Nicholson v. LoanMax, L.L.C.
105 N.E.3d 489
Ohio Ct. App.2018Background
- On Sept. 17, 2014 Kelly Nicholson exited a Bellaire Board of Education (BOE) school bus driven by Judith Steele and stepped into a pothole in a parking lot, sustaining injury.
- The parking lot was owned by TERA II, LLC, leased to Drummond Financial Services (dba LoanMax), and subject to a BOE easement dating to 1982; Drummond/LoanMax had lease maintenance obligations.
- Nicholson sued BOE, Steele, LoanMax/Drummond, and others, alleging negligence in maintaining the lot and in the bus operation.
- BOE and Steele moved for summary judgment asserting statutory immunity under R.C. Chapter 2744; the trial court denied the motion and the denial was appealed as a final, appealable order under R.C. 2744.02(C).
- The appellate majority held BOE and Steele entitled to immunity because none of the R.C. 2744.02(B) exceptions (negligent vehicle operation, failure to repair public roads, physical defect) applied to reinstate liability.
- Judge Donofrio concurred in part and dissented in part: he would apply R.C. 2744.02(B)(1) (negligent operation) to BOE but would nonetheless find Steele individually immune under R.C. 2744.03(A)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2744.02(B)(1) (negligent operation of a motor vehicle) removes BOE/Steele's immunity | Nicholson: driving the bus over and parking on the pothole was negligent operation reinstating liability | BOE/Steele: bus was fully stopped when plaintiff exited; "operation" exception applies only to driving/moving the vehicle, not to supervision or non-driving acts | Majority: exception does not apply because bus was stopped; dissent: exception applies to BOE (but concurs that Steele is immune individually) |
| Whether R.C. 2744.02(B)(3) (failure to repair public roads) removes immunity | Nicholson: BOE easement implied duty to maintain lot; thus failure to repair reinstates liability | BOE/Steele: pothole was in a parking lot, not a "public road" as defined by R.C. 2744.01(H) | Held: exception inapplicable—parking lots are not "public roads" under the statute |
| Whether R.C. 2744.02(B)(4) (physical defect on grounds) removes immunity | Nicholson: pothole is a physical defect on BOE grounds that, together with employee negligence, caused injury | BOE/Steele: no actionable combination of employee negligence plus a qualifying "physical defect" within meaning of statute | Held: majority finds plaintiff's claims do not satisfy the two-element requirement (employee negligence + physical defect) to overcome immunity |
| Whether Steele has individual immunity under R.C. 2744.03(A)(6) | Nicholson: alleges driver negligence | Steele: even if negligent, employee immunity protects her unless acts were outside scope, malicious, or wanton/reckless | Held: Majority finds Steele immune (under chapter 2744 analysis); Donofrio would reach same result but via R.C. 2744.03(A)(6) explicitly |
Key Cases Cited
- Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241 (2007) (standard of review for summary judgment)
- Byrd v. Smith, 110 Ohio St.3d 24 (2006) (summary judgment standard)
- Green County Agricultural Soc. v. Liming, 89 Ohio St.3d 551 (2000) (three-tiered R.C. Chapter 2744 immunity analysis)
- Doe v. Marlington Local School Bd. of Edn., 122 Ohio St.3d 12 (2009) (R.C. 2744.02(B)(1) pertains to driving/causing vehicle movement; supervision not covered)
- Baker v. Wayne County, 147 Ohio St.3d 51 (2016) (statutory definition of "public roads" controls scope of R.C. 2744.02(B)(3) liability)