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0RIGjyAL
IN THE SUPREME COURT OF OHIO
Amy Yeater, et al.
Appellee,
v.
Board of Education, LaBrae School District
Appellant.
10®I663On Appeal from the TrumbullCounty Court of Appeals, EleventhAppellate District
Court of AppealsCase No. 2009-T-0107
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT BOARD OF EDUCATION, LABRAE SCHOOL DISTRICT
John D. Latchney (0046539)Tomino & Latchney, LLC, LPA803 E. Washington Street, Suite 200Medina, Ohio 44256(330) 723-4656
COUNSEL FOR APPELLANT,BOARD OF EDUCATION, LABRAESCHOOL DISTRICT
William L. Hawley (0018341)Matthew G. Vansuch (0079328)Harrington, Hoppe & Mitchell, Ltd.108 Main Avenue, S.W. #500P.O. Box 1510Warren, Ohio 44482(330) 392-1541
COUNSEL FOR DEFENDANT,ANTHONY MONTY
Daniel G. Keating (0001382)Keating, Keating & Kuzman170 Monroe, NWWarren, Ohio 44483(330) 393-4611
COUNSEL FOR APPELLEE,AMY YEATER
F 10
SEP 2 3 2010
CLERK OF COURTSUPREME CUURT OF OHIO
SEP 23 2010
CLERK OF COURTSUPREME COURT OF OHIO
TABLE OF CONTENTS
Pave
EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTI ON . ........ .. .... ....... ............. .... ............ .......1
STATEMENT OF THE CASE AND FACTS .............................................3
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...........................6
Proposition of Law No. 1: To establish the immunity exceptioncontained in R.C. § 2744.02(B)(4), there must be a direct causalconnection between alleged negligence and the "physical defect"resulting therefrom . .. . . . . .. . . . : .. . . .. . . .... . . . . . . .. . . . . . . . . . . . . . . . . . . ... . .. . . . . . . . .. 6
Proposition of Law No. 2: A claim of negligent supervision cannotbe used to circumvent the discretionary immunity afforded byR.C. § 2744.03(A)(5) and Elston v. Howland Local Sch. (2007),113 Ohio St.3d 314 . ..................................................................8
CONCLUSION ................................................................................12
PROOF OF SERVICE ........................................................................
APPENDIX Appx. Page
Opinion of the Trumbull County Court of Appeals (August 9, 2010)........... 1
Judgment Entry of the Trumbull County Court of Appeals (August 9, 2010)...13
ii
EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST
When the Ohio General Assembly amended Ohio Rev. Code § 2744.02(B)(4) to
create the "physical defect" exception to immunity, one would have thought that applying
the statute would be a relatively straightforward task. The phrase "political subdivisions
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" would appear to require that there be a causal connection between an existing
physical defect and the public employee's negligence.
Although many appellate courts are properly applying the law concerning the
"physical defect" exception, some have begun to concoct creative ways around the April
9, 2003 amendment of R.C. § 2744.02(B)(4) and this Court's decision in Elston. This
case is one example. Yet another is Moss v. Lorain County Board of MRDD case, Ohio
Supreme Court Case No. 2010-0296, which is currently pending before this Court on the
same issue, i.e. the proper interpretation of the "physical defect" language. On August
23, 2010, the Appellants in Moss filed a "Second List of Additional Authorities" which
cited this very case. The courts of appeals decisions in Yeater and Moss have the effect
of judicially resurrecting the legislatively superseded Hubbard v. Canton City School
Board (2002), 97 Ohio St.3d 451, and eviscerating the need for a causal connection
between the alleged negligence and the physical defect.
Furthermore, when this Court opined in Elston v. Howland Local Sch. (2007), 113
Ohio St.3d 314, that "[T]eachers and coaches, as employees of a political subdivision,
have 'wide discretion under R.C. 2744.03(A)(5) to determine what level of supervision is
necessary to ensure the safety of the children in' their care" [id. at 318], one would expect
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that appellate courts would be bound to follow this Court's decision. However, that did
not occur in this case.
At the oral argument in the case sub judice, Judge Colleen Mary O'Toole (who,
ironically, was on the side of the appellate panel that was reversed in Elston), commented
that she "didn't see any way around Elston" under the facts of this case. Nonetheless, the
majority of the panel managed to do just that. In a 2-1 decision (with Judge O'Toole
dissenting), the majority affirmed the trial court's denial (in part) of the LaBrae School
District Board of Education's motion for summary judgment, which had asserted Ohio
Revised Code Chapter 2744 immunity.
However, as this Court observed not so long ago, "Judicial policy preferences
may not be used to override valid legislative enactments, for the General Assembly
should be' the final arbiter of public policy." Rankin v. Cuyahoga County Dep't of
Children & Family Servs. (2008), 118 Ohio St.3d 392, 397. Should this Court not
address the problem now, appellate courts will continue to find creative ways around the
current version of R.C. § 2744.02(B)(4) and Elston, and the Court will be left with no
choice but to address the issue.
