Simmons v. YinglingSimmons v. Yingling
Raymond H. Decker, 36 E. Seventh Street, Suite 2420, Cincinnati, Ohio 45202, for defendants-appellees, Mason City School Board, Kevin Bright, Cathy Weston and Andrew Hill
OPINION
HENDRICKSON, J.
{¶1} Plaintiffs-appellants, Michael and Kelly Simmons, as next friends of James Michael Simmons, II, appeal a decision of the Warren County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Mason City School Board, Kevin Bright, Cathy Weston, and Andrew Hill, in an action for injuries sustained by their 14-
{¶2} In May 2007, Michael was an eighth-grade student at Mason Middle School. Michael and his classmates were participating in a week-long roller skating course as part of their physical education class. The course was conducted in one of the school‘s gymnasiums, which had a hardwood floor coated with a polyurethane finish.
{¶3} The skating equipment and materials utilized in the class were furnished by SkateTime School Programs.1 The record indicates that SkateTime has been in operation in the state of Ohiо for approximately 13 years and used in approximately 300 to 400 schools each year. The program was adapted into the middle school‘s physical education curriculum in 2003, and was taught to both seventh-and-eighth-grade students.
{¶4} As part of the program, SkateTime provided the school with inline and quad roller skates. The skates had soft urethane wheels which were not damaging to indoor floor surfaces. In addition to the skates, SkateTime also provided wrist guards. Optional safety equipment, including helmets, knee pads, and elbow pads were available upon request. The school required the students to wear the skates and wrist guards provided by SkateTime. The students were also permitted to bring additional safety equipment from home to wear during class.
{¶5} SkateTime furnished an instructional video and manual to the school. These materials instructed students on general skating techniques, including how to skate forwards, backwards, turn corners, stop, and properly fall and stand in their skates. They also provided guidelines on skating safety, including the importance of keeping the students’ hands to themselves while skating, and that all of the students skate in the same direction (either
{¶6} Physical education teachers Cathy Weston and Andrew Hill combined their eighth-grade classes to teach the skating course. Michael was a student in Weston‘s class. They had an average combined class size of between 20 and 30 students. Both Weston and Hill had taught the skating class previously using SkateTime‘s program and equipment. Weston estimated that she taught the class approximately 315 times over the course of a four-year period. Hill testified that he taught approximately 125 skating classes. Both teachers were present in the gymnasium while the students were skating, and were available to assist students and correct those who were violating safety rules. They testified that skating technique demonstrations and safety instructions were provided to the students on a daily basis at the beginning of class. The rules and instructions provided to the students were based on the materials provided by SkateTime.
{¶7} The skating class was optional and in order to participate, permission slips were required to be completed by the students’ parents. An alternative assignment was provided to those students who chose not to skate. The parties do not disрute that Michael provided a signed permission slip authorizing his participation in the skating class. He had also taken part in the class as a seventh-grade student.
{¶8} The record indicates that on May 9, the third day of the class, Weston and Hill had sectioned the gymnasium into separate skating areas.2 The first area, characterized by the parties as a beginner or “safety zone,” was designed for inexperienced skaters and ran the length of the gym floor. Those students who were not comfortable on skates were
{¶9} Michael was not an adept or confident skater and on the day of the accident, he was skating in the safety zone. According to Michael, he did not want to be the only student left in the safety zone and after spending several minutes in that area, he was feeling more comfortable on his skates. At that point, Michael determined that he was “capable enough” to venture into the general skating area.
{¶10} Michael was injured when another skater came into contact with him. It is unclеar from the record how the accident actually occurred. Michael claimed that as he and a friend skated in the outside lane of the general skating area, a more advanced skater named Brennan was proceeding through the obstacle course. Michael testified that Brennan skated backwards under the limbo pole. As Brennan cleared the limbo pole he attempted to
{¶11} Although Michael was wearing the required wrist guard, he was not wearing any additional safety equipment at the time of the accident. Michael‘s mother, Kelly, had worked at the school from 2001 to 2005 as a health aide. Kelly testified that during her employment, she treated at least one student who had suffered a broken hand or wrist as a result of the skating class.
{¶12} Appellants commenced this action on Michael‘s behalf in August 2009. Their second amended complaint, filed in February 2010, alleged that the school board, Bright, Weston, and Hill were negligent for: 1) failing to issue proper protective equipment; 2) failing to properly supervise the skaters; and 3) conducting the class on the gymnasium floor, which was “defective for the purpose of roller skating.” Appellants also alleged that Weston and Hill were reckless in designing the skating course and supervising the students.
{¶13} Appellees filed a motion for summary judgment on September 27, 2010, arguing that they were immune from liability on appellants’ claims pursuant to
{¶14} Appellants appeal the trial court‘s decision, raising two assignments of error for
{¶15} Assignment of Error No. 1:
{¶16} “THE LOWER COURT ERRED, TO THE PREJUDICE OF THE PLAINTIFF-APPELLANTS STUDENT AND PARENTS, BY GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT-APPELLEES SCHOOL DISTRICT BASED ON SOVEREIGN IMMUNITY, IN A PERSONAL INJURY CLAIM FOR A SEVERE LEG INJURY OCCURRING IN A ROLLER SKATING CLASS, WHEN ISSUES OF FACT EXIST AS TO WHETHER THE GYMNASIUM FLOOR WAS DEFECTIVE.” [SIC]
{¶17} In their first assignment of error, appellants challenge the trial court‘s determination that the school board was entitled to sovereign immunity. They claim that an exception to immunity exists because the gymnasium floor was physically defective for the purpose of roller skating.
{¶18} Summary judgment is a procedural device used to terminate litigation and avoid a formal trial where there are no issues in a case to try. Burkes v. Stidham (1995), 107 Ohio App.3d 363, 370, citing Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2. This court reviews summary judgment decisions de novo, which means that we review the trial court‘s judgment independently and without deference to its determinations. Burgess v. Tackas (1998), 125 Ohio App.3d 294, 296. We utilize the same standard in our review that the trial court should have employed. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129.
{¶19} The Ohio Supreme Court has repeatedly held that summary judgment is appropriate under
{¶20} The Political Subdivision Tort Liability Act, codified in
{¶21} The immunity afforded to a political subdivision under
{¶22} In this case, the parties do not dispute that the school board is a political subdivision serving a governmental function, and that at the time of Michael‘s injury, Bright was acting as the superintendent of Mason City Schools, and that Weston and Hill were
{¶23} Appellants argue that
{¶24} In order to invoke this immunity exception, appellants were required to establish that Michael‘s injury (1) was caused by the negligence of Weston and Hill; (2) occurred within or on the grounds of a building used in connection with the performance of a governmental function; and (3) was due to a physical defect within оr on the grounds.
{¶25} In their brief in opposition to summary judgment, appellants argued that the school board‘s failure to properly coat, clean, and finish the floor rendered it defective for roller skating. In support of this claim, they produced an expert report prepared by Steven Shumaker, a principal of Rink Planning and Consulting Services, Inc.3 Shumaker stated that he had worked in the roller skating business for 39 years and had provided consulting
{¶26} Shumaker further stated that the gymnasium floor lacked the necessary and appropriate traction for safe skating. According to Shumaker, the hardwood floor in the gymnasium was problematic because it was designed for use as a basketball court instead of a roller skating floor, and that skating floor finishes contain special agents to create the proper traction between the skate wheels and the floor. He also stаted that skating floors required special cleaning agents to be used, and that “typical” floor cleaners would cause the floor to be slick. He opined that the floor surface would become dangerously slick if the janitorial staff at the school used a treated dust mop instead of an untreated mop prior to the skating sessions. According to Shumaker, the “skating surface and the gymnasium coating that was used amounts to a physical defect.”
{¶27} In determining that
{¶28} Upon review of appellants’ opposition brief below, however, we note that appellants failed to argue that Michaеl‘s injury occurred as a result of the teachers’ negligence in allegedly failing to properly prepare the gym floor. On appeal, appellants also challenge the trial court‘s finding in this regard. Specifically, they claim that the trial court “erred by interposing its hypothesis that [appellants] were arguing that the teachers were somehow responsible for ‘applying powder’ to the improperly laid floor.” Appellants further contend that “no individual employees are singled out or sued for making the floor defective. Rather, the teachers are sued for recklessness * * *; the sсhool is sued because there exists a physical defect in its grounds that contributed to the injury [sustained by Michael].” From these statements, it appears that appellants have abandoned their claim that the alleged negligence of Weston and Hill caused Michael‘s injury. As a political subdivision acts only through its employees, appellants have therefore failed to establish that the exception in
{¶29} Notwithstanding the above-conclusion, based upon our independent review of the record, we also find that Shumaker‘s report fails to create an issue of fact as to the “physical defect” element. Although Shumaker opined generally that the skating floor did not meet minimum industry standards, he failed to specify which standards were applicable or who had promulgated such standards.
{¶30} Moreover, appellants’ assertion that Brennan had “slipped” on the floor while skating, does not, without additional evidence, demonstrate that the floor lacked the necessary traction for safe skating. Both Weston and Hill testified that they had never before noticed any students slipping on the gymnasium floor in the skates. According to Adam
{¶31} Nevertheless, even if we were to find that the school board‘s general immunity was removed under
{¶32}
{¶33} “(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
{¶34} “* * *
{¶35} “(5) The political subdivision is immune from liability if the injury, death, оr loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.”
{¶36} Although both of these subsections concern a political subdivision employee‘s discretionary acts, in applying the
{¶37} In this case, the record indicates that Weston was directly involved in implementing the roller skating program into the school‘s physical education curriculum. Weston testified that she and the other seventh-and-eighth-grade teachers selected the activity in 2003 after Weston attended a convention in Columbus where representatives from SkateTime presented information regarding the prоgram. Weston testified that she wrote the curriculum for the program each year, which was based on the guidelines provided by SkateTime. The curriculum included safety instructions, skating techniques, skill progression for each day of the class, and a diagram of the skating course.
{¶38} Hill testified that the skating class was in place when he began teaching at the school, but that he and the other physical education teachers had the ability to “instruct and modify where needed so that the curriculum did fit the needs of the class.” According to Hill, the fitness components involved in roller skating, including coordination, balance, and сore strengthening were very beneficial to the students. He believed it was a good program to keep in the physical education curriculum.
{¶39} Based on this evidence, we find that reasonable minds could only conclude that both Weston and Hill acted within the scope of their policy-making, planning, and enforcement powers attendant to their positions as physical education teachers with regard
{¶40} Turning our attention to the application of
{¶41} At the outset, we note that appellants have failed to allege that Weston and Hill acted maliciously or in bad faith. Appellants argue only that a genuine issue of material fact exists as to whether Weston‘s and Hill‘s conduct in designing the skating course and supervising the students rose to the level of recklessness.
{¶42} The term “reckless” is often used interchangeably with “willful” or “wanton.” Harland v. West Clermont Local School Dist. (Aug. 1, 1994), Clermont App. No. CA94-01-006, at 3. An actor‘s conduct “‘is in reckless disregard of the safety of others if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.‘” Fields v. Talawanda Bd. of Edn., Butler App. No. CA2008-02-035, 2009-Ohio-431, ¶15, quoting O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, ¶73-74.
{¶43} Mere negligence is not converted into wanton or reckless conduct unless the evidence establishes a “‘disposition to perversity on the part of the tortfeasor.’ Such perversity must be under such conditions that the actor must be conscious that his conduct
{¶44} The determination of recklessness is typically within the province of the jury. Fields at ¶16; Golden, 2009-Ohio-3418 at ¶40. However, because the standard for showing recklessness is high, summary judgment is appropriate in those instances where the individual‘s conduct “does not demonstrate a disposition to perversity.” O‘Toole at ¶75; Rankin at ¶37.
{¶45} Appellants argue that Shumaker‘s report creates an issue of fact with regard to the recklessness of Weston and Hill. Specifically, Shumaker opined that it was “clear that the skating floor design and the traffic flow utilized for this skating class falls short of [minimum industry standards] and has several deficiencies.” According to Shumaker, these deficiencies included the fact that there were multiple activities taking place simultaneously: novice skaters were skating with those who more experienced, students were skating in different directions on the floor, and the obstacle course and limbo pole were being utilized. Shumaker stated that the limbo pole was not attended by direct supervision “as is customary,” and that the entrance and exit area from the safety zone was adjacent to the exit area for the limbo pole. He opined that “the design of this skating course and the dictated traffic flow was inappropriate for the safety of all skaters involved in the class. Consequently, the way that the class was conducted [ ] amounted to gross negligence and recklessness.”
{¶47} It is well-established that a classroom teacher has wide discretion under
{¶48} The record indicates that the teachers took precautions to avoid collisions by sectioning off the skating areas with mats and by instructing the students to skate in a
{¶49} To the extent that appellants also appear to argue that Weston and Hill were reckless in failing to require the students to wear additional safety equipment, the record indicates that those students who had safety equipment at home were permitted to bring it to class. Michael testified that he had a helmet, elbow pads and knee pads at home, which he wore while skateboarding. He did not recall requesting additional equipment from his parents or teachers.
{¶50} Based on the foregoing, we conclude that there is no evidence to establish that Weston or Hill created an unreasonable risk of harm to the students, or showed a perverse disregard for the fact that the students might be injured as a result of the way the class was conducted, the course was designed, or the manner in which the students were supervised. As a result, we find that Weston‘s and Hill‘s actions were not, as a matter of law, wanton or reckless and as such, the school board is immune from liability pursuant to
{¶51} Appellants’ first assignment of error is overruled.
{¶52} Assignment of Error No. 2:
{¶53} “THE LOWER COURT ERRED, TO THE PREJUDICE OF THE PLAINTIFF-APPELLANTS STUDENT AND PARENTS, BY GRANTING SUMMARY JUDGMENT IN
{¶54} In their second assignment of error, appellants contend that the trial court erred in concluding that Weston and Hill were entitled to immunity on appellants’ additional claim that their conduct in implementing and supervising the skating class rose to the level of recklessness.
{¶55} In examining immunity pursuant to
{¶56} There is no revised code section that expressly imposes liability on Weston and Hill. In addition, appellants have not alleged that their actions were outside the scope of their employment or official responsibilities. As we discussed in our resolution of appellants’ first assignmеnt of error, they have not argued that Weston or Hill acted with a malicious purpose or in bad faith in this case. In light of our determination above that reasonable minds could only conclude that their actions were not wanton or reckless, we find that the trial court properly granted summary judgment in favor of Weston and Hill.
{¶58} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur.