Golden v. Milford Exempted Village School Bd. of Edn.Golden v. Milford Exempted Village School Bd. of Edn.
McCaslin, Imbus & McCaslin, R. Gary Winters, Bernard W. Wharton, Suite 900 Provident Building, 632 Vine Street, Cincinnati, OH 45202, for defendants-appellants, Milford Exempted School Bd.
Mark Eckerson, One Crestview Drive, Milford, OH 45150, for defendants, Karen & Thomas C. Settles
O P I N I O N
YOUNG, J.
{¶1} Defendant-appellant, Milford Exemptеd Village School Board of Education (“school board“), appeals a decision of the Clermont County Court of Common Pleas
{¶2} During the 2007-2008 school year, R. was a 14-year-old student at Milford High School and a member of the ninth-grade boys baskеtball team. Defendant Thomas Kilgore was a physical education teacher at Milford High School and the coach of the ninth-grade boys basketball team. On February 7, 2008, R. and his teammates were at the high school waiting for a school bus to transport them to another school for basketball practice. While waiting for the bus, three of the teammates, C., J., and T. pinned R. to the ground against his will. While being held down, R. was repeatedly punched in the stomach, and T. exposed his penis to R., rubbed his penis on R.‘s face, and tried to force R. to put the penis in his mouth. After eventually freeing himself, R. ran from the area of the incident, refused to board the bus, and did not attend basketball practice that day.
{¶3} On June 5, 2008, the Goldens filed a complaint against the school board, Kilgore, and T. and his parents. The complaint set forth the following сlaims against Kilgore and the school board: negligence per se, civil hazing, sexual harassment, negligent supervision, intentional infliction of emotional distress, and vicarious liability. In response to the complaint, Kilgore and the school board denied liability. They then moved for judgment on the pleadings on the ground they were immune from liability under
{¶4} On September 25, 2008, the trial court granted the motion with regard to
{¶5} The school board appeals the trial court‘s denial of its motion for judgment on the pleadings with regard to civil hazing and negligent supervision, raising two assignmеnts of error.2
{¶6} A trial court‘s decision on a
{¶7} Assignment of Error No. 1:
{¶8} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT‘S MOTION FOR JUDGMENT ON THE PLEADINGS ON PLAINTIFF-APPELLEE‘S [SIC] NEGLIGENT SUPERVISION CLAIM.”
{¶9} With regard to the negligent supervision claim, the trial court denied the
{¶10} The Ohio Supreme Court has set forth a thrеe-tiered analysis for determining whether a political subdivision is immune from liability. Cater v. Cleveland, 83 Ohio St.3d 24, 28, 1998-Ohio-421. Under the first tier, a political subdivision is granted broad immunity for any injury arising out of its actions.
{¶11} It is undisputed that the school board is a political subdivision serving a governmental function.3 See
{¶12} It is well-settled in Ohio that ”
{¶13} The Goldens failed to establish the applicability of any exception to immunity under
{¶14} At this juncture, an assertion in the Goldens’ appellate brief warrants comment. In their brief, the Goldens repeatedly assert that allegations of recklessness with regard to Kilgore and the school board satisfy two of the “exceptions to immunity sеt forth in
{¶15} In light of the foregoing, the school board‘s first assignment of error is well taken and sustained.
{¶16} Assignment of Error No. 2:
{¶17} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT‘S MOTION FOR JUDGMENT ON THE PLEADINGS ON PLAINTIFF-APPELLEE‘S [SIC] CIVIL HAZING LIABILITY CLAIM.”
{¶18} The school board challenges the denial of its
{¶19}
{¶20} “Any person who is subjected to hazing, as defined in [
{¶21}
{¶22} The school board first argues that the Goldens failed to properly state a claim of hazing. Specifically, the school board argues that the Goldens have not properly pled an act of hazing because their complaint failed to claim that the alleged assault was done as a means of “initiating” R. into the basketball team. The school boаrd cites Duitch v. Canton City Schools, 157 Ohio App.3d 80, 2004-Ohio-2173, in support of its argument.
{¶23} Because Ohio is a notice-pleading state, a plaintiff is not required to plead operative facts with particularity. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, ¶29. Under
{¶24} In Duitch, a high school freshman who was also a band member was severally beaten on “Freshman Friday” after he was lured into a restroom by two upperclass students under the pretext there was a band meeting. The common pleas court found that the attack was merely due to the student‘s status as a freshman and that there was no evidence of initiation. On appeal, the Fifth Appellate District upheld the lower court‘s decision, stating: “this behavior is not governed by
{¶25} Duitch, however, involved a summary judgment, not a motion for judgment on the pleadings. In Duitch, the court examined whether genuine issues of fact existed that would preclude summary judgment. By contrast, we are merely considering whether the complaint gives sufficient notice to the school board of the Goldens’ civil hazing claim and whether the allegations set forth circumstances for which the Goldens would be entitled to relief. Vinicky, 2005-Ohio-5196 at ¶10. We therefore find Duitch to be inapplicable.
{¶26} In Vinicky, the plaintiff brought a claim of civil hazing аgainst his school
{¶27} In the case at bar, the trial court noted there was “nothing in the complaint which specifically explains how the assault on ‘R’ constituted an initiation into the ninth-grade boys’ basketball team.” Nonetheless, the court found that the complaint reasonably set forth a claim of civil hazing. We agree.
{¶28} All we need to decide is whethеr the complaint gives the school board fair
{¶29} The school board next argues that the trial court erred by denying its
{¶30}
{¶31} “(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the
{¶32} “***
{¶33} “(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 аcquire 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.”
{¶34} “Pursuant to the
{¶35} We note that the trial court did not determine whether there were any policy-making, planning, or enforcement powers involved, and whether Kilgore had discretion with respect to those powers by virtue of his office or position. The school board did not allege that Kilgore‘s position as the coach of the ninth-grade boys basketball team involved policy-making, planning, or enforcement powers.
{¶36} While discussing the applicability of
{¶37} The trial court further found that while the complaint made no mention, within the civil hazing claim, of recklessness, bad faith, or malicious purpose, the complaint did in fact allege recklessness and malicious conduct with regard to all of the defendants’ actions in this case, and that these allegations were incorporated into the civil hazing claim (the first paragraph of the civil hazing claim incorporates by reference the allegations of all of the preceding paragraphs into the civil hazing claim). We agree.
{¶38} The school board nonetheless argues that “the fact that the Cоmplaint contains an allegation that an alleged extensive history of hazing and bullying taking place among members of the ninth grade basketball team *** is the grounds for the allegation of recklessness on the part of [the school board] in not monitoring or supervising the ninth grade basketball team by itself, does not meet the actual definition of recklessness” from the Ohio Supreme Court.
{¶39} In O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, the Ohio Supreme Court addressed whether a public children services agency and one of its employees were entitled to immunity under
{¶40} “Distilled to its essence, and in the context of
{¶41} O‘Toole involved a summary judgment, not a
{¶42} The school board‘s second assignment of error is overruled.
{¶43} Judgment affirmed in part, reversed in part, and remanded the trial court for further proceedings according to law and consistent with this Opinion.
BRESSLER, P.J., and POWELL, J., concur.