KATHLEEN BUSH, ETC., ET AL. v. CLEVELAND MUNICIPAL SCHOOL DISTRICT, ET AL.
No. 99612
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 12, 2013
2013-Ohio-5420
BEFORE: E.T. Gallagher, J., Stewart, A.J., and Keough, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-790506
Wayne J. Belock, Chief Legal Counsel
David J. Sipusic
Cleveland Metropolitan School District
1380 East 6th Street, Room 203
Cleveland, Ohio 44114
ATTORNEY FOR APPELLEES
Ronald A. Apelt
Apelt Law Firm, L.L.C.
20600 Chagrin Blvd., Suite 400
Shaker Heights, Ohio 44122
{¶1} Defendant-appellant Cleveland Metropolitan School District (“CMSD“)1 appeals the denial of its motion to dismiss. We find merit to the appeal and reverse.
{¶2} Plaintiff-appellee Kathleen Bush (“Bush“) filed a complaint on her own behalf and on behalf of her daughter, Desiree Bush (“Desiree“)(collectively “appellees“), against the CMSD to recover damages for personal injuries. According to the complaint, Desiree was running from another student at Jane Addams High School, when she jumped onto a cement planter, fell, and sustained injuries. In the first count of the complaint, appellees allege this accident occurred because CMSD negligently allowed “a physical defect and hazard to exist” and failed to warn students of the dangerous condition. In the second count, they alleged that CMSD employees and agents acted in bad faith and in a wanton or reckless manner “in allowing this hazardous condition to exist, and in failing to warn students of said defect.” Finally, in the third count, Bush asserts a loss of consortium claim for the loss of her daughter‘s services and companionship.
{¶3} The CMSD filed a motion to dismiss, arguing it was immune from liability under
{¶4} We review an order denying a
{¶5} Ohio is a notice-pleading state, and the Ohio Rules of Civil Procedure generally do not require a plaintiff to plead operative facts with particularity. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29.
{¶6} CMSD argues the trial court should have dismissed appellees’ complaint because it is evident from the face of the complaint that it is immune from liability pursuant to
{¶7}
{¶8} The second tier of the analysis requires the court to determine whether any of the five exceptions to immunity enumerated in
{¶9} It is undisputed that CMSD is entitled to the general grant of immunity provided in
{¶10} CMSD argues none of the five exceptions to immunity listed in
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.
{¶11} In paragraphs four and five of the complaint, appellees alleged that Desiree‘s accident:
was the direct and proximate result of the negligence of the employee/agents of the Defendants in allowing said physical defect and hazard to exist, and in failing to warn others, including students like Desiree Bush, of this known defect and hazard when it was known that this area was utilized by students.
* * *
The above described accident was due to a physical defect occurring within or on the grounds of Jane Addams High School, a facility used in connection with the performance of a governmental function and which was under the Defendants’ control and the control of the Defendants’ agents/employees.
{¶12} Although
Allstate‘s complaint states that because Electrolux manufactures and designs gas dryers, and Allstate‘s insured‘s gas dryer caught fire, the dryer was defective, and therefore Electrolux is liable for damages. Even under Ohio‘s notice pleading standard, Allstate‘s complaint is insufficient.
Paragraphs 7 through 9 of the complaint allege design and manufacturing defects. But the complaint merely recites the elements of the law governing these causes of action as a legal conclusion. It does not contain any facts or allegations that support its conclusions. Compare Beretta at ¶ 26 (design defect claim survives
Civ.R. 12(B)(6) dismissal because the complaint alleges design defect by not incorporating “feasible safety devices that would prevent unauthorized use and foreseeable injuries“).Paragraph 10 of the complaint alleges that “fire and resulting damages were the direct and proximate result of the breach of express or implied warranties given to Allstate‘s insured.” The complaint contains no facts or allegations pertaining to the warranties allegedly received by the insured, whether expressed or implied, nor does it contain any facts as to how the gas dryer did not conform to such representations.
Paragraph 11 of Allstate‘s complaint alleges that the “fire and resulting damages were the direct and proximate result of the Defendant‘s failure to warn Plaintiff‘s insured of the potential hazards and dangers associated with the operation of the gas dryer which it manufactured.” Allstate does not
state or allege any facts, hazards, or dangers that existed that Electrolux should have warned the insured about or what risks Electrolux should have known. Compare Beretta at ¶ 34 (failure to warn survives Civ.R. 12(B)(6) because the complaint alleged [Beretta] manufactured or supplied guns without adequate warning of their dangerousness or instruction as to their use where specific facts alleged unforeseeable risks of the firearm that were not open and obvious).Paragraph 12 of Allstate‘s complaint asserts that the “aforementioned fire and resulting damages were the direct and proximate result of the negligence of the defendant.” This general statement, without any supporting facts or allegation that Electrolux owed Allstate‘s insured any duty and how it breached that duty, is insufficient to survive a
Civ.R. 12(B)(6) motion. Compare Beretta at ¶ 17 and 25 (negligence claim survivesCiv.R. 12(B)(6) dismissal because complaint alleges negligence “in failing to exercise reasonable care in designing, manufacturing, marketing, advertising, promoting, distributing, supplying, and selling their firearms without ensuring that the firearms were safe for their intended and foreseeable use by consumers“).
Allstate Ins. at ¶ 11-14.
{¶13} Here, appellees merely allege that CMSD was negligent because it allowed a defective planter to remain on its property and that the defective planter proximately caused Desiree‘s injuries. They further allege that Desiree ran, jumped onto the planter, and fell off the other side. Although appellees suggest the height differential between the planter and the ground created a hazardous condition, they do not provide any information to show how the planter was defective. The complaint also fails to contain any facts to establish how CMSD was responsible for any defective condition. Reciting language from
{¶15} Judgment reversed.
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN T. GALLAGHER, JUDGE
MELODY J. STEWART, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR