WILFREDO CARABALLO v. CLEVELAND METRO. SCHOOL DIST., ET AL.
No. 99616
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 7, 2013
[Cite as Caraballo v. Cleveland Metro. School Dist., 2013-Ohio-4919.]
Jones, P.J., Kilbane, J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-783470
RELEASED AND JOURNALIZED: November 7, 2013
Wayne J. Belock
Chief Legal Counsel
Cleveland Metro. School District
1380 East 6th Street, Room, 203
Cleveland, Ohio 4414
Joseph J. Jerse
Legal Counsel
Cleveland Metro. School District
1111 Superior Avenue, Room 1807
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Christian R. Patno
Nicholas M. Dodosh
Susan C. Stone
McCarthy, Lebit, Crystal & Liffman
101 West Prospect Avenue
Suite 1800
Cleveland, Ohio 44115
{¶1} Defendant-appellant, the Cleveland Metropolitan School District (“CMSD” or “the District“), appeals the trial court‘s denial of its motion to dismiss plaintiff-appellee‘s, Wilfredo Caraballo, complaint. We affirm in part and reverse in part.
{¶2} In 2012, Caraballo filed a nine-count complaint on behalf of his minor daughter K.C. against the CMSD and unidentified John Doe and Jane Doe individuals and John Doe entities. In the complaint, Caraballo alleged that on March 23, 2009, while eating lunch at her CMSD elementary school, K.C. was severely injured after she ate a burrito from the school cafeteria that contained a two-prong metal binder clip. Count 1 of the complaint alleged “willful, reckless and wanton misconduct“; Count 2 alleged negligence; Count 3 alleged res ipsa loquitur; Count 4 alleged breach of implied warranty of merchantability; Count 5 alleged breach of implied warranty of fitness for a particular purpose; Count 6 was a derivative claim for loss of consortium; Counts 7 and 8 alleged violations of state and federal regulations concerning school lunches and the Pure Food and Drug Act; and Count 9 alleged product liability.
{¶3} The CMSD, as a separate defendant, filed a motion to dismiss, arguing that it was immune from liability as a political subdivision and the court should dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to
{¶4} The District raises one assignment of error for our review:
The trial court erred in failing to dismiss the complaint against the Cleveland Metropolitan School District on the ground of statutory immunity.
Motion to Dismiss
{¶5} The purpose of a complaint is to notify the defendant of the legal claim against him or her. Wilson v. Riverside Hosp., 18 Ohio St.3d 8, 10, 479 N.E.2d 275 (1985). A motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted. Id. citing 5 Wright & Miller, Federal Practice 593, 598, Section 1357 (1969).
{¶6} We apply a de novo standard of review to the trial court‘s decision on a motion to dismiss under
{¶7} In order for a trial court to dismiss a complaint under
{¶8} Therefore, when reviewing the CMSD‘s motion to dismiss, we will assume the allegations surrounding K.C.‘s injuries as outlined in the complaint to be true.
Political Subdivision Immunity
{¶9} The CMSD‘s motion to dismiss was premised on the argument that it was entitled to political subdivision immunity. Whether a political subdivision is entitled to immunity is a purely legal issue, properly determined by a court prior to trial, but preferably on a motion for summary judgment. Roe v. Hamilton Cty. Dept. of Human Servs., 53 Ohio App.3d 120, 126, 560 N.E.2d 238 (1st Dist.1998), citing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
{¶10} To determine whether the District is immune under the Political Subdivision Tort Liability Act, as it is codified in
{¶11} The parties in this case do not dispute that the District qualifies as a political subdivision as defined in
{¶12} “The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in
{¶13} If any of the exceptions to immunity in
Exceptions to Immunity
{¶15} As previously mentioned, the school district meets tier one of the Cater analysis as a political subdivision. Next, we must determine if one of the exceptions to immunity under
{¶16} According to Caraballo, the two exceptions to immunity that apply in this case are
{¶17}
{¶18} Governmental functions include “[t]he provision of a system of public education.”
[t]he board of education of any * * * local school district may establish food service, provide facilities and equipment, and pay operating costs in the schools under its control for the preparation and serving of lunches, and other meals or refreshments to the pupils, employees of the board of education employed therein, and to other persons taking part in or patronizing any activity in connection with the schools.
