2013 Ohio 2023
Ohio Ct. App.2013Background
- Bender sued the City of Portsmouth and John Doe defendants alleging negligence in maintaining an alley and a water meter cover, causing his fall and injuries.
- The City moved for summary judgment, asserting immunity under R.C. 2744.02(A)(1) and arguing that none of the exceptions applied.
- Bender contended that the immunity exception in R.C. 2744.02(B)(4) applied because the injury occurred within or on the grounds of a building used in connection with a governmental function and due to a physical defect.
- Bender later argued in reply that R.C. 2744.02(B)(3) applied, but the court declined to consider this argument raised for the first time on appeal.
- The trial court granted summary judgment in favor of the City, finding immunities barred the claim, and dismissed the complaint against the City.
- On appeal, the court held the City is immune as a matter of law, disposing of Bender’s claims against the City while leaving the John Doe defendants unresolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City is immune under 2744.02(A)(1) and whether any exception applies | Bender contends an exception applies (B(4)) due to a building-related defect. | City argues Bender failed to prove the injury occurred on grounds of a building used for a government function (B(4) not applicable). | City immune; Bender failed to prove B(4) applies. |
| Whether Bender's 2744.02(B)(3) argument was properly raised and preserved | Bender relied on a new 2744.02(B)(3) argument on appeal. | City argued 2744.02(B)(3) did not apply and Bender ignored that issue in the briefing below; appeal raises it too late. | Argument not addressed; not considered on appeal. |
Key Cases Cited
- Lambert v. Clancy, 125 Ohio St.3d 231 (2010) (three-tier immunity analysis under R.C. 2744.02)
- Sickles v. Jackson Cty. Hwy. Dept., 2011-Ohio-6102 (4th Dist. 2011) (appeal-brief timing; improper new immunity argument on appeal)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (burden on movant to show no genuine issue of material fact)
- Comer v. Risko, 106 Ohio St.3d 185 (2005) (Civ.R.56 standard for summary judgment)
- State ex rel. Dewine v. Ashworth, 2012-Ohio-5632 (4th Dist. 2012) (reply-brief immunities and waiver considerations)