Amatullah Shields et al., Plaintiffs-Appellants, v. Courtney N. Plummer et al., Defendants-Appellees.
No. 20AP-214 (C.P.C. No. 17CV-10088)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 25, 2020
[Cite as Shields v. Plummer, 2020-Ohio-5449.]
NELSON, J.
(ACCELERATED CALENDAR)
DECISION
Rendered on November 25, 2020
On brief: Fitrakis & Gadell-Newton, Robert J. Fitrakis, and Constance A. Gadell-Newton, for appellants. Argued: Robert J. Fitrakis.
On brief: Crabbe Brown & James, LLP, and John C. Albert, for appellees. Argued: John C. Albert.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{1} As presented to us, this appeal hinges solely on whether injury arising from a public school teacher‘s use (or misuse) of a lycra “Body Sox” garment arguably
{2} The facts suggested by the record are unfortunate and compel empathy and concern. Because the record incorporates materials that were before a federal district court for resolution of federal claims, see Crochran v. Columbus City Schools, 278 F. Supp. 3d 1013 (S.D.Ohio 2017), we draw in part upon that court‘s accurate description of the event‘s factual outline while noting again that the issue presented to us is one of law.
{3} N.C. was a fifth-grade student in Courtney Plummer‘s special education class at South Mifflin STEM Academy. “He has been diagnosed with autism and ADHD[.]” Id. at 1017. Ms. Plummer testified that on February 20, 2013, in an attempt to calm N.C. and at the suggestion of a fellow special education teacher, she asked N.C. if he wanted to wear a body sock (that the school owned and that the colleague had in her closet there). Id. at 1017-18. The body sock is a stretchable, bag-like lycra garment with a velcro opening; it “forms around the child‘s arms in loose sleeves, allowing the child full use of his or her arms” while producing full-body “sensory effect.” Id. at 1018 (with illustrations). N.C. accepted his teacher‘s invitation to step into the body sock: “within seconds,” he fell and “hit the floor with his face.” Id. The complaint filed on behalf of N.C. and his mother in this case alleges that “[t]wo of [N.C.]‘s front teeth were injured by his fall“; that the injuries required “root canal procedures on both teeth“; and that the family has incurred more than $19,000 in related medical expenses to date, with more medical issues to come. Complaint at ¶ 25-30.
{4} N.C. and his mother do not allege that there was anything defective about the body sock itself. Rather, they note that Ms. Plummer, who had “never used the body sock on a student before” and was not trained in its use, knew from N.C.‘s Individualized Education Plan that he had balance and body control problems” relating to ” ‘notable postural sway with higher level balance activities,’ * * * ‘weakness of his musculature, most notably of his core and postural musculature,’ and ‘below average gross motor skills.’ ” Id. at ¶ 18, 14 (quoting from IEP); see also Plummer Dep. at 27, 55, 8, 11-12 and Ex. 1. She should not have employed the body sock to cover N.C., they urge, especially with him standing on the hard surface of the classroom floor, see Plummer Dep. at 38, and she acknowledged having been “later informed that she shouldn‘t have used this tool because it was not in [N.C.]‘s individualized educational program,” see Dep. of Franklin County Children‘s Services official Jamie Chambers at 28. Appellants’ Brief at 8-9, 11 (reciting deposition testimony), 12-13 (citing expert report of Sarah Miller, M.S.Ed. “When body socks were put on my students, none of them remained standing. This protected them from falling down and getting injured. * * * None of my students had their faces covered by the body sock. * * * Ms. Plummer * * * did not take precautions to protect him against injury
from a fall, such as having him sit in the body sock instead of stand, placing him on a floor mat or other soft surface, or leaving his head and face uncovered.“).
{5} N.C. and his mother brought suit first in federal court against Ms. Plummer, the Columbus Board of Education, and
{6} All defendants moved for summary judgment on January 19, 2018. The trial court granted the summary judgment motion and awarded “judgment to Defendants as to all of Plaintiffs’ claims,” dismissing the complaint with prejudice in a Final Judgment Entry filed April 2, 2020. Final Judgment Entry at 10. The trial court correctly noted that summary judgment is appropriate only where, “viewing the evidence most strongly in favor of the non-moving party,” there is no genuine issue of material fact that could preclude judgment to the moving party and the moving party is entitled to judgment as a matter of law. Id. at 3, citing
{7} Citing to Ohio Bell Tel. Co. v. Columbus, 10th Dist. No. 09AP-113, 2009-Ohio-5126 (which involved that lone defendant), the trial court found that “[i]n order to hold [any of the] Defendants liable for negligence, Plaintiffs must demonstrate that their claims fit into one of the exceptions to [political subdivision] immunity stated in
against claims] unless Plaintiffs first show their claims satisfy an exception to immunity” under
{8} The “only” such “exception to immunity that Plaintiffs point to is
{9} The trial court granted summary judgment on the other claims, too. Nothing in the record reflected an “intent” to cause N.C. “any harm,” and therefore “Plaintiffs’ claim for intention[al] infliction of emotional distress fails.” Id. at 8. The false imprisonment claim failed for the same reason. Id. at 9. The intentional infliction and false imprisonment claims also failed because N.C. and his mother made no arguments to support them in briefing their summary judgment opposition: “Plaintiffs * * * essentially abandoned these claims,” the trial court determined. Id.