{¶19} CMSD relies on the Seventh Appellate District‘s decision in Taylor v. Boardman Twp. Local School Dist. Bd. of Edn., 7th Dist. Mahoning No. 08 MA 209, 2009-Ohio-6528, where the court determined that although the serving of school lunches was not expressly by statute a governmental function, it still qualified as such. The Taylor court reasoned:
Although the language of
R.C. 3313.81 does not necessarily require a local board of education to establish a food service, [R.C.] 3313.813(C) does obligate local boards of education to establish food service programs if certain basic conditions apply, as mandated by the “National School Lunch Act,” or the “Child Nutrition Act of 1996.” Sections 1751 and 1771, Title 42, U.S. Code. It can therefore be concluded that the provision of lunches is generally a necessary part of the provision of a system of public education, thus part of an obligation of sovereignty imposed on the state of Ohio. Boardman‘s provision of school lunches is thus a governmental function pursuant toR.C. 2744.01(C)(1)(a) .* * *
A board of education is the only entity permitted to create, supervise and regulate the provision of meals to students in school facilities. The provision of food within a school program is subject to strict rules, and is controlled by
statutory mandates in terms of the program‘s structure and day-to-day functioning. * * * Given the foregoing, the provision of school lunches to students in school facilities is an activity not customarily engaged in by nongovernmental persons. Boardman‘s provision of school lunches is thus a governmental function pursuant to R.C. 2744.01(C)(1)(c) .
Id. at ¶ 21-23.
{¶20} Caraballo argues that the serving of school lunches may be a proprietary function since school districts are increasingly relying on non-governmental third-party entities to deliver, prepare, and serve school lunches. As such, he should be afforded the opportunity, as the plaintiff in Taylor was, to engage in discovery. This may establish, Caraballo contends, that the CMSD‘s system of food delivery, preparation, and serving does not constitute a governmental function.
{¶21} We agree with Caraballo to one extent. Putting aside the question of whether Taylor is factually distinguishable from this case and the fact that the decision is not binding on this court, Taylor was not decided on a
{¶22} At this early stage of the proceedings, we cannot say with certainty that the serving of school lunches is a governmental function; further discovery is warranted.
{¶23} Caraballo further claims that the CMSD is subject to the immunity exception in
{¶24} He contends that he may establish facts as alleged in the complaint by proving that the metal binder clip came to be in his child‘s food due to employee negligence and physical defects within or on the grounds of the school. As an example, Caraballo claims he may be able to establish that a physical defect on the grounds of the school led to the collapse of a negligently or recklessly located and/or maintained storage shelf which, in turn, led to the binder clip landing in the food preparation area. The CMSD argues that Caraballo did not properly plead this exception to immunity in his complaint because he did not allege that a physical defect on or in District property, coupled with employee negligence, led to K.C.‘s injuries.
{¶25} Again, insofar as Caraballo has made a short, plain statement of his claim which, if accepted as true, would entitle him to relief, he should be permitted to engage in discovery to attempt to prove his claim.
{¶26} In regard to Caraballo‘s claim for loss of consortium, this claim “is derivative and, but for the primary cause of action by the plaintiff, would not exist.” Moss v. Lorain Cty. Bd. of Mental Retardation, 185 Ohio App.3d 395, 2009-Ohio-6931, 924 N.E.2d 401, ¶ 32 (9th Dist.), citing Bradley v. Sprenger Ents., Inc., 9th Dist. Lorain No. 07CA009238, 2008-Ohio-1988, ¶ 14. Because Caraballo‘s cause of action for loss of consortium is derived from, and dependent upon, the personal injury action that arose from the harm
{¶27} Finally, considering Caraballo‘s allegations for breach of implied warranties, products liability, and violations of state and federal regulations that govern food service, at this early stage of litigation, we find that there is sufficient evidence on these claims to withstand the District‘s motion to dismiss.
R.C. 2744.03 Defenses
{¶28} Count 1 of Caraballo‘s complaint alleged a cause of action for “willful, wanton, and reckless conduct.” Complaint ¶ 9, 10, 25.
{¶29}
{¶30}
(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
* * *
(5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶32} It is well-settled that
{¶33} Thus, it is only after an exception to a political subdivision‘s immunity has been established that a court proceeds to the third tier of the analysis to determine whether a defense in
Future Claim of Immunity
{¶35} Our decision today does not mean that the CMSD is foreclosed from making future immunity arguments. The court‘s denial of the District‘s motion to dismiss triggered its right to an interlocutory appeal under
{¶36} All that is required at this stage of the proceedings is for the court to determine whether, when viewing all factual allegations as true in the complaint, Caraballo has shown he can prove any set of facts entitling him to relief.
{¶37} In sum, the trial court did not err in denying the District‘s motion to dismiss pursuant to
{¶38} Judgment affirmed in part and reversed in part.
{¶39} Accordingly, the case remanded to the trial court for proceedings consistent with this opinion.
It is ordered that appellant and appellee split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
LARRY A. JONES, SR., PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR