749 N.E.2d 854 | Ohio Ct. App. | 2001
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *84
On August 28, 1997, the squad was preparing for a cheerleading competition. The routine required certain cheerleaders to perform a back bend. Allegedly, Hilary informed Slivinsky that she had a physical therapy session in thirty minutes and that she wanted to ask her therapist whether she could do the back bend. Hilary contends that Slivinsky warned that if she did not do the back bend, she would be placed in the back row for the competition. Claiming that she felt intimidated by this, Hilary attempted the back bend, seriously reinjuring her shoulder.
Hilary, Kelli and Michael Summers, Hilary's father, brought suit against Slivinsky, Buckeye Local School District and Buckeye Local School Board. The complaint alleged that Appellants suffered damages as a result of Appellees' negligent and reckless conduct. Appellees filed a motion for summary judgment, claiming statutory immunity under R.C. §
Appellants filed their appeal on March 19, 1999. Appellees filed a Cross-Notice of Appeal on March 26, 1999.
Appellees filed a timely notice of cross-appeal within the time allowed by App.R. 4(B)(1). It is within our discretion to extend the time for filing briefs on appeal. App.R. 18(C). Appellants filed a Motion for Extension on May 18, 1999, which we granted. We also granted Appellees' July 8, 1999 Motion for Extension. Appellees filed their brief, which contained their arguments in support of the cross-appeal, within the time as extended. Appellants' motion to dismiss is therefore overruled.
"THE TRIAL COURT ERRED IN FINDING THAT THE APPELLEES WERE ENTITLED TO IMMUNITY FROM APPELLANTS' CLAIMS BY VIRTUE OF RC
2744.03 (A)(3)."THE TRIAL COURT ERRED IN FINDING THAT APPELLEES WERE ENTITLED TO IMMUNITY FROM APPELLANTS' CLAIMS BY VIRTUE OF RC
2744.03 (A)(5).
"The Trial Court erred in concluding that cheerleading by high school students, when performed on school property and under the supervision and direction of a school employee who serves as their advisor, is not a governmental function for purposes of conferring tort immunity on the school district under R.C. §
Ohio first recognized the concept of sovereign immunity in State v.Franklin Bank of Columbus (1840),
In Cater v. Cleveland (1998),
As opposed to the political subdivision itself, R.C. §
"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:"(a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities;
"(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in wanton or reckless manner;
"(c) Liability is expressly imposed upon the employee by a section of the Revised Code. Liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon an employee, because of a general authorization in that section that an employee may sue and be sued, or because the section uses the term `shall' in a provision pertaining to an employee." (emphasis added).
*88 Welco Industries, Inc. v. Applied Cos. (1993),"(1) No genuine issue as to any material fact remains to be litigated;
"(2) the moving party is entitled to judgment as a matter of law; and
"(3) it appears from the evidence that reasonable minds could come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party."
The party seeking summary judgment has the initial burden of informing the court of the motion's basis and identifying those portions of the record tending to show that there are no genuine issues of material fact on the essential elements of the opposing party's claim. Dresher v. Burt
(1996),
"For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function."
In order to be entitled to a general veil of immunity under R.C. §
The only other exception to immunity which might apply is R.C. §
Assuming arguendo that Appellee Slivinsky was an employee of the school district, we must determine whether the cheerleading practice was a proprietary or governmental function. If the activity was a governmental function, the school district and school board are immune from liability and our analysis is complete as to those entities. If the activity was a proprietary function, we must further determine whether immunity is revived through one of the provisions listed in R.C. §
The trial court determined that the cheerleading practice in question constituted a proprietary function. This decision was partially based in his analysis that cheerleading is not an activity in all respects exclusive to schools. The trial court concluded, however, that R.C. §
R.C. §
"`Governmental function' means a function of a political subdivision that is specified in division (C)(2) of this section or that satisfies any of the following:
"(a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement;
"(b) A function that is for the common good of all citizens of the state;
"(c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or customarily *90 engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function."
R.C. §
R.C. §
"`Proprietary function' means a function of a political subdivision that is specified in (G)(2) of this section or that satisfies both of the following:
"(a) The function is not [a governmental function];
"(b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons."