To date, while the Court has construed R.C. § 2744.02(B)(4)'s "buildings that are
used in connection with the performance of a governmental function" language [in Moore
v. Lorain Metro. Hous. Auth. (2009), 121 Ohio St.3d 455], since the April 9, 2003
amendment, the Court has yet to address the "caused by the negligence of their
employees and that occurs within or on the grounds of, and is due to physical defects"
phraseology. This case presents an opportunity for the Court to provide guidance to trial
and appellate courts throughout the state on the proper method of applying the (B)(4)
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exception and will serve to rectify some conflicts which have arisen among the courts of
appeal in interpreting this statute.
At a bare minimum, if the Court accepts the Moss case on a discretionary appeal,
so too should this case be accepted as well and held for a decision in Moss.
STATEMENT OF THE CASE AND FACTS
On May 7, 2004, Amy Yeater ("Yeater") was in eighth grade at the LaBrae Local
Middle School. During the afternoon on that day, Yeater asked her teacher to be allowed
to go to the LaBrae High School gynmasium (the "gym") to help the student council
decorate for the a middle school dance to be held later that day. Her teacher granted
permission. When Yeater arrived at the gym, several students were decorating the gym
and Ms. Huscroft, the teacher/student council advisor, was overseeing the decorations.
At all relevant times herein, Ms. Huscroft was acting within the scope of her
employment with the LaBrae Local School District. Ms. Huscroft stepped out of the gym
for approximately five minutes. During such time, another student, Anthony Monty
("Monty"), moved a volleyball stanehion' to use as part of the decorations.
Students are not allowed to move the volleyball stanchions without permission.
All the students involved in the incident knew they needed permission to move the
volleyball stanchions. Ms. Huscroft testified that she never gave any student permission
to move the volleyball stanchion. Both Yeater and Monty testified that Ms. Huscroft did
not give them permission to move the stanchion. They also testified that they did not
I By way of background, a volleyball stanchion is a piece of equipment used tohold volleyball nets. It is comprised of a circular base approximately two feet in diameterwith a tall pole standing in the middle of the base. The stanchion is extremely heavy as itis meant to hold a volleyball net and it should not move if a volleyball player runs into itduring a game. There are wheels connected to the side of the base in order to move thestanchion. One must pull down on the pole and prop it on the wheels in order to move it.
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hear Ms. Huscroft give anyone pennission to move the volleyball stanchion. They did
not know if anyone even asked Ms. Huscroft for permission to move the volleyball
stanchion.
The volleyball stanchions were located in a hallway connected to the back of the
gym. The high school physical education teachers for the LaBrae Local School District
used the volleyball stanchions approximately twice per semester for about 1-2 weeks
each time for teaching volleyball and badminton. The stanchions were used
approximately one month before Yeater's accident and they were working properly.
Yeater was standing near the hallway when Monty was wheeling the stanchion
into the gymnasium. When he passed Yeater, the base fell away from the pole and
landed on Yeater's toes injuring her foot.
On January 4, 2006, Plaintiffs-Appellees Yeater Yeater and her parents filed their
Complaint against Defendant-Appellant LaBrae School District Board of Education ("the
Board") in Trumbull County Common Pleas Case No. 2006-CV-00023. On July 31,
2007, Plaintiffs-Appellees filed a voluntary notice of dismissal without prejudice.
On July 30, 2008, since she had turned 18, Plaintiff-Appellee Yeater Yeater (dob
12-21-89) re-filed her Complaint in her own name against Appellant, the Board, and
added Defendants Kelly Huscroft, a teacher, and Anthony Monty, a fellow student. On
August 19, 2008, the Board and Ms. Huscroft filed their Answer, which asserted a
number of affirmative defenses, including immunity under Ohio Revised Code Chapter
2744.
After summary judgment practice, which addressed motions by both Defendants,
on October 13, 2009, the Trumbull County Common Pleas Court issued an Order which
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granted Defendant Huscroft's Motion for Summary Judgment, granted in part and denied
in part, the Board's Motion for Summary Judgment, and denied Defendant Monty's
Motion for Summary Judgment.
Although the trial court properly found that there was no evidence that Defendant
Huscroft acted with a malicious purpose, in bad faith, or in a wanton or reckless manner,
the Court found that "reasonable minds can come to dif:ferent conclusions based on the
evidence before the Court as to whether Ms. Huscroft was negligent andlor abused her
discretion by leaving the children unattended." In other words, the trial court believed
that there is a genuine issue of material fact concerning negligent supervision.
On October 21, 2009, Defendant-Appellant Board filed a timely Notice of
Appeal. Since the Court's Order denying in part the Board's Motion for Summary
Judgment effectively denied the Board the benefit of R.C. Chapter 2744 immunity, it was
a final appealable order pursuant to R.C. § 2744.02(C). No cross-appeal was taken of the
trial court's Order granting Defendant Huscroft summary judgment on Plaintiff-
Appellee's negligence claim, nor upon the portion of the Order granting the Board
sunnnary judgment on Plaintiff-Appellee's spoliation claim, which decisions were both
predicated upon immunity.