{10} Under a single assignment of error submitting that the trial court erred in granting summary judgment, Appellants’ Brief at iv, 14, N.C. and his mother identify three issues for our review (each with citations to the record):
- Was plaintiff-appellant [N.C.] injured by a physical defect within or on the grounds of a building used in connection with the performance of a governmental function?
- Did the claims of plaintiffs-appellants satisfy the exception to immunity contained in
R.C. 2744.02(B)(4) ? - Did the claims of plaintiffs-appellants satisfy the exception to immunity contained in
R.C. 2744.03(A)(5) ?
Appellants’ Brief at v. Each of these three specified issues relates to political subdivision immunity, and counsel for N.C. and his mother begin the brief‘s “Argument” section with a clear statement of their premise that:
The defendants’ tort liability under Ohio law is subject to political subdivision immunity under
R.C. Chapter 2744 . In determining whether a political subdivision is immune from tort liability, Ohio courts apply a three-tiered analysis.
Appellants’ Brief at 14. “Public school districts are political subdivisions,” the brief acknowledges, “and providing public education is a governmental function.” Id.
{11} The brief thus moves to “The Second Tier: Applicable Statutory Exceptions to Governmental Function Immunity,” id. at 15, where it argues exclusively the point that ”
{12} We review a grant of summary judgment de novo. But we generally do so as informed by the particular arguments that appellants present: we are not in the custom of generating new arguments on appeal or of finding error that was not specified by a party. ” ‘It is the duty of the appellant, not the appellate court, to construct the legal arguments necessary to support the appellant‘s assignments
brief contain an argument in support of each assignment of error presented for review with citations to the authorities, statutes, and parts of the record on which appellant relies“); State v. Brown, 10th Dist. No. 16AP-753, 2017-Ohio-7134, ¶ 14 (citing
{13} Because N.C. and his mother have made the existence of an exception 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 * * *
{14} Citing Hubbard v. Canton City School Bd., 97 Ohio St.3d 451, 2002-Ohio-6718, ¶ 13, N.C. and his mother posit that with
Assembly amended the statute to add the “due to physical defects” limitation italicized above. See, e.g., Contreraz v. Bettsville, 3d Dist. No. 13-10-48, 2011-Ohio-4178, ¶ 33 (“in 2003, the Ohio General Assembly amended
{15} N.C. and his mother then proceed to argue that “physical hazards that threaten the safety of special-needs students satisfy the ‘physical defect’ element,” and that so do “[i]mproper use of an instrument,” and “[c]reating an unsafe area.” Appellants’ Brief at 16-17, citing Moss v. Lorain Cty. Bd. of Mental Retardation, 185 Ohio App.3d 395, 2009-Ohio-6931, ¶ 16 (9th Dist.); Leasure v. Adena Local School Dist., 4th Dist. No. 11CA3249, 2012-Ohio-3071, ¶ 20; Moore v. Lorain Metro Housing Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, ¶ 25, and Roberts v. Switzerland of Ohio Local School Dist., 7th Dist. No. 12 MO 8, 2014-Ohio-78, ¶ 30.
{16} But those cases are inapposite to these circumstances. Moss affirmed denial of a motion for judgment on the pleadings, where the plaintiff alleged “negligent design, maintenance and construction” of a kitchen located in the classroom of a child with Down syndrome who was scalded there, 2009-Ohio-6931 at ¶ 16; no such building defect is alleged here. The panel in Leasure again confronted problems with the physical plant: evidence suggested that “improperly set up bleachers” had “become unstable and, thus, * * * fail[ed] to operate as intended“; “[t]he improper setup resulted in the bleachers * * * mov[ing] while in use * * * * [and] resulted in the bottom step being shorter than the other steps.” 2012-Ohio-3071 (also noting that “when the instrumentality that caused the plaintiff‘s injury operated as intended — or when it did not contain any perceivable
imperfection that impaired or diminished its utility – the courts have concluded that the instrumentality did not constitute a physical defect“). Moore held that running a public housing authority is a governmental function, and remanded the case to determine whether “absence of a required smoke detector is a ‘physical defect’ occurring on the grounds of the [housing authority‘s] property.” 121 Ohio St.3d at 460. No such infirmity is alleged with regard to the body sock here. And Roberts concerned whether an improvidently designated “safe zone” that was not in fact safe for the track and field athlete who was standing there when she was struck by a thrown discus could amount to a physical defect in light of the lack of discus circle fencing. 2014-Ohio-78, at ¶ 25 (motion to dismiss stage).
