676 N.E.2d 1241 | Ohio Ct. App. | 1996
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *692 Bradley J. Hall appeals from a judgment of the Washington County Court of Common Pleas granting summary judgment for the Fort Frye Local School District Board of Education. Appellant asserts three errors for review:
"1. The trial court erred in finding that the appellee, Fort Frye Local School District, is entitled to political subdivision immunity where the appellant has alleged and offered evidence of wanton, willful, and reckless misconduct, including Fort Frye's knowledge of the specific risk of serious bodily injury posed by the exposed sprinkler head and its failure to repair or replace it despite repeated warnings.
"2. The lower court erred in holding that Goodin v. AlexanderLocal School District requires, as a matter of law, granting appellee's motion for summary judgment on the issue of political subdivision immunity where in Goodin other safety measures and training negated the allegations of recklessness [while] in the case at bar Fort Frye failed to take action to eliminate or reduce the known risk of injury.
"3. The trial court erred in immunizing the Fort Frye School District from liability from suit by its injured student for its negligence in maintaining a practice field, since R.C.
This case arises out of an injury appellant received while practicing as a member of the Fort Frye High School football team. On September 30, 1987, appellant damaged his right knee when he stepped on an exposed sprinkler head on the high school's practice football field. Appellee school district maintained two football fields for its student athletic programs, a stadium used for games and the practice field located adjacent to the stadium. Both fields utilized a below-ground irrigation system. The irrigation system included brass sprinkler heads, approximately three inches in circumference, which were placed at various intervals throughout the field. The sprinkler heads on the practice field varied in depth; some were recessed three to four inches below the surface, some were one to two inches below the surface, and others were flush with the playing field.
The school used the irrigation system throughout the summer until football practice began in August. In some instances, school personnel would cover the sprinkler heads with sand or dirt after they ceased using them in August. As football practices continued, however, sprinkler heads became exposed on the practice field. Rain would also cause the sand or dirt to erode, further exposing the sprinkler heads and leaving a depressed area around them.
Prior to appellant's injury, members of the school's athletic department warned appellee about potential dangers to the student athletes posed by exposed sprinkler heads on the practice field. Despite these warnings, appellee did not place covers on top of the sprinkler heads and decided not to replace the entire irrigation system.
After suffering his injury, appellant filed a two-count complaint against the school board. The first count alleged that appellant's injury was caused when he caught his foot in a depression that resulted from improper maintenance of the sprinkler system. The second count alleged that the school's failure to correct, remedy, or repair the latent dangerous condition of the sprinkler-head attachments constituted wanton or willful misconduct. The school answered by asserting, interalia, the affirmative defense of political subdivision immunity pursuant to R.C. Chapter 2744.
Appellee later filed a motion for summary judgment on the ground that it was immune from tort liability pursuant to the provisions of R.C.
The trial court's decision found that appellee was entitled to complete immunity pursuant to R.C.
The Supreme Court of Ohio has recognized that the availability of statutory immunity raises a purely legal issue that is properly determined by a court prior to trial. Nease v.Med. College Hosp. (1992),
In reviewing a lower court's decision granting a motion for summary judgment, appellate courts must follow the standard contained in Civ.R. 56(C), which provides as follows:
"* * * Summary judgment shall be rendered forthwith if the * * * evidence * * * timely filed in the action, show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence * * * and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence * * * construed most strongly in his favor. * * *"
An appellate court must independently review the record to determine if summary judgment was appropriate. Therefore, an appellate court affords no deference to the trial court's decision while making its own judgment. Schwartz v. Bank One,Portsmouth, N.A. (1992),
Generally, the party asserting immunity as an affirmative defense has the burden of proving that defense by a preponderance of the evidence at trial. Giles v. Savannah (Mar. 26, 1993), Ashland App. No. CA-1034, unreported, 1993 WL 95437. In the context of summary judgment, a party raising an immunity *695
defense must present evidence tending to prove the underlying facts upon which the defense is based. Evans v. S. Ohio Med.Ctr. (1995),
We will first address the arguments raised in appellant's third assignment of error. Appellant contends that appellee's maintenance of the high school practice football field does not require the exercise of such judgment or discretion as intended by R.C. Chapter 2744; thus, appellee is subject to liability for mere negligence. For the reasons that follow, we agree.
The trial court granted appellee's motion for summary judgment after finding that appellee was entitled to political subdivision immunity. The extent of a political subdivision's tort liability is determined by R.C. Chapter 2744. In general, the statutory scheme sets up a general grant of immunity, R.C.
R.C.
R.C.
As noted above, the general grant of political subdivision immunity found in R.C.
"[P]olitical subdivisions are liable for injury, death, or loss to persons or property that is caused by the negligence of their employees and that occurs *696 within or on the grounds of buildings that are used in connection with the performance of a governmental function[.]" (Emphasis added.)
We agree with the appellate courts of this state that have recognized that R.C.
However, this potential liability is expressly limited by the defenses set forth in R.C.
"(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 discretion of the employee with respect to policy-making, planning, orenforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
"* * *
"(5) The political subdivision is immune from liability if the injury, death, or loss to persons or property resulted from the exercise of judgment or discretion in determining whether toacquire, 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." (Emphasis added.)
Since we have determined that liability under R.C.
We look first to the issue of whether appellee's maintenance of the practice field was performed in a negligent manner.2 The evidentiary materials submitted by the parties reveal the following pertinent facts. *697
Appellant testified at his deposition as follows:
"Q. Were they [the sprinkler heads] ever filled or covered or marked with chalk or anything in any way?
"A. Nothing.
"Q. There was never any dirt or sand put around them?
"A. No, never."
Appellant continued:
"Q. Is is [sic] your testimony that those sprinkler heads had never had any chalk put around them —
"A. Right.
"Q. — or little flags?
"A. Right.
"Q. Have they ever been covered up —
"A. No.
"Q. — with sand or dirt or anything?
"A. No."
George Hennessy, school athletic director at the time of appellant's injury, stated in his affidavit:
"On occasion, sand or dirt would be placed over the sprinkler heads to protect the athletes using the field. However, often the sprinkler heads were exposed because they had not been covered, or as a result of erosion, use of the field, or water pooling at the sprinkler head. Frequently depressions would develop around the sprinkler heads. On numerous occasions, I would find exposed sprinkler heads during inspections of the practice field."
School maintenance specialist Bill Bolden confirmed such measures by testifying at his deposition:
"Q. I gather you — were you, yourself, ever asked to do anything to improve or correct any potential problems with the sprinkler bases? *698
"A. No.
"Q. Do you know of any efforts that were made?
"A. The only thing that was ever done is they were covered back up with dirt after they were used, or with sand.
"Q. Who had the responsibility to cover them up after they were used?
"A. The maintenance department or — I don't know. Ever who was there, I guess.
"Q. So, after a particular sprinkler head was used, you were to — someone from the maintenance department was to take dirt and cover up the hole?
"A. Well, we didn't always do it. The ball players did it or we did it. Someone did it.
"Q. So it sort of — there was no — no single group had responsibility for it?
"A. No.
"Q. And do you know whether in every case it was done?
"A. No.
"Q. And I gather there was no standing orders in writing that, after a sprinkler head was used, the holes should be covered up with dirt?
"A. No."
Finally, Ron Curry, school superintendent at the time of appellant's injury, testified at his deposition:
"Q. But you weren't aware of any consideration or concern Mr. Hennessy had about dangers to the players as a result of this [sprinkler] system?
"A. No. I didn't feel there was a danger or concern about that since the holes were covered with sand after — before season started. So, to me, the best thing to have in the hole was sand or dirt, which is what is there now."
Construing this evidence most strongly in favor of appellant, we believe that a genuine issue exists as to whether appellee negligently maintained the Fort Frye High School practice football field. The evidence in the record indicates that the school district either made no effort at all or a haphazard effort, at best, to maintain the practice field. Since reasonable minds could come to different conclusions with regard to a breach of the duty to maintain the field, appellee was not entitled to summary judgment.
However, our inquiry in this matter is not over yet. Next, we must address whether the maintenance of a political subdivision's property involves the type of judgment or discretion as contemplated by R.C.
In Hallett v. Stow Bd. of Edn. (1993),
With that background in mind, we will now consider the specific issue of whether appellee's maintenance of the practice field involves the type of judgment or discretion intended to be protected by the political subdivision immunity statutes.
Vance, supra, considered this issue in the context of an injury occurring on a school playground. After colliding with a fellow classmate, a student struck her head against a steel post holding a basketball hoop. The main issue before the appellate court was whether the school board was liable for failing to provide padding on the steel support pole. The court first reviewed the applicable political subdivision immunity provisions outlined above. As a result, the court concluded:
"When R.C.
The court reasoned that decisions concerning the construction of governmental buildings or facilities clearly falls within the R.C.
Thus, appellee's initial decision in our case to purchase and install the irrigation system clearly involved the exercise of protected judgment or discretion, for which appellee is entitled to immunity pursuant to the provisions of R.C.
However, the maintenance of the school's irrigation system by appellee's employees is a totally separate matter that does not involve the exercise of such judgment or discretion. The decision to allocate resources, i.e., "how to use, equipment * * * or facilities," has been made and is immunized. However, once that policy is put into effect, appellee's maintenance procedures must be performed in a reasonably safe manner. If the evidence establishes that appellee negligently maintained the irrigation system through arbitrary and random attempts to cover the sprinkler heads, liability may be imposed pursuant to R.C.
Our decision in this case is supported by other appellate decisions as well. One of the earliest cases to recognize the importance of distinguishing between design/operation policy decisions and maintenance activities was Kettering ex rel. Moserv. Kettering (Jan. 29, 1988), Montgomery App. No. 10596, unreported, 1988 WL 10121, reversed on other grounds (1988),
This distinction was also recognized in Vallish v. Copley Bd.of Edn. (Feb. 3, 1993), Summit App. No. 15664, unreported, 1993 WL 27494, overruled in Hallett v. Stow Bd. of Edn. (1993),
"[T]he `A(5)' exception contemplates affording immunity for decisions such as how many firetrucks respond to an alarm, how many officers with how much training are assigned to a neighborhood, challenges to snowplowing equipment and personnel on the job during a snowstorm, etc. Whether, when and how to *701 comply with the duty to keep premises in repair is not the sort of judgment contemplated by the `A(5)' exception. Political subdivisions must defend this sort of claim on a negligence basis, not immunity." Vallish (Cook, J., dissenting).
Judge Cook's dissenting opinion was later adopted by the court when it overruled Vallish in Hallett,
This court also adopts the reasoning contained in Judge Harper's concurring opinion in Mackulin v. Lakewood Bd. of Edn. (Mar. 11, 1993), Cuyahoga App. No. 61808, unreported, 1993 WL 69555. The plaintiff in that case fell at an ice skating rink operated by the school district. She tripped after a group of people had completed skating but before surface imperfections on the ice were repaired. Unlike Hallett above, the school in this case made a policy decision not to resurface the ice before plaintiff began skating. The school argued that this decision involved the school's exercise of judgment and discretion concerning the use of its equipment, supplies, materials, personnel, facilities, and other resources. However, as Judge Harper stated:
"[T]here is a difference between the decision to create something, the decision on how to use the thing created and the decision to maintain it after it has been created. The political subdivision's decision to build a skating rink * * * and its further decision on how to use the rink after it was created is the judgment the statute immun[izes] from liability.
"The statute does not grant them judgmental immunity from the maintenance of the rink."
In accord with this rationale, the court in Field v. McDonaldBd. of Edn. (Sept. 30, 1994), Trumbull App. Nos. 93-T-4901 and 93-T-4906, unreported, 1994 WL 638189, was faced with the alleged negligence of a school employee failing to turn on a stairwell light. According to the court, the record clearly indicated that a *702 light was actually located in the staircase area where the plaintiff fell; however, the light was turned off at the time of the accident. Therefore, "this was not a question of whether to acquire or how to use facilities. The decision to install a light in the staircase area had already been made. Clearly, the issue was whether or not the school system employee * * * acted negligently by not turning on the light." Id.
The reasoning of these appellate decisions supports our conclusion that a school's maintenance of its property does not involve the type of judgment or discretion contemplated by R.C.
We find as a matter of law that the maintenance of a political subdivision's property, as opposed to decisions concerning the acquisition and utilization of such property, do not involve a sufficient amount of budgeting, management, or planning to bring such decisions into the purview of R.C.
Since the evidence in the record, construed most strongly in favor of appellant, raises a genuine issue as to whether appellee negligently maintained the practice football field, and, since the maintenance of school property does not involve the exercise of judgment or discretion as intended by R.C.
In light of our disposition of this assignment of error, we find appellant's first and second assignments of error to be moot pursuant to App.R. 12(A)(1)(c). The judgment of the trial court is reversed, and the cause is remanded to the lower court for proceedings consistent with this opinion.
Judgment reversedand cause remanded.
PETER B. ABELE, P.J., and KLINE, J., concur.
