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As Passed by the Senate
123rd General Assembly
Regular Session
1999-2000 | H. B. No. 205 |
REPRESENTATIVES CORBIN-SALERNO-CALLENDER-WILLAMOWSKI-MEAD-
TIBERI-AUSTRIA-DePIERO-CORE-
SENATOR SLATTA-HORN
A BILL
To amend section 2744.01 of the Revised Code to amend the definition of
"governmental function" in the political subdivision tort immunity law to
include the operation of all types of aquatic facilities.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2744.01 of the Revised Code be amended to read as
follows:
Sec. 2744.01. As used in this chapter:
(A) "Emergency call" means a call to duty, including, but
not limited to, communications from citizens, police dispatches,
and personal observations by peace officers of inherently
dangerous situations that demand an immediate response on the
part of a peace officer.
(B) "Employee" means an officer, agent, employee, or
servant, whether or not compensated or full-time or part-time,
who is authorized to act and is acting within the scope of
the officer's, agent's, employee's, or servant's
employment for a political subdivision. "Employee" does not
include an independent contractor and does not include any
individual engaged by a school district pursuant to section
3319.301 of the Revised Code. "Employee" includes any elected or
appointed official of a political subdivision. "Employee" also
includes a person who has been convicted of or pleaded guilty to
a criminal offense and who has been sentenced to perform
community service work in a political subdivision whether
pursuant to section 2951.02 of the Revised Code or otherwise, and
a child who is found to be a delinquent child and who is ordered
by a juvenile court pursuant to section 2151.355 of the Revised
Code to perform community service or community work in a
political subdivision.
(C)(1) "Governmental function" means a function of a
political subdivision that is specified in division (C)(2) of
this section or that satisfies any of the following:
(a) A function that is imposed upon the state as an
obligation of sovereignty and that is performed by a political
subdivision voluntarily or pursuant to legislative requirement;
(b) A function that is for the common good of all citizens
of the state;
(c) A function that promotes or preserves the public
peace, health, safety, or welfare; that involves activities that
are not engaged in or not customarily engaged in by
nongovernmental persons; and that is not specified in division
(G)(2) of this section as a proprietary function.
(2) A "governmental function" includes, but is not limited
to, the following:
(a) The provision or nonprovision of police, fire,
emergency medical, ambulance, and rescue services or protection;
(b) The power to preserve the peace; to prevent and
suppress riots, disturbances, and disorderly assemblages; to
prevent, mitigate, and clean up releases of oil and hazardous and
extremely hazardous substances as defined in section 3750.01 of
the Revised Code; and to protect persons and property;
(c) The provision of a system of public education;
(d) The provision of a free public library system;
(e) The regulation of the use of, and the maintenance and
repair of, roads, highways, streets, avenues, alleys, sidewalks,
bridges, aqueducts, viaducts, and public grounds;
(f) Judicial, quasi-judicial, prosecutorial, legislative,
and quasi-legislative functions;
(g) The construction, reconstruction, repair, renovation,
maintenance, and operation of buildings that are used in
connection with the performance of a governmental function,
including, but not limited to, office buildings and courthouses;
(h) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of jails, places of juvenile
detention, workhouses, or any other detention facility, as
defined in section 2921.01 of the Revised Code;
(i) The enforcement or nonperformance of any law;
(j) The regulation of traffic, and the erection or
nonerection of traffic signs, signals, or control devices;
(k) The collection and disposal of solid wastes, as
defined in section 3734.01 of the Revised Code, including, but
not limited to, the operation of solid waste disposal facilities,
as "facilities" is defined in that section, and the collection
and management of hazardous waste generated by households. As
used in division (C)(2)(k) of this section, "hazardous waste
generated by households" means solid waste originally generated
by individual households that is listed specifically as hazardous
waste in or exhibits one or more characteristics of hazardous
waste as defined by rules adopted under section 3734.12 of the
Revised Code, but that is excluded from regulation as a hazardous
waste by those rules.
(l) The provision or nonprovision, planning or design,
construction, or reconstruction of a public improvement,
including, but not limited to, a sewer system;
(m) The operation of a human services department or
agency, including, but not limited to, the provision of
assistance to aged and infirm persons and to persons who are
indigent;
(n) The operation of a health board, department, or
agency, including, but not limited to, any statutorily required
or permissive program for the provision of immunizations or other
inoculations to all or some members of the public, provided that
a "governmental function" does not include the supply,
manufacture, distribution, or development of any drug or vaccine
employed in any such immunization or inoculation program by any
supplier, manufacturer, distributor, or developer of the drug or
vaccine;
(o) The operation of mental health facilities, mental
retardation or developmental disabilities facilities, alcohol
treatment and control centers, and children's homes or agencies;
(p) The provision or nonprovision of inspection services
of all types, including, but not limited to, inspections in
connection with building, zoning, sanitation, fire, plumbing, and
electrical codes, and the taking of actions in connection with
those types of codes, including, but not limited to, the approval
of plans for the construction of buildings or structures and the
issuance or revocation of building permits or stop work orders in
connection with buildings or structures;
(q) Urban renewal projects and the elimination of slum
conditions;
(r) Flood control measures;
(s) The design, construction, reconstruction, renovation,
operation, care, repair, and maintenance of a township cemetery;
(t) The issuance of revenue obligations under section
140.06 of the Revised Code;
(u) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of any park, playground,
playfield, indoor recreational facility, zoo, zoological park,
bath, or swimming pool or, pond, and the operation and
control of
any WATER PARK, WADING POOL, WAVE POOL, WATER SLIDE, AND OTHER TYPE OF
AQUATIC FACILITY, OR golf course;
(v) The provision of public defender services by a county
or joint county public defender's office pursuant to Chapter 120.
of the Revised Code;
(w) A function that the general assembly mandates a
political subdivision to perform.
(D) "Law" means any provision of the constitution,
statutes, or rules of the United States or of this state;
provisions of charters, ordinances, resolutions, and rules of
political subdivisions; and written policies adopted by boards of
education. When used in connection with the "common law," this
definition does not apply.
(E) "Motor vehicle" has the same meaning as in section
4511.01 of the Revised Code.
(F) "Political subdivision" or "subdivision" means a
municipal corporation, township, county, school district, or
other body corporate and politic responsible for governmental
activities in a geographic area smaller than that of the state.
"Political subdivision" includes, but is not limited to, a county
hospital commission appointed under section 339.14 of the Revised
Code, regional planning commission created pursuant to section
713.21 of the Revised Code, county planning commission created
pursuant to section 713.22 of the Revised Code, joint planning
council created pursuant to section 713.231 of the Revised Code,
interstate regional planning commission created pursuant to
section 713.30 of the Revised Code, port authority created
pursuant to section 4582.02 or 4582.26 of the Revised Code or in
existence on December 16, 1964, regional council established by
political subdivisions pursuant to Chapter 167. of the Revised
Code, emergency planning district and joint emergency planning
district designated under section 3750.03 of the Revised Code,
joint emergency medical services district created pursuant to section 307.052
of the Revised Code, a fire and ambulance district created pursuant to
section
505.375 of the Revised Code, joint interstate emergency planning district
established
by an agreement entered into under that section, county solid waste
management district and joint solid waste management district
established under section 343.01 or 343.012 of the Revised Code, and
a community school established under Chapter 3314. of the Revised Code.
(G)(1) "Proprietary function" means a function of a
political subdivision that is specified in division (G)(2) of
this section or that satisfies both of the following:
(a) The function is not one described in division
(C)(1)(a) or (b) of this section and is not one specified in
division (C)(2) of this section;
(b) The function is one that promotes or preserves the
public peace, health, safety, or welfare and that involves
activities that are customarily engaged in by nongovernmental
persons.
(2) A "proprietary function" includes, but is not limited
to, the following:
(a) The operation of a hospital by one or more political
subdivisions;
(b) The design, construction, reconstruction, renovation,
repair, maintenance, and operation of a public cemetery other
than a township cemetery;
(c) The establishment, maintenance, and operation of a
utility, including, but not limited to, a light, gas, power, or
heat plant, a railroad, a busline or other transit company, an
airport, and a municipal corporation water supply system;
(d) The maintenance, destruction, operation, and upkeep of
a sewer system;
(e) The operation and control of a public stadium,
auditorium, civic or social center, exhibition hall, arts and
crafts center, band or orchestra, or off-street parking facility.
(H) "Public roads" means public roads, highways, streets,
avenues, alleys, and bridges within a political subdivision. "Public roads"
does not include berms, shoulders, rights-of-way, or traffic control
devices,
unless the
traffic control devices are mandated by the Ohio manual of uniform
traffic control devices.
(I) "State" means the state of Ohio, including, but not
limited to, the general assembly, the supreme court, the offices
of all elected state officers, and all departments, boards,
offices, commissions, agencies, colleges and universities,
institutions, and other instrumentalities of the state of Ohio. "State" does
not include political subdivisions.
Section 2. That existing section 2744.01 of the Revised Code is hereby
repealed.
Section 3. It is the intent of the General Assembly in amending
division (C)(2)(u) of section 2744.01 of the Revised Code in this
act, in part, to supersede the effect of the holding of Garrett v.
Sandusky, (1994) 68 Ohio St. 3d 139, that a wave pool is not a "swimming
pool" within governmental functions for which a city enjoys tort immunity.
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