Fry v. Cincinnati
2022 Ohio 1248
Ohio Ct. App.2022Background
- Fry was injured when a tree fell from city park property onto her car as she drove on adjacent Colerain Avenue.
- She sued the City of Cincinnati for negligent failure to maintain trees; the City moved to dismiss under Civ.R. 12(B)(6) asserting immunity under R.C. Chapter 2744.
- The trial court denied the City’s motion; the City appealed.
- The key statutory issue was whether the R.C. 2744.02(B)(4) "physical-defect" exception to municipal immunity applied.
- The City conceded Fry’s complaint, taken as true, alleged employee negligence and a physical defect (unmaintained tree limb), but Fry alleged she was not on city property when injured.
- The court held the physical-defect exception did not apply because Fry failed to allege the injury occurred within or on the grounds of a building used in connection with a governmental function; the City was entitled to immunity and the complaint must be dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2744.02(B)(4) physical-defect exception removes the City's immunity | Relying on employee negligence and an unmaintained tree limb as a physical defect; location is irrelevant | Exception requires the injury to have occurred within or on the grounds of a building used in a governmental function; Fry was on the adjacent public road, not on city property | Exception did not apply because Fry did not allege the injury occurred within/on grounds of a governmental building; City entitled to immunity and dismissal required |
Key Cases Cited
- Thomas v. Othman, 99 N.E.3d 1189 (1st Dist. 2017) (standard of review for Civ.R. 12(B)(6) motion — de novo; pleading sufficiency).
- Holimon v. Sharma, 180 N.E.3d 1226 (1st Dist. 2021) (sets out three-tiered R.C. 2744 immunity framework).
- R.K. v. Little Miami Golf Ctr., 1 N.E.3d 833 (1st Dist. 2013) (defines elements required for R.C. 2744.02(B)(4) physical-defect exception).
- Plush v. Cincinnati, 164 N.E.3d 1056 (1st Dist. 2020) (reaffirms that all three elements of the physical-defect exception must be present).
- Keller v. Foster Wheel Energy Corp., 837 N.E.2d 859 (10th Dist. 2005) (supports requirement that the injury occur within or on the grounds of a governmental building).