DOE ET AL., APPELLEES, v. GREENVILLE CITY SCHOOLS ET AL., APPELLANTS.
No. 2021-0980
Supreme Court of Ohio
December 28, 2022
2022-Ohio-4618
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Doe v. Greenville City Schools, Slip Opinion No. 2022-Ohio-4618.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-4618
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Doe v. Greenville City Schools, Slip Opinion No. 2022-Ohio-4618.]
Political subdivisions—Immunity from suit—
(No. 2021-0980—Submitted June 16, 2022-Decided December 28, 2022.
APPEAL from the Court of Appeals for Darke County, No. 2020-CA-4, 2021-Ohio-2127.
STEWART, J., announcing the judgment of the court.
{¶ 1} In this case, this court is asked to decide whether the absence of a fire extinguisher or other safety equipment within a building of a political subdivision could be a physical defect such that an exception to immunity exists under
{¶ 2} In May 2020, plaintiffs-appellees, Jane Doe 1, Jane Doe 2, and a parent of each child (collectively, “the students“), filed a complaint against defendants-appellants, Greenville City Schools; Greenville City School District Board of Education; Stan Hughes, principal of the high school; and Roy Defrain, a science teacher at the high school (collectively, “Greenville“),1 alleging that Greenville negligently caused their injuries when they suffered severe burns in December 2019 after a bottle of isopropyl alcohol caught fire and exploded in a science class. The students alleged in part that Greenville failed to provide proper safety equipment, “especially, but not limited to, a fire extinguisher inside the classroom,” failed to ensure that there were proper safety features and protocols in place, failed to properly supervise and protect them, and to the extent that Greenville exercised discretion, Greenville did so “maliciously, in bad faith and in a reckless and wanton manner.”
{¶ 3} Greenville moved to dismiss, arguing that it was immune from liability under
{¶ 4} The trial court denied Greenville‘s motion to dismiss, and Greenville appealed to the Second District. Under
{¶ 5} The Second District affirmed the trial court‘s denial of Greenville‘s motion to dismiss. 2021-Ohio-2127, 174 N.E.3d 917, ¶ 27. The appellate court noted, as did the trial court, that there was a split between appellate districts concerning the application of
{¶ 6} Greenville appealed to this court.2 This court accepted jurisdiction of their second proposition of law: “The alleged absence of a device or piece of safety equipment that would not be considered a ‘fixture’ under Ohio law cannot constitute a ‘physical defect’ of a classroom under
II. LAW AND ANALYSIS
A. Civ.R. 8 and 12(B)(6)
{¶ 7} Ohio is a notice-pleading state. See Wells Fargo Bank, N.A. v. Horn, 142 Ohio St.3d 416, 2015-Ohio-1484, 31 N.E.3d 637, ¶ 13. This means that outside of a few specific circumstances, such as claims involving fraud or mistake, see
{¶ 8} A
B. Political-Subdivision Immunity
{¶ 9} “The Political Subdivision Tort Liability Act, as codified in
{¶ 10} That immunity, however, is not absolute. Hill v. Urbana, 79 Ohio St.3d 130, 679 N.E.2d 1109 (1997). Under the second tier of the analysis, courts must decide whether any exceptions to immunity apply under
{¶ 11} And finally, if an exception applies, immunity can be reinstated under the third tier of the analysis “if the political subdivision can successfully argue that one of the defenses contained in
C. Physical Defect
{¶ 12} There is no question in this case that the school district is a political subdivision for purposes of
{¶ 13} The trial court and appellate court relied on this court‘s decision in Moore, 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606, to find that the students pleaded sufficient facts to survive a motion to dismiss. Moore involved the deaths of two children caused by a fire in an apartment that was owned by the Lorain Metropolitan Housing Authority (“LMHA“). The mother filed an action against LMHA, claiming that because it had removed the apartment‘s only working smoke detector and negligently failed to replace it, the father of the children, who was home and sleeping at the time of the fire, did not wake in time to rescue the children. The trial court dismissed the action, finding that LMHA was a political subdivision entitled to immunity and that “none of the exceptions to immunity, and particularly
{¶ 14} This court determined that a conflict existed between the Ninth District and other appellate districts on the question “whether operation of a public housing authority is a proprietary or a governmental function within the meaning of Ohio‘s sovereign-immunity statutes.” Id. at ¶ 1. This court also accepted a discretionary appeal on the issues “whether
{¶ 15} First, this court determined that “the operation of a public housing authority is a governmental function under
{¶ 16} With respect to
The final step in the analysis of (B)(4) is to determine whether absence of a required smoke detector is a “physical defect” occurring on the grounds of LMHA‘s property. Because the trial court did not fully consider this issue, which, if established, would dissolve immunity, we must remand to the trial court for further proceedings.
Moore, 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606, at ¶ 25.
{¶ 17} Greenville argues that in Moore, this court “provided no analysis of the ‘physical defect’ language and gave no hint as to how it might rule should the trial court conclude one way or the other.” The Second District rejected this exact argument, explaining, “Regardless of how the Court might have ruled, remand would not have been appropriate had the absence of ‘required’ safety equipment been insufficient, as a matter of law, to qualify as a ‘physical defect’ for purposes of the exception
{¶ 18} Greenville admits that in Moore, this court “left open the possibility that the removal of smoke detectors from the building could constitute a ‘physical defect’ that would dissolve immunity.” But Greenville contends that the students failed to allege that the “classroom lacked some sort of legally mandated safety feature” or that there had been a “removal of any sort of fixture, such as a smoke detector.” Greenville maintains the students’ “allegations appear to challenge only the absence of such items.”
{¶ 19} The students counter that “[t]he physical defect in this case does not lie within the defectiveness of safety equipment, but instead within the defectiveness of a classroom without proper safety equipment and protocol[,] * * * especially when in a lab-style setting with chemicals present.”
{¶ 20}
{¶ 21} The phrase “physical defect” is not statutorily defined, and this court has never defined it within the context of
{¶ 22} Other courts have defined the term “physical defect” within
{¶ 23} In Hamrick, the court defined the words “physical” and “defect” as follows:
The word “physical” [means] “having a material existence: perceptible esp[ecially] through senses and subject
to the laws of nature.” Merriam Webster‘s New Collegiate Dictionary (10th Ed. 1996) 877. A “defect” is “an imperfection that impairs worth or utility.” Id. at 302. It would seem then that a “physical defect” is a perceivable imperfection that diminishes the worth or utility of the object at issue.
Id. at ¶ 28.
{¶ 24} Since this court‘s decision in Moore, appellate courts have expressed varied opinions on what constitutes a “physical defect” for purposes of establishing an exception to immunity under
{¶ 25} Other courts, however, have not held that the lack of a safety feature could constitute a “physical defect.” See, e.g., Duncan, 2012-Ohio-1949, 970 N.E.2d 1092 (failure to use a safety mat on the floor while conducting a self-defense class was not a physical defect); Hamrick, 6th Dist. Williams No. WM-10-014, 2011-Ohio-2572 (an uncovered service pit with a surrounding lip not painted in a different color was not considered a physical defect).
{¶ 26} Compare those cases to cases in which an existing structure or piece of equipment was damaged. See, e.g., Stanfield v. Reading Bd. of Edn., 2018-Ohio-405, 106 N.E.3d 197 (1st Dist.) (safety netting around a discus-throwing area in a city stadium was dilapidated and could be a physical defect); Bolling v. N. Olmsted City Schools Bd. of Edn., 8th Dist. Cuyahoga No. 90669, 2008-Ohio-5347 (power jointer machine was defective because the guard on the machine was open and would not close, a defect that the shop teacher testified would only result from at least five years of neglect); Yeater v. LaBrae School Dist. Bd. of Edn., 11th Dist. Trumbull No. 2009-T-0107, 2010-Ohio-3684 (volleyball equipment contained loose bolts); Leasure, 2012-Ohio-3071, 973 N.E.2d 810 (bleachers improperly set up caused them to be unstable); Cuyahoga Falls v. Gaglione, 9th Dist. Summit No. 28513, 2017-Ohio-6974 (city-operated building suffered from leaks in the roof that caused the building‘s gym floor to be wet).
{¶ 27}
{¶ 28} In this case, the students have alleged that their injuries were caused by the negligent supervision of the science teacher and the lack of a fire extinguisher and other safety equipment in the classroom. We cannot say, therefore, that the Second District erred by affirming the trial court‘s denial of Greenville‘s motion to dismiss and finding that the students have alleged sufficient facts that if proven, demonstrate that
Judgment affirmed.
O‘CONNOR, C.J., and BRUNNER, J., concur.
FISCHER, J., concurs in judgment only.
KENNEDY, J., dissents, with an opinion joined by DEWINE and DONNELLY, JJ.
KENNEDY, J., dissenting.
{¶ 29} The absence of a safety device such as a fire extinguisher in a school‘s science classroom is not a “physical defect” within or on the grounds of a government building. Therefore, appellees, Jane Doe 1, Jane Doe 2, and a parent of each child (collectively, “the students“), have failed to state a claim for relief. Because appellants, Greenville City Schools, Greenville City School District Board of Education, Stan Hughes, and Roy Defrain (collectively “Greenville City Schools“), were immune from liability, I would reverse the judgment of the Second District Court of Appeals. Because the majority does otherwise, I dissent.
Standard of Review
{¶ 30} This case calls on us to review the denial of a motion to dismiss, which turns on a question of statutory interpretation. We review de novo a decision ruling on a motion to dismiss under
{¶ 31} Moreover, this case raises
Political-Subdivision Immunity
{¶ 32} Determining whether a political subdivision is immune from tort liability under
“The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. * * * However, that immunity is not absolute.
