Liezl Douglas, Plaintiff-Appellant, v. Columbus City Schools Board of Education et al., Defendants-Appellees.
No. 18AP-940 (C.P.C. No. 17CV-9353)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 26, 2020
2020-Ohio-1133
BROWN, J.
(ACCELERATED CALENDAR)
Rendered on March 26, 2020
On brief: Butler, Cincione & DiCuccio, Alphonse P. Cincione, and N. Gerald DiCuccio, for appellant. Argued: Alphonse P. Cincione.
On brief: Crabbe Brown & James, LLP, and John C. Albert, for appellees. Argued: John C. Albert.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{1} This is an appeal by plaintiff-appellant, Liezl Douglas, from a decision and entry of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Columbus City Schools Board of Education (individually “the school board“), Columbus City School District (individually “the school district“) and Kirk Bardos (individually “Bardos“), and denying appellant‘s motion for summary judgment.
{2} On October 18, 2017, appellant filed a complaint against appellees. The complaint alleged that on May 24, 2011, appellant, while a student at Wedgewood Middle School, participated in a science class project led by Bardos, a teacher at the school.
{3} The complaint alleged that Bardos “breached diverse statutory law and common law dictates” by failing to exercise proper precaution in launching the rocket. (Compl. at 5.) The complaint further alleged that the school board and the school district “negligently permitted the rocket launch to go forward without providing a safe environment” for appellant, and in failing to provide “appropriate instruction on the proper handling of the rocket launch.” (Compl. at ¶ 6.)
{4} On July 25, 2018, appellees filed a motion for summary judgment. Attached to the motion was the deposition of appellant. On August 20, 2018, appellant filed a response to appellees’ motion for summary judgment. Attached to appellant‘s response was the deposition of Bardos. Also on that date, appellant filed a motion for summary judgment for strict liability based on the doctrine of res ipsa loquitur. On August 29, 2018, appellees filed a memorandum contra appellant‘s motion for summary judgment for strict liability.
{5} On November 7, 2018, the trial court filed a decision and entry granting summary judgment in favor of appellees and denying appellant‘s motion for summary judgment. In its decision, the trial court initially determined the school district was not a proper party to the action. With respect to the school board, the court found that appellant‘s allegations implicated the performance of a governmental function, and that none of the immunity exceptions under
{6} On appeal, appellant sets forth the following three assignments of error for this court‘s review:
I. THE TRIAL COURT ERRORED IN AWARDING DEFENDANTS SUMMARY JUDGEMENT WHEN GENUINE ISSUES OF MATERIAL FACT ARE STILL IN EXISTENCE.
III. THE TRIAL COURT ERRORED IN NOT GRANTING PLAINTIFF‘S SUMMARY JUDGEMENT BECAUSE OF FAILING TO APPLY THE POLITICAL SUBDIVISION IMMUNITY STATUTE TO THE EXISTING FACTS OF THIS CASE.
{7} Appellant‘s assignments of error are interrelated and will be considered together. Under the first two assignments of error, appellant challenges the trial court‘s grant of summary judgment in favor of appellees, arguing: (1) there remain genuine issues of material fact, and (2) that the court erred in failing to apply the political subdivision immunity statute to the existing facts. Appellant further argues, under the third assignment of error, the trial court erred in failing to grant summary judgment in her favor based on application of the statutes governing political subdivision immunity to the facts of the case.
{8} Pursuant to
{9} In granting summary judgment in favor of appellees, the trial court made the following factual findings. Bardos is a science teacher at Wedgewood Middle School (part of the school district), and appellant was a student in Bardos’ sixth grade science class
{10} As part of the science class activities, “Bardos instructed students on the design process of a rocket.” The project “was a part of the science curriculum and Bardos had instructed on this project for 23 years.” Appellant worked along with three or four other students “to construct a rocket that Bardos would personally launch during a demonstration.” Bardos “provided the engines and the launcher for the project.” Bardos “inspected each rocket to ensure they met the requirements of the project,” including provisions for “weight, number of fins, parachute, cone at the top, etc.” The launch was to take place “in an open area of the parking lot of the school.” Each of the student groups “set the rocket up on a launch pad and Bardos would launch the rocket.” (Decision at 2.)
{11} On the date of the incident, the rocket constructed by appellant‘s group “was aimed straight up during the demonstration.” Bardos “launched the rocket, which went up about 15 feet in the air before veering right towards a group of students, including [appellant], who were located 50-65 feet away.” The rocket struck appellant in the ankle, and she was taken to the school nurse and “received immediate treatment.” (Decision at 2.)
{12} Following the incident, “Bardos retrieved the rocket and inspected it to determine why it had veered to the right.” Bardos “noticed one of the fins of the rocket had fallen off and the parachute did not open up.” According to Bardos, “the fins were adhered securely as part of the rocket before the demonstration,” and he “could not determine if the fin came off after the launch or if it came off when it hit the ground.” (Decision at 2.)
