2004 Ohio 1314 | Ohio Ct. App. | 2004
{¶ 2} On October 28, 1997, Lamar Pope ("Lamar") was an eighth grade student at Trotwood-Madison Middle School. An "open gym" session was held after school that day during which seventh and eighth graders were allowed to play basketball. The session was supervised by McKinney, the eighth grade basketball coach, and Virgil Carter, a volunteer coach. Lamar was a participant.
{¶ 3} To facilitate the participation of as many boys as possible, the boys played using half-courts. Using this configuration, the gymnasium's regular basketball court was divided into two short courts, with the baskets positioned along the sides of the regular court. The wall of the gymnasium was about five feet from the end of the half-court, and the wall was covered with a mat. The coaches played on Lamar's team because it did not have five players.
{¶ 4} While playing a game of five-on-five, Lamar tripped over the feet of another player, stumbled out of bounds, and hit his head on the gymnasium wall. He landed face-down on the floor and was unresponsive. Another player tried to lift Lamar, but the coaches stopped him for fear of aggravating his obvious neck injury. While Carter stayed with Lamar, McKinney called 911 and notified the principal's office of what was happening. By the time the paramedics arrived, Lamar apparently had no pulse and was not breathing. He was never again able to breathe independently. On March 4, 1998, Lamar's family removed life support, and he died.
{¶ 5} On December 20, 2000, Pope filed a complaint against the school district and McKinney for negligent hiring, negligence in the design and use of the gymnasium, negligent supervision, and other claims. The school district and McKinney filed a motion for summary judgment on the ground that they were statutorily immune from liability pursuant to R.C. Chapter 2744. The trial court granted the motion for summary judgment on August 12, 2003.
{¶ 6} Pope raises two assignments of error on appeal.
{¶ 7} "I. The trial court erred in concluding that appellee trotwood-madison was immune from suit in the instant cause pursuant to ohio revised code §
{¶ 8} Pope claims that summary judgment based on the school district's immunity from liability was inappropriate. He claims that there was a genuine issue of material fact regarding negligence on the part of school employees, which made the school district liable pursuant to R.C.
{¶ 9} A brief discussion of the statutory framework regarding the liability of political subdivisions will be helpful to our discussion.
{¶ 10} R.C.
{¶ 11} "For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function."
{¶ 12} At the time of Lamar's injury, R.C.
{¶ 13} When liability is established pursuant to R.C.
{¶ 14} Pope claims that the school district was liable pursuant to R.C.
{¶ 15} In our view, R.C.
{¶ 16} Pope does not allege that the school district acted with malicious purpose or in bad faith, but he does contend that it acted recklessly or wantonly in erecting a wall five feet from the edge of the half-courts. In the context of R.C. Chapter 2744, courts have defined "recklessness" as "a perverse disregard for a known risk." Lipscomb v. Lewis (1993),
{¶ 17} Pope has not submitted sufficient evidence of the type required by Civ.R. 56(C) to create a genuine issue of material fact on this issue. Pope's evidence came from the affidavit of his expert, Herb Appenzeller. Appenzeller stated, in a conclusory fashion, that McKinney and the school district had acted recklessly in using the half-courts without adequate distance from the end lines of the courts to the walls and that there was a foreseeable risk of injury with a wall five feet from the end line. No proper evidence was offered about what the distance should have been or what the distance was from the edge of the full court to the wall.1
{¶ 18} Even assuming that an injury was foreseeable, as Appenzeller asserts, he did not allege any facts that created a genuine issue as to whether the school district had acted with a perverse disregard for the risk of injury or had failed to exercise any care for the students when a great probability of harm was apparent. The fact that a mat had been attached to the wall demonstrated that the school had not disregarded the risk and had exercised some care for the students' safety. The steps taken by the school may have been insufficient to prevent all injuries to the students, including Lamar's injury, but such a shortcoming amounts to negligence, not recklessness or wantonness.
{¶ 19} R.C.
{¶ 20} It was undisputed that there had been a mat on the wall with which Lamar collided. In opposition to the school district's motion for summary judgment, Pope repeatedly asserted that the mat had been "old" and "thin." This evidence came from the depositions of student athletes who were present the day of Lamar's injury. Pope also offered evidence that the mats had been replaced within a few months after Lamar's injury. Appenzeller stated in his affidavit that the school district had acted with "conscious disregard for the safety of Lamar Pope" and that the open gym had created "a foreseeable risk of injury because the mere five feet between the end line and the thinly padded gymnasium wall was not adequate to prevent injuries." It does not appear from the affidavit that Appenzeller had any first hand knowledge of the condition of the mat.
{¶ 21} Pope offered no specific evidence about the type of mats on the gym walls, their thickness, or their firmness at the time of Lamar's injury. He also did not provide any evidence about the quality of mat that is recommended for school gymnasiums, if any, or commonly used in other schools. While the evidence presented regarding the quality of the mats might have created a genuine issue of material fact as to negligence, it did not create a genuine issue of material fact as to recklessness or wantonness on the part of school officials in installing this type of mat. As discussed supra, a showing of recklessness or wantonness requires a perverse disregard for a known risk or a failure to exercise any care for the safety of those to whom a duty of care is owing when there is a great probability of harm which the exercise of care might avert. Although the mat clearly did not prevent Lamar's injuries in this case, Pope did not create a genuine issue of material fact that a different mat would have done so or that school officials acted recklessly or wantonly in installing the mats that they did.
{¶ 22} Pope also contends that there was a genuine issue of material fact as to whether R.C.
{¶ 23} As discussed supra, R.C.
{¶ 24} Pope's ability to recover for the alleged negligence of McKinney turns on whether McKinney's decisions were discretionary or ministerial. Some of our prior decisions provide guidance in assessing the nature of McKinney's decisions, and we will discuss these decisions briefly.
{¶ 25} In Addis v. Howell,
{¶ 26} In Moore v. Southeastern Local School Dist. (March 29, 1996), Clark App. No. 95-CA-23, a student filed suit against her physical education teacher for injuries she sustained when she was hit in the head with a shot put thrown by another student during class. Our opinion does not detail the manner in which the class was being conducted at the time of the student's injury. However, based on the affidavits of the teacher and the school superintendent that the teacher had "planned, implemented, organized, instructed, and supervised his physical education class" and thus had exercised discretion in making the decisions that were the subject of the lawsuit, we held that the school district was immune pursuant to R.C.
{¶ 27} Similarly, in Mosely v. Dayton City School Dist.
(July 6, 1989), Montgomery App. No. 11336, a student challenged the teacher's method of conducting a physical education class wherein she fractured both of her arms. We affirmed the finding of the trial court that "the manner of conducting the physical education class necessarily involved the exercise of discretionary judgment" by the teacher and held that the school was therefore immune from liability in the absence of a showing of reckless or wanton behavior. Although Mosely applied R.C.
{¶ 28} Although not involving a school setting, we think that our decision in Englehardt v. Beavercreek (Aug. 13, 1992), Greene App. No. 91-CA-71, is also analogous. In Englehardt, we held that a police officer had exercised discretion with respect to the responsibilities of his position when he decided to preserve an accident scene on a slippery road rather than to clear the heavily traveled roadway. While the accident scene was being preserved, one of the cars involved in the initial accident was hit by another car. R.C.
{¶ 29} Pope contends that McKinney's decision to participate in the basketball game was not discretionary. Pope essentially argues that McKinney's decision to participate could not have been discretionary because it was irresponsible. The wisdom of a decision, however, does not determine its nature. Even if we assume, for the sake of argument, that McKinney acted negligently when he participated in the basketball game, his negligence would not necessarily entitle Pope to take his case to a jury. The point of R.C. Chapter 2744 is to immunize political subdivisions under certain circumstances from liability rooted in negligent behavior. Pope's argument that "a reasonable jury construing all evidence in a light most favorable to [him] could conclude that McKinney was negligent in his supervision of the boys" ignores the fact that some negligent acts are subject to immunity under the statutes. Under R.C.
{¶ 30} In our view, McKinney's decision to participate in the basketball games while also supervising those games was within his discretion. In his affidavit, McKinney stated that he had participated in the game in order to facilitate Lamar's participation. The number of participants apparently had not divided equally into five-member teams, so McKinney and the volunteer coach, Carter, joined Lamar's team. McKinney further stated that, although he was participating in the basketball games, he "was at all times supervising the activities of the `open gym' attendees." The supervision of the basketball games in this manner evinces a "positive exercise of judgment that portrays a considered adoption of a particular course of conduct in relation to an object to be achieved," i.e., the participation of all of the students. Addis,
{¶ 31} We are also of the view that McKinney's decision not to administer CPR to Lamar after his injury was a discretionary one. It certainly was not routine, requiring little judgment or discretion. See Addis,
{¶ 32} Finally, Pope argues that the school district was liable because it employed a coach who was not certified in CPR. He bases this argument on Ohio Admin. Code
{¶ 33} Pope failed to create a genuine issue of material fact that any of the school district's actions fell outside the scope of the immunity afforded by R.C.
{¶ 34} The first assignment of error is overruled.
{¶ 35} "II. The trial court erred in concluding that appellee mckinney was immune from suit in the instant cause pursuant to ohio revised code [§
{¶ 36} R.C.
{¶ 37} "[T]he employee is immune from liability unless one of the following applies:
{¶ 38} "(a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities;
{¶ 39} "(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
{¶ 40} "(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code. * * *"
{¶ 41} Pope contends that McKinney was not entitled to immunity under R.C.
{¶ 42} Pope's argument that McKinney waived his right to assert immunity when he participated in the basketball game finds no support in Ohio law, and we are unpersuaded by it. Pope cites an Illinois case, whose holding is based on an Illinois immunity statute, and that case involved one-on-one competition between a student and a "recreational leader" who was a school employee. See Longfellow v. Corey (4th Dist. Ill.),
{¶ 43} Pope asserts that McKinney was not entitled to immunity because he acted recklessly in participating in the basketball games, which prevented him from properly supervising the students' activities. Pope also claims that McKinney was reckless in allowing other students to move Lamar after he was injured. Finally, Pope claims that McKinney was reckless in failing to administer CPR.
{¶ 44} As discussed supra, recklessness is defined as a "perverse disregard for a known risk." Lipscomb,
{¶ 45} Second, Pope presented evidence that McKinney had failed to prevent another student from moving Lamar after he had been injured. The students' accounts of a friend's attempt to lift Lamar after he had been injured evince a rapid series of events in which a teammate tried to help Lamar up, apparently assuming that he would be trying to get up of his own accord. It was at this point that the other students realized that Lamar was not getting up and that he was very seriously injured. In keeping with his first aid training, McKinney came to Lamar's aid and told the student to put Lamar down. It is not clear from any of the evidence presented that McKinney had an opportunity to prevent the other student from trying to lift Lamar. Further, there is no genuine issue of material fact that McKinney acted quickly and reasonably under the circumstances. There is certainly no evidence of a perverse disregard for the manner in which Lamar was treated after he had been injured.
{¶ 46} Third, Pope claims that McKinney acted recklessly in failing to administer CPR to Lamar. McKinney stated that he had been trained not to move someone who was lying face-down with a neck injury and who had blood coming out of his mouth. The emergency medical technicians ("EMTs") confirmed in their depositions that these maxims are taught in CPR and first aid classes. The EMTs also presented evidence that, even with their advanced training, it would take two people to safety turn a prone person with a serious neck injury. There was no genuine issue of material fact that McKinney acted recklessly in choosing not to perform CPR in the tragic circumstances with which he was presented.
{¶ 47} The second assignment of error is overruled.
{¶ 48} The judgment of the trial court will be affirmed.
Brogan, J. and Grady, J., concur.
