Case Information
*1
[Cite as
Roberts v. Switzerland of Ohio Local School Dist.
,
STATE OF OHIO, MONROE COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
MORGAN ROBERTS, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 12 MO 8 V. )
) OPINION SWITZERLAND OF OHIO LOCAL )
SCHOOL DISTRICT, )
)
DEFENDANT-APPELLANT. ) CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Monroe County, Ohio Case No. 2012-163 JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Attorney J. Kevin Flanagan
510 Tomlinson Avenue Moundsville, WV 26041 For Defendant-Appellant Attorney Sandra R. McIntosh
Capitol Square Office Building 65 E. State Street, Suite 800 Columbus, Ohio 43215-7303 JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: January 7, 2014
*2
[Cite as
Roberts v. Switzerland of Ohio Local School Dist.
,
DONOFRIO, J.
{¶1} Defendant-appellant, the Switzerland of Ohio Local School District Board of Education (the Board), appeals from a Monroe County Common Pleas Court judgment denying its motion to dismiss for failure to state a claim and asserting political subdivision immunity and recreational user immunity. On May 29, 2012, plaintiff-appellee, Morgan Roberts, filed a complaint
against the Board alleging that while she was participating in track and field practice on the premises of Beallsville High School and was standing in an area designated by the Board’s agents as a “safe zone,” she was struck in the head and face by a discus that was thrown by another Beallsville High School student. Roberts asserted the Board, through its agents and employees, was negligent in causing the discus to strike her and informing her and others that it was safe to be in an area where a discus could be thrown and in failing to erect a fence or cage around the rear of the discus circle. Roberts claimed that she suffered multiple serious injuries as a result of the Board’s negligence.
{¶3} In response, the Board filed a Civ.R. 12(B)(6) motion to dismiss. It asserted that (1) it was entitled to political subdivision immunity and (2) Roberts’s claim was barred by the recreational user statute. Roberts filed a response opposing the motion to dismiss. After a hearing on the matter, the trial court denied the Board’s motion. The Board filed a timely notice of appeal on October 2, 2012. Generally, the denial of a motion to dismiss is not a final, appealable
order. State Auto Mut. Ins. Co. v. Titanium Metals Corp. ,
the appellate court to independently review the complaint to determine if the
dismissal was appropriate. Ferreri v. The Plain Dealer Publishing Co. , 142 Ohio
App.3d 629, 639,
assignment of error first for ease of discussion. It states:
THE TRIAL COURT ERRED WHEN IT CONSIDERED MATERIALS OUTSIDE THE PLEADINGS IN DECIDING THE BOARD’S MOTION TO DISMISS.
{¶9} In this assignment of error, the Board asserts that in ruling on the motion to dismiss, the trial court improperly considered a copy of the National Federation of State High School Associations (NFSHSA) Rules that Roberts attached to her response to the Board’s motion to dismiss. The trial court is not permitted to resort to evidence outside of the
complaint to support dismissal under Civ.R. 12(B)(6). Dombroski v. WellPoint, Inc. ,
{¶11}
In its judgment entry here, the trial court relied in part on Henney v.
Shelby City School Dist. , 5th Dist. No. 2005 CA 0064,
{¶12} The trial court did not convert the motion to dismiss to a motion for summary judgment nor did it give the parties 14 days notice and a reasonable opportunity to present any other pertinent materials. Thus, the court should not have considered the copy of the NFSHSA’s Rules that Roberts attached to her response to the motion to dismiss. But the trial court’s misstep does not necessarily constitute reversible
error. This court is required to review the complaint and determine whether Roberts has stated any claim for which relief could be granted. Our review is de novo. In reviewing the merits of the motion to dismiss in the Board’s subsequent assignments of error, we will not consider the NFSHSA Rules because they were not part of the complaint and we will independently determine whether the motion to dismiss should have been granted. Accordingly, the Board’s third assignment of error is without merit. The Board’s first assignment of error states:
THE TRIAL COURT ERRED BY DENYING THE BOARD’S MOTION TO DISMISS ON THE BASIS OF POLITICAL SUBDIVISION IMMUNITY. The Board first argues that the trial court incorrectly found that the
exception to immunity set out in R.C. 2744.02(B)(4) applied here. It asserts the trial
court relied on outdated and superseded case law that interpreted the old version of
R.C. 2744.02(B)(4). The Board contends the trial court relied solely on Hubbard v.
Canton City Bd. Of Education ,
a three-tiered process. Green Cty. Agricultural Soc. v. Liming , 89 Ohio St.3d 551, 556, 733 N.E.2d 1141 (2000). Under the first tier, R.C. 2744.02(A)(1) sets out the general rule that political subdivisions are not liable in damages. Id . at 556-557. Under the second tier, the court must determine whether any of the exceptions to immunity set out in R.C. 2744.02(B) apply. Id . at 557. Finally, under the third tier, if the court finds that any of R.C. 2744.02(B)'s exceptions apply, it must consider R.C. 2744.03, which provides defenses and immunities to liability. Id . A school district is a political subdivision of the State of Ohio. R.C.
2744.01(F). Moreover, the design, construction, reconstruction, renovation, repair, maintenance, and operation of any school athletic facility or recreational area, including a playfield, are governmental functions. R.C. 2744.01(C)(2)(u). Thus, in this case, we must begin our analysis under the first tier with the premise that the Board is entitled to immunity. Next, under the second tier, the possible exception to immunity in this
case on which Roberts relies is set out in R.C. 2744.02(B)(4):
(B) Subject to sections 2744.03 and 2744.05 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 *6 omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows: * * *
(4) 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 * * *.
(Emphasis added.) R.C. 2744.02(B) was amended on April 9, 2003. The 2003 amendment
to R.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 the negligence 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,
(1) a negligent act and (2) a physical defect within or on the grounds of the political subdivision. DeMartino v. Poland Loc. School Dist. , 7th Dist. No. 10-MA-19, 2011- Ohio-1466, ¶34. In this case, the question surrounds whether there was a physical
defect on the school grounds. The trial court failed to address this issue when discussing whether political subdivision immunity applied. It simply concluded that R.C. 2744.02(B)(4) applied because “the alleged negligent, reckless, and/or wanton *7 conduct occurred on school grounds.”
{¶23}
Roberts cites to two cases that provide us with some guidance.
{¶24}
First, Roberts cites to Moore v. Lorain Metro. Housing Auth. , 121 Ohio
St.3d 455,
safe. In Moore , the Supreme Court left open the possibility that the absence of a safety feature could constitute a physical defect. Next, Roberts cites to Moss v. Lorain Cty. Bd. of Mental Retardation ,
Similarly, in this case the alleged physical defect was the unsafe “safe zone.”
Some cases have found the “physical defect” element is not satisfied by
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the failure to provide some type of safety measure. See, Hamrick v. Bryan City
School Dist. , 6th Dist. No. WM-10-014,
an area designated by the Board’s agents as a “safe zone.” While standing in the designated safe zone, she was struck with a discus thrown by another student. The complaint states the Board’s agents were negligent in informing Roberts that it was safe to be in an area where a discus could be thrown and in failing to erect a fence, cage, or other device around the rear of the discus circle. Taking these facts as true and construing all reasonable inferences in
favor of Roberts, as we are required to do, we find that the trial court properly upheld the complaint. Clearly, the complaint alleges a negligent act, the instruction by the Board’s agent that it was safe for Roberts to stand in an area that was not, in fact, safe. Additionally, the complaint sufficiently alleges a physical defect on the grounds of the political subdivision. As can be seen from Moore , 121 Ohio St.3d 455, and Moss , 185 Ohio App.3d 395, the courts have left open the possibility that the absence of a safety feature or the existence of an unsafe area that is supposed to be safe, can be the type of defect contemplated by R.C. 2744.02(B)(4). Whether the specific defect here removes immunity from the Board is best left to summary judgment proceedings. Accordingly, the Board’s first assignment of error is without merit. The Board’s second assignment of error states:
THE TRIAL COURT ERRED BY DENYING THE BOARD’S MOTION TO DISMISS ON THE BASIS OF RECREATIONAL USER IMMUNITY. The Board contends here that it is immune from liability because
Roberts was a recreational user and track practice is a recreational pursuit. The Board asserts it did not owe Roberts a duty to keep the track field safe for use under R.C. 1533.181(A)(1). And it asserts that while R.C. 1533.18(A) appears to limit the statute to privately-owned premises, a political subdivision has derivative immunity from tort liability to a recreational user to the same extent an owner of private land does. The Board further contends the recreational user statute provides it with immunity for informing Roberts that it was safe to be in an area where a discus could be thrown. Finally, the Board claims it is immune from liability because Roberts’s injury was caused by another recreational user. R.C. 1533.181 gives owners of premises held open to the public for
recreational use immunity from liability for injuries sustained by persons using the premises. R.C. 1533.181 reads:
(A) No owner, lessee, or occupant of premises:
(1) Owes any duty to a recreational user to keep the premises safe for entry or use;
(2) Extends any assurance to a recreational user, through the act of giving permission, that the premises are safe for entry or use; (3) Assumes responsibility for or incurs liability for any injury to person or property caused by any act of a recreational user.
(B) Division (A) of this section applies to the owner, lessee, or occupant of privately owned, nonresidential premises, whether or not the premises are kept open for public use and whether or not the owner, lessee, or occupant denies entrance to certain individuals.
{¶35}
R.C. 1533.18(B) defines a “recreational user” as a person to whom
permission has been granted to enter upon premises “to hunt, fish, trap, camp, hike,
or swim, * * * or to engage in other recreational pursuits .” (Emphasis added.)
It is well-settled that R.C. 1533.181 applies to incidents occurring on
school district property. Mason v. Bristol Loc. School Dist. Bd. Of Edn. , 11th Dist. No.
2005-T-0067,
in a track and field event was hit in the face with a discus thrown by another student athlete. Mason , 11th Dist. No. 2005-T-0067. She filed a complaint alleging the school board was negligent in failing to construct, maintain, and design a safe discus pit, in its failure to warn people regarding the discus pit, and in supervising the students. The trial court granted the board’s motion for summary judgment and the student appealed. The Eleventh District found that the student was a recreational user when she was struck with the discus. Id . at ¶57. Noting that the student maintained the discus pit was unsafe in its construction, maintenance, and design and therefore implicating the safety of the “premises,” the court concluded that the board was entitled to immunity under the recreational user statute. Id . at ¶63. While Mason appears to be factually similar to the present case, there is one notable distinction. Mason was decided on summary judgment. Here we are faced with a motion to dismiss on the pleadings. The evidence has yet to be developed in this case. Moreover, evidence has yet to be developed as to whether the
Beallsville High School track and field practice area was open to the public. In commenting on this issue, the Ninth District stated:
In past decisions on recreational user immunity, the Ohio
Supreme Court held that, in order for a property owner to be immune
under R.C. 1533.181, the property upon which the injury occurred must
have been held open for public use. See Fryberger v. Lake Cable
Recreation Assn., Inc. (1988),
affirmed.
Vukovich, J., concurs.
Waite, J., concurs in judgment only.