THOMAS ELTON, III, et al. v. DAVID G. SPARKES, et al.
C.A. No. 27684
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
March 16, 2016
2016-Ohio-1067
MOORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2011-12-7168
DECISION AND JOURNAL ENTRY
{¶1} Defendant-Appellant Akron Board of Education (“the Board“) appeals from the judgment of the Summit County Court of Common Pleas denying its motion for summary judgment based upon statutory immunity. We affirm.
I.
{¶2} On the morning of January 20, 2010, David Sparkes, a school bus driver for the Akron Public Schools, was in the process of driving his bus back to the bus garage when he rear-ended an Akron Police Department cruiser driven by Plaintiff-Appellee Officer Thomas Elton, III. There were no students on board the bus at the time of the accident. The cruiser was stopped waiting to turn left, and Mr. Sparkes estimated he was going approximately 5 miles per hour when the bus struck the cruiser. Mr. Sparkes admitted that he was at fault. While Mr. Sparkes was uninjured, Officer Elton sustained injuries in the collision, including a torn rotator cuff.
{¶3} In December 2011, Officer Elton and his wife (collectively “the Eltons“) filed a three-count civil complaint against Mr. Sparkes, the Board, Akron Public Schools and a John Doe defendant. Count one alleged that, “[o]n or about January 20, 2010, on E. North Street * * * the Defendant David G. Sparkes, individually, and/or in the course and scope of his employment with the Defendants, [the Board], Akron Public Schools and/or John Doe #1, * * * negligently operated a school bus into the motor vehicle operated by [Officer Elton].” The count further alleged that “Defendant‘s negligence” proximately caused Officer Elton injury. Count two alleged a claim for loss of consortium, and count three alleged a claim for negligent entrustment against the Board and Akron Public Schools.
{¶4} The Eltons, pursuant to
{¶5} Thereafter, the Board filed a motion for reconsideration, or in the alternative, a motion for leave to file another motion for summary judgment. The trial court denied the motion for reconsideration but granted the Board leave to file a motion for summary judgment. The Board filed a second motion for summary judgment contending that count one did not state a claim against the Board after the dismissal of Mr. Sparkes and that “respondeat
{¶6} The Board has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING DEFENDANT [BOARD] THE BENEFITS OF STATUTORY IMMUNITY UNDER
{¶7} The Board argues in its sole assignment of error that the trial court erred in concluding that the Board was not immune. We do not agree.
{¶8} “The denial of a motion for summary judgment is not ordinarily a final, appealable order.” Buck v. Reminderville, 9th Dist. Summit No. 27002, 2014-Ohio-1389, ¶ 5. However,
{¶9} In reviewing a trial court‘s ruling on a motion for summary judgment, this Court applies the same standard as the trial court, viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983). Pursuant to
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The moving party bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). Once this burden is satisfied, the non-moving party bears the burden of offering specific facts to show a genuine issue for trial. Id. at 293;
{¶10} “In order to determine whether a political subdivision is immune from liability, we engage in a three-tiered
{¶11} Here, there is no dispute that the general grant of immunity in
{¶12} Count one of the complaint provides as follows: “On or about January 20, 2010, on E. North Street * * * the Defendant David G. Sparkes, individually, and/or in the course and scope of his employment with the Defendants, [the Board], Akron Public Schools and/or John Doe #1, * * * negligently operated a school bus into the motor vehicle operated by [Officer Elton].” The count further alleged that “Defendant‘s negligence” proximately caused Officer Elton injury.
{¶13} Given the limited argument raised and, given that, with respect to most claims, only notice pleading is required under Ohio law, we cannot say that count one only states a negligence claim against Mr. Sparkes. See Traylor v. Timber Top, Inc., 9th Dist. Summit No. 27711, 2016-Ohio-283, ¶ 3. The count alleges, inter alia, that Mr. Sparkes was acting in the course and scope of his employment with the Board when he negligently caused the accident. In fact, the Board does not deny that Mr. Sparkes was acting in the course and scope of his employment. The Board, in its statement of facts in its brief to this Court, states that, Mr. Sparkes, “while acting within the scope of his employment as a school bus driver for the Board, bumped the vehicle driven by [Officer] Elton with the school bus he was driving.” Thus, we conclude this argument is without merit.
{¶14} With respect to the Board‘s argument that the Eltons failed to establish that an
{¶15} Instead, the Board appears to assert that because the allegations in count one amount to a claim seeking respondeat superior liability, and respondeat superior liability is not listed as an
{¶16} The Board next argues, that, even assuming that
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:
* * *
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.
{¶17} The Board argues that the sole allegation in the complaint against the Board is that it negligently entrusted the bus to Mr. Sparkes. Thus, it asserts that
{¶18} The Board‘s sole assignment of error is overruled.
III.
{¶19} The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
MATTHEW JOHN MARKLING, PATRICK VROBEL, SEAN KORAN, and THOMAS E. GIFFELS, Attorneys at Law, for Appellant.
RHONDA PORTER, Attorney at Law, for Appellant.
GARY W. KISLING, Attorney at Law, for Appellees.