Leasure v. Adena Local Sch. Dist.

• Decision Date: 28 June 2012
• Docket Number: No. 11CA3249.,11CA3249.
• Citation: 283 Ed. Law Rep. 1105,2012 -Ohio- 3071,973 N.E.2d 810
• Parties: Heidi LEASURE, et al., Plaintiffs–Appellees, v. ADENA LOCAL SCHOOL DISTRICT, et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

973 N.E.2d 810

283 Ed. Law Rep. 1105

2012 -Ohio- 3071

Heidi LEASURE, et al., Plaintiffs–Appellees,

v.ADENA LOCAL SCHOOL DISTRICT, et al., Defendants–Appellants.

No. 11CA3249.

Court of Appeals of Ohio, Fourth District, Ross County.

June 28, 2012.

Richard W. Ross and Mark A. Weiker, Means, Bichimer, Burkholder & Baker Co., L.P.A., Columbus, OH, for appellants.

James S. Savage, McFadden, Winner, Savage & Segerman, L.L.P., Columbus, OH, for appellees.

ABELE, P.J.

{¶ 1} This is an appeal from a Ross County Common Pleas Court denial of summary judgment to Adena Local School District Board of Education, defendant below and appellant herein. The trial court determined that appellant was not immune from liability under R.C. Chapter 2744 for the negligence claims of Heidi J. Leasure and Earl A. Leasure, III, plaintiffs below and appellees herein, and that the open and obvious doctrine did not bar appellees' negligence claims.

{¶ 2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED WHEN IT DETERMINED THAT THE BOARD OF EDUCATION WAS NOT IMMUNE FROM LIABILITY UNDER R.C. 2744.02.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY DECLINING TO APPLY THE OPEN AND OBVIOUS DOCTRINE.”

{¶ 3} On September 17, 2007, Heidi sustained an injury when she fell on the school gymnasium bleachers. Before her fall, Heidi ascended the bleachers without incident. However, as she descended the bleachers with her young child in her arms, she fell near the bottom step.

{¶ 4} Appellees filed a complaint against appellant and alleged that appellant negligently configured, installed, or maintained the bleachers and negligently failed to warn of the dangerous condition. Appellees sought damages for Heidi's injuries and Earl's loss of consortium. Appellees further asserted products liability claims against several John Does.

{¶ 5} Appellant subsequently requested summary judgment and argued that it is immune from liability under R.C. Chapter 2744. Appellant contended that (1) none of the R.C. 2744.02(B) exceptions removed its immunity, (2) the only potentially applicable exception, R.C. 2744.02(B)(4), did not remove its immunity because the bleachers did not have a physical defect, and (3) even if R.C. 2744.02(B)(4) removed its immunity, R.C. 2744.03(A)(5) re-instates its immunity. Appellant further asserted that the open and obvious doctrine barred appellees' negligence claim.

{¶ 6} To support its motion, appellant submitted the school's maintenance technician's affidavit. He stated that on the date of Heidi's injury, “the bleachers were in excellent condition, both mechanically and physically, with no defects or broken parts.” He further stated that no one had reported “any malfunction, breakdown or defect in the bleachers or their operation.”

{¶ 7} In their memorandum in opposition to appellant's summary judgment motion, appellees asserted that (1) the failure to properly extend the bleachers resulted in a physical defect, and (2) the R.C. 2744.03(A)(5) discretionary defense did not apply to appellant's set up of the bleachers. Appellees also disputed appellant's argument that the open and obvious doctrine barred their negligence claims.

{¶ 8} In her deposition, Heidi testified that she had been to the school gym more than a dozen times before her accident to watch her nieces' volleyball games and that on the date of her injury, the bleachers did not look any different than they had in the past. Heidi testified that before she fell, she was not aware that the bleachers had not been fully extended. She explained that she fell while walking down the bleachers with her child in her arms. Heidi stated that she believes her foot became stuck on the steps. After she fell, Heidi observed that the bleachers had not been fully extended (and thus locked into the intended position). When questioned where her foot became caught, she stated that she did not know, but it was “[s]omewhere in the step.” She claimed that the step was not misaligned, but was “short.”

