KURT STEIGERWALD, ADMINISTRATOR v. CITY OF BEREA, ET AL.
No. 112933
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
June 13, 2024
[Cite as Steigerwald v. Berea, 2024-Ohio-2260.]
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-931952
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: June 13, 2024
Appearances:
Paulozzi Co., L.P.A., Todd O. Rosenberg, and Amy L. Higgins, for appellant.
Mazanec, Raskin & Ryder Co., L.P.A., Frank H. Scialdone, and Zachary W. Anderson, for appellees City of Berea and Berea Recreation Center.
I. Introduction and Background
{¶ 1} Plaintiff-appellant Kurt Steigerwald (“Kurt“), administrator of the estate of his deceased mother Joan Steigerwald (“Joan“) (Kurt and the estate collectively “appellant“), appeals the trial court‘s grant of summary judgment in favor of defendants-appellees city of Berea (“Berea“) and the Berea Recreation Center (“Center“) (Berea and Center collectively “appellees“). We reverse the trial court‘s judgment.
{¶ 2} Eighty-three-year-old Joan was a regular participant in appellees’ 9:00 a.m. swim class for seniors at the Center. The women‘s locker room was closed for remodeling on April 6, 2018, and reopened on April 10, 2018. The updates included new benches. On April 18, 2018, Joan was dropped off at the door of the Center by her daughter, entered the locker room, tripped on the extended legs of one of the new benches, and suffered serious injuries. Joan passed away on April 30, 2018.
{¶ 3} On April 17, 2020, appellant filed suit against appellees, BSN Sports LLC (“BSN“) and Varsity Brands, Inc. (“Varsity“). Appellant claimed that appellees negligently and/or recklessly purchased benches with extended legs and placed them in a narrow locker room that was a safety hazard causing Joan‘s death, and wrongful death.1
{¶ 5} On March 10, 2021, appellant countered that appellees had notice of the tripping hazard, the bench constituted a physical defect under
{¶ 6} On March 22, 2021, appellees filed a reply. On May 25, 2022, the trial court granted summary judgment.
The motion for summary judgment filed by the city of Berea and Berea Recreation Center is granted. The Court, having considered all the evidence and having construed the evidence most strongly in favor of the non-moving party, determines that reasonable minds can come to but one conclusion, that there are no genuine issues of material fact, and that the city of Berea and Berea Recreation Center are entitled to judgment as a matter of law.
Journal Entry No. 124094441, p. 1. (May 25, 2022).3
{¶ 7} On June 23, 2022, appellant appealed and on August 30, 2022, this court dismissed the appeal for lack of a final appealable order. On June 7, 2023, appellant entered stipulations of dismissal with defendants BSN and Varsity. On June 8, 2023, the trial court granted the dismissals with prejudice. On June 28, 2023, the instant appeal was filed.
II. Assignments of Error
{¶ 8} Appellant assigns six errors:
- The trial court erred when it held that defendants-appellees had no notice as a matter of law.
- The trial court erred when it held that the bench was not a physical defect as a matter of law.
- The trial court erred when it held that the decision to utilize a bench with extended legs was a discretionary decision as a matter of law.
- The trial court erred when it held that defendants-appellees and its agents were not reckless as a matter of law.
The trial court erred when it held that the extended bench legs were open and obvious as a matter of law. - The trial court erred when it held that the anticipatory release was enforceable as a matter of law.
III. Summary Judgment Standard of Review
{¶ 9} “We review a trial court‘s summary judgment decision de novo, applying the same standard that the trial court applies under
{¶ 10} “On a motion for summary judgment, the moving party carries an initial burden of identifying specific facts in the record that demonstrate the absence of a genuine issue of material fact and entitlement to summary judgment as a matter of law.” El Attar at ¶ 11, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). “If the moving party fails to meet this burden, summary judgment is not appropriate; if the moving party meets this burden, the nonmoving party must then point to evidence of specific facts in the record demonstrating the existence of a genuine issue of material fact for trial.” Dresher at 293. “If the nonmoving party fails to meet this burden, summary judgment is appropriate.” Id.
{¶ 11} Appellant does not challenge the sui generis status of Berea and Center or the viability of the product-liability claims. For purposes of judicial economy, we address the assignments of error out of sequence.
A. Political Subdivision Immunity
{¶ 12} An appellate court conducts a three-tier analysis to determine whether a political subdivision has immunity under
{¶ 13}
{¶ 14} “Under the second tier, the immunity conferred under
{¶ 15} “The third tier of political subdivision immunity analysis comes into operation if it is determined that one of the exceptions to immunity under
{¶ 16} In the instant case, the appellees qualify as a political subdivision under
{¶ 17} Moving to the second tier, as a political subdivision engaged in a governmental function, appellees are entitled to immunity under
[P]olitical 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.
(Emphasis added.)
{¶ 18} To remove immunity under
{¶ 19} To apply the physical defect exception to general immunity, appellant must demonstrate that: (1) Joan‘s death was caused by employee negligence; (2) “the negligence occurred within a building used in connection with a governmental function; and (3) the death was due, in part, to a physical defect within the building.” Kerber v. Cuyahoga Hts., 8th Dist. Cuyahoga No. 102419, 2015-Ohio-2766, ¶ 20.
{¶ 20} Appellant contends that Marty Compton, the Center‘s Director (“Compton“), negligently or recklessly selected and placed benches with legs that extended 5.75 inches beyond the bench seat in a small locker room, thereby creating a hazard that proximately caused Joan‘s death. Appellant further contends that the bench with extended legs constituted a physical defect and that Dir. Compton and
B. Physical Defect
{¶ 21} In his second assignment of error, appellant contends the trial court erred in not finding that a physical defect existed under
{¶ 22} In Doe v. Greenville City Schools, 171 Ohio St.3d 763, 2022-Ohio-4618, 220 N.E.3d 763, two students sued the high school alleging “Greenville negligently caused their injuries when they suffered severe burns” “after a bottle of isopropyl alcohol caught fire and exploded in a science class.” Id. at ¶ 2.
The students alleged in part that Greenville failed to provide proper safety equipment, “especially, but not limited to, a fire extinguisher inside the classroom,” failed to ensure that there were proper safety features and protocols in place, failed to properly supervise and protect them, and to the extent that Greenville exercised discretion, Greenville did so “maliciously, in bad faith and in a reckless and wanton manner.”
{¶ 23} The issue posed to the Ohio Supreme Court was “whether the absence of a fire extinguisher or other safety equipment within a building of a political subdivision could be a physical defect such that an exception to immunity exists under
{¶ 24} Doe recognized that since the court‘s decision in Moore, “appellate courts have expressed varied opinions on what constitutes a ‘physical defect.‘” Doe, 171 Ohio St.3d 763, 2022-Ohio-4618, 220 N.E.3d 763, at ¶ 24, citing Moore, 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606. In Moore, the court remanded the question of whether the absence of a required smoke detector constituted a physical defect to the trial court which did not fully consider the issue. Id. at ¶ 17, citing id. at ¶ 25.
{¶ 25} The court noted that multiple districts, including this one, have defined a physical defect under
{¶ 26} The court reiterated that ”
{¶ 27} Doe did not reject the varied schools of thought, but addressing the question before it, determined that the absence of a fire extinguisher or other safety equipment within a science classroom could be a physical defect such that an exception to immunity could exist under
{¶ 29} There we observed that a “physical defect’ is defined as a perceivable imperfection that diminishes the worth or utility of the object at issue.” Id. at ¶ 16, citing Candidate v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga No. 101753, 2015-Ohio-880, ¶ 19.6 Furthermore, “the
{¶ 30} In this case, appellant‘s expert Richard L. Zimmerman, (“Zimmerman“), a registered architect and expert witness in architecture, code compliance, construction, and accessibility and human factors, prepared a report and affidavit. Zimmerman averred that the base legs of the bench extended into the “normal, expected, and foreseeable area of anyone using or walking by the bench, especially in narrow, cramped, or crowded locker rooms” and the benches were “not the type of benches typically used in locker rooms.” Zimmerman also opined that the bench legs directly and proximately caused Joan‘s fall.
{¶ 31} The record reflects that at least 14 of appellees’ members confirmed via sworn affidavits and deposition testimony that the benches posed a danger. Several stated they tripped over the benches. A bench that supports one‘s weight that also possesses legs that extend into the aisles in a small or crowded locker room that appellees knew would be utilized by women of all ages, including elderly women attending senior activities, “may reasonably be considered by a jury to constitute a perceivable imperfection that impaired its worth or utility.” Jacobs at ¶ 16, quoting Candidate at ¶ 19.
{¶ 32} The second assignment of error is sustained.
