CONTESSA HOSKINS, Plaintiff-Appellee, v. CITY OF CLEVELAND, ET AL., Defendants-Appellants.
No. 112095
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 7, 2023
[Cite as Hoskins v. Cleveland, 2023-Ohio-3149.]
ANITA LASTER MAYS, A.J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Civil Appeal from the Cuyahoga County Common Pleas Court, Case No. CV-20-940635
Ciano & Goldwasser, LLP, and Andrew S. Goldwasser; Flowers & Grube, Paul W. Flowers, and Melissa A. Ghrist, for appellee.
Mark D. Griffin, City of Cleveland Director of Law, Craig J. Morice, Amy K. Hough, Gilbert E. Blomgren, and James R. Russell, Jr., Assistant Directors of Law, for appellant.
1 Defendant-appellant city of Cleveland (“the city“) appeals the trial court‘s decision denying their motion for summary judgment in favor of plaintiff-appellee Contessa Hoskins (“Hoskins“). We affirm the trial court‘s decision.
I. Facts and Procedural History
2 On December 23, 2019, William Johnson (“Johnson“) drowned in the indoor pool located at the Thurgood Marshall Recreation Center, a facility owned and operated by the city. Nieemah Hameed (“Hameed“) was the lifeguard on duty during the time of the drowning. During Hameed‘s deposition, regarding the events surrounding Johnson‘s drowning, Hameed stated that Johnson entered the deep end of the pool after exiting the locker room. She further stated that Johnson completed his normal routine, as he swam in the pool three times a week. While Johnson was swimming, Hameed recalled that she was seated in a folding chair instead of the elevated lifeguard chair, which was located between Hameed‘s chair and the location where Johnson drowned. Hameed stated that she was larger than the lifeguard chair, so she sat in a folding chair that could accommodate her size.
3 Hameed stated that she saw Johnson finish his normal routine while seated. She stood up and saw Johnson at the bottom of the pool and then surfacing again. Hameed stated that she did not see Johnson again, so she stood up, walked over to the deep end, and looked down in the water. Hameed stated that she
4 Hameed stated that Johnson had no pulse, and Hill stated that he detected no signs on life. Both lifeguards performed CPR until the EMS arrived. It was later determined that Johnson, who had epilepsy, had an epileptic seizure while swimming. It was known that earlier in the year, Johnson had a seizure while swimming. Hameed and Elandra Browne (“Browne“), the physical director of the recreation facility, both stated that they were present when Johnson had his previous seizure and assisted him during that time. Hameed also stated that she was trained on how to recognize and respond to emergencies involving epileptic swimmers in order to obtain her lifeguard certification.
5 On November 27, 2020, Hoskins, the executor of Johnson‘s estate, filed a complaint against the city, Hameed, Hill, Browne, and Terry Woods, Sr. (“Woods“) for the wrongful death of Johnson. Hoskins voluntarily dismissed all claims against Hill, Woods, and Browne without prejudice. However, the claims against the city and Hameed remained. Hoskins, in her complaint, alleged that Hameed, as an employee of the city, breached her duty as a lifeguard, by negligently and/or recklessly failing to appropriately monitor the pool and to provide
6 Hoskins argued that Hameed was unable to observe Johnson swimming in the deep end because the elevated lifeguard chair, which had various objects hanging from it, obstructed her low-level view. To support her claim, Hoskins requested that Dr. Francesco A. Pia (“Dr. Pia“), an aquatics safety expert, examine the events surrounding the drowning. Dr. Pia stated at his deposition that he reviewed all of the relevant information gathered during discovery and confirmed that Hameed‘s view was obstructed as she sat in the folding chair instead of the elevated lifeguard chair. Dr. Pia stated that this constituted a physical defect on the pool grounds.
7 In the city‘s answer to Hoskin‘s complaint, it argued political subdivision immunity under
8 On March 1, 2022, the city filed a motion for summary judgment. In the city‘s motion, they provided an identical argument as in their answer: they were immune from liability under
9 On March 28, 2022, Hoskins filed an opposition to the city‘s motion for summary judgment, arguing that the city is not immune from liability because Hameed‘s negligence caused Johnson‘s death. Further, Hoskins argued that Hameed, during her deposition, agreed that a failure to follow the policies and procedures of the city would be reckless and irresponsible. Hoskins also argued that failing to sit in the elevated lifeguard chair is a violation of policy and procedure that the city has instituted for its lifeguards on duty. Hoskins also contends that Hameed was on notice that Johnson suffered from epilepsy and could have a seizure because Hameed was present for the previous seizure Johnson suffered at the pool a few months prior to his death.
10 On September 28, 2022, the trial court held an oral hearing on the city‘s motion for summary judgment. On October 3, 2022, the trial court denied the city‘s motion for summary judgment, stating: “After careful review and consideration of both the briefings and the oral arguments the court finds that there is a genuine issue of material fact. Defendant‘s motion for summary judgment is denied.” Journal entry No. 130252467 (Oct. 3, 2022).
11 The city filed this appeal, assigning three errors for our review:
- The trial court erred as a matter of law when it determined that there were genuine issues of material fact for an exception to the city‘s immunity;
The trial court erred as a matter of law by failing to reinstate immunity; and - The trial court erred as a matter of law by determining there was a genuine issue of material fact for employee immunity.
II. Summary Judgment
A. Standard of Review
12 “We review a trial court‘s summary judgment decision de novo, applying the same standard that the trial court applies under
13 “On a motion for summary judgment, the moving party carries an initial burden of identifying specific facts in the record that demonstrate the absence of a genuine issue of material fact and entitlement to summary judgment as a matter of law.” El Attar at ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). “If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, the nonmoving party must then point to evidence of specific facts in the record demonstrating the
B. Political Subdivision Immunity
14 In the city‘s first assignment of error, it argues that the trial court erred by determining there were genuine issues of fact for an exception to its immunity. ”
15 “Under the second tier, the immunity conferred under
16 First, the city qualifies as a political subdivision under
17 Second, the city was engaged in a governmental function during the drowning incident.
18 According to
political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function.
19 Hoskins claims that Hameed‘s negligent performance as a lifeguard employed by the city caused the death to Johnson. Specifically, Hoskins argues that Hameed‘s failure to sit in the elevated lifeguard chair and instead sitting in a low-level folding chair at the shallow end of the pool, created a physical defect at the pool.
20 “Thus, in order for the ‘physical defect’ exception to the city‘s general immunity to apply, Hoskins must demonstrate that (1) Johnson‘s death was caused by the negligence of Hameed; (2) the negligence occurred within a building used in connection with a governmental function; and (3) the death was due, in part, to a physical defect within the building.” Kerber v. Cuyahoga Hts., 8th Dist. Cuyahoga No. 102419, 2015-Ohio-2766, ¶ 20.
The Ohio Supreme Court has held that “[i]t is clear that the operation of a pool is a government function[,]” and in the case of an injury at a city‘s indoor swimming pool, that “it is equally clear that the injury ‘occur[ed] within or on the grounds of a building that was used in connection with the performance of a governmental function.‘”
Id. at ¶ 23, quoting M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 11, quoting
21 At the time of Johnson‘s drowning, Hameed was seated in a folding chair, lower to the ground than the elevated lifeguard chair. The lifeguard chair was covered with hanging objects and was located in between Hameed‘s folding chair and the location where Johnson drowned. Hameed stated at her deposition that she
22 Additionally, Dr. Pia, the aquatics safety consultant, confirmed that Hameed‘s view was obstructed as she sat in the folding chair instead of the lifeguard chair. Dr. Pia stated that this constituted a physical defect on the pool grounds. These facts are analogous with the facts in Kerber, where a lifeguard was sitting in a low chair, which obstructed the lifeguard‘s view of a near drowning incident. In Kerber, the aquatics safety consultant stated that “the low profile chair was ineffective and reduced the line of sight and observation ability of the on duty lifeguards.” Id. at ¶ 25. We held in Kerber, “[o]n this record, we find that there is a genuine issue of material fact as to whether the use of the low deck lifeguard chair created a physical defect at the pool grounds.” Id at ¶ 26. In light of the Dr. Pia‘s testimony, Hameed‘s testimony that she had to get out of the folding chair to observe Johnson, and our decision in Kerber, we find that there is a genuine issue of material fact as to whether the use of the low folding chair created a physical defect at the pool grounds.
23 Therefore, the city‘s first assignment of error is overruled.
24 In the city‘s second and third assignments of error, they argue that the trial court erred as a matter of law by failing to reinstate their immunity and by determining there was a genuine issue of fact for employee immunity. “Under the third-tier, immunity can be reinstated if the political subdivision can demonstrate
25 Regarding the third tier of the political subdivision immunity test, we do not find that any of the defenses of
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.
26 “In regard to subsection (5), it is not applicable if the judgment or discretion was exercised in a wanton or reckless manner.” Kerber, 8th Dist. Cuyahoga No. 102419, 2015-Ohio-2766, at ¶ 29. Hoskins‘s amended complaint specifically alleges “to the extent that * * * Hameed * * * use[d] [her] judgment or discretion in the exercise of determining whether to acquire, or to how use, equipment, supplies, materials, personnel, facilities and other resources, [she] did so with malicious purpose, in bad faith, or in a wanton or reckless manner.” Hoskins also filed her complaint against Hameed individually. We find that a genuine issue of material fact exists as to whether Hameed was reckless by sitting in the folding chair instead of the elevated lifeguard chair.
27 “Generally, whether an employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner are questions of fact.” Id. at ¶ 31, citing Long v. Hanging Rock, 4th Dist. Lawrence No. 09CA30, 2011-Ohio-5137, ¶ 17. “Upon review, we find that a genuine issue of material fact exists as to whether [defendant] was reckless in regard to this incident. There is evidence in this case upon which a jury could determine that [defendant] was more than merely negligent.” Id. First, Hameed was not sitting in the elevated lifeguard chair. Second, Hameed‘s view was arguably obstructed by the objects hanging from the lifeguard chair that was in between her and where Johnson was swimming. Third, Hameed had to stand up from her chair to view Johnson at the bottom of the pool. Fourth, Hameed stood once, sat down, stood again, and appears to realize she could not see Johnson. She walked over to where Johnson was swimming and observed Johnson in the bottom of the pool. She motioned for Hill to come to the pool, and only when Hill arrived did Hameed get Johnson out of the pool. Fifth, Dr. Pia, an
28 Therefore, we determine that the trial court did not err by failing to reinstate the city‘s immunity or by determining that there is a genuine issue of material fact as to Hameed‘s immunity. The city‘s second and third assignments of error are overruled.
29 Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
______________________________________
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
FRANK DANIEL CELEBREZZE, III, J., and
MICHELLE J. SHEEHAN, J., CONCUR
#112095
Summary judgment; genuine issues of material fact. The trial court properly denied the appellant‘s summary judgment motion because there are genuine issues of material fact for trial.