TRISTAN LEWIS, ET AL., PLAINTIFFS-APPELLANTS, v. AYERSVILLE LOCAL SCHOOL DIST., ET AL., DEFENDANTS-APPELLEES.
CASE NO. 4-23-03
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY
October 10, 2023
[Cite as Lewis v. Ayersville Local School Dist., 2023-Ohio-3685.]
WALDICK, J.
Appeal from Defiance County Common Pleas Court Trial Court No. 21-CV-45398. Judgment Affirmed in Part, Reversed in Part and Cause Remanded.
Bradley G. Olson, Jr. for Appellants
Brian L. Wildermuth and Tabitha Justice for Appellees
{1} This appeal, having originally been placed on the accelerated calendar, is sua sponte being assigned and considered on the regular calendar pursuant to
{2} Plaintiffs-appellants, Tristan Lewis, Ken Lewis, and Cannina Lewis (“the Lewises“), appeal the February 17, 2023 judgment of the Defiance County Court of Common Pleas dismissing their complaint against defendants-appellees Ayersville Local School District (the “school district“) and Daniel Mix, a teacher and coach with the school district. On appeal, the Lewises argue that the trial court erred in granting the
Procedural History
{3} This case originated on April 19, 2021, when Tristan Lewis, Tristan‘s father, Ken Lewis, and Ken‘s wife, Cannina Lewis, filed a complaint in the trial court against the Ayersville school district, Ayersville teacher and coach Daniel Mix, and Jamison Clark, a former student in the school district, as well as the unidentified parents and guardians of Jamison Clark.1
{5} On June 15, 2021, the school district and Mix filed a motion pursuant to
{6} On February 17, 2023, the trial court filed a detailed judgment entry granting the motion to dismiss as to both the school district and Mix.
First Assignment of Error
The trial court committed reversible error by granting Defendant-Appellee Ayersville Local School District the benefits of statutory immunity under R.C. Chapter 2744.
Second Assignment of Error
The trial court committed reversible error by granting Defendant-Appellee Daniel Mix the benefits of statutory immunity under R.C. Chapter 2744.
Standard of Review
{8} Appellate courts conduct a de novo review of trial court decisions granting a
{9} Additionally, “[w]hether a party is entitled to immunity is a question of law properly determined by the court prior to trial * * *.” Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, ¶ 12, citing Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992). Thus, appellate courts also conduct a de novo review of a trial court‘s determination regarding political-subdivision immunity. Pelletier, at ¶ 13.
Civ.R. 12(B)(6)
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted[.]
{10} A
{11} If there is a set of facts consistent with the plaintiff‘s complaint that would allow for recovery, the court must not grant the motion to dismiss. York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). In considering a
R.C. Chapter 2744 – Sovereign Immunity Framework
{12} “The Political Subdivision Tort Liability Act, codified in
{13} As this Court explained in Martin v. Village of Payne, 3d Dist. Paulding No. 11-20-05, 2021-Ohio-1557, at ¶ 38:
A claim of sovereign immunity by a political subdivision requires the three-tiered analysis provided in
R.C. Chapter 2744 . Baker v. Wayne Cty., 147 Ohio St.3d 51, 2016-Ohio-1566, ¶ 11, citing Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, ¶ 16. Under the first tier of the analysis, a political subdivision has immunity for any act or omission of the political subdivision, or its employees, that was conducted in connection with a governmental or proprietary function.R.C. 2744.02(A)(1) . The second tier of the analysis examines whether any of the five exceptions to the general grant of immunity apply that are listed inR.C. 2744.02(B) . Rankin at ¶ 18. If an exception does apply, the third tier of the analysis considers whether sovereign immunity can be reinstated by one of the statutorily listed defenses, such as the discretionary defenses set forth inR.C. 2744.03(A)(3) and(5) . Rankin at ¶ 27.
{14} “Immunity is also extended to individual employees of political subdivisions.” Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, ¶ 10.
First Assignment of Error
{15} In the first assignment of error, the Lewises assert that the trial court erred in finding that the Ayersville Local School District was entitled to a grant of immunity and in dismissing the complaint against the school district.
{16} The parties agree that the school district is a political subdivision generally immune from liability. The dispute on appeal actually lies in the second tier of the statutory analysis and focuses on whether an exception to the school district‘s immunity is applicable.
{18} In the instant case, the Lewises contend on appeal that the “physical defect” exception found in
{19}
[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, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code.
{20} The term “physical defect” is not defined in
{21} However, in Doe v. Greenville City Schools, ___ Ohio St.3d ___, 2022-Ohio-4618, reconsideration denied, 169 Ohio St.3d 1467, 2023-Ohio-773, the Supreme Court of Ohio recently addressed the issue of whether the absence of a device or the lack of a piece of safety equipment that was not a fixture could constitute a “physical defect” supporting the
{22} In Doe, the Ohio Supreme Court first noted in its plurality opinion that some Ohio courts have held that the lack of a safety feature could be a “physical defect“, where other courts in the state have held that the lack of a safety feature does not constitute such a defect. Id., at ¶ 24-26. The Supreme Court found that, on review of the cases addressing the issue, “we agree with the courts that have held
{23} In the case sub judice, the Lewises urge that their complaint set forth sufficient facts that, if proven, establish the school district is not entitled to immunity due to a physical defect on school grounds, combined with employee negligence, having contributed to Tristan Lewis‘s injuries. We disagree.
{24} Our thorough review of the complaint in this case reflects no factual allegations whatsoever in support of a theory that some aspect of the school premises was physically defective so as to fall within the exception listed in
{25} Therefore, the trial court did not err in granting the school district‘s motion to dismiss pursuant to
{26} In the first assignment of error, the Lewises alternatively argue that, even if there were insufficient factual averments in the complaint regarding a physical defect, the trial court erred in failing to permit the Lewises to amend their complaint.
{27}
A party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-eight days after service of a motion under
Civ. R. 12(B) , (E), or (F), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party‘s written consent or the court‘s leave. The court shall freely give leave when justice so requires. Unless the court orders otherwise, any required response to an amended pleading must be made within the time
{28} In the instant case, however, the record is devoid of any indication that the Lewises ever sought to amend their complaint, much less that the trial court deprived them of a right to do so. A reviewing court need not consider any claim that error was committed by a lower court if that claim was not preserved by objection, ruling, or otherwise in that court. Loyal Order of Moose Lodge No. 1473, Celina v. Liquor Control Comm., 95 Ohio App.3d 109, 114, 641 N.E.2d 1182, 1185 (1994). Critically, the Lewises have waived this alternative claim of error by not seeking to amend their complaint in the trial court.
{29} The first assignment of error is overruled.
Second Assignment of Error
{30} In the second assignment of error, the Lewises assert that the trial court erred in finding that Coach Mix was entitled to a grant of immunity and in dismissing the complaint against him.
{31} As set forth above, Mix individually is entitled to immunity as an employee of a political subdivision pursuant to
{33} “The Supreme Court of Ohio has defined all of the requisite operative terms—willful, wanton, and reckless—finding that they describe different and distinct degrees of care and are not interchangeable.” Riehm v. Green Springs Rural Volunteer Fire Dept., 3d Dist. Seneca No. 13-18-15, 2018-Ohio-4075, ¶ 42.
{34} “Willful misconduct implies an intentional deviation from a clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, paragraph two of the syllabus.
{35} “Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is a great probability that harm will result.” Id. at paragraph three of the syllabus.
{36} “Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” Id. at paragraph four of the syllabus.
{38} As the Supreme Court of Ohio explained in Maternal Grandmother v. Hamilton Cty. Dept. of Job and Family Servs., 167 Ohio St.3d 390, 2021-Ohio-4096, at ¶ 10, Ohio is a notice-pleading state, meaning “that outside of a few specific circumstances, such as claims involving fraud or mistake * * *, a party will not be expected to plead a claim with particularity.” “Rather, ‘a short and plain statement of the claim’ will typically do.” Id., quoting
{39} In the instant case, while the Lewises’ complaint could have perhaps been more developed as to the facts alleged in support of the claims against Mix, we find that, similar to the findings made by the Ohio Supreme Court in Maternal Grandmother, supra, the Lewises’ complaint nonetheless met the requirements of putting Mix on notice of the claims against him and raising the possibility that the
{40} The second assignment of error is sustained on that basis.
{41} Having found error prejudicial to the appellants in the particulars assigned and argued, the judgment of the Defiance County Court of Common Pleas is affirmed in part and reversed in part.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
MILLER, P.J., and ZIMMERMAN, J. concur.
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