Case Information
*1
[This decision has been published in
Ohio Official Reports
at
H UBBARD ET AL ., A PPELLANTS , v . C ANTON C ITY S CHOOL B OARD OF E DUCATION ET AL ., A PPELLEES .
[Cite as
Hubbard v. Canton City School Bd. of Edn.,
immunity in R.C. 2744.02(B)(4), construed and applied. (No. 2001-0904 — Submitted April 24, 2002 — Decided December 18, 2002.) A PPEAL from the Court of Appeals for Stark County, No. 2000CA00313. __________________ YLLABUS OF THE OURT
The exception to political-subdivision immunity in R.C. 2744.02(B)(4) applies to
all cases where an injury resulting from the negligence of an employee of a political subdivision occurs within or on the grounds of buildings that are used in connection with the performance of a governmental function. The exception is not confined to injury resulting from physical defects or negligent use of grounds or buildings.
__________________
M OYER , C.J.
Appellants, Regina Hubbard and Charlotte Davis (“plaintiffs”), appeal from the judgment of the Stark County Court of Appeals affirming the trial court’s grant of summary judgment for appellees, Canton City School Board of Education and the Canton City Schools (collectively, “board”). This action arises from a complaint seeking damages for the alleged
sexual assault of plaintiffs’ daughters by Milton Dave, a teacher at Hartford Middle School in the city of Canton. The alleged sexual assaults occurred on the premises of Hartford Middle School. The trial court granted summary judgment in favor of the board on all counts except negligent retention/supervision and intentional infliction of emotional distress. Plaintiffs appealed, and the court of appeals affirmed the trial court’s
denial of summary judgment for plaintiffs on the negligent retention/supervision
claim, but reversed the denial of summary judgment for plaintiffs on the claim of
intentional infliction of emotional distress. The appeal to this court was dismissed
as having been improvidently allowed for lack of a final appealable order,
[1]
the
judgment of the court of appeals was vacated, and the cause was remanded to the
trial court for determination of plaintiffs’ remaining claims.
Hubbard v. Canton
City School Bd. of Edn.
(2000),
the plaintiffs’ claims for negligent retention/supervision and intentional infliction of emotional distress. The trial court sustained the board’s motion for summary judgment, and plaintiffs again appealed. The court of appeals affirmed, stating that a strict reading of R.C.
2744.02(B)(4) would allow political subdivisions, such as school boards, to be sued for any negligence occurring in government buildings. The court held that such a broad exception does not comport with the overall statutory scheme and therefore the exception to immunity in R.C. 2744.02(B)(4) does not apply in this case and the board is immune from suit. The cause is now before this court upon the allowance of a discretionary appeal.
1. The case at bar was pending before this court when we ruled H.B. 350 unconstitutional in
State
ex rel. Ohio Academy of Trial Lawyers v. Sheward
(1999),
January Term, 2002
{¶6} The issue presented for review is whether that portion of R.C. 2744.02(B)(4) stating that “[p]olitical 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 buildings that are used in connection with the performance of a governmental function” should be limited to negligence in connection with physical defects within or on the grounds of governmental buildings. Plaintiffs’ appeal derives from two separate causes of action. We will
first address plaintiffs’ claim of intentional infliction of emotional distress.
R.C. 2744.02(B)(5) states that in addition to the specific exceptions to
immunity listed in (B)(1) to (4), liability may exist when it is “expressly imposed”
by any section of the Revised Code. However, “[l]iability shall not be construed to
exist * * * merely because a responsibility is imposed upon a political subdivision
or because of a general authorization that a political subdivision may sue and be
sued.” This court has reviewed R.C. 2744.02(B)(5) in the context of intentional
torts and concluded that “[t]here are no exceptions to immunity for the intentional
torts of fraud and intentional infliction of emotional distress * * *.”
Wilson v. Stark
Cty. Dept. of Human Serv.
(1994),
supervising and retaining Milton Dave. R.C. 2744.02(B) provides for the elimination of immunity from suit for injury caused by the negligence of political- subdivision employees in certain circumstances. R.C. 2744.02(B)(4) is applicable to the case at bar because the alleged sexual assault occurred in a school building— i.e., a building used in connection with a government function—and (B)(4) specifically addresses negligent conduct within or on the grounds of such a building.
{¶10}
The Political Subdivision Tort Liability Act, as codified in R.C.
Chapter 2744, requires a three-tiered analysis to determine whether a political
subdivision should be allocated immunity from civil liability.