R.C. §
The Ohio Supreme Court recently held that when the political subdivision at issue is not one of those mentioned in R.C. §
While at first blush it can be argued that cheerleading is not compulsory to a system of education, it is clearly some part of the school system's educational program. Bearing this fact in mind coupled with the fact that the immunities provided under R.C. §
In Neelon v. Conte (Nov. 13, 1997), Cuyahoga App. No. 72646, unreported, the Eighth District Court of Appeals broadly construed R.C. §
Other courts have also found that high school cheerleading events fall under the governmental function umbrella. In Anderson v. Indian ValleySchool Dist. *91 Bd. Of Edn. (Mar. 22, 1999), Tuscarawas App. Nos. 1998AP122, 1998AP123 and 1998AP124, unreported, a student was injured while attending a cheerleader-sponsored pep rally at a local park and this was determined to be a governmental function for purposes of statutory immunity. The aforementioned cases are in keeping with the general rule that the organization of school-sponsored athletic teams is a governmental function covered under political subdivision immunity. Annotation, Modern Status of Doctrine of Sovereign Immunity as Applied to Public Schools and Institutions of Higher Learning (197), 33 A.L.R. 3d 703, 743.
While there are certainly instances of professional, paid cheerleading squads which can be compared to the current situation, this is not the customary situation. We are in agreement with the holdings of Neelon andAnderson, supra, and hold that a school-sponsored cheerleading practice is part of a school district's broad governmental function of providing public education. Therefore, it does not fall within the exception to political subdivision immunity under R.C. §
APPELLANTS' ASSIGNMENT OF ERROR NUMBER THREE
Appellants' third assignment of error alleges:
"THE TRIAL COURT ERRED IN FINDING THAT APPELLEE, GERI SLIVINSKY, WAS NOT RECKLESS."
Appellants argue that employees of political subdivisions are subject to a more limited immunity under R.C. §
R.C. §
Appellants alleged both in their complaint and in their response to Appellees' Motion for Summary Judgment that Slivinsky's conduct was reckless. Appellants presented evidence which, if believed, could establish that Slivinsky told Hilary Summers to either do a back bend or be consigned to the back row of the cheerleading team at the competition, knowing that Hilary was still suffering from a serious shoulder injury. Appellants also presented evidence that Hilary was somehow intimidated into attempting the maneuver. While the record as it currently exists is sketchy as to whether the evidence presented goes beyond the standard of negligence to reach "recklessness", Appellants have raised a question of fact sufficient to overcome summary judgment. It should be left to the jury to determine if Slivinsky's behavior rose to the level of recklessness needed to overcome the immunity provided by R.C. §
Although Appellees' motion seeking summary judgment contained waiver and release forms signed by both Hilary Summers and her mother, the significance of these forms was not argued in Appellees' brief. Such forms do not necessarily bar Appellants from recovery. The specific terms of waivers and releases are typically questions for a jury, particularly if it is alleged that they are ambiguous, overly generalized, or encompass conditions not contemplated by the parties. Tanker v. N. CrestEquestrian Ctr. (1993),
We conclude that Appellants' third assignment of error has merit and that summary judgment was erroneously granted to Appellee Slivinsky. We reverse the decision of the trial court only as to Appellee Slivinsky, affirm the decision on other grounds as to Appellees Buckeye Local School District and Buckeye Local School Board and remand the cause for further proceedings consistent with this Court's opinion. *93
COX, P.J., concurs, VUKOVICH, J., dissents; see dissenting opinion.
Dissenting Opinion
I respectfully dissent from the opinion of the majority because I do not agree with the majority's conclusion that cheerleading is a governmental function.
Greene Cty. Agricultural Soc. v. Liming (2000),
While I recognize that Greene, supra, was decided only by a plurality of the Ohio Supreme Court, I agree with its rationale. A review of R.C.
Under the majority's approach, anything a school system does could be considered a governmental function. The legislature did not intend this result. If it did, it would have so stated explicitly. Instead, the legislature included as a governmental function "the provision of a system of public education." R.C.
My position would be different if the record revealed that Ms. Summers received academic credit for her participation in cheerleading. InAngelot v. Youngstown Bd. of Edn. (Sept. 18, 1998), Mahoning App. No. 96CA90, unreported, this court held that the school board was immune from liability to a student who was injured while moving volleyball equipment during a regularly scheduled physical education class. That class was part of the regular curriculum and was, thus, part of the provision of education. However, to construe cheerleading, an extracurricular activity, as the provision of a system of public education is to declare also that operating a stadium, band or orchestra is the provision of a public education system. Those activities, which the legislature clearly considered to be proprietary, would thus become governmental by virtue of a school district performing them. No such blanket immunity exists for schools.
The effect of the majority's sweeping interpretation of "governmental function" is to leave many, who should be compensated under our system for their injuries, without any legal recourse. Article
For these reasons, I respectfully dissent from the majority opinion. *95