{¶ 9} The trial court denied appellant's summary judgment motion and determined that genuine issues of material fact remained regarding whether appellant is entitled to R.C. 2744.02(B)(4) immunity. The court concluded that genuine issues of material fact exist as to whether (1) the condition of the bleachers constituted a physical defect, and (2) the open and obvious doctrine barred appellees' negligence claim. This appeal followed.

I

{¶ 10} In its first assignment of error, appellant asserts that the trial court erred by determining that it is not entitled to immunity under R.C. Chapter 2744. In particular, appellant asserts that the trial court improperly determined that genuine issues of material fact remain as to whether the condition of the bleachers constitutes a physical defect under the R.C. 2744.02(B)(4) exception.

ASTANDARD OF REVIEW

{¶ 11} Appellate courts conduct a de novo review of trial court summary judgment decisions. E.g., Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must independently review the record to determine if summary judgment is appropriate and need not defer to the trial court's decision. E.g., Brown v. Scioto Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (1993); Morehead v. Conley, 75 Ohio App.3d 409, 411–12, 599 N.E.2d 786 (1991). To determine whether a trial court properly granted a summary judgment motion, an appellate court must review the Civ.R. 56 summary judgment standard, as well as the applicable law. Civ. R. 56(C) provides in relevant part:

* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

{¶ 12} Thus, pursuant to Civ.R. 56, a trial court may not grant summary judgment unless the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and after viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. E.g., Vahila v. Hall, 77 Ohio St.3d 421, 429–30, 674 N.E.2d 1164 (1997).

BR.C. CHAPTER 2744

{¶ 13} R.C. Chapter 2744 establishes a three-step analysis for determining whether a political subdivision is immune from liability. Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 270, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 14. First, R.C. 2744.02(A)(1) sets forth the general rule that a political subdivision is immune from tort liability for acts or omissions connected with governmental or proprietary functions. Cramer;Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7;Harp v. Cleveland Hts., 87 Ohio St.3d 506, 509, 721 N.E.2d 1020 (2000). Second, R.C. 2744.02(B) lists five exceptions to the general immunity granted to political subdivisions under R.C. 2744.02(A)(1). Cramer;Ryll v. Columbus Fireworks Display Co., 95 Ohio St.3d 467, 470, 2002-Ohio-2584, 769 N.E.2d 372,¶ 25. Finally, R.C. 2744.03(A) sets forth several defenses that a political subdivision may assert if R.C. 2744.02(B) imposes liability. Cramer;Colbert at ¶ 9. The R.C. 2744.03(A) defenses then re-instate immunity. Whether a political subdivision is entitled to statutory immunity under Chapter 2744 presents a question of law. E.g., Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992); Williams v. Glouster, 4th Dist. No. 10CA58, 2012-Ohio-1283, 2012 WL 1029470, ¶ 15.

{¶ 14} In the case sub judice, the parties do not dispute that appellant is entitled to the general grant of immunity under R.C. 2744.02(A)(1). Instead, the primary dispute concerns the R.C. 2744.02(B)(4) exception.

{¶ 15} R.C. 2744.02(B)(4) states:

(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:

* * * *

(4) Except as otherwise provided in section 3746.24 of the Revised Code, politicalsubdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.

Thus, to establish that the R.C. 2744.02(B)(4) exception applies, a plaintiff must demonstrate that the injury (1) resulted from a political subdivision employee's negligence, (2) occurred within or on the grounds of buildings used in connection with a governmental function, and (3) resulted from a physical defect within or on those grounds. Moss v. Lorain Cty. Bd. Of Mental Retardation, 185 Ohio App.3d 395, 2009-Ohio-6931, 924...