C. Notice, Open and Obvious
{¶ 33} In the first and fifth assignments of error, appellant argues that appellees had actual and constructive notice that the bench legs posed a tripping
{¶ 34} “““[W]here negligence revolves around the question of the existence of a hazard or defect, the legal princi[ple] prevails that notice, either actual or constructive, of such hazard or defect is a prerequisite to the duty of reasonable care.““” Boucher v. Cleveland, 8th Dist. Cuyahoga No. 112079, 2023-Ohio-1818, ¶ 37, quoting Vasquez-Cromer v. Toledo, 6th Dist. Lucas No. L-181266, 2019-Ohio-5149, ¶ 17, quoting Heckert v. Patrick, 15 Ohio St.3d 402, 405, 473 N.E.2d 1204 (1984).
{¶ 35} The incident in the instant case occurred on April 18, 2018. There were 14 complaints that the extended bench legs posed a hazard. Two of the complainants filed written complaints about the bench on April 15, and April 16, 2018, and others stated at deposition or via affidavit that they tripped over the bench legs more than once notwithstanding that the benches had been moved closer to the lockers to provide clearance for the walkway.
{¶ 36} One of the complainants saw Joan lying on the locker room floor being attended to by several people and was told that Joan had tripped on one of the bench feet. At least one of the complainants said the benches were too large for the area, not sturdy, and moved when one tried to sit down because they were not secured to the floor. Complainants informed staff members that the benches were dangerous and someone was going to get hurt. The employees responded that they would take the information and pass it along.
{¶ 38} Notice may also be constructive:
A political subdivision may be charged with constructive notice where it appears that the defect or condition existed in such a manner as it could or should have been discovered, that it existed for a sufficient length of time to have been discovered, and that it would have created a reasonable apprehension of a potential danger if it had been discovered. Fedarko v. Cleveland, 8th Dist. Cuyahoga No. 100223, 2014-Ohio-2531, ¶ 31, 12 N.E.3d 1254, citing Tyler v. Cleveland, 129 Ohio App.3d 441, 717 N.E.2d 1175 (8th Dist.1998) (finding a genuine issue of fact as to whether city had constructive notice of hazardous manhole cover where evidence showed the cover had become worn and the condition did not develop in a short period of time).
Dickerson v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga Nos. 100650 and 100943, 2014-Ohio-4672, ¶ 19.
{¶ 39} Appellees also counter that appellant misconstrued the witnesses’ statements and that appellees owed no duty of care or to warn because the condition was open and obvious, citing Dynowski v. Solon, 183 Ohio App.3d 364, 2009-Ohio-3297, 917 N.E.2d 286 (8th Dist.). “[T]he open and obvious nature of the hazard itself serves as a warning, and that the owner or occupier may reasonably expect that
{¶ 40} Appellees add that attendant circumstances do not apply in this case to defeat the open-and-obvious doctrine. Humble v. Boneyard Westlake, L.L.C., 8th Dist. Cuyahoga No. 104348, 2016-Ohio-8149, ¶ 8. We do not find that to be the case.
Attendant circumstances are typically distractions that would draw a person‘s attention away from the open and obvious danger, thus reducing the degree of ordinary care that person may exercise at the time. See Johnson v. Regal Cinemas, Inc., 8th Dist. Cuyahoga No. 93775, 2010-Ohio-1761. “Attendant circumstances’ refers to all facts relating to the event, such as time, place, surroundings or background and the conditions normally existing that would unreasonably increase the normal risk of a harmful result of the event.” Klauss v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 84799, 2005-Ohio-1306, ¶ 20.
Ohio courts have held that “a plaintiff who claims attendant circumstances must be able to point out differences between ordinarily encountered conditions and the situation that actually confronted the plaintiff. The breadth of the attendant circumstances exception does not encompass the common or the ordinary.” Cooper v. Meijer Stores L.P., 10th Dist. Franklin No. 07AP201, 2007-Ohio-6086, ¶ 17.
Walworth v. Khoury, 8th Dist. Cuyahoga No. 109898, 2021-Ohio-3458, ¶ 28, quoting Humble v. Boneyard Westlake, L.L.C., 8th Dist. Cuyahoga No. 104348, 2016-Ohio-8149, ¶ 8-9.
{¶ 41} The record reflects that there were complaints by individuals prior to Joan‘s injury who were injured, almost injured and/or who reported their concerns regarding the danger posed by the extended legs of the bench to appellees’ employees. There is also evidence that the benches were moved closer to the lockers in an attempt to resolve the problem and create a wider locker room walkway.
