Bradley J. Hall v. Board of Education, Fort Frye Local School District, 96-LW-1749
| Decision Date | 14 June 1996 |
| Docket Number | 95CA16,96-LW-1749 |
| Parties | Bradley J. Hall, Plaintiff-Appellant, v. Board of Education, Fort Frye Local School District, Defendant-Appellee. Case |
| Court | Ohio Court of Appeals |
Handelman & Kilroy, Robert K. Handelman, Columbus, Ohio, and Barkan + Neff, Sanford A. Meizlish, Columbus, Ohio, for Appellant.
Theisen Brock, Frye, Erb & Leeper, John E. Erb, Marietta, Ohio, for Appellee.
DECISION
Bradley J. Hall appeals from a judgment of the Washington County Court of Common Pleas granting summary judgment for the Board of Education, Fort Frye Local School District. Appellant asserts three errors for review:
This case arises out of an injury appellant received while practicing as a member of the Fort Frye High School football team. On September 30, 1987, appellant damaged his right knee when he stepped on an exposed sprinkler head on the high school's practice football field. Appellee school district maintained two football fields for its student athletic programs, a stadium used for games and the practice field located adjacent to the stadium. Both fields utilized a below ground irrigation system. The irrigation system included brass sprinkler heads, approximately three inches in circumference, which were placed at various intervals throughout the field. The sprinkler heads on the practice field varied in depth; some were recessed three to four inches below the surface, some were one to two inches below the surface and others were flush with the playing field.
The school used the irrigation system throughout the summer until football practice began in August. In some instances, school personnel would cover the sprinkler heads with sand or dirt after they ceased using them in August. As football practices continued, however, sprinkler heads became exposed on the practice field. Rain would also cause the sand or dirt to erode, further exposing the sprinkler heads and leaving a depressed area around them.
Prior to appellant's injury, members of the schoolls athletic department warned appellee about potential dangers to the student athletes posed by exposed sprinkler heads on the practice field. Despite these warnings, appellee did not place covers on top of the sprinkler heads and decided not to replace the entire irrigation system.
After suffering his injury, appellant filed a two count complaint against the school board. The first count alleged that appellant's injury was caused when he caught his foot in a depression which resulted from improper maintenance of the sprinkler system. The second count alleged that the schoolls failure to correct, remedy or repair the latent dangerous condition of the sprinkler head attachments constituted wanton or willful misconduct. The school answered by asserting, inter alia, the affirmative defense of political subdivision immunity pursuant to R.C. Chapter 2744.
Appellee later filed a motion for summary judgment on the ground that it was immune from tort liability pursuant to the provisions of R.C. 2744.03(A)(5). That is, appellee contended that the manner in which it maintained and used the football practice field involved a high degree of discretion and judgment regarding the use or non-use of its equipment, supplies, facilities and other resources. Appellant countered that the school's judgment and discretion regarding the maintenance of the practice field was exercised in a wanton or reckless manner thus imposing liability consistent with the express exception to R.C. 2744.03(A)(5). Finally, appellee argued in its reply memorandum that it was also entitled to immunity pursuant to the provisions of R.C. 2744.03(A)(3) because the schoolls decision not to replace or renovate the irrigation system was part of the schoolls overall discretionary policy-making and budgeting process.
The trial court's decision found that appellee was entitled to complete immunity pursuant to R.C. 2744.03(A)(5). However, the trial court's judgment entry states that appellee is entitled to immunity pursuant to "Ohio Revised Code Chapter 2744.11 Therefore, appellee urges this court to affirm the trial court's judgment if we find that appellee is entitled to immunity under either section. See Joyce v. General Motors Corp. (1990), 49 Ohio St.3d 93, 96; Redd v. Springfield Twp. School Dist. (1993), 91 Ohio App.3d 88, 91, fn. 1.
The Supreme Court of Ohio has recognized that the availability statutory immunity raises a purely legal issue which is properly determined by a court prior to trial. Nease v. Medical College Hosp. (1992), 64 Ohio St.3d 396, 400. On the other hand, once an immunity defense is deemed available as a matter of law, its applicability to the actions of the parties becomes fact specific, e.g., the negligence and recklessness issues in this case.
In reviewing a lower court's decision granting a motion for summary judgment, appellate courts must follow the standard contained in Civ.R. 56(C) which provides as follows:
Summary judgment shall be rendered forthwith if the [evidence], timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. *** A summary judgment shall not be rendered unless it appears from such evidence *** and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence construed most strongly in his favor.
An appellate court must independently review the record to determine if summary ]udgment was appropriate. Therefore, an appellate court affords no deference to the trial court's decision while making its own judgment. Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411-412.
Generally, the party asserting immunity as an affirmative defense has the burden of proving that defense by a preponderance of the evidence at trial. Giles v. Village of Savannah (Mar. 26, 1993), Ashland App. No. CA-1034, unreported. In the context of summary judgment, a party raising an immunity defense must present evidence tending to prove the underlying facts upon which the defense is based. Evans v. Southern Ohio Med. Ctr. (1995), 103 Ohio App.3d 250, [255]. See, also, Vance v. Jefferson Area Local School Dist. Bd. of Edn. (Nov. 9, 1995), Ashtabula App. No. 94-A-0041, unreported. The plaintiff, as the nonmoving party, must then present evidence showing the existence of a genuine issue as to these material facts. id.
We will first address the arguments raised in appellant's third assignment of error. Appellant contends that appellee's maintenance of the high school practice football field does not require the exercise of such judgment or discretion as intended by R.C. Chapter 2744, thus, appellee is subject to liability for mere negligence. For the reasons that follow, we agree.
The trial court granted appellee's motion for summary judgment after finding that appellee was entitled to political subdivision immunity. The extent of a political subdivision's tort liability is determined by R.C. Chapter 2744. In general, the statutory scheme sets up a general grant of immunity, R.C. 2744.02(A), with enumerated exceptions which gives rise to liability under R.C. 2744.02(B). In a suit alleging liability under these exceptions, the political subdivision may assert defenses and immunities outlined in R.C. 2744.03.
R.C. 2744.02(A)(1) states that:
except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental *** function. (Emphasis added.)
R.C. 2744.01(F) includes school districts within the definition of a "political subdivision." The definition of "governmental function" includes the design, construction, reconstruction, renovation, repair, maintenance and operation of a playfield. R.C. 2744.01(C)(2)(u). Therefore, appellee school board's maintenance of the high school practice football field constitutes the performance of a governmental function by a political subdivision.fn
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