{13} In its decision, the trial court initially determined, pursuant to the language of
{14} The trial court further held, even assuming one of the immunity exceptions to be applicable, that
{15} With respect to Bardos, and again noting “no allegation or evidence Bardos acted maliciously, wantonly, reckless, or in bad faith,” the trial court concluded that “[h]is acts were in the course and scope of his employment” with the school district, and he was entitled to immunity under
{16} Under Ohio law, courts apply a “three-tiered analysis” in determining whether a political subdivision is entitled to immunity under
{17} As indicated, the trial court initially determined appellant‘s allegations implicated the performance of a governmental function.
{19} We therefore turn to the second tier of the analysis, involving a consideration of whether any of the five exceptions under
{20}
{21} It has been noted that “[t]he phrase ‘physical defect’ is not defined in
{22} Appellant argues that the exception under
{23} In response, appellees note that appellant failed to plead an immunity exception under
{24} Upon review, we agree with appellees that the complaint contained no allegation the rocket constituted a “physical defect” within or on the grounds of buildings used in connection with the performance of a governmental function. However, while the trial court found appellant failed to point to any immunity exception under
{25} As observed by appellees, Ohio cases addressing the “physical defect” exception in general involve physical defects as part of the structure of buildings and the maintenance of those structures. See, e.g., Jones at ¶ 24 (finding genuine issues of material fact remained because orchestra pit without reflective tape and lights might constitute physical defect); Diaz v. Cuyahoga Metro. Housing Auth., 8th Dist. No. 92907, 2010-Ohio-13, ¶ 13 (trial court properly denied motion for judgment on the pleadings where plaintiff‘s complaint alleged that defect in window constituted physical defect and that political subdivision failed to properly maintain premises resulting in window striking plaintiff‘s daughter); Leasure (finding physical defect exception to immunity of
{26} As noted, appellant seeks to invoke the exception under
{27} Moreover, even if we were to find the school board‘s immunity was removed under
{28} In Elston, the Supreme Court of Ohio noted that teachers, “as employees of a political subdivision, have ‘wide discretion under
{29} Ohio courts have held that “the use or non-use of equipment or safety devices constitutes an exercise of judgment or discretion within the purview of
{30} In addressing the defense under
{31} Appellant argued before the trial court, in her response to appellees’ motion for summary judgment, that the failure to allege Bardos acted maliciously, wantonly, recklessly or in bad faith could be inferred from the complaint. The trial court found, however, that the record on summary judgment failed to present evidence of such conduct, and that the evidence indicated Bardos was exercising his discretion in the use of equipment, supplies, and materials. We agree.
{32} Under Ohio law, “[o]ne acts with a malicious purpose if one willfully and intentionally acts with a purpose to cause harm.” Moss at ¶ 19, citing Piro v. Franklin Twp., 102 Ohio App.3d 130, 139 (9th Dist.1995). Bad faith has been “defined as a ‘dishonest purpose, moral obliquity, conscious wrongdoing, [or] breach of a known duty through some ulterior motive or ill will.’ ” Id., quoting Lindsey v. Summit Cty. Children Servs. Bd., 9th Dist. No. 24352, 2009-Ohio-2457, ¶ 16.
{33} An individual “acts wantonly if that person acts with a complete ‘failure to exercise any care whatsoever.’ ” Id., quoting Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356 (1994). Finally, “[o]ne acts recklessly if one is aware that one‘s conduct ‘creates an unreasonable risk of physical harm to another.’ ” Id., quoting Thompson v. McNeill, 53 Ohio St.3d 102, 104 (1990). In this respect, “[r]ecklessness is more than mere negligence in that the person ‘must be conscious that his [or her] conduct will in all probability result in injury.’ ” Id., quoting Fabrey at 356. Further, “[m]ere negligence is not converted into wanton or reckless conduct unless the evidence establishes a ’ “disposition to perversity on the part of the tortfeasor,” and “[s]uch perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury.” ’ ” Simmons v. Yingling, 12th Dist. No. CA2010-11-117, 2011-Ohio-4041, ¶ 43, quoting Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, ¶ 37 (Internal citation omitted.)
{34} In his deposition, Bardos, who has taught in the Columbus City Schools for 31 years, testified that the class rocket project teaches “design process.” The students construct the rockets as a group project, and use materials “such as cardboard, paper towel rolls, plastic tubes.” The students research and plan “ahead of time,” and “we reviewed
{35} Prior to the launch, Bardos “inspected each rocket.” Each rocket had to meet certain requirements; the rocket “had to be 53 ounces or lighter,” contain “three fins * * * securely attached either by tape or glue,” which Bardos “tested,” and “[t]here had to be a parachute installed inside of it.” (Bardos Depo. at 14.) Each rocket also had “a cone on the top that was slightly open so that the parachute could engage once it got into the air.” Bardos kept “the launcher in the class” to check for “tilting to one side or another,” and if he observed any tilting, or that a design was “top heavy,” he instructed the students to “redesign it.” Bardos stated “these are all expressed in the lesson plan guidelines for the rocket.” (Bardos Depo. at 15.) Bardos sent a copy of the guidelines home with the students “before we actually did the activity.” (Bardos Depo. at 23.)