{¶ 42} “When only one conclusion can be drawn from the established facts, the issue of whether a risk was open and obvious may be decided by the court as a matter of law.” Dynowski, 183 Ohio App.3d 364, 2009-Ohio-3297, 917 N.E.2d 286, ¶ 28 (8th Dist.), citing Klauss v. Marc Glassman, Inc., 8th Dist. Cuyahoga No. 84799, 2005-Ohio-1306. However, “where reasonable minds could differ with respect to whether a danger is open and obvious, the obviousness of the risk is an issue for the jury to determine.” Glassman at ¶ 18. There are also genuine issues of material fact on the issue of notice. This court finds that reasonable minds could differ.
{¶ 43} The first and fifth assignment of errors are sustained.
D. Discretion in Using Equipment, Recklessness
{¶ 44} Appellant argues under the third assignment of error that discretion in using equipment does not apply to restore immunity under
{¶ 45}
(5) The political subdivision is immune from liability if the injury, death, or 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.
{¶ 46} Appellees responded that it was exercising discretion in replacing the benches and denies it was engaged in fixing hazards, making repairs, or conducting other activities that fail to restore immunity. According to appellee, Dir. Compton researched benches on Google and looked at approximately 15 different models. Dir. Compton selected the benches in question because: (1) they were antimicrobial which was important due to the condensation problems in the locker room; (2) they were movable making them more compatible with the new cleaning machine and easier for one person to move; and (3) seven and one-half foot benches fit in the room. Appellees maintain that it was exercising judgment or discretion in determining whether to acquire and/or how to use equipment when Dir. Compton selected the portable benches that allegedly caused Joan‘s fall.
{¶ 47} “A discretionary act under
{¶ 49} “[C]ourts have construed the
{¶ 50} It is also true that “subsection (5)” does not restore immunity “if the judgment or discretion was exercised in a wanton or reckless manner.” Kerber, 8th Dist. Cuyahoga No. 102419, 2015-Ohio-2766, at ¶ 29. Reckless conduct has been defined by the Ohio Supreme Court as conduct “characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.” Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph four of the syllabus.
{¶ 52} Based on the facts of this case, we find that genuine issues of material fact exist on whether discretion was involved restoring immunity under
{¶ 53} Finally, appellee states appellant‘s reliance on
(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections
3314.07 and3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies: * * *(b) The employee‘s acts or omissions were [made] with malicious purpose, in bad faith, or in a wanton or reckless manner.
(Emphasis added.)
{¶ 54} ”
{¶ 55} The third and fourth assignments of error are sustained.
E. Anticipatory Release
{¶ 56} Additionally, appellant contends that summary judgment was not proper under the Center‘s claim that the anticipatory release was enforceable and thus barred all claims of liability. We sustain the error.
{¶ 57} The Center‘s application package is entitled “Silver Sneakers Membership Application” “Healthways Silver Sneakers® Fitness Program” “City of Berea Department of Recreation.”7 The pertinent language provides:
RELEASE OF LIABILITY, HOLD HARMLESS AND INDEMNIFICATION
I desire to engage voluntarily in any activities at the City of Berea Recreation Center for enjoyment and to improve my health. I understand that I am responsible for monitoring my own health condition throughout any recreational activity and/or exercise program.
IN SIGNING THIS CONSENT FORM, I AFFIRM THAT I HAVE READ IT IN ITS ENTIRETY
Waiver and Release: In consideration of the City of Berea granting me, other family members and minor children, if any, permission to engage in activities at the Berea Recreation Center, I (we) agree to assume the risk of such activity and further agree to hold harmless and indemnify the City of Berea, its employees and agents from all claims, suits, losses or related courses of action for damages, including but not limited to such claims that may result in my (our) injury or death, accidental or
otherwise, during or arising in any way from my (our) participation in any activity at the Berea Recreation Center. I (we) understand that the City of Berea is not responsible for loss or damage to personal property. I (we) also assume the risk of all dangerous conditions in and about the City of Berea Recreation Center and other property owned by the City and waive any and all specific notice of the existence of such dangerous conditions, if any. I (we) permit the taking of photographs and/or videos of me (us) during activities at the Recreation Center for publication in brochures, website, and additional uses as the City deems necessary. This release bars claims by the undersigned‘s children, heirs, assigns, executors, and administrators.
I (we) agree to follow all rules and regulations of the Berea Recreation Center and understand that violations of these rules or regulations may result in suspension, expulsion, or termination of membership.
I understand that memberships are non-refundable and non-transferable.
The document appears to contain the signature of Joan H. Steigerwald, indicating that the date is “2/15” and was “validated” by the Center on “2/16/16.”
