HEATHER DUNCAN v. CUYAHOGA COMMUNITY COLLEGE, ET AL.
No. 97222
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 3, 2012
2012-Ohio-1949
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED IN PART; DISMISSED IN PART; AND REMANDED
Civil Appeal from the
BEFORE: Rocco, P.J., E. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 3, 2012
ATTORNEYS FOR APPELLANTS
Amanda M. Leffler
John C. Fairweather
Brouse McDowell
388 South Main Street
Suite 500
Akron, OH 44311
Alexandra V. Dattilo
Caroline L. Marks
Brouse McDowell
600 Superior Avenue East
Suite 1600
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Blake A. Dickson
Mark D. Tolles, II
The Dickson Firm, LLC
Enterprise Place, Suite 420
3401 Enterprise Parkway
Beachwood, OH 44122
KENNETH A. ROCCO, P.J.:
{1} In this personal injury action filed by plaintiff-appellee Heather Duncan, defendants-appellants Cuyahoga Community College (“Tri-C“) and Greg Soucie appeal pursuant to
{2} Appellants present three assignments of error, arguing that the trial court‘s order was improper, because appellees were entitled to the immunity afforded by
{3} However, because Duncan‘s claim of breach of contract does not fall under
{4} According to Duncan‘s complaint, in September 2005, she was employed by the Bedford Heights Police Department. Her employer required her to attend “a training program” that was “provided and sponsored by” Tri-C and offered at its western campus.1 Soucie was “in charge of the program.”
{6} Duncan alleged in her complaint that appellants’ presentation of a self-defense class “was a proprietary function” that occurred “within or on the grounds of a building that [was] used in connection with the performance of a governmental function.” Duncan further alleged that appellants were “negligent and/or reckless and/or wanton” in their planning, in their instruction, in their supervision, and in their use of equipment of the training program, that appellants’ conduct “created an unreasonable risk of physical harm” and “displayed a perverse disregard” for the participants’ safety, and that appellants’ “decision not to use mats was a routine, ministerial decision and not an exercise of judgment or discretion,” that nevertheless appellants “exercised with malicious purpose.”
{7} Duncan alleged that appellants were “negligent and/or reckless an/or wanton in” the following respects: “creating and/or permitting the creation of and/or permitting the continued existence of a defect and/or dangerous condition and/or nuisance” on the premises; failing to properly and adequately warn Duncan of that condition; failing to act “reasonably once [they] knew” of the condition; failing to properly monitor their employees; failing to have adequate and/or appropriate procedures in place during the class; and, finally, in instructing the class participants.
{8} Duncan further alleged that “a binding contract existed” between herself and appellants, and that appellants “breached” the contract. Duncan acknowledged she could not attach a copy of the alleged contract.
{9} Appellants filed an answer to Duncan‘s complaint that admitted some of Duncan‘s allegations. In pertinent part, appellants admitted that Tri-C is a “community college” as defined in
{10} Appellants further answered Duncan‘s complaint by stating that Tri-C was a “political subdivision” as defined by
{11} The record reflects the appellants filed a motion for summary judgment with respect to Duncan‘s claims but the trial court failed to rule upon the motion. Following a protracted discovery phase in the case, appellants withdrew their motion for summary judgment.
{12} Shortly thereafter, on April 8, 2011, appellants filed a motion for judgment on the pleadings based upon a claim of statutory immunity. On April 19, 2011, Duncan filed an opposition brief.
{14} Appellants present the following three assignments of error.
“I. The trial court erred by denying Cuyahoga Community College‘s Motion for Judgment on the Pleadings on Appellee‘s negligence claim.
“II. The trial court erred in denying Greg Soucie‘s Motion for Judgment on the Pleadings on Appellee‘s negligence claim.
“III. The trial court erred by denying Appellants’ Motion for Judgment on the Pleadings on Appellee‘s breach of contract claim.”
{15} Appellants’ first and second assignments of error present the same issue; therefore, they will be addressed together. Appellants argue that they were entitled to judgment on the pleadings because Duncan failed to allege any facts that would abrogate the immunity afforded to them by
{16}
A motion for judgment on the pleadings is the same as a motion to dismiss filed after the pleadings are closed and raises only questions of law. The pleadings must be construed liberally and in a light most favorable to the party against whom the motion is made, and every reasonable inference in favor of the party against whom the motion is made should be indulged. Vaught v. Vaught (1981), 2 Ohio App.3d 264, 2 Ohio B. 293, 2 Ohio App.3d 264, 441 N.E.2d 811; Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 297 N.E.2d 113. The motion should be denied [only] if it cannot be determined from the face of the pleadings that the pleading does not state a claim upon which relief can be granted. Calhoun v. Supreme Court of Ohio (1978), 61 Ohio App.2d 1, 399 N.E.2d 559.
{17} Thus, granting a judgment on the pleadings is appropriate where the plaintiff has failed in her complaint to allege a set of facts which, if true, would establish the defendants’ liability. Walters v. First Natl. Bank of Newark (1982), 69 Ohio St.2d 677, 433 N.E.2d 608. While the factual allegations of the complaint are taken as true, moreover, unsupported conclusions are insufficient. See Moya v. DeClemente, 8th Dist. No. 96733, 2011-Ohio-5843, ¶ 10. The trial court in this case denied appellants’
{18} In order to determine whether a political subdivision enjoys immunity under the Political Subdivision Tort Liability Act, as codified in
{19} Thus, “[t]he first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. [Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000)];
{20} “The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in
{21} “If any of the exceptions to immunity in
{22} This court previously has determined that Tri-C is a political subdivision. Scott v. Dennis, 8th Dist. No. 94685, 2011-Ohio-12. ”
{23} Duncan nevertheless alleged in her complaint that the exception set forth in
{24}
{25} Duncan further alleged that her injuries were caused by a “defect” that appellants permitted to exist on the premises, thereby invoking the exception to immunity provided in
{26} In Hamrick v. Bryan City Sch. Dist., 6th Dist. No. WM-10-014, 2011-Ohio-2572, at ¶ 25-28, the court provided the following cogent analysis with respect to the proper interpretation of
Contextually, * * *
R.C. 2744.02(B)(4) abrogates the general immunity afforded political subdivisions engaged in a governmental activity only if an injury is: 1) caused by employee negligence, 2) on the grounds or in buildings used in connection that governmental activity, and 3) due to physical defects on or within those grounds or buildings. All of these characteristics must be present.As we have already noted, a public school district is a political subdivision performing a governmental activity. * * * [T]he bus garage in which appellant was injured was used in connection with a governmental activity. For purposes of summary judgment, we presume that appellant‘s injuries were caused by employee negligence.
The phrase “physical defect” is not statutorily defined, neither has appellant brought to our attention authority demonstrating that the phrase has acquired any technical meaning. As a result, we must look to common usage of the words in the context of the statute as a whole to determine its meaning.
The word “physical” is defined as “having a material existence: perceptible esp[ecially] through senses and subject to the laws of nature.” Merriam Webster‘s New Collegiate Dictionary (10 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. (Emphasis added.)
{27} Employing this definition, the Hambrick court determined that, because the bus garage service pit into which the plaintiff fell was not an “imperfection” that diminished the garage‘s utility, it did not constitute a “defect” within the meaning of
{28} Because none of the exceptions to immunity set forth in
{29} Appellants further argue in their third assignment of error that the trial court should have granted their motion for judgment on the pleadings with respect to Duncan‘s claim of breach of contract. However,
{30} This court, therefore, lacks jurisdiction to appellant‘s third assignment of error in this appeal. Accordingly, this appeal is dismissed in part, the trial court‘s order is reversed in part, and this case is remanded for further proceedings consistent with this opinion.
It is ordered that appellants recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and MARY EILEEN KILBANE, J., CONCUR