{17} Here, N.C. and his mother point to no such physical defects or infirmities, either at South Mifflin STEM Academy or even in the body sock itself. Rather, they quarrel with Ms. Plummer‘s judgment and lack of training; they condemn her choice to use the garment and the way in which she used it. “Plummer improperly used the body sock because she was not trained or authorized to use it, and it was not prescribed for [N.C.]. Compounding its improper use, Plummer failed to have [N.C.] sit in the body sock to avoid injury.” Appellants’ Brief at 17 (emphasis added). But a teacher‘s lack of judgment and training, or her “use” of a perceived tool, is not a “physical defect[ ] within or on the grounds of” a school building, in the statutory formulation. See, e.g., Contreraz, 2011-Ohio-4178, at ¶ 40 (alleged “failure to appropriately train * * * and negligent and/or reckless hiring and training * * * clearly do not concern any physical defect regarding the premise” [or regarding even instruments on the premises]); Douglas v. Columbus City Schools Bd. of Edn., 10th Dist. No. 18AP-940, 2020-Ohio-1133, ¶ 26 (allegation that teacher failed to take proper precautions with students during
{18} Thus, this court, with others across the state, has held that “the physical defect exception to immunity set forth in
Jones v. Delaware City School Dist. Bd. of Edn., 5th Dist. No. 2013 CAE 01 0009, 2013-Ohio-3907, ¶ 22 (further citations omitted); Douglas, 2020-Ohio-1133, at ¶ 21 (same).
{19} We have adopted the understanding of other appellate districts that the “physical defect” language in
“The word ‘physical’ [means] ‘having a material existence: perceptible esp[ecially] through senses and subject to the laws of nature.’ Merriam Webster‘s New Collegiate Dictionary (10th Ed. 1996) 877. A ‘defect’ is ‘an imperfection that impairs worth or utility.’ Id. at 302. It would seem then that a ‘physical defect’ is a perceivable imperfection that diminishes the worth or utility of the object at issue.”
Gibbs at ¶ 13, quoting (and adding emphasis to) Hamrick v. Bryan City School Dist., 6th Dist. No. WM-10-104, 2011-Ohio-2572, ¶ 28 (garage‘s uncovered service pit operated as intended and, although plaintiff was injured by fall into pit, was not a “physical defect“); compare Speiker, 2010 U.S. Dist. Lexis 66730, at *7 (no allegation of physical defect; the “shelves functioned as intended“).
{20} The trial court was correct that “the only defect that Plaintiffs point to is that a body sock was used,” and that “Plaintiffs have presented no evidence to show it suffered from a physical defect.” Final Judgment Entry at 7. N.C. and his mother argue to us that “use” of the body sock on N.C. “would create a substantial certainty that the child would fall and suffer injury,” Appellants’ Brief at 18-19, but that is not because of some errant defect in the sock but because of the way in which the sock was applied to “a standing child who had motor function * * * deficits,” id. at 18. And again, a method or “use” is not a “physical defect” for purposes of the relevant statutory exception.
{21} Because N.C. and his mother fail to make out a case under the “second tier” of political subdivision immunity analysis, their “third tier” analysis (to overcome an
defense applicable if the
{22} For the reasons set forth above in our discussion of their three “issues presented,” we overrule plaintiff-appellants’ single assignment of error.
{23} We note that on June 3, 2020, N.C. and his mother moved to “strike Appellees’ merit brief.” That motion rehearsed the three “issues presented,” see id. at 8, and then urged that certain of the defendant-appellees’ arguments should be barred as not preserved by a cross-appeal, id. at 9-11. But the trial court had awarded “judgment to Defendants as to all of Plaintiffs’ claims,” and “Plaintiffs’ Complaint [was] DISMISSED WITH PREJUDICE.” Final Judgment Entry at 10. That judgment apparently was good enough for defendant-appellees, for they do not seek to change it. See
{24} We deny appellants’ motion to strike and, having overruled their assignment of error, we affirm the judgment of the trial court.
Motion to strike denied; judgment affirmed.
SADLER, P.J. and DORRIAN, J., concur.