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           

                                                          2      


                                                                 
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           

                                                          3      


                                                                 
      (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          

                                                          4      


                                                                 
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          

                                                          5      


                                                                 
      (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.                                                                   

                                                          6      


                                                                 
      (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          

                                                          7      


                                                                 
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.