{36} The engine came from a kit, and Bardos used “the second to lowest powered engine * * * because it suggests the lower power engines are safer.” Bardos stated he made sure to use “the safest one.” (Bardos Depo. at 16.) Bardos obtained specialized training and had taught this project “for 23 years. It is part of our design curriculum * * * and we * * * went through a couple of workshops about it, how to have the kids go through the design process.” (Bardos Depo. at 16-17.)
{37} On May 24, 2011, appellant‘s group of “about 3 or 4” students participated in the launch of their rocket, which took place in a level, “open area,” located “in the back of the parking lot.” (Bardos Depo. at 8, 12.) Bardos stated that he “followed the guidelines” that the launch be “in an open area at a safe distance.” (Bardos Depo. at 23.) Bardos testified that “[t]he students were 50 to 65 feet away from it, so they were more than the safe distance required to be from that.” (Bardos Depo. at 9.)
{38} With respect to appellant‘s rocket, Bardos “checked the fins. They were adhered very securely. * * * [T]heir group had the parachute exactly where it was supposed to be. * * * [I]t passed inspection.” (Bardos Depo. at 25-26.) Bardos “slid it onto the launcher to make sure it wasn‘t titling one way or the other,” and “made sure the weight was evenly distributed.” (Bardos Depo. at 26.)
{39} Bardos related that the rocket “went up about 15 feet and immediately veered right toward them.” In “the 23 years prior to doing [the rocket launch] that never
{40} In her deposition testimony, appellant stated that “we made the rocket ourselves before we went out to launch it.” (Douglas Depo. at 25.) The materials for the rocket consisted of “plastic bottles or just papers, construction papers that are colored.” Appellant stated “[we] probably worked on it for about a week in class.” (Douglas Depo. at 27.) Bardos instructed them “[n]ot to make it too big or heavy because it wouldn‘t go up in the air.” (Douglas Depo. at 30.)
{41} During the launch, Bardos instructed the students “to be a certain feet away from the rocket.” (Douglas Depo. at 30.) Appellant recalled “[t]he launch was * * * near the grass, and * * * the students were like a half sphere around the rocket but a certain feet away.” According to appellant, her “guess” was the students were “about 15 feet” away from the launch, but “I can‘t exactly remember how many feet.” (Douglas Depo. at 32.)
{42} Appellant was standing up at the time her rocket was launched. She thought her group put their rocket on the launch pad, but was “not sure.” The rocket was pointed straight up and Bardos ignited the rocket engine. Appellant testified that “[t]he rocket was launched, but it didn‘t go straight up.” Rather, the rocket went “sideways” and “hit me on the leg.” (Douglas Depo. at 39.) Appellant “didn‘t expect what happened to happen to me,” and testified she had no reason to believe Bardos knew the rocket was going to hit her. (Douglas Depo. at 36.)
{43} Based on this court‘s de novo review of the pleadings and evidentiary materials submitted on summary judgment, there is no evidence to establish appellees “created an unreasonable risk of harm” or acted with “a perverse disregard” for the fact students might be injured as a result of the way the science class “was conducted, the course was designed, or the manner in which the students were supervised.” Simmons at ¶ 50.
{44} We also conclude the trial court did not err in finding Bardos was immune from liability under
{45} Appellant further contends the trial court erred in failing to grant summary judgment in her favor. As stated under the facts, appellant filed a motion for summary judgment asserting a claim for strict liability based on the doctrine of res ipsa loquitor. As noted by appellees, however, the doctrine of res ipsa loquitor is only an evidentiary ruling permitting a trier of fact to draw an inference of negligence and is not a separate cause of action. See, e.g., Kniskern v. Twp. of Somerford, 112 Ohio App.3d 189, 198 (10th Dist.1996) (“The doctrine of res ipsa loquitor is not a theory of tort liability; rather it is the doctrine of evidence which permits a plaintiff to prove negligence circumstantially.“). See also Nester v. Textron, Inc., D.C.W.D.Tex. No. 1:13-CV-920-DAE (Dec. 22, 2015), quoting Haddock v. Arnspiger, 793 S.W.2d 948, 950 (1990) (“res ipsa loquitor is ‘simply a rule of evidence by which negligence may be inferred by the jury; it is not a separate cause of action from negligence’ “). Accordingly, the trial court did not err in denying appellant‘s motion for summary judgment based on a claim for liability under the doctrine of res ipsa loquitor.
{46} Based on the foregoing, appellant‘s three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of appellees and denying the motion for summary judgment of appellant is affirmed.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.