Cater v. Cleveland
(1998),
{¶11} It is undisputed that the board meets the first step of the analysis and qualifies for general immunity because R.C. 2744.01(F) declares public school districts to be political subdivisions and R.C. 2744.01(C)(2)(c) states that the provision of a system of public education is a governmental function. We must next determine whether any of the exceptions to immunity
listed in R.C. 2744.02(B) apply.
Cater
,
resulting from the negligence of political subdivision employees occurring “within
or on the grounds of buildings that are used in connection with the performance of
a governmental function.” Plaintiffs urge us to give a plain reading to R.C.
2744.02(B)(4). Courts give words in a statute their plain and ordinary meaning
unless legislative intent indicates a different meaning.
Coventry Towers, Inc. v.
Strongsville
(1985),
unambiguous, it is the duty of the court to enforce the statute as written, making neither additions to the statute nor subtractions therefrom. Bernardini v. Conneaut
January Term, 2002
Area City School Dist. Bd. of Edn.
(1979),
not intended to have the effect of applying to all negligent acts occurring within or on the grounds of government buildings. In support of this proposition, the board cites two recent attempts in the General Assembly to change the application of the subsection. In Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, new
language was inserted in R.C. 2744.02(B)(4) changing the subsection to read,
“[P]olitical 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.”
(Emphasis added to indicate new language.) 146 Ohio Laws, Part II, 3988.
However, a majority of this court declared H.B. 350 to be unconstitutional and
therefore the change to R.C. 2744.02(B)(4) never went into effect.
State ex rel.
Ohio Academy of Trial Lawyers v. Sheward
(1999),
the language of R.C. 2744.02(B)(4). We are bound to apply the words of the law
S in effect at the time the alleged negligent acts occurred. The board urges us to add words to R.C. 2744.02(B)(4). We decline to rewrite the subsection to produce a different result than the words of the statute require.
{¶18} We therefore hold that the exception to political-subdivision immunity in R.C. 2744.02(B)(4) applies to all cases where an injury resulting from the negligence of an employee of a political subdivision occurs within or on the grounds of buildings that are used in connection with the performance of a governmental function. The exception is not confined to injury resulting from physical defects or negligent use of grounds or buildings. Since the injuries claimed by plaintiffs were caused by negligence occurring on the grounds of a building used in connection with a government function, R.C. 2744.02(B)(4) applies and the board is not immune from liability. We reverse the judgment of the court of appeals on the claim of
negligent supervision and retention with instructions that it remand the case to the trial court for the purpose of applying the third tier of analysis necessitated by R.C. Chapter 2744, which requires a determination of whether the board qualifies for any of the statutory defenses listed in R.C. 2744.03. For the foregoing reasons, the judgment of the court of appeals is
affirmed in part and reversed in part, and the cause is remanded.
Judgment accordingly.
D OUGLAS , F.E. S WEENEY , P FEIFER and C OOK , JJ., concur.
R ESNICK and L UNDBERG S TRATTON , JJ., concur in part and dissent in part.
__________________
L UNDBERG TRATTON , J., concurring in part and dissenting in part. I concur with the majority’s affirmance of summary judgment on the claim of intentional infliction of emotional distress. However, I respectfully dissent from its interpretation of the exception to immunity in R.C. 2744.02(B)(4).
January Term, 2002
Without the requirement that the negligence must arise out of a physical defect or negligent use of the grounds or buildings, a political subdivision now may be liable for any negligent act of an employee that occurs within or on the grounds of its buildings. Such a literal interpretation effectively obliterates the doctrine of sovereign immunity. It creates a situation where a political subdivision is immune from liability for negligent acts that are committed away from governmental buildings, whereas there is no immunity for negligence that occurs within or on the grounds of the buildings. I do not believe that the General Assembly intended such a contradictory result. Instead, I believe that the majority of appellate courts has correctly
interpreted subsection (B)(4) as a premises-liability exception to sovereign
immunity. See
Steward v. Columbus
(Sept. 10, 1998), Franklin App. No.
97APG12-1567,
inconsistent with the other provisions in the statute, as explained by various
appellate courts. “When R.C. 2744.02(B)(4) and R.C. 2744.03(A)(5) are read in
concert, it becomes apparent that, in regard to governmental buildings or facilities,
the intent of the General Assembly was that a political subdivision can only be held
liable for damages stemming from
negligent maintenance
.” (Emphasis sic.)
Vance
v. Jefferson Area Local School Dist. Bd. of Edn
. (Nov. 9, 1995), Ashtabula App.
No. 94-A-0041,
R ESNICK , J., concurs in the foregoing opinion.
__________________
Edward L. Gilbert, for appellants.
Britton, McGown, Smith, Peters & Kalail Co., L.P.A., Susan S. McGown,
Matthew J. Markling and David A. Rose, for appellees.
__________________