Tamara Ellithorp v. Barberton City School District Board of Education

• Decision Date: 09 July 1997
• Docket Number: 97-LW-2974,18029
• Parties: TAMARA ELLITHORP Appellee v. BARBERTON CITY SCHOOL DISTRICT BOARD OF EDUCATION, ET AL. Appellants C.A. NO.18029
• Court: Ohio Court of Appeals

TAMARA ELLITHORP Appellee v. BARBERTON CITY SCHOOL DISTRICT BOARD OF EDUCATION, ET AL. Appellants

No. 18029

97-LW-2974 (9th)

Court of Appeals of Ohio, Ninth District Summit

July 9, 1997

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. CV94 04 1250

DECISION

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

DICKINSON Presiding Judge.

Defendant Barberton City School District Board of Education ("school board") has appealed from a jury verdict for plaintiff Tamara Ellithorp, one of its teachers, in her intentional tort action against it. The school board has argued: (1) that the trial court incorrectly overruled its motion to dismiss for failure to state a claim; (2) that the jury's verdict is against the manifest weight of the evidence; and (3) that the trial court incorrectly denied its motion for a directed verdict. This Court reverses the judgment of the trial court because the school board was immune to the claims alleged in the complaint.

I.

Ms Ellithorp is a teacher employed by the school board. On April 24, 1992, while teaching her high school class, Ms. Ellithorp attempted to open one of the windows in her classroom. The top of the window dislodged from its frame and struck Ms. Ellithorp on the head. She sustained physical injuries as a result. In addition to pursuing a workers' compensation claim, she brought this action against the board in common pleas court.

By her amended complaint, Ms. Ellithorp alleged that the school board, by failing to properly maintain the windows in the building, had negligently and intentionally caused her injuries. The intentional tort claim was based on her allegations that the school board failed to properly maintain the windows of the school building; that it had knowledge "of the danger associated with these windows" and that harm to Ms. Ellithorp was substantially certain to occur if she was exposed to that danger; and that, with that knowledge, it required her to perform her duties exposed to that danger.

The school board moved to dismiss the complaint for failure to state a claim upon which relief could be granted. It asserted that, as a political subdivision, it was immune from liability on Ms. Ellithorp's intentional tort claim pursuant to Chapter 2744 of the Ohio Revised Code. The trial court disagreed, and concluded that the exception to immunity for negligent maintenance of public buildings, set forth in Section 2744.02(B)(4) of the Ohio Revised Code, applied to the facts alleged in Ms. Ellithorp's complaint. It denied the school board's motion on that basis. Following a jury trial, judgment was entered in favor of Ms. Ellithorp awarding damages in excess of $56,000. The school board timely appealed to this Court.

II.

A.

The school board's first assignment of error is that the trial court incorrectly failed to dismiss Ms. Ellithorp's complaint for failure to state a claim. By its motion, the school board asserted that it was immune from all liability alleged by Ms. Ellithorp.

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the trial court "must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party." York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144. To dismiss a complaint on this basis, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id.

In support of dismissal for failure to state a claim, the school board contended that Ms. Ellithorp's complaint failed to allege facts or a cause of action that could defeat the immunity hurdle posed by Chapter 2744 of the Ohio Revised Code. That chapter preserves broad sovereign immunity as it existed at common law, subject to enumerated exceptions. See Wilson v. Stark Cty. Dept. of Human Serv. (1994), 70 Ohio St.3d 450, 452-453. Except as explicitly provided in Section 2744.02(B) of the Ohio Revised Code, a political subdivision is not liable in damages in a civil action for injury to persons allegedly caused by "any act or omission of the political subdivision or any employee of the political subdivision in connection with a governmental or proprietary function." Section 2744.02(A)(1) of the Ohio Revised Code.

The operation of a public school is a governmental function. Section 2744.01(C)(2)(c) of the Ohio Revised Code. The school board, consequently, is immune from liability except as provided in Sections 2744.02(B)(1), (3), (4), and (5). The alleged conduct of the school board did not involve the operation of a motor vehicle, nor was this a situation where liability was expressly imposed upon the school board by statute. Accordingly, Sections 2744.02(B)(1) and (5) do not apply here. Further, because Ms. Ellithorp was injured in a public building, not in a public outdoor area, Section 2744.02(B)(3) does not apply. The trial court found that Section 2744.02(B)(4) did apply:

[P]olitical subdivisions are liable for injury, death, or loss to persons or property that is caused by the negligence of their employees and that occurs within or on the grounds of buildings that are used in connection with the performance of a governmental function ***.

Section 2744.02(B)(4), by its explicit terms, exempts only negligent acts from the blanket cloak of immunity found in Section 2744.02(A)(1) for "any act." The trial court concluded that this exception applied, even though Ms. Ellithorp's complaint had alleged negligence and intentional conduct on the part of the school board, because her claim was "still one of negligence." This Court disagrees with that characterization of Ms. Ellithorp's complaint.

Ms Ellithorp had no claim for negligence against her employer. Her exclusive remedy for negligent conduct was through the workers' compensation system. Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 94. The only claim she had alleged against her employer upon which she could have potentially recovered, therefore, was her intentional tort claim. See Id. That claim, although based on the same alleged conduct as her negligence claim, was not "still one of negligence." To state a claim for an intentional tort by an employer, the employee cannot merely allege that the employer's conduct was negligent. To establish the requisite intent, "proof beyond that required to prove negligence and beyond that to prove recklessness must be established. *** [T]he mere knowledge and appreciation of a risk - something short of...