Hall v. Columbus Bd. of Ed.
| Decision Date | 02 May 1972 |
| Citation | 290 N.E.2d 580,32 Ohio App.2d 297 |
| Parties | , 61 O.O.2d 396 HALL et al., Appellants, v. COLUMBUS BD. OF ED. et al., Appellees. |
| Court | Ohio Court of Appeals |
Joseph J. Murphy, Columbus, for appellants.
James J. Hughes, Jr., City Atty., and James R. Kirk, Columbus, for appellee Columbus Bd. of Education.
Williams, Murray, Deeg & Ketcham, Columbus, for appellees Harold H. Eibling, Cleo Dumaree and Marilyn Foreman.
This is an appeal from orders of the Franklin County Court of Common Pleas dismissing defendants from this action, and ruling that Marilyn Foreman need not answer plaintiffs' interrogatories.
Plaintiffs' complaint alleges that at 12:55 p. m., April 23, 1969, the plaintiff, a pupil at an elementary school operated by defendant Columbus Board of Education '* * * was injured by the negligence of defendants when he fell from the top of a slide-board on the playground at the Dana Avenue Elementary School * * * striking the blacktop surface beneath said slide with his head and right ear.'
Plaintiffs' complaint further alleges:
'* * * The Dana Avenue Elementary School was and is a part of the Columbus Public School System, operating under the supervision, direction and control of the defendant Columbus Board of Education and that plaintiff Kevin Hall was enrolled in the Columbus Public School system and was a student in said Dana Avenue Elementary School, of which school defendant Marilyn R. Foreman was the Principal * * *.
'* * *
'* * * that at all times set forth herein, defendant Harold H. Eibling was and is the Superintendent of the Columbus Public School system, employed by defendant Columbus Board of Education; defendant Cleo Dumaree was and is the Assistant Superintendent of the Columbus Public School system and an employee of defendant Columbus Board of Education; that defendant Marilyn R. Foreman was and is the Principal of said Dana Avenue Elementary School, and an employee of defendant Columbus Board of Education.
'* * *
'Fourth Claim
'* * *
'2. Said plaintiff states that at all times herein defendant David E. Jones was the architect for the defendant Columbus Board of Education and that he and/or his agents or employees and/or agents, servants and employees of the defendant Columbus Board of Education, who were then and there acting within the course and scope of their employment, negligently designed the playground at said school including the installation of said defective and dangerous slide-board in its place over a hard asphalt surface and allowed such defectively planned and constructed playground to continue in operation after its defective and dangerous features were obvious, known or in the exercise of reasonable care, would have been known.
'* * *
'Seventh Claim
'* * *
'2. Said plaintiff states that at all times herein, defendant Robert Fisher was Senior Building Inspector of the City of Columbus, Ohio and defendant Columbus Board of Education, and that he and/or his agents or employees and/or agents, and employees of defendant City of Columbus, Ohio and defendant Columbus Board of Education acting within the course and scope of their employment and subject to the supervision, control and direction of the defendants herein failed to inspect and evaluate the said playground, which inspection and evaluation would have disclosed the defective design and construction of said playground; that because of such omissions said playground continued to constitute a trap and a hazard for the plaintiff.
'Eighth Claim
'* * *
The record shows that on January 3, 1972, the plaintiffs filed their notice of appeal from the December 23, 1971, order of the Common Pleas Court dismissing defendants Harold Eibling, Cleo Dumaree and Marilyn Foreman and ordering that defendant Marilyn Foreman need not answer interrogatories. This appeal is docketed as No. 72AP-2. The record further shows that on February 3, 1972, plaintiffs filed their notice of appeal from the February 2, 1972, orders of the Common Pleas Court dismissing defendants the Columbus Board of Education, Dr. Watson H. Walker, Mrs. Virginia Prentice, Thomas J. Moyer, Mrs. Barbara Levenson, the City of Columbus, Ohio, Frederick J. Simon James J. Hughes, David E. Jones, Donald E. Calhoun, Jr., Paul R. Langdon, Robert E. Ramsey, Dr. David D. Hamler, Edward Sloan and Frank S. Williams.
Plaintiffs' assignment of error states:
'The orders of the Common Pleas Court dismissing defendant The Columbus Board of Education, Marilyn Foreman, Cleo Dumaree and Harold Eibling as parties to the case should be reversed because of the errors therein, to-wit:
Plaintiffs argue that sovereign immunity is not a defense in this case, but if sovereign immunity is a defense it may only be asserted by the defendant Columbus Board of Education and is not a defense available to defendants Foreman, Dumaree and Eibling.
Although defendants other than defendants Columbus Board of Education and defendants Foreman, Dumaree and Eibling were dismissed by the order of the Common Pleas Court from which these appeals were taken, the plaintiffs by their assignment of error are claiming error as to the dismissal of the four above mentioned defendants, for this reason, the court will address itself and deal only with the defendants mentioned in plaintiffs' assignment of error.
The general rule in Ohio is that since a citizen cannot sue the state without its consent except by legislation, its agent, the board of education of a school district, cannot be sued without such consent. The Supreme Court stated in Board of Edn. v. Volk (1905), 72 Ohio St. 469, at page 485, 74 N.E. 646, at page 650:
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Baird v. Hosmer, 75-1018
...Because its judgment was in conflict with the judgment of the Court of Appeals for Franklin County in Hall v. Bd. of Edn. (1972), 32 Ohio App.2d 297, 290 N.E.2d 580, the Court of Appeals granted appellant's motion to certify the record to this court for review and final Duda, Elk & Wohl, Wi......
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Stewart v. Baldwin County Bd. of Educ.
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