KELLY NICHOLSON v. LOANMAX, LLC., et al.
CASE NO. 16 BE 0057
STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
January 26, 2018
[Cite as Nicholson v. LoanMax, L.L.C., 2018-Ohio-375.]
Hon. Mary DeGenaro, Hon. Gene Donofrio, Hon. Carol Ann Robb
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas, of Belmont County, Ohio, Case No. 15-CV-304. JUDGMENT: Reversed.
For Plaintiff-Appellee Attorney Eric Chaffin, Attorney Patrick Booth, 615 Iron City Drive, Pittsburgh, Pennsylvania 15205
For Defendants-Appellants Attorney James Lyons, Jr., Attorney Kenneth Calderone, 3737 Embassy Parkway, Suite 100, Akron, Ohio 44333
{¶1} Defendants-Appellants, Judith Steele and Bellaire Board of Education, appeal the decision of the Belmont County Court of Common Pleas denying their motion for summary judgment. On appeal, Bellaire Board of Education and Steele argue there were no genuine issues of fact regarding their statutory immunity and were entitled to judgment in their favor as a matter of law. As they are immune from liability, the judgment of the trial court is reversed, and judgment is entered in their favor.
Facts and Procedural History
{¶2} Plaintiff-Appellee, Kelly Nicholson, filed a complaint against Loanmax, LLC, Drummond Financial Services, LLC, Select Management Resources LLC, and the Bellaire Board of Education. Nicholson alleged that on September 17, 2014, she was exiting a school bus owned by BOE and was injured when she stepped off the bus and into a pothole in a parking lot owned and maintained by all named defendants.
{¶3} BOE answered Nicholson‘s complaint, denied the allegations and asserted various affirmative defenses, including statutory immunity. Drummond Financial Services, LLC, dba Loanmax and Select Management Resources, LLC, filed an answer. Nicholson later filed an amended complaint naming the bus driver Judith Steele, and TERA, II, LLC as additional defendants.
{¶4} BOE and Steele moved for summary judgment on the basis of statutory immunity pursuant to
Summary Judgment
{¶5} In their sole assignment of error, Steele and BOE assert:
The trial court erred by not granting Appellant‘s Motion for Summary Judgment on the Basis of Immunity.
{¶7} An order denying a motion for summary judgment is generally not a final, appealable order. State ex rel. Overmeyer v. Walinski, 8 Ohio St.2d 23, 222 N.E.2d 312. However,
{¶8} Political subdivisions are generally not liable in damages for injury, death or loss to person or property by any act or omission.
{¶9} A three-tiered analysis is used when evaluating immunity:
Under the first tier,
R.C. 2744.02(A)(1) sets out the general rule that political subdivisions are not liable in damages. [Green Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556–57, 733 N.E.2d 1141 (2000)] Under the second tier, the court must determine whether any of the exceptions to immunity set out inR.C. 2744.02(B) apply. Id. at 557, 733N.E.2d 1141. Finally, under the third tier, if the court finds that any of R.C. 2744.02(B) ‘s exceptions apply, it must considerR.C. 2744.03 , which provides defenses and immunities to liability. Id.
Roberts v. Switzerland of Ohio Local School Dist., 2014-Ohio-78, 7 N.E.3d 526, ¶ 17 (7th Dist.).
{¶10} “Immunity is a doctrine that provides a complete defense to a tort action. By asserting an immunity defense, the defendant does not allege that there was no negligence. The defendant is asserting that it is protected from liability for negligence by reason of
{¶11} BOE and Steele argue none of the exceptions apply. Nicholson contends that three apply to reinstate liability. Each will be discussed in turn.
Negligent Operation of Motor Vehicle
{¶12}
Subject to sections
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority.
“Analyzing the meaning of “operation” under
R.C. 2744.02(B)(1) , the Ohio Supreme Court noted that the General Assembly‘s definition of “operate” found inR.C. 4511.01(HHH) “sheds light on the meaning of ‘operation’ inR.C. 2744.02(B)(1) .” [Doe v. Marlington Local School Bd. of Edn., 122 Ohio St.3d 12, 2009–Ohio–1360, 907 N.E. 2d 706, ¶ 24.] The Court also noted that the definition of “operate” found inR.C. 4511.01(HHH) was “generally consistent with the interpretation courts have given to “operation” underR.C. 2744.02(B)(1) .” Id. at ¶ 25, 907 N.E.2d 706. The Court went on to state: “[w]e conclude that the exception to immunity inR.C. 2744.02(B)(1) for the negligent operation of a motor vehicle pertains only to negligence in driving or otherwise causing the motor vehicle to be moved.” Id. at ¶ 26, 907 N.E.2d 706.
{¶14} Here, the school bus was parked and at a full and complete stop at the time Nicholson exited and stepped down into the pothole. Nicholson attempts to distinguish Marlington, as relied upon in Miller, by citing to Swain v. Cleveland Metro. School Dist. 8th Dist. No. 94553, 2010-Ohio-4498, which held that the negligent operation exception reinstated municipal liability. However, the Swain Court noted the inapplicability of Marlington to the facts contained in that case:
Marlington is easily distinguishable from the case at bar. Marlington involved the sexual assault between different students. The case at bar involves the negligent operation of a motor vehicle in driving or otherwise causing the vehicle to be moved in relation to the conduct of
the bus driver and her duties. In contrast to the sexual assault between a special needs student in Marlington, the conduct in the case at bar involves an entirely different situation. The bus driver in the case at bar, while sitting in the driver‘s seat and while the engine was running, declined to inspect the bus and then drove the bus away from the proper bus stop.
Swain, ¶ 11-12.
{¶15} Nicholson further cites to Doe v. Dayton City School Board of Education, 137 Ohio App.3d 166, 738 N.E.2d 390 (2d.Dist.1999), and Groves v. Dayton Public Schools, 132 Ohio App.3d 566, 725 N.E.2d 734 (2d. Dist.1999). However, we find Doe and Groves unpersuasive and distinguishable as in both cases the vehicle was not being operated at the time of the plaintiff‘s injuries. The rationale in Marlington, Miller and Swain is more persuasive.
{¶16} As there was no actual operation of the school bus in the present matter,
Failure to Repair Public Roads
{¶17}
Subject to sections
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:(3) Except as otherwise provided in section
3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads, except that it is a full defense to that liability,when a bridge within a municipal corporation is involved, that the municipal corporation does not have the responsibility for maintaining or inspecting the bridge.
{¶18} Nicholson was injured in a parking lot owned by TERA II and leased to Drummond Financial who was responsible for maintaining the premises pursuant to the terms of the lease. Loan Max is a dba for Drummond. BOE had a legal easement since 1982 for use of the parking lot. Nicholson argues that the easement required BOE to maintain the parking lot in a reasonably safe condition. This is a distinction without a difference. A parking lot is not a public road.
The General Assembly defined what areas constitute a public road and what areas do not: “Public roads means public roads, highways, streets, avenues, alleys, and bridges within a political subdivision. ‘Public roads’ does not include berms, shoulders, rights-of-way, or traffic control devices unless the traffic control devices are mandated by the Ohio manual of uniform traffic control devices.”
R.C. 2744.01(H) .The Ninth District held that in the context of an ongoing repair or maintenance project, a public road is “the area under the control of the political subdivision, subject to the ongoing repair work, and open to travel by the public.” 2014-Ohio-3529, 17 N.E.3d 639, at ¶ 11. The court did so without consideration of the areas the General Assembly statutorily excluded from the definition of public road. The result was an expansion of the definition to include “area[s] under the control of the political subdivision“—in direct contravention of the General Assembly. See Montgomery Cty. Bd. of Commrs., 28 Ohio St.3d at 175, 503 N.E.2d 167.
Because a definition was provided by the General Assembly,
R.C. 2744.01(H) is the exclusive definition of public road for purposes ofdetermining sovereign immunity from all claims that allege a negligent failure to maintain.
Baker v. Wayne County, et al., 147 Ohio St.3d 51, 2016-Ohio-1566, 60 N.E.3d 1214, ¶ 16-18.
{¶19} As parking lots were not included within the statutory definition of public roads,
Physical Defect
{¶20}
Subject to sections
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:Except as otherwise provided in section
3746.24 of the Revised Code, 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, 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 section2921.01 of the Revised Code.
{¶21} Regarding
R.C. 2744.02(B) was amended on April 9, 2003. The 2003 amendment toR.C. 2744.02(B)(4) added the language “and is due to physical defects within or on the grounds of” after “that is caused by thenegligence of their employees and that occurs within or on the grounds of.” Other than this addition, the statute remained the same. The statute was changed to limit liability for negligence that is due to physical defects within or on the grounds that are used in connection with a governmental function. Aratari v. Leetonia Exempt Village School Dist., 7th Dist. No. 06–CO–11, 2007-Ohio-1567, 2007 WL 969402, ¶ 30.
Roberts v. Switzerland of Ohio Local School Dist., 2014-Ohio-78, 7 N.E.3d 526, ¶ 20 (7th Dist).
{¶22}
{¶23} The phrase physical defect is not statutorily defined. The Sixth District defined physical defect as “a perceivable imperfection that diminishes the worth or utility of the object at issue.” Hamrick v. Bryan City School Dist., 6th Dist. No. WM–10–014, 2011-Ohio-2572, ¶ 28. Here Nicholson alleges the physical defect that caused or contributed to her injury was the pothole. Bellaire responds that the easement operated as it was intended to do.
{¶24} Nicholson vacillates between what constitutes the negligent act: the board‘s failure to repair the pothole pursuant to the terms of the easement or Steele‘s operation of the bus itself, which is not an action as the bus was fully stopped and parked.
{¶25} Construed in a light most favorable to the Nicholson as the non-moving party, the exceptions to sovereign immunity Nicholson asserts reinstates liability do not. As Steele and BOE are entitled to statutory immunity, the trial court erred in denying their motion for summary judgment. Accordingly, the judgment of the trial
Donofrio, J., dissents in part, concurs in part; see dissenting in part, concurring in part opinion.
Robb, P. J., concurs.
KELLY NICHOLSON v. LOANMAX, LLC., et al.
CASE NO. 16 BE 0057
STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
{¶26} I respectfully dissent from that part of the majority opinion that determines that the exception to immunity set out in
{¶27} Whether a political subdivision is entitled to immunity is analyzed using a three-tiered process. Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556, 733 N.E.2d 1141 (2000). Under the first tier,
{¶28} Under the first tier, the BOE has immunity and is not liable for damages.
{¶29} Under the second tier, we must examine whether any exceptions to immunity apply.
(B) Subject to sections
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and
authority.
{¶30} In this case, Steele was operating the school bus within the scope of her employment when she drove the bus on top of the pothole. The phrase “operation of any motor vehicle” is not defined in
{¶31} The majority relies on the reasoning set out in Doe v. Marlington Local School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, and Miller v. Van Wert Cty. Bd. of Mental Retardation & Dev. Disabilities, 3d Dist. No. 15-08-11, 2009-Ohio-5082. Neither of these cases, however, define “operation of a motor vehicle” to not include the action of driving a vehicle over a hazard and parking it there. Instead, both of those cases stand for the proposition that the supervision of students on a bus is not included in the definition of “operation of a motor vehicle.”
{¶32} In Marlington, 2009-Ohio-1360, the Ohio Supreme Court was specifically faced with “whether a school bus driver‘s supervision of the conduct of children passengers on a school bus amounts to operation of a motor vehicle within the statutory exception to political subdivision immunity under
the exception to immunity in
R.C. 2744.02(B)(1) for the negligent operation of a motor vehicle pertains only to negligence in driving or otherwise causing the vehicle to be moved. The language ofR.C. 2744.02(B)(1) is not so expansive that it includes supervising the conduct of student passengers, as alleged in this case.
{¶34} In both Marlington and Miller, the issue was whether the bus driver‘s supervision of the students on the bus was contained within the definition of “operation of a motor vehicle.” This is not the issue in the case at bar. Thus, I would find these cases inapplicable.
{¶35} The majority also relies on Swain v. Cleveland Metro. School Dist., 8th Dist. No. 94553, 2010-Ohio-4498. In Swain, a mother sought to hold the school district liable for the actions of a bus driver who failed to discover that her five-year old child had fallen asleep on the bus on the way home from school and failed to drop her off at her bus stop. The Eighth District distinguished the case from Marlington finding:
[i]n contrast to the sexual assault between a special needs student in Marlington, the conduct in the case at bar involves an entirely different situation. The bus driver in the case at bar, while sitting in the driver‘s seat and while the engine was running, declined to inspect the bus and then drove the bus away from the proper bus stop.
(Emphasis sic.); Id. at ¶ 12. Thus, if anything, Swain supports a finding that Steele‘s action of driving over a pothole and parking the bus on top of pothole fall within the definition of “operation of a motor vehicle.”
{¶36} I would find that the injury here occurred due to Steele‘s alleged negligent operation of the school bus, i.e., the action of driving the bus over a large pothole and parking it there. Thus, I would find that the
{¶37} In finding that an exception to immunity applies, I would then move on
{¶38}
{¶39} Thus, I would find that the BOE was not entitled to immunity.
{¶40} While I would find that the BOE is not entitled to immunity based on the alleged negligence by Steele, I would still find that Steele is entitled to immunity. The reason for the difference being that under the third tier of the immunity analysis,
(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections
3314.07 and3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:(a) The employee‘s acts or omissions were manifestly outside the scope of the employee‘s employment or official responsibilities;
(b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code. * * *.
{¶41} In this case, there is no allegation that Steele was acting outside of the scope of her employment as a bus driver. Moreover, Steele‘s actions of driving over, and ultimately parking on top of, a large pothole may constitute negligence. But these actions were not undertaken with malice, bad faith, or in a wanton and reckless manner. Finally, there is no allegation that the Revised Code expressly imposes civil liability on Steele.
{¶42} In conclusion, for the reasons stated above, I would find that the