R.C. 2744.02(B) ; Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998) [(lead opinion), abrogated by M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261.]
“The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in
R.C. 2744.02(B) apply to expose the political subdivision to liability. Id. at 28, 697 N.E.2d 610. At this tier, the court may also need to determine whether specific defenses to liability for negligent operation of a motor vehicle listed inR.C. 2744.02(B)(1)(a) through (c) apply.“If any of the exceptions to immunity in
R.C. 2744.02(B) do apply and no defense in that section protects the political subdivision from liability, then the third tier of the analysis requires a court to determine whether any of the defenses inR.C. 2744.03 apply, thereby providing the political subdivision a defense against liability.”
(Ellipses added in Pelletier.) Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 15, quoting Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.
{¶ 33} It is not disputed that Greenville City Schools is entitled to immunity under the first tier of analysis. At issue is whether the exception to immunity provided in
The R.C. 2744.02(B)(4) Exception
{¶ 34}
(B) Subject to sections
2744.03 [(the third-tier defenses to liability)] and2744.05 [(limitation on damages)] of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:* * *
(4) Except as otherwise provided in section
3746.24 of the Revised Code [(pertaining to hazardous substances and petroleum)], 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, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as definedin section 2921.01 of the Revised Code.
As this language dictates, political subdivisions may be liable for injury caused by the negligence of their employees if (1) injury occurs within or on the grounds of buildings used for a governmental function and (2) the injury is caused by a physical defect within or on the grounds of those buildings.
{¶ 35} This case turns on the meaning of the term “physical defect” as it is used in
{¶ 36} The lead opinion concludes that the students alleged sufficient facts to prove that their injuries were caused by a physical defect within the school based on their allegations that “their injuries were caused by the negligent supervision of the science teacher and the lack of a fire extinguisher and other safety equipment in the classroom.” Lead opinion, ¶ 28. I disagree.
{¶ 37} First, the negligent-supervision claim is plainly not based on a physical defect—supervision is not a material or tangible thing. That allegation therefore cannot support the argument that the exception to immunity for physical defects within or on the grounds of governmental buildings applies.
{¶ 38} Second, the lack of a fire extinguisher or other safety device did not render the science classroom defective, because the classroom functioned as intended and as it was designed—the classroom did not have some irregularity that caused it to fail in its expected use. The complaint does not allege that a safety device such as a fire extinguisher was required to be in the classroom as part of the classroom‘s design or by law. Further, the absence of a safety device such as a fire extinguisher is not a physical defect within a governmental building or on its grounds. This is not a case, for example, in which a fire extinguisher or other safety device was present but defective. And whether a fire extinguisher or other safety device should have been kept in the classroom as a matter of judgment or policy is outside the scope of the exception to immunity provided in
{¶ 39} This court‘s decision in Moore v. Lorain Metro. Hous. Auth. is not to the contrary. This court wrote, “The final step in the analysis of (B)(4) is to determine whether absence of a required smoke detector is a ‘physical defect’ occurring on the grounds of [a public housing authority‘s] property. Because the trial court did not fully consider this issue, which, if established, would dissolve immunity, we must remand to the trial court for further
{¶ 40} The students’ injuries are no doubt horrific. However, in enacting the Political Subdivision Tort Liability Act, the General Assembly sought “to preserve ‘the fiscal integrity of political subdivisions,‘” Pelletier, 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, at ¶ 31, quoting Wilson v. Stark Cty. Dept. of Human Servs., 70 Ohio St.3d 450, 453, 639 N.E.2d 105 (1994). The legislature nonetheless provided some limited exceptions to immunity so that the victims of a political subdivision‘s negligence could be compensated, but only in certain circumstances. In weighing the policy of protecting the fiscal integrity of political subdivisions against the policy of ensuring compensation to victims of negligence, the General Assembly necessarily had to draw lines that leave some parties who are injured by a political subdivision uncompensated.
{¶ 41} “It is the function of the General Assembly to balance such competing interests when enacting legislation.” Erickson v. Morrison, 165 Ohio St.3d 76, 2021-Ohio-746, 176 N.E.3d 1, ¶ 34. “Second-guessing the wisdom of the legislature‘s policy choices in striking that balance does not fall within the scope of our review.” Id. Rather, “[o]ur role, in exercise of the judicial power granted to us by the Constitution, is to interpret and apply the law enacted by the General Assembly.” Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 29.
{¶ 42}
DEWINE and DONNELLY, JJ., concur in the foregoing opinion.
Wright & Schulte, L.L.C., Michael L. Wright, Robert L. Gresham, and Kesha Q. Brooks, for appellees.
Subashi, Wildermuth & Justice, Brian L. Wildermuth, and Tabitha Justice, for appellants.