2014 Ohio 4325
Ohio Ct. App.2014Background
- On May 12, 2006, 12-year-old Michael Hawsman slipped on a diving board at the Cuyahoga Falls Natatorium and injured his knee; the City operates the Natatorium.
- Plaintiffs (Michael and his parents) sued the City alleging negligent maintenance of the diving board that created a physical defect.
- The City moved for summary judgment asserting (inter alia) political-subdivision immunity, that the board presented an open-and-obvious danger, and that there was no proof of a physical defect or City knowledge/creation of any defect.
- This Court and the Ohio Supreme Court previously held R.C. 2744.02(B)(4) (employee-negligence + physical defect within government building) applied, so immunity was not established as a matter of law.
- On remand the trial court found genuine factual disputes about employee negligence and a physical defect but nevertheless granted summary judgment to the City, concluding a slippery diving board was an open-and-obvious hazard and relieved the City of a duty.
- The Court of Appeals reversed, holding the open-and-obvious finding could not defeat the plaintiffs’ claim premised on an employee-created physical defect and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of open-and-obvious doctrine | Hawsman argues the slippery condition was a defe ct caused by negligent maintenance, not a natural/open-and-obvious danger | City argues diving board was open-and-obvious, negating any duty to warn | Reversed: open-and-obvious of the non-defective board does not bar a claim that injury was caused by an employee-created physical defect; genuine issues of fact exist about defect/creation |
| Waiver of open-and-obvious defense | Hawsman contends City waived the defense by not pleading it earlier | City relied on the defense at summary judgment | Court declined to address waiver on appeal because plaintiffs did not raise that argument below; treated issue on merits |
| Applicability of R.C. 2744.02(B)(4) (political-subdivision liability) | Plaintiffs claim injury was caused by employees and due to a physical defect within a government building | City argued immunity or lack of proof of employee negligence/defect | Court reiterates R.C. 2744.02(B)(4) applies; factual disputes remain whether employee negligence produced a physical defect that caused the injury |
| City knowledge/creation of defect | Plaintiffs point to testimony and lack of daily maintenance as evidence City created defect | City argues no evidence it had actual/constructive knowledge or caused defect | Court: genuine issues of material fact exist on creation/knowledge; summary judgment improper |
Key Cases Cited
- Cater v. Cleveland, 83 Ohio St.3d 24 (1998) (interpreting R.C. 2744.02(B)(4) re: liability for employee negligence causing physical defects in buildings)
- Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79 (2003) (open-and-obvious doctrine obviates duty to warn)
- Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642 (1992) (rationale for open-and-obvious doctrine)
- Robinson v. Bates, 112 Ohio St.3d 17 (2006) (elements of negligence)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (summary judgment standard)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (summary judgment burdens)
- Di Gildo v. Caponi, 18 Ohio St.2d 125 (1969) (heightened duty of care to children of tender years)
- Perry v. Eastgreen Realty Co., 53 Ohio St.2d 51 (1978) (duty to invitees to maintain premises and warn of hidden dangers)