{¶ 58} Appellees maintain the release executed by Joan when she joined the Center bars liability for recreational activities and is enforceable in Ohio. Though possibly enforceable, “““[r]eleases from liability for future tortious conduct are generally not favored by the law and are narrowly construed.““” Goss v. USA Cycling, Inc., 2022-Ohio-2500, 193 N.E.3d 599, ¶ 21 (8th Dist.), quoting Reo v. Allegiance Admrs. L.L.C., 11th Dist. Lake No. 2017-L-112, 2018-Ohio-2464, ¶ 20, quoting Brown-Spurgeon v. Paul Davis Sys. of Tri-State Area, Inc., 12th Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, ¶ 50, citing
{¶ 59} “[E]xculpatory clauses, which relieve a party from its own negligence, are not against public policy despite being disfavored in the law.” Goss at ¶ 39, citing Papenfuse v. Toledo Area Regional Transit Auth., 6th Dist. Lucas No. L-14-1178, 2015-Ohio-3193, ¶ 6. Depending on the facts, such a clause may be enforced except where “the language is against important public policy concerns, unconscionable, or vague and ambiguous.” Id., quoting Morantz v. Ortiz, 10th Dist. Franklin No. 07AP-597, 2008-Ohio-1046, ¶ 27.
{¶ 60} The intent to release a party from liability for its negligence must be clear and unambiguous. Id. at ¶ 20, citing Holmes v. Health & Tennis Corp. of Am., 103 Ohio App.3d 364, 367, 659 N.E.2d 812 (1st Dist.1995), citing Tanker v. N. Crest Equestrian Ctr., 86 Ohio App.3d 522, 621 N.E.2d 589 (9th Dist.1993). “As with contracts in general, these clauses are to be strictly construed against the drafter unless the language is clear and unambiguous. When the terms of the contract are clear and unambiguous, the interpretation is a matter of law.” Pruitt v. Strong Style Fitness, 8th Dist. Cuyahoga No. 96332, 2011-Ohio-5272, ¶ 9, citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978).
{¶ 61} “““The pivotal inquiry is whether it is clear from the general terms of the entire contract, considered in light of what an ordinary prudent and knowledgeable party of the same class would understand, that the proprietor is to be relieved from liability for its own negligence.““” Goss, 2022-Ohio-2500, 193 N.E.3d 599, at ¶ 23, quoting Hague v. Summit Acres Skilled Nursing & Rehab., 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404, ¶ 22.
{¶ 62} An express assumption of the risk is present where parties expressly agree in writing to release liability. Goss at ¶ 19, citing Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906, ¶ 11 (10th Dist.), citing Ballinger v. Leaniz Roofing, Ltd., 10th Dist. Franklin No. 07AP-696, 2008-Ohio-1421, ¶ 6. An express assumption of the risk is invalid where damages or injuries are caused by wanton or willful misconduct.8 Id. at ¶ 40.
{¶ 63} In addition, “[f]or express assumption of risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party‘s negligence.” Id. at ¶ 20, citing State Farm Fire & Cas. Co. v. Scandinavian Health Spa, Inc., 104 Ohio App.3d 582, 586, 662 N.E.2d 890 (1st Dist.1995), citing Anderson v. Ceccardi, 6 Ohio St.3d 110, 114, 170, 451 N.E.2d 780 (1983).
{¶ 64} “The crucial question is whether a party, considering his education or lack of it, had a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print.” DeVito v. Autos Direct Online, Inc., 2015-Ohio-3336, 37 N.E.3d 194, ¶ 19 (8th Dist.), citing Lake Ridge Academy v. Carney, 66 Ohio St.3d 376, 383, 613 N.E.2d 183 (1993).
{¶ 65} “[C]ourts have held that the intent of the parties is a factual matter for the jury” “where the language of the release is ambiguous or too general.” (Emphasis added.) Goss, 2022-Ohio-2500, 193 N.E.3d 599, at ¶ 23, citing Hague, 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404, at ¶ 21. Based on the unique facts of this case, reviewing the waiver language in a light most favorable to the nonmoving party, we find that there are general issues of material fact.
{¶ 66} The sixth assignment of error is sustained.
V. Conclusion
{¶ 67} The trial court‘s judgment is reversed, and the case is remanded for further proceedings pursuant to this opinion.
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANITA LASTER MAYS, JUDGE
KATHLEEN ANN KEOUGH, A.J., CONCURS;
LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY