TRINA SHAW v. WASHINGTON COURT HOUSE CITY SCHOOLS BOARD OF EDUCATION
CASE NO. CA2022-04-004
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
11/28/2022
[Citе as Shaw v. Washington Court House City Schools Bd. of Edn., 2022-Ohio-4226.]
CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CVH 20200286
Reminger Co., L.P.A., and Michael J. Valentine, Melvin J. Davis, and Keona R. Padgett, for appellee.
S. POWELL, P.J.
{1} Appellant, Trina Shaw, appeals the decision of the Fayette County Court of Common Pleas granting summary judgment in favor of appellee, Washington Court House City Schools Board of Education (“BOE“). For the reasons outlined below, we affirm.
Facts and Procedural History
{2} On October 23, 2020, Trina filed a complaint against BOE seeking to recover
{3} On June 29, 2021, Trina sat for her deposition. As part of her deposition, Trina testified that she and her husband, Ryan, along with her daughter, son-in-law, and two grandchildren, were walking to their respective vehicles parked in the high school‘s parking lot on the evening of March 1, 2019. Trina testified it was at this time that she stepped into a two-to-three inch dеep “hole” in the parking lot‘s pavement located next to a “catch basin.” Trina testified this hole caused the pavement to not be “flush” with the asphalt surrounding the catch basin. The following are two of the photographs identified by Trina during her deposition, both of which contain circles that Trina drew around the so-called “hole” in the high school‘s parking lot.
{5} Trina testified that after making it across the road that she then walked down towards the curb cutout, something that Trina referred to as a “little hump thing,” and through the opening in the curb and into the parking lot. Upon walking through the curb cutout, Trina testified that she then made a slight right hand turn towards her vehicle thаt was parked in the first row, four cars down. Trina testified it was at this time that she “fell in the hole.” Describing her fall, Trina testified that it was her right foot that entered the hole first, followed by her left foot, which caused her to lose her balance, fall to her knees, and have her hands hit the ground.
{6} Trina testified that after falling to the ground that she then “laid there for a minute” becausе she was not sure what happened and was scared. When asked if she looked to see what had caused her to fall that evening Trina testified, “I eventually got up and then, yes.” Trina was then asked if she was, in fact, able to see the hole that caused her to fall. To this, Trina testified that although it was dark outside, she was nevertheless able to see the hole that caused her to fall without the need of a flashlight or anything else
Q. So you got up and then what? Did you look to see what caused you to fall?
Yes.
Q. Were you able to see it?
Well, it was dark.
Q. Right. But –
Yes. Yes.
Q. Okay. So this was after you had been laying there a minute, you looked to see what caused you to fall, you looked аnd then you were able to see the hole?
Yes.
Q. Did you have a flashlight or anything?
No.
{7} Trina‘s husband, Ryan, was also deposed. As part of his deposition, Ryan testified that as he was walking towards the high school parking lot behind his wife, Trina, daughter, son-in-law, and two grandchildren, he heard Trina scream and noticed that “[t]hey was all hovered around [her].” Upon approaching, Ryan testified that he then he askеd, “What happened?,” and Trina responded, “Well, I fell right here.” Ryan testified that Trina was at this time sitting down on her bottom in the high school‘s parking lot “just off from that catch basin just past that curb line.” Ryan testified that he then crouched down to help Trina get to her feet.
{8} Ryan testified that after crouching down he looked to see what may have caused Trina to fall. Whеn asked if he was, in fact, able to see what caused Trina‘s fall, Ryan responded, “Yeah,” by this time “you had to see it” because it was “in the glow of any
{9} On December 15, 2021, BOE filed a motion for summary judgment. In support of its motion, BOE initially argued that it was statutorily immune from liability for Trina‘s injuries pursuant to
{10} On April 7, 2022, the trial court issued a decision granting summary judgment in favor of BOE upon finding BOE was statutorily immune from liability for Trina‘s injuries pursuant to
For purposes of this dispositive motion, the Court assumes negligence of [BOE] and the focus becomes whether the “hole” constitutes a “physical defect.” The Court finds, as a matter of law, that the approximately four-inch hole in the asphalt pavement contiguous to a concrete border surrounding a drainage grate is not a physical defeсt for purposes of establishing a statutory exception under
R.C. 2744.02(B)(4) and no evidence has been submitted that the parking lot and/or the drainage grate failed to operate as intended, or that the utility of either was diminished.1
{11} The trial court thereafter concluded and stated that BOE was entitled to immunity under
Trina‘s Appeal and Single Assignment of Error
{12} Trina now appeals the trial court‘s decision to grant summary judgment to BOE, raising the following single assignment of error for review.
{13} THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE‘S MOTION FOR SUMMARY JUDGMENT.
{14} Trina argues the trial court erred by granting summary judgment in favor of BOE upon finding BOE was entitled to statutory immunity pursuant to
De Novo Standard of Review
{15} “Summary judgment is a procedural device used to terminate litigation when there are no issues in a case requiring a formal trial.” Franchas Holdings, L.L.C v. Dameron, 12th Dist. Clermont No. CA2015-09-073, 2016-Ohio-878, ¶ 16, citing Roberts v. RMB Ents., Inc., 197 Ohio App.3d 435, 2011-Ohio-6223, ¶ 6 (12th Dist.). This court reviews a trial court‘s decision to grant summary judgment de novo. Faith Lawley, L.L.C v. McKay, 12th Dist. Warren No. CA2020-08-052, 2021-Ohio-2156, ¶ 26. De novo review requires this court to use the same standard that the trial court should have used. Morris v. Dobbins Nursing Home, 12th Dist. Clermont No. CA2010-12-102, 2011-Ohio-3014, ¶ 14.
Civ.R. 56 Summary Judgment Standard
{16} ”
Political Subdivision Immunity Under R.C. Chapter 2744
{17}
R.C. 2744.02(B)(4) and the “Physical Defect” Exception
{18} Because there is no dispute that BOE is a political subdivision that was performing a governmental function by operating and maintaining the high school‘s parking lot where Trina fell, the initiаl focus of this case is on the second tier of the analysis and the applicability of the “physical defect” exception to a political subdivision‘s immunity set forth under
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 insection 2921.01 of the Revised Code .
Therefore, to establish that the physical defect exception applies, “a plaintiff must demonstrate that the injury (1) resulted from a political subdivision employee‘s negligence, (2) occurred within or on the grounds of buildings used in connection with governmental function, and (3) resulted from a physical defect within or on those grounds.” Leasure v. Adena Local School Dist., 4th Dist. Ross No. 11CA3249, 2012-Ohio-3071. “The injured party must establish all three circumstances to defeat the immunity afforded the political subdivision under the first step of the immunity anаlysis.” (Emphasis sic.) O‘Brien v. Great Parks of Hamilton Cty., 1st Dist. Hamilton No. C-190697, 2020-Ohio-6949, ¶ 13.
The Definition of “Physical Defect” Under R.C. 2744.02(B)(4)
{19} “[C]ases addressing the ‘physical defect’ exception involve physical defects
{20} For example, “[w]hen the instrumentality that caused a plaintiff‘s injury operated as intended or did not contain any perceivable imperfection that impaired or diminished its utility, courts have concluded the instrumentality did not constitute a physical defeсt.” Jones v. Delaware City School Dist. Bd. of Edn., 5th Dist. Delaware No. 2013 CAE 01 0009, 2013-Ohio-3907, ¶ 22, citing Hamrick at ¶ 29 (service pit at a school bus garage was not a “physical defect” under
{21} On the other hand, “[w]hen an instrumentality does not operate as intended (i.e. safely) due to a perceivable condition, it loses its ability to function in a safe manner and may constitute a perceivable imperfection that diminishes the instrumentality‘s utility or worth.” Id. at ¶ 23 (finding that a lack of reflective tape and lighting around the edge of an orchestra pit that would have provided an indication to people of the difference in elevation may be deemed a “physical defect“); citing Leasure, 2012-Ohio-3071 (genuine issue of material fact existed as to whether improperly set-up bleachers located in a school gymnasium constituted a “physical defect” given that the improper set up “caused them to become unstable and, thus, to fail to operate as intended“); see also Stanfield v. Reading Bd. of Edn., 1st Dist. Hamilton No. C-160895, 2018-Ohio-405, ¶ 14 (finding a “gaping and holed netting” at a high school‘s stadium facility that was set up with the intention of stopрing “a two-pound discuss from careening towards onlookers” was a “physical defect“).
The “Hole” Does Not Constitute a “Physical Defect” Under R.C. 2744.02(B)(4)
{22} Trina argues it was error for the trial court to grant summary judgment to BOE because a genuine issue of material fact exists as to whether the “hole” in the high school‘s parking lot constitutes a “physical defect” under
{23} Given the prevailing authority and examples set forth above, we find the “hole” in the high school‘s parking lot falls well short of what constitutes a “physical dеfect” under
The “Hole” Was Open and Obvious as a Matter of Law
{24} Alternatively, even if we were to find the “hole” in the high school‘s parking lot was a “physical defect” under
{25} “Under the open and obvious doctrine, the owner of a premises does not owe a duty to persons entering those premises with regard to dangers that are open and obvious.” Wulf v. Bravo Brio Restaurant Group, Inc., 12th Dist. Butler No. CA2018-12-238, 2019-Ohio-3434, ¶ 22, citing Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, ¶ 13. “The rationale behind this doctrine is that ‘the open and obvious nature of the hazard itself serves as a warning.‘” Roberts v. United Dairy Farmers, Inc., 12th Dist. Butler No. CA2014-03-066, 2014-Ohio-3881, ¶ 9, quoting Simmers v. Bentley Constr Co., 64 Ohio St.3d 642, 644 (1992). “When deciding whether a condition is open and obvious, ‘the determinative question is whether the condition is discoverable or discernible by one who
{26} Trina argues that there exists a genuine issue of material fact whether the “hole” in the high school‘s parking lot was open and obvious because she was “not aware” of the hole until aftеr she fell, and because she had “little notice” and limited opportunity to see the hole given her view of the hole was “obstructed by the curb.” Trina also argues that a genuine issue of material fact exists because it was dark outside and because the hole was “blended in color” with the surrounding asphalt making it “difficult” for her to see the hole. However, as this court has stated previously, “the dangerous condition need not be actually observed by the claimant to be considered open and obvious.” Vanderbilt, 2013-Ohio-5205 at ¶ 12; see, e.g., Kronjak v. New Plaza Mgt., L.L.C., 9th Dist. Summit No. 28302, 2017-Ohio-1184, ¶ 16 (“[t]he fact that [appellant] did not see the hole in the pavement prior to falling does not change the condition from being open and obvious“). That the hole was the same basic color as the surrounding asphalt does not change this fact. See, e.g., Shipman v. Papa John‘s, 3d Dist. Shelby No. 17-14-17, 2014-Ohio-5092, ¶ 26 (“[t]he fact that the concrete and the deviations were the same color does not prevent the condition from being open and obvious, and it did not, in fact, prevent [appellant] from readily noticing the raised concrete when she was actually looking at it“).
{27} “Hazards that have beеn deemed open and obvious are those that are not concealed and are discoverable by ordinary inspection.” French v. New Paris, 12th Dist.
Conclusion
{28} For the reasons outlined above, and finding no merit to any of the arguments raised herein, Trina‘s single assignment of error challenging the trial court‘s decision granting summary judgment to BOE is overruled.
{29} Judgment affirmed.
HENDRICKSON and BYRNE, JJ., concur.