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

1

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)

2

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.

3

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

4

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

5

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.

6

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.

7

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

9

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.

10

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

11

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.

12

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