, 92
and quasi-legislative functions; 93
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(g) The construction, reconstruction, repair, renovation, 95
maintenance, and operation of buildings that are used in 96
connection with the performance of a governmental function, 97
including, but not limited to, office buildings and courthouses; 98
(h) The design, construction, reconstruction, renovation, 100
repair, maintenance, and operation of jails, places of juvenile 101
detention, workhouses, or any other detention facility, as 102
defined in section 2921.01 of the Revised Code; 103
(i) The enforcement or nonperformance of any law; 105
(j) The regulation of traffic, and the erection or 107
nonerection of traffic signs, signals, or control devices; 108
(k) The collection and disposal of solid wastes, as 110
defined in section 3734.01 of the Revised Code, including, but 111
not limited to, the operation of solid waste disposal facilities, 112
as "facilities" is defined in that section, and the collection 113
and management of hazardous waste generated by households. As 114
used in division (C)(2)(k) of this section, "hazardous waste 115
generated by households" means solid waste originally generated 116
by individual households that is listed specifically as hazardous 117
waste in or exhibits one or more characteristics of hazardous 118
waste as defined by rules adopted under section 3734.12 of the 119
Revised Code, but that is excluded from regulation as a hazardous 120
waste by those rules. 121
(l) The provision or nonprovision, planning or design, 123
construction, or reconstruction of a public improvement, 124
including, but not limited to, a sewer system; 125
(m) The operation of a human services department or 127
agency, including, but not limited to, the provision of 128
assistance to aged and infirm persons and to persons who are 129
indigent; 130
(n) The operation of a health board, department, or 132
agency, including, but not limited to, any statutorily required 133
or permissive program for the provision of immunizations or other 134
inoculations to all or some members of the public, provided that 135
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a "governmental function" does not include the supply, 136
manufacture, distribution, or development of any drug or vaccine 137
employed in any such immunization or inoculation program by any 138
supplier, manufacturer, distributor, or developer of the drug or 139
vaccine; 140
(o) The operation of mental health facilities, mental 142
retardation or developmental disabilities facilities, alcohol 143
treatment and control centers, and children's homes or agencies; 144
(p) The provision or nonprovision of inspection services 146
of all types, including, but not limited to, inspections in 147
connection with building, zoning, sanitation, fire, plumbing, and 148
electrical codes, and the taking of actions in connection with 149
those types of codes, including, but not limited to, the approval 150
of plans for the construction of buildings or structures and the 151
issuance or revocation of building permits or stop work orders in 152
connection with buildings or structures; 153
(q) Urban renewal projects and the elimination of slum 155
conditions; 156
(r) Flood control measures; 158
(s) The design, construction, reconstruction, renovation, 160
operation, care, repair, and maintenance of a township cemetery; 161
(t) The issuance of revenue obligations under section 163
140.06 of the Revised Code; 164
(u) The design, construction, reconstruction, renovation, 166
repair, maintenance, and operation of any park, playground, 167
playfield, indoor recreational facility, zoo, zoological park, 168
bath, or swimming pool or, pond, and the operation and control of 170
any WATER PARK, WADING POOL, WAVE POOL, WATER SLIDE, AND OTHER 171
TYPE OF AQUATIC FACILITY, OR golf course; 172
(v) The provision of public defender services by a county 174
or joint county public defender's office pursuant to Chapter 120. 175
of the Revised Code; 176
(w) A function that the general assembly mandates a 178
political subdivision to perform. 179
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(D) "Law" means any provision of the constitution, 181
statutes, or rules of the United States or of this state; 182
provisions of charters, ordinances, resolutions, and rules of 183
political subdivisions; and written policies adopted by boards of 184
education. When used in connection with the "common law," this 185
definition does not apply. 186
(E) "Motor vehicle" has the same meaning as in section 188
4511.01 of the Revised Code. 189
(F) "Political subdivision" or "subdivision" means a 191
municipal corporation, township, county, school district, or 192
other body corporate and politic responsible for governmental 193
activities in a geographic area smaller than that of the state. 194
"Political subdivision" includes, but is not limited to, a county 195
hospital commission appointed under section 339.14 of the Revised 196
Code, regional planning commission created pursuant to section 197
713.21 of the Revised Code, county planning commission created 198
pursuant to section 713.22 of the Revised Code, joint planning 199
council created pursuant to section 713.231 of the Revised Code, 200
interstate regional planning commission created pursuant to 201
section 713.30 of the Revised Code, port authority created 202
pursuant to section 4582.02 or 4582.26 of the Revised Code or in 203
existence on December 16, 1964, regional council established by 204
political subdivisions pursuant to Chapter 167. of the Revised 205
Code, emergency planning district and joint emergency planning 206
district designated under section 3750.03 of the Revised Code, 207
joint emergency medical services district created pursuant to 208
section 307.052 of the Revised Code, a fire and ambulance 209
district created pursuant to section 505.375 of the Revised Code, 211
joint interstate emergency planning district established by an 213
agreement entered into under that section, county solid waste
management district and joint solid waste management district 214
established under section 343.01 or 343.012 of the Revised Code, 215
and a community school established under Chapter 3314. of the 216
Revised Code.
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(G)(1) "Proprietary function" means a function of a 218
political subdivision that is specified in division (G)(2) of 219
this section or that satisfies both of the following: 220
(a) The function is not one described in division 222
(C)(1)(a) or (b) of this section and is not one specified in 223
division (C)(2) of this section; 224
(b) The function is one that promotes or preserves the 226
public peace, health, safety, or welfare and that involves 227
activities that are customarily engaged in by nongovernmental 228
persons. 229
(2) A "proprietary function" includes, but is not limited 231
to, the following: 232
(a) The operation of a hospital by one or more political 234
subdivisions; 235
(b) The design, construction, reconstruction, renovation, 237
repair, maintenance, and operation of a public cemetery other 238
than a township cemetery; 239
(c) The establishment, maintenance, and operation of a 241
utility, including, but not limited to, a light, gas, power, or 242
heat plant, a railroad, a busline or other transit company, an 243
airport, and a municipal corporation water supply system; 244
(d) The maintenance, destruction, operation, and upkeep of 246
a sewer system; 247
(e) The operation and control of a public stadium, 249
auditorium, civic or social center, exhibition hall, arts and 250
crafts center, band or orchestra, or off-street parking facility. 251
(H) "Public roads" means public roads, highways, streets, 253
avenues, alleys, and bridges within a political subdivision. 254
"Public roads" does not include berms, shoulders, rights-of-way, 255
or traffic control devices, unless the traffic control devices 258
are mandated by the Ohio manual of uniform traffic control 259
devices.
(I) "State" means the state of Ohio, including, but not 261
limited to, the general assembly, the supreme court, the offices 262
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of all elected state officers, and all departments, boards, 263
offices, commissions, agencies, colleges and universities, 264
institutions, and other instrumentalities of the state of Ohio. 265
"State" does not include political subdivisions. 266
Section 2. That existing section 2744.01 of the Revised 268
Code is hereby repealed. 269
Section 3. It is the intent of the General Assembly in 271
amending division (C)(2)(u) of section 2744.01 of the Revised 272
Code in this act, in part, to supersede the effect of the holding 273
of Garrett v. Sandusky, (1994) 68 Ohio St. 3d 139, that a wave 274
pool is not a "swimming pool" within governmental functions for 275
which a city enjoys tort immunity.