After the matter was fully briefed and orally argued, on August 9, 2010, the
Eleventh District Court of Appeals for Trumbull County, in a 2-1 decision, affirmed the
conunon pleas court's decision denying the Board of Education's motion for summary
judgment. As the dissent correctly notes, the "record establishes that the School District
had no actual or constructive notice of any problem with any volleyball stanchion."
Opinion at 12. To avoid that problem, the majority of the court of appeals ignored Elston
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and bootstrapped Plaintiffs "negligence in supervision" claim onto the "physical defects"
exception contained in R.C. § 2744.02(B)(4), and assumed the physical defect into
existence to achieve the desired result of affirmance.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. 1: To establish the immunity exception contained inR.C. § 2744.02(B)(4), there must be a direct causal connection betweenalleged negligence and the "physical defect" resulting therefrom.
As the court of appeals recognized in Coats v_ City ofColumbus (I0'" Dist.), 2007
Ohio 761, "the General Assembly amended R.C. 2744.02(B)(4) effective April 9, 2003 to
make it clear that the exception applies only to cases where the injuries resulted from
physical defects in the property. Id. at ¶17. In Hopper v. Elyria (9'h Dist.), 2009 Ohio
2517, ¶14, the court of appeals reached the same conclusion:
[PlaintiffJ argues that the amended version applicable to this casebroadens the scope of the City's liability. In fact, it does just theopposite. R.C. 2744.02(B)(4) is an exception to general immunity.By requiring that the injury both be caused by employeenegligence within or on the grounds of certain types of buildingsand be due to physical defects within or on the grounds of thosebuildings, the legislature has narrowed the scope of a politicalsubdivision's liability, not the scope of its immunity. (Emphasisadded).
Through a tortured interpretation of the statute, the Eleventh District majority
finds that negligence in supervision is sufficient to establish the negligence requirement
in R.C. § 2744.02(B)(4). However, that cannot and does not reflect the General
Assembly's intent in amending that section.
It seems quite clear that the General Assembly wanted political subdivisions to be
liable for a negligent failure to maintain, i.e. the failure to maintain causes or results in
the physical defect coming into existence, and liable for a negligent failure to repair, i.e.
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the political subdivision had actual or constructive notice of a physical defect and failed
to address or correct the problem. However, in legislatively superseding Hubbard, the
General Assembly established that not just any negligence committed inside a building
used in connection with a governmental function would be legally sufficient to establish
the exception.
"A school district has a common-law duty to its students to maintain school
premises in a reasonably safe condition. A school district must inspect for dangerous
conditions and take precautions for known or reasonably foreseeable dangers associated
with the use of school property." Police v. Twinsburg City Schools Board of Education
(9`h Dist. 2002), 2002 Ohio 3407 at ¶10, 2002 Ohio LEXIS 3474. In this case, as the
dissent correctly notes, there was no evidence that any School District employee had
actual or constructive knowledge of any "physical defect" with any volleyball stanchion,
let alone the one in question. Indeed, it was undisputed that the last time the stanchions
were used, approximately one month earlier, they were functioning as intended and there
were no problems. Since it is incontrovertible that the School District did not intend that
the volleyball stanchions were going to be in use by students, and there was no evidence
that they were in use during the subsequent month, there would have been no reason
whatsoever to inspect them for a "physical defect."
There was no genuine issue of material fact concerning Defendant Monty's
unilateral decision, without permission, to move the volleyball stanchion. Plaintiff was
not injured because a political subdivision employee ignored a known risk. Inherent in
the majority's decision is the idea that had the teacher been watching the students, she
could have told Monty to stop and Plaintiff's injury would not have occurred.
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Had the teacher directed Monty to move the volleyball stanchion and failed to
inspect the stanchion before providing that direction, then a claim for negligence in
failing to maintain or repair the stanchion would make sense and create a genuine issue of
material fact conceming the (B)(4) exception. However, as the dissent correctly notes,
that's not what occurred in this case.
To establish the (B)(4) exception to immunity, there should, and must, be more
than "negligence in the air." A plaintiff should be required to prove an actual causal
connection between the alleged negligence and the physical defect. Otherwise, the
Eleventh District's interpretation does nothing more than resurrect Hubbard, supra.
"Judicial policy preferences may not be used to override valid legislative enactments, for
the General Assembly should be the final arbiter of public policy." Rankin v. Cuyahoga
County Dep't of Children & Family Servs. (2008), 118 Ohio St.3d 392, 397. Applying
this principle in the case sub judice would aid appellate courts throughout the state in
properly interpreting R.C. § 2744.02(B)(4) and necessitate reversal of the Eleventh
District majority's decision in this case.
Proposition of Law No. 2: A claim of negligent supervision cannot be used tocircumvent the discretionary immunity afforded by R.C. § 2744.03(A)(5) andElston v. Howland Local Sch. (2007),113 Ohio St.3d 314.
The primary duty of a teacher is education, not protection. Aratari v. Leetonia
Exempt Vill. Sch. Dist. (7" Dist.), 2007 Ohio 1567, ¶34, citine Boyer v. Jablonski (1980),
70 Ohio App.2d 141, 146, 435 N.E.2d 436. Although the court of appeals majority gives
lip service to the principle that "school officials are under no duty to watch over each
child at all times," citin Nottingham v. Akron Bd. of Edn. (1992), 81 Ohio App.3d 319,
322, 610 N.E.2d 1096, Allison v. Field Local School Dist. (1988), 51 Ohio App.3d 13,
8
14, 533 N.E.2d 1383, that's nonetheless what the majority is requiring of the School
District in this case and would require of school districts generally. The problem is that
the Eleventh District majority is simply not following a binding decision of this Court.
In Elston v. Howland Local Sch. (2007), 113 Ohio St.3d 314, this Court opined
that "`[T]eachers and coaches, as employees of a political subdivision, have 'wide
discretion under R.C. 2744.03(A)(5) to determine what level of supervision is necessary
to ensure the safety of the children in' their care." Id. at 318; see also Dunfee v. Oberlin
(9" Dist.), 2009 Ohio 3406 (trial court decision denying school district summary
judgment on plaintiff's negligent supervision was reversed on appeal).
Notwithstanding the foregoing holding in Elston, the Eleventh District majority
cites DuBose v. Akron Pub. Schools (9th Dist.), 1998 Ohio App. LEXIS 1805, for the
following proposition:
Furthennore, in DuBose, 1998 Ohio App. LEXIS 1805, a studentsuffered severe rope burns on her hands when she and otherstudents engaged in a game of tug-of-war on the playground. Atthe time, the teachers were on the playground but were conversingrather than watching the students and the school had a rule againstplaying tug-of-war on the playground. The DuBose court foundthat the "negligent supervision of children on a playground doesnot involve the type of decision making with respect to publicpolicy and planning that is characterized by a high degree ofdiscretion and judgment. Therefore, Defendants are not immunepursuant to R.C. 2744.03(A)(3) or (5). Id. at * 12.
However, as Judge O'Toole correctly notes in her dissent, Elston should bar such a claim
or argument. Indeed, in Elston, this Court cited with approval Marcum v. Talawanda
City Schools (1996), 108 Ohio App.3d 412, 416, 670 N.E.2d 1067. In Marcum, "a
student suffered injury at the hands of other students when a teacher left a student council
meeting of students in her classroom unsupervised to attend a faculty meeting. The court
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of appeals held that the Talawanda City School District was immune from liability and
determined that the teacher's decision to leave the students unattended was within the
scope of her discretionary authority pursuant to R.C. 2744.03(A)(5)." Elston, 113 Ohio
St.3d at 319 (internal citations omitted). In the wake of Elston, the majority's citation
and reliance upon DuBose is inexplicable-other than, of course, than the majority's
circumvention of Elston.
Furthermore, this case presents an even stronger argument for the application of
R.C. § 2744.03(A)(5) immunity than Elston. In Elston, a negligence complaint was filed
against the school district claiming that "it had, through the actions of Coach Eschman,
breached its duties to instruct on the proper use of an L-screen, a portable protective
netted shield used during batting practice to protect pitchers from being struck by batted
baseballs, failed to supervise the use of the batting cage, and also failed to furnish
protective helmets for use by pitchers during batting practice." In other words, the
students in question were actually engaged in a permitted activity and utilizing the
baseball equipment in a manner directed by their teacher/coach. In other words, the
school district intended that the students engage in the activity.
Here, Monty decided on his own to move the volleyball stanchion without
permission. Although he arguably could not have done so if Ms. Huscroft was present,
leaving the students temporarily unsupervised is the type of discretionary decision which
should have restored immunity for the School District.
The flaw in the Yeater majority's analysis is reinforced by Fields v. Talawanda
Bd. ofEduc. (12`" Dist.), 2009 Ohio 431. Indeed, it's a case which cannot be reconciled
with the decision by the Eleventh District in this case.
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In Fields, the student was engaged in a far more dangerous activity than moving a
volleyball stanchion; namely, operating a jointer machine during shop class.
Nonetheless, despite the following facts, which also involved an amputation injury, the
court of appeals found the board of education entitled to immunity:
[The student] sustained multiple amputations to the fingers and aportion of her right hand while operating a jointer machine duringan industrial arts class taught by appellees' employee, AnthonyLimberios. A jointer machine is used and is equipped with a safetyguard which covers the blade when not in use. When surfacing aboard on a jointer machine, an operator uses a push block to pushthe board through so that one's hands are not exposed to the blade.As the board is pushed through, it pushes against the guard whichswings out. Once the board has gone through, the guard swingsback and covers the blade. On the day she was injured, Angel wasusing a push block which had been handmade at the school, had aknob on the front and a handle on the back, and had a lip (a.k.a. afixed heel or rear step) at the rear.
According to Angel, she was pushing the board across the blade,using the push block. Her left hand was on the knob, her right handwas on the back handle. As soon as the board cleared the blade,there was a release of resistance as Angel was no longer pushingagainst the blade. This caused a jerk which caught her off guard."[W]hen it did, I guess the [back] handle was loose, I guess I musthave jumped, and my [right] hand just relaxed. My shoulderprobably relaxed ***, and my hand went into the blades that wereexposed." When her right hand came off the push block, the end ofthe push block was about three inches past the blade. Her left handnever came off the knob. After the board went through the blade,the guard started to swing back and hit the side of the push blockwhich was either flush with or slightly wider than the board.
Angel and the Davises filed a complaint against appellees allegingthat Angel's injuries were caused by the negligent and reckless actsof appellees' employees and the physical defects within or on thegrounds of the buildings. Specifically, appellants asserted that thepush block Angel was instructed to use was a handmade devicemade in the school, even though the school had severalmanufactured push blocks; was not designed to work with theguard of the jointer machine; did not meet or comply with themanufacturer's safety instructions; did not comply with appellees'own rules regarding classroom use of equipment; and violated
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Ohio's Occupational Safety and Health Rules ("OSHA rules").Appellees moved for summary judgment on immunity groundsunder R.C. Chapter 2744. (Emphasis added).
Despite the severity of the student-plaintiffs injuries, the court of appeals in Fields
nonetheless held that "The trial court, therefore, properly granted summary judgment in
favor of appellees on the ground they were immune under R.C. 2744.03(A)(5)."
Comparatively speaking, if a board of education has immunity when a student
suffers an amputation resulting from operating cutting machinery in a supervised shop
class (an inherently dangerous activity), then surely a board of education has immunity
for a claim arising from the unsupervised movement of a volleyball stanchion by a
student-an activity which is not inherently dangerous. Based upon the discretionary
immunity afforded by R.C. § 2744.03(A)(5), the Board was entitled to summary
judgment.
CONCLUSION
As this Court observed in O'Toole v. Denihan (2008), 118 Ohio St.3d 374, 387,
2008 Ohio 2574 at ¶74, "We must apply the law without consideration of the emotional
ramifications and without the benefit of 20-20 hindsight." For the reasons discussed
above, this case involves a question of public and great general interest to both school
districts and political subdivisions generally concerning the proper interpretation of R.C.
§ 2744.02(B)(4) and the proper application of Elston v. Howland Local Schools.
Accordingly, Appellant requests that this Court grant jurisdiction and allow this case so
the important issues presented in this case will be reviewed on the merits.
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Respectfully submitted,
John D. Latchney (0046539)TOMINO & LATCHNEY, LLC, LPA803 E. Washington St., Suite 200Medina, Ohio 44256(330) 723-4656(330) 723-5445 FaxjlatchneyLP,,bri tdsl.netAttorney for Defendant-Appellant LaBraeLocal School District Board of Education
CERTIFICATE OF SERVICE
A copy of the foregoing Appellant's Memorandum in Support of Jurisdiction wasserved this 22 nd day of September 2010, via regular U.S. mail, upon:
Daniel G. KeatingKeating, Keating & Kuzman170Monroe, NWWarren, Ohio 44483
Attorney for Plaintiff-Appellee
William L. HawleyHarrington, Hoppe & Mitchell, Ltd.108 Main Avenue, SWSuite 500Warren, Ohio 44482
Attorney for Defendant Anthony Monty
John D. Latchney (0046539)
13
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
ri4nwCOURTOFAPPEALS
AU6092010
/ TRUMBULLC0UN7YOHKppENiNFANTEALLEN,CLERK
AMY YEATER, et al., OPINION
P laintiffs-Appel lees,CASE NO. 2009-T-0107
- vs -
BOARD OF EDUCATION,LABRAE SCHOOL DISTRICT, et al.,
Defendant-Appellant.
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2008 CV2168.
Judgment: Affirmed.
Daniel G. Keating, Keating, Keating & Kuzman, 170 Monroe Street, N.W., Warren, OH44483 (For Appellees- Amy & Gary L. Yeater).
William L. Hawley and Matthew G. Vansuch, Harrington, Hoppe & Mitchell, Ltd., 108Main Avenue, S.W., #500 P.O. Box 1510, Warren, OH 44482 (For Appellee-AnthonyMonty).
John D. Latchney, Tomino & Latchney, L.L.C., L.P.A., 803 East Washington Street,
#200, Medina, OH 44256 (For Appellant-LaBrae School District, Board of Education).
DIANE V. GRENDELL, J.
{1[1} Defendant-appellant, Board of Education, LaBrae School District, appeals
the Judgment Entry of the Trumbull County Court of Common Pleas, in which the trial
court denied its Motion for Summary Judgment. For the following reasons, we affirm
the decision of the trial court.
a- 179 9
AUGl.0 2010,-,
BY......... ...... ^
I
t¶2} In May of 2004, Amy Yeater, an eighth grade student at LaBrae Middle
School, was injured when a stanchion, a piece of equipment used to hold volleyball
nets, fell on her foot in the school gymnasium, severing several of her toes. Defendant-
appellee and fellow student, Anthony Monty, was moving the stanchion in preparation
for a school dance when it fell on Yeater. Their teacher, Kelly Huscroft, was outside.of
the gymnasium when the incident occurred.
{113} Yeater subsequently filed suit against the LaBrae School District, Huscroft,
and Monty, claiming that the negligent supervision of the School District employees and
physical defects within the gymnasium caused her injury. There was also a claim for
spoliation of evidence after the School District disposed of the volleyball stanchion. The
School District and Huscroft moved for summary judgment, alleging they were entitled
to immunity as to the claims for negligence and spoliation of evidence. Monty moved
for summary judgment on the basis that the accident was not foreseeable as a matter of
law.
{114} The trial court denied Monty's Motion for Summary Judgment, finding that
there were issues of fact concerning the foreseeability of the accident. The court also
denied the School District's Motion for Summary Judgment, finding that genuine issues
of material fact remained. The court awarded summary judgment to all defendants on
the issue of spoliation of evidence, and to Huscroft for negligence, finding the
defendants were entitled to immunity for those claims.
{¶5) The School District timely appealed and raises the following assignment of
error: "The trial court erred when it denied Appellant LaBrae School District Board of
Education's Motion for Summary Judgment, which was predicated upon R.C. Chapter
2744 immunity."
{¶6} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the
evidence shows "that there is no genuine issue as to any material fact" to be litigated,
(2) "the moving party is entitled to judgment as a matter of law," and (3) "it appears from
the evidence ""` 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 *** construed most strongly in the
party's favor."
{¶7} A trial court's decision to grant summary judgment is reviewed by an
appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 1996=Ohio-336. An appellate court must independently review the
record to determine if summary judgment 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.
{¶8} The School District first argues that it is immune from liability under R.C.
Chapter 2744. "R.C. Chapter 2744 provides nearly absolute immunity to political
subdivisions in order to limit their exposure to money damages. Immunity provides a
shield to the exercise of governmental or proprietary functions by a political subdivision,
unless one of the exceptions specificaily recognized by statute applies." Sabuisky v.
Trumbull Cty., 11th Dist. No. 2001-T-0084, 2002-Ohio-7275, at¶11.
3
{¶9} In determining whether a political subdivision is immune from liability,
courts conduct a three-tiered analysis. Fields v. Talawanda Bd. of Edn., 12th Dist. No.
CA2008-02-035, 2009-Ohio-431, at ¶10, citing Elston v. Howland Local Schools, 113
Ohio St.3d 314, 2007-Ohio-2070, at ¶10. The first tier provides a general grant of
immunity to political subdivisions regarding acts or omissions of the political subdivision
or its empfoyees in connection with a governmental or proprietary function.
{1110} The LaBrae Schoof District is a political subdivision. See R.C. 2744.01(F)
(a political subdivision is "a municipal corporation, township, county, school district, or
other body corporate and politic responsible for governmental activities in a geographic
area smaller than that of the state"). Moreover, "R.C. 2744.01(C)(2)(c) states that the
provision of a system of public education is a governmental function. **' Further, R.C.
2744.01(C)(2)(u)(i) defines governmental function to include '[t]he design, construction,
reconstruction, renovation, repair, maintenance, and operation of any school athletic
facility, school auditorium, or gymnasium or any recreational area or facility, including
*"" [a] park, playground, or playfield[.]"' Mason v. Bristol Local School Dist. Bd. of Edn.,
11th Dist. No. 2005-T-0067, 2006-Ohio-5174, at ¶26 (citations omitted).
{¶11} The second tier involves exceptions to immunity located in R.C.
2744.02(B). R.C. 2744.02(A) provides in pertinent part: "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 person 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 or proprietary function."
4
{¶12} The exceptions to immunity are invoked in cases involving the negligent
operation of a motor vehicle by an employee; negligent acts of an employee with
respect to proprietary functions; negligent failure to keep public roads in repair;
negligence of an employee relating to a physical defect in a governmental building;
and/or liability imposed by another section of the Revised Code. See R.C. 2744.02(B).
{¶13} 2744.02(B)(4) states that political subdivisions 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
{¶14} To trigger the immunity exception, Yeater had to demonstrate that her
injury was caused by the negligence of a School District Employee and that the injury
was due to a physical defect. See Dunfee v. Oberlin School Dist., 9th Dist. No.
08CA009497, 2009-Ohio-3406, at ¶13 ("to trigger the immunity exception set forth in
R.C. 2744.02(B)(4), Dunfee was required to demonstrate both that (1) Nathan's injury
was caused by the negligence of an Oberlin employee and (2) that the injury was due to
a []physical defect within or on the grounds of the school.").
{115} The School District claims that there is no genuine issue of fact regarding
the negligence of its employees. Further, "to the extent that the trial court's decision
denying the School District's Motion for Summary Judgment was predicated upon
Appellee's 'negligent supervision' argument, the trial court erred." Moreover, the School
District claims that "the physical defects exception is inapplicable because Plaintiff-
Appellee was unable to establish negligence in maintenance."
5
{¶16} Appellees assert that there is a question of fact as to whether the School
District was negligent in failing to maintain its equipment in a reasonably safe condition.
They claim that "the Board knew that the stanchions were dangerous: they did not allow
the students to move them"; the employees could not testify as to when the last [time]
the stanchions were used, let alone 'inspected' before the accident"; and "[t]he defects
in the bolts could easily have been discovered".
{¶17} 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. S. Ohio Med. Ctr. (1995), 103 Ohio App.3d 250, 255.
{¶18} "To establish actionable negligence, one must show in addition to the
existence of a duty, a breach of that duty and injury resulting proximately therefrom."
Mussivand v. David (1989), 45 Ohio St.3d 314, 318. "The existence of a duty in a
negligence action is a question of law for the court to determine." Id.
{¶19} School officials are under no duty to watch over each child at all times.
Nottingham v. Akron Bd. of Edn. (1992), 81 Ohio App.3d 319, 322, citing Allison v. Field
Local School Dist. (1988), 51 Ohio App.3d 13, 14. "Unless a more specific obligation is
assumed, such personnel are bound only under the common law to exercise that care
necessary to avoid reasonably foreseeable injuries." Id., citing Commerce & Industry
Ins. Co. v. Toledo (1989), 45 Ohio St.3d 96, 98; Huston v. Konieczny(1990), 52 Ohio
St.3d 214, 217.
{1[20} Yeater contends that Huscroft was negligent in "abandoning her duties to
monitor the **' students in the gym, thereby allowing *** the stanchions to be moved in
her absence," and the employees of the school were also negligent in "failing to inspect
6
and maintain the volleyball stanchions themselves, and in failing to secure the
dangerous apparatus that is the volleyball stanchion."
{¶21} The School District contends that the third tier of the immunity analysis is
applicable. The School District argues that the discretionary immunity contained in R.C.
2744.03(A)(5), which states: "[t]he political subdivision is immune from liability if the
injury, death, or loss to person or property resulted from the exercise of judgment or
discretion in determining whether to acquire, or how to use, equipment, supplies,
materials, personnel, facilities, and other resources unless the judgment or discretion
was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner",
restores immunity. They claim Huscroft had discretion to determine what level of
supervision was necessary to ensure the safety of the students in her care. Further, her
conduct did not rise to the level of recklessness.
{1[22} "Since the immunity statutes generally provide that "'you're not liable,"
then say "you are liable" and finally say "you're not,"' it is clear that the exceptions to
liability in R.C. 2744.03 must be read more narrowly than the exceptions to nonliability
in R.C. 2744.02(B) in order for the legislative structure to make any sense. *"" In other
words, the defenses and immunities of R.C. 2744.03 cannot be read to swallow up the
liability provisions of R.C. 2744.02(B) so as to render them nugatory." Spaid v. Bucyrus
City Schools (2001), 144 Ohio App.3d 360, 365 (citations omitted).
{1123} We agree that "[p]ursuant to R.C. 2744.03(A)(5); a political subdivision is
immune from liability if the injury complained of resulted from an individual employee's
exercise of judgment or discretion in determining how to use equipment or facilities ***."
Elston, 2007-Ohio-2070, at the syllabus.
7
{¶24} However, the deference granted to schools and their employees does not
abrogate the Board's duty to its students to maintain school premises and equipment in
a reasonably safe condition. Goldstein v. Moisse (1989), 61 Ohio App.3d 122, 126 (the
school district had an affirmative duty to inspect for dangerous conditions for known or
reasonably foreseeable dangers).
{¶25} "Sovereign immunity *"`* protects only those charged with weighing
alternatives and making choices with respect to public policy and planning characterized
by a high degree of discretion and judgment. It does not protect a board of education
from the negligent conduct of its employees in the details of carrying out the activity
even though there is discretion in making choices. This is not the type of discretion for
which there is immunity as it does not involve public policy endangering the creative
exercise of political judgment." Du Bose v. Akron Pub. Schools, 9th Dist. No. 18707,
1998 Ohio App. LEXIS 1805, at *10.
{¶26} "[A] school district must inspect for dangerous conditions and take
precautions for known or reasonably foreseeable dangers associated with the use of
school property." Id. (citation omitted). "The test for foreseeability is whether a
reasonably prudent person would have anticipated that an injury was likely to result
from the performance or nonperformance of an act." Menifee v. Ohio Welding Prods.,
Inc. (1984), 15 Ohio St.3d 75, 77 (citation omitted). The foreseeability of harm generally
depends on a defendant's knowledge. Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio
St.2d 116, 119-120.
{1127} In Hallett v. Stow Bd. of Edn. (1993), 89 Ohio App.3d 309, the court held
that "[t]here was evidence before the trial court from which it could be concluded that
8
[the plaintiff] was injured because an employee or employees of defendants'
maintenance department did not properly carry out the duties that had been assigned to
them." Id. at 313. The appellate court found that "[n]either R.C. 2744.03(A)(3), with its
emphasis on 'discretion,' nor R.C. 2744.03(A)(5), with its emphasis on 'judgment or
discretion,' relieves a political subdivision of the type of negligence alleged in this case."
Id.
{¶28} There is evidence from which it could be concluded that there was a
defect in the stanchion and that the accident was foreseeable due to the physical
defect, i.e. loose bolts. R.C. 2744.03(A)(5) does not restore immunity for failure to
inspect for dangerous conditions and take precautions.
{¶29} Furthermore, in Du Bose, 1998 Ohio App. LEXIS 1805, a student suffered
severe rope burns on her hands when she and other students engaged in a game of
tug-of-war on the playground. At the time, the teachers were on the playground but
were conversing rather than watching the students and the school had a rule against
playing tug-of-war on the playground. The Du Bose court found that the "negligent
supervision of children on a playground -- does not involve the type of decision making
with respect to public policy and planning that is characterized by a high degree of
discretion and judgment. Therefore, the defendants are not immune pursuant to R.C.
2744.03(A)(3) or (5)." Id. at *12.
{¶30} Testimony presented revealed that the students were not allowed to move
the stanchions. When a teacher was asked why students were not allowed to move
them, he stated that "we thought it was probably unsafe for them to do that." The
stanchions were kept outside of the gymnasium; however, the area was accessible to
9
the students. The gym teachers were to inspect the bolts to make sure they were
functioning properly, holding the heavy base of the stanchion in place. One of the
teachers testified that he had previously tightened a ►oose bolt on a stanchion.
Testimony also indicated that if there was a problem with the bolts, the pole would be
noticeably loose. The gym teacher further testified that he did not know the age of the
stanchion. Moreover, testimony revealed that if the gym class was not using the
stanchion, then the teachers had no reason to inspect them. The teachers had not
used the stanchions for at least a month prior to Yeater's accident. Consequently, one
could conclude that they had not inspected the stanchions for at ►east one month prior
to the accident.
{1[31} Accordingly, there is a genuine issue of fact whether Yeater's injury
occurred due to the negligence of a School District Employee and that the injury was
due to a physical defecf. See R.C. 2744.02(B)(4). As a result, the denial of summary
judgment was appropriate.
{1[32} For the foregoing reasons, the Judgment Entry of the Trumbull County
Court of Common Pleas, denying the School District's Motion for Summary Judgment,
is affirmed. Costs to be taxed against appellant.
MARY JANE TRAPP, P.J., concurs,
COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.
10
COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.
{¶33} I respectfully dissent.
{1[34} The majority affirms the judgment of the trial court, holding that the trial
court properly denied the School District's motion for summary judgment. I disagree.
{¶35} The Supreme Court of Ohio stated in Elston v. Howland Local Schools,
113 Ohio St.3d 314, 2007-Qhio-2070, syllabus:
{¶36} "Pursuant to R.C. 2744.03(A)(5), a political subdivision is immune from
liability if the injury complained of resulted from an individual employee's exercise of
judgment or discretion in determining how to use equipment or facilities unless that
judgment or discretion was exercised with malicious purpose, in bad faith, or in a
wanton or reckless manner, because a political subdivision can act only through its
employees."
{¶37} The Supreme Court further indicated the following in Elston at ¶19-20:
{1[38} "We have held and it is well recognized that a political subdivision acts
through its employees. In Spires v. Lancaster (1986), 28 Ohio St.3d 76, ""*, we stated,
"'It is undeniable that the state can only act through its employees and officers."' Id. at
79, ***, quoting Drain v. Kosydar (1978), 54 Ohio St.2d 49, 56,'"".
{¶39} °Furthermore, teachers and coaches, as employees of a political
subdivision, have 'wide discretion under R.C. 2744.03(A)(5) to determine what level of
supervision is necessary to ensure the safety of the children in' their care." (Parallel
citations omitted.)
{1[40} In the instant matter, although appellees complain that the students were
left unattended or not properly supervised, this writer believes the School District has
11
immunity under Elston. The supervision exercised by appellees' teacher, Kelly
Huscroft, over the gym decorations and the storage and maintenance of the volleyball
stanchions were exercises of judgment or discretion which fall within the defense of
discretionary immunity. The record establishes that the School District had no actual or
constructive notice of any problem with any volleyball stanchion. There is no evidence
that appellee Yeater's injury was foreseeable. As such, the School District cannot be
held liable for any alleged negligence in maintaining the volleyball stanchions.
{¶41} Based upon the discretionary immunity afforded by R.C. 2744.03(A)(3)
and (5), this writer believes the School District was entitled to summary judgment.
{1[42} For the foregoing reasons, I respectfully dissent.
12
STATE OF OHIO ))SS.
IN THE COURT OF APPEALS
COUNTY OF TRUMBULL
AMY YEATER, et al.,
) ELEVENTH DISTRICT
Plaintiffs-Appel lees, JUDGMENT ENTRY
- vs - CASE NO. 2009-T-0107
BOARD OF EDUCATION,LABRAE SCHOOL DISTRICT, et al.,
Defend ant-Appella nt.
For the reasons stated in the Opinion of this court, the sole assignment of
error is without merit. The order of this court is that the judgment of the Trumbull
County Court of Common Pleas is affirmed. Costs to be taxed against appellant.
FCOUR
AU
TRUM iKAREN IN
LEDOFAPPEALS
0 9 2010
LLCCUNTY,OHNTE ALLEN, CLERK
UDGE DIANE V. GRENDELL
MARY JANE TRAPP, P.J., concurs,
COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion.
13