Conley v. Wapakoneta City Sch. Dist. Bd. of Educ.

Decision Date22 August 2022
Docket Number2-21-18
Citation195 N.E.3d 1061
Parties Trey R. CONLEY, Plaintiff-Appellant, v. WAPAKONETA CITY SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants-Appellees.
CourtOhio Court of Appeals

195 N.E.3d 1061

Trey R. CONLEY, Plaintiff-Appellant,
v.
WAPAKONETA CITY SCHOOL DISTRICT BOARD OF EDUCATION, et al., Defendants-Appellees.

NO. 2-21-18

Court of Appeals of Ohio, Third District, Auglaize County.

Date of Decision: August 22, 2022


Clay W. Balyeat, Aaron L. Bensinger and Christopher A. Jackson, for Appellant

Michael J. Valentine and Keona R. Padgett, Columbus, for Appellees

MILLER, J.

195 N.E.3d 1065

{¶1} Plaintiff-appellant, Trey Conley, appeals the September 1, 2021 judgment of the Auglaize County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Wapakoneta City School District Board of Education ("Wapakoneta City School District") and Thomas Allison, on the grounds of sovereign immunity. On appeal, Conley contends that defendants-appellees were not entitled to sovereign immunity.

Background

{¶2} The case arises from an injury incurred during a March 28, 2016 baseball practice for the Wapakoneta City School District's eighth-grade boys’ baseball team. That day, the team, which included Conley, was scheduled to have its first baseball game of the season. However, due to rain, the game was cancelled and the team instead practiced at the Wapakoneta High School gymnasium.

{¶3} The team spent the beginning of practice in the batting cages located on the upper level of the gymnasium. Toward the end of the practice, Allison, a teacher at Wapakoneta City Schools and the coach of the baseball team, set up the lower gymnasium like a baseball field for a "team building activity." (Allison's Apr. 22, 2021 Depo. at 14). As part of the exercise, some members of the team assumed positions in the makeshift field, while other members of the team took turns batting.

{¶4} Allison provided the team with a "hit stick" which he found in the high school's equipment locker to use in the place of a bat and a tennis ball was used in the place of a baseball. (Id. at 18, 30); (Conley's Mar. 16, 2021 Depo. at 39). During the game, Conley was approximately 10 to 15 feet away from the home plate and waiting his turn to bat in the "on-deck circle." (Conley's Mar. 16, 2021 Depo. at 42). This area was down the third base line but not in the field of play. (Id. ); (Woodruff's Apr. 22, 2021 Tr. at 7). Allison was in the area behind home plate. (Allison's Apr. 22, 2021 Depo. at 16, 38). Jeven Woodruff, a fellow member of the baseball team, came up to bat. Woodruff swung the hit stick at the ball and the stick left his hand and hit Conley in the eye.

{¶5} While Allison applied first aid, he immediately delegated other members of the team to locate Conley's emergency contact information, attempt to locate the school's athletic trainer, and call for emergency medical services. (Id. at 17). Conley was taken to the hospital where a surgeon removed shards from his eye. Tragically, Conley's left eye was subsequently removed due to the nature and extent of the injuries.

{¶6} The hit stick was a thin, bat-like object with a handle and was used to practice swinging and making contact with the ball. (Id. at 32). The hit stick, which Allison recalled using as far back as 2005, was admittedly "worn." (Id. at 17-18, 20, 30). The handle was foam, but electrical tape was wrapped around the handle. (Id. at 19; Plaintiff's Ex. 4). Allison added some of the electrical tape to the handle the day prior to Conley's injury because the tape that was already covering part of the handle was starting to tear and expose the foam underneath, and Allison wanted to repair the rip before the damaged area increased.

195 N.E.3d 1066

(Id. at 19-20, 35). At the time, Allison did not "see any problem" with putting tape over the foam handle because he had added tape to other pieces of equipment before and had not had "any problems with that." (Id. at 20). Furthermore, the hit stick already had some tape on it. (Id. at 20, 35).

{¶7} At the time he applied the tape to the hit stick, Allison was not concerned that he was making the hit stick more slippery or covering the knob on the end of the stick where it is held by the batter. ( Id. ). He acknowledged that he "modified" the hit stick by adding the tape and conceded that the addition of the tape made the hit stick more dangerous. (Id. at 24). However, it was only with the benefit of hindsight that he came to believe the addition of the electrical tape made the hit stick more "slippery" or "dangerous." (Id. at 37-39). Prior to the incident, Allison had applied tape to other pieces of equipment, including the hit stick at issue here, and it "worked fine." (Id. at 36). Accordingly, Allison "did not give it a thought that [the electrical tape] may make it slippery." (Id. at 35-36). Moreover, Allison stated that he has observed an actual baseball bat with a knob and no electrical tape on it leave the hands of a batter in a baseball game or practice "numerous times." (Id. at 38).

{¶8} With respect to coaching, Allison stated his "number one concern" is the safety of his players and that he "definitely did not" want to see his players injured. (Id. at 37-39). With respect to the hit stick, Allison stated, "From my experience of using similar things, I felt it was safe then, and I thought it was safe now." (Id. at 40). However, Allison stated that he would not use the hit stick again because it caused Conley's injury and he would not want to take the chance of another player being injured. (Id. at 40-41).

{¶9} In addition to the newly added electrical tape, the hit stick was also missing the end cap. (Rex's Apr. 22, 2021 Depo. at 13, 18, Plaintiff's Ex. 5); (Allison's Apr. 22, 2021 Depo. at 24, 34-35). Allison did not recall the hit stick ever having end caps. (Allison's Apr. 22, 2021 Depo. at 34). Allison opined that, in hindsight, the hit stick might have been safer to use if there had been an end cap on it. (Id. at 34-35). However, he did not have that concern prior to Conley's injury. ( Id. ).

{¶10} On August 24, 2020, Conley filed a complaint for personal injuries against appellees. Conley filed an amended complaint on September 8, 2020 and a second-amended complaint on May 5, 2021. In his second amended complaint, Conley asserted that Wapakoneta City School District acted in a wanton and reckless manner and that the school district, through its employees, including Allison, was negligent for providing its student athletes with unsafe and defective equipment. Appellees timely filed answers to the complaints.

{¶11} On May 18, 2021, Wapakoneta City School District and Allison filed a motion for summary judgment asserting sovereign immunity. On July 13, 2021, Conley filed his response to appellees’ motion for summary judgment. Attached as an exhibit to his response was an expert opinion of Shawn Pender, the vice president of player development of the Cincinnati Reds. In his expert opinion, Pender stated that Allison's actions were "reckless" and that, as a result, Allison and the Wapakoneta School District should be liable for Conley's injuries. On August 10, 2021, Wapakoneta City School District and Allison filed their reply in support of their motion for summary judgment. On September 1, 2021, the trial court filed its judgment entry granting appellees’ motion for summary judgment on the grounds of sovereign immunity.

195 N.E.3d 1067

{¶12} Conley filed his notice of appeal on September 22, 2021. He raises two assignments of error for our review. For ease of discussion, we will address the assignments of error out of order.

Assignment of Error No. II

The Trial Court erred by disqualifying the Appellant's expert witness, when the statement and conclusion of the expert should have been considered as the Appellant is the party entitled to have the evidence or stipulation construed most strongly in his favor.

{¶13} In his second assignment of error, Conley argues that the trial court erred by excluding the expert testimony of Shawn Pender. Specifically, the trial court excluded the opinion on the grounds that Pender was not qualified as an expert witness on the relevant subject matter and that his expert opinion "falls short of the requirements of the Ohio Rules of Evidence and Civil Rule 56." (Doc. No. 83). While the Wapakoneta City School District and Allison were critical of the affidavit in their rebuttal to Conley's opposition to the motion for summary judgment, a specific objection to the admissibility of the affidavit was not filed. Nevertheless, "[w]here the opposing party fails to object to the admissibility of the evidence under Civ.R. 56, the court may, but is not required to consider such evidence when it determines whether summary judgment is appropriate." Sullinger v. Sullinger , 3d Dist. Hardin No. 6-20-06, 2020-Ohio-5225, 2020 WL 6554059, ¶ 27 (citations omitted).

{¶14} "The determination of the admissibility of expert testimony is within the discretion of the trial court." Valentine v. Conrad , 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9, citing Evid.R. 104(A). Such a determination will not be disturbed absent an abuse of discretion. Miller v. Bike Athletic Co. , 80 Ohio St.3d 607, 616, 687 N.E.2d 735 (1998). An abuse of discretion constitutes more than an error of judgment; rather, it implies that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶15} In excluding the Pender affidavit from consideration, the trial court found the "expert" to lack the qualifications necessary to render an opinion on the particular subject matter raised in the motion for summary judgment. Upon review of the record, we do not find that the trial court abused its discretion by excluding Pender's expert opinion.

{¶16} Pender's curriculum vitae indicates that he is employed as the vice president of player development for a major league baseball team and has various experience as a collegiate baseball coach and scout. However, his curriculum vitae is conspicuously devoid of experience coaching high school or middle school...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT