Thompson v. BagleyThompson v. Bagley
OPINION
{¶ 1} Plaintiffs-Appellants, Chadwick and Julie Ann Thompson (hereafter collectively referred to as the “Thompsons“), appeal a judgment of the Paulding County Court of Common Pleas, granting summary judgment to Defendants-Appellees, David Bagley (“Bagley“), Drew Altimus (“Altimus“), and the Antwerp Local School District (“Antwerp Local“) (hereafter collectively referred to as the “Appellees“). The Thompsons contend that the trial court‘s determination that Antwerp Local is entitled to political subdivision immunity under
{¶ 2} In September of 2002, Bagley was the superintendent of Antwerp Local, and Altimus was an elementary school physical education teacher for the same district. Located within the Antwerp Local school building is an indoor pool. As part of the physical education curriculum, Altimus used the indoor pool to teach the fundamentals of swimming to students in the first through sixth grades.
{¶ 3} On September 30, 2002, Altimus was conducting a fourth grade physical education class in the Antwerp Local swimming pool. The students were in the fifth week of a six week unit and were required to perform a freestyle front crawl test. Altimus observed the students perform the test from the lifeguard chair next to the pool and assigned each student a score based upon his/her performance. One of the students in the class was the Thompsons’ son, Christopher Thompson (“Christopher“).
{¶ 4} After all of the students had performed the test, Altimus read each student his/her score. He then told the students that they had free time for the remainder of the period. At this time, Altimus was still sitting in the lifeguard chair. After telling the students that they had free time, Altimus observed Christopher under the water lying motionless with his arms and legs sprawled out. Thinking that Christopher was only joking around, Altimus ordered another student, Cody Sisco (“Sisco“), to get Christopher above the surface. After Sisco failed to get Christopher‘s attention, Altimus began climbing down from the lifeguard chair and told another student, Avery Hook (“Hook“), to bring Christopher above the surface. Hook was also unsuccessful in bringing Christopher up. After Hook‘s failed attempt, Altimus ordered a third student, Shaile Chamberlain (“Chamberlain“), to get Christopher. Chamberlain successfully brought Christopher up from the bottom of the pool, and Altimus pulled Christopher‘s limp body out of the pool.
{¶ 5} Altimus began to perform Cardiopulmonary Resuscitation (“CPR“) on Christopher and told the other students to get help. Other school employees came into the pool area and began assisting Altimus with the CPR. The school secretary telephoned 911 and requested an ambulance. Christopher was then transported via ambulance to Paulding County Hospital where he was later pronounced dead. After an autopsy, the county corner determined drowning to be the probable cause of Christopher‘s death.
{¶ 6} Subsequently, the Thompsons, as the co-administrators of Christopher‘s estate, brought suit against Altimus and Bagley individually and against Antwerp Local as their employer. In their complaint, the Thompsons alleged that Altimus and Bagley had negligently, with malicious purpose, in bad faith, and/or recklessly staffed and operated the swimming pool. Their claim against Antwerp Local was based on the negligence of its employees, Altimus and Bagley. The Thompsons also maintained that liability was imposed on Altimus, Bagley, and Antwerp Local by
{¶ 7} In response, the Appellees filed a motion for summary judgment, claiming that Antwerp Local was immune from liability under
{¶ 8} After considering the summary judgment motions, the trial court found that Antwerp Local was immune from liability under
Assignment of Error I
The trial court erred in its decision that Appellee, Antwerp Local School District, was entitled to immunity from liability provided by Section
Assignment of Error II
The trial court erred in its decision that Appellees, David Bagley and Drew Altimus, were entitled to immunity from liability provided by Section
{¶ 9} Because both assignments of error address the trial court‘s decision to grant the Appellees summary judgment, we will use the following standard of review throughout this entire opinion.
Standard of Review
{¶ 10} An appellate court reviews a summary judgment order de novo. Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175. Accordingly, a reviewing court will not reverse an otherwise correct judgment merely because the lower court utilized different or erroneous reasons as the basis for its determination. Diamond Wine Spirits, Inc. v. Dayton Heidelberg Distr. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, at ¶ 25, citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92. Summary judgment is appropriate when, looking at the evidence as a whole: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) construing the evidence most strongly in favor of the nonmoving party, it appears that reasonable minds could only conclude in favor of the moving party.
{¶ 11} The party moving for the summary judgment has the initial burden of producing some evidence which affirmatively demonstrates the lack of a genuine issue of material fact. State ex rel. Burnes v. Athens City Clerk of Courts, 83 Ohio St.3d 523, 524, 1998-Ohio-3; see, also, Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; they may not rest on the mere allegations or denials of their pleadings. Id.
Assignment of Error I
{¶ 12} In their first assignment of error, the Thompsons dispute the trial court‘s judgment that Antwerp Local is immune from liability under
Constitutionality of R.C. 2744
{¶ 13} The Thompsons’ make two claims regarding the constitutionality of
{¶ 14} A properly enacted statute enjoys a presumption of constitutionality. Fabrey v. McDonald Police Dept., 70 Ohio St.3d 351, 352, 1994-Ohio-368, citing State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, paragraph one of the syllabus. Therefore, it is incumbent upon the party challenging the statute to prove beyond a reasonable doubt that the statute violates a constitutional provision. Id.
{¶ 15} The Thompsons’ claim that
{¶ 16} Section 5, Article I guarantees that the right to a jury trial “shall be inviolate.” However, this provision does not guarantee a jury trial in every case. Bundy v. Five Rivers Metroparks, 152 Ohio App.3d 426, 2003-Ohio-1766, at ¶ 45, quoting Ratcliff v. Darby, 4th Dist. No. 02-CA-2832, 2002-Ohio-6626, at ¶ 25, citing Belding v. State, ex rel. Heifner (1929), 121 Ohio St. 393, 396; Keller v. Stark Elec. Ry. Co. (1921), 102 Ohio St. 114, 116. Rather, jury trials are guaranteed only in those cases in which the right existed at the time the Ohio Constitution was adopted. Bundy at ¶ 45, quoting Ratcliff at ¶ 25, citing Belding, 121 Ohio St. at paragraph one of the syllabus; Sorrell v. Thevenir, 69 Ohio St.3d 415, 421, 1994-Ohio-38; Mason v. State ex rel. McCoy (1898), 58 Ohio St. 30, 55.
{¶ 17} The rationale of the plurality in Butler was that citizens of Ohio had the right to bring actions in negligence against political subdivisions at the time Section 5, Article I was ratified. Butler, 92 Ohio St.3d at 372. Thus, a plaintiff in such an action would have been entitled to demand a jury trial prior to the Constitution‘s ratification. Id. Therefore, the plurality reasoned that
{¶ 18} Numerous appellate courts have refused to declare
Although we recognize that in Butler v. Jordan (2001), 92 Ohio St.3d 354, 750 N.E.2d 554, a plurality of the Supreme Court expressed the belief that
R.C. 2744 et seq. may be unconstitutional, a majority of the court did not concur in that opinion. In fact, some of the justices expressed opposing views in a spirited dissent. “Furthermore, no appellate court in this state has followed the Butler plurality‘s opinion and found [R.C. 2744 et seq. ] unconstitutional.” Walker v. Jefferson Cty. Bd. of Commrs., 7th Dist. No. 02 JE 14, 2003-Ohio-3490, at ¶ 20. See, also, Bundy v. Five Rivers Metroparks, 152 Ohio App.3d 426, 2003-Ohio-1766, at ¶ 45; Ratcliff v. Darby, 4th Dist. No. 02CA2832, 2002-Ohio-6626, at ¶ 25; Eischen v. Stark Cty. Bd. of Commrs., 5th Dist. No. 2002CA00090, 2002-Ohio-7005, at ¶ 20. See Shalkhauser v. Medina, 148 Ohio App.3d 41, 2002-Ohio-222, at ¶ 11, fn1; Rehm v. General Motors Corp. (2001), 143 Ohio App.3d 226, 231, 757 N.E.2d 1172; Witt v. Fairfield Public School District (April 22, 1996), 12th Dist. No. CA95-10-169. Thus, until the plurality‘s views command a majority on the Ohio Supreme Court, we will not strike down the legislation as unconstitutional.
{¶ 19} The above paragraph was cited with approval by Spencer v. Lakeview Schl. Dist., 11th Dist. No. 2002-T-0175, 2004-Ohio-5303, at ¶ 12. Furthermore, both the 2nd District in Bundy at ¶ 45 and the 4th District in Ratcliff at ¶ 25 have used language almost identical to that in Shadoan in finding that
{¶ 20} Furthermore, we disagree with the legal reasoning behind the plurality‘s decision in Butler. The Thompsons fail to establish that their right to a trial by jury is guaranteed by the Ohio Constitution “even in a case where it has been held that [they] have no cause of action.” Bundy at ¶ 47, quoting Winkle v. Toledo (July 25, 1998), 6th Dist. No. L-97-1335. In addressing the issue of whether a statute that abolishes a cause of action violates the right to a trial by jury, the United States Supreme Court has stated that the right to a jury trial is not violated because “the act abolishes all right of recovery in ordinary cases, and therefore leaves nothing to be tried by jury.” Mountain Timber Co. v. Washington (1917), 243 U.S. 219, 235, 37 S.Ct. 260; see, also, Dimond v. District of Columbia (C.A.D.C., 1986), 792 F.2d 179, 190, 253 U.S.App.D.C. 111. Nothing in
{¶ 21} Based on all of the reasons stated above, we reject the Thompsons’ argument that
{¶ 22} The Thompsons also maintain that
All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law.
(Emphasis added.)
{¶ 23} The Ohio Supreme Court has heard such arguments before and upheld
{¶ 24} It has been recognized that a political subdivision is a “mere agent of the State” and subject to the same immunity as the State when performing a governmental function. Bundy at ¶ 38, quoting Wooster v. Arbenz (1927), 116 Ohio St. 281, 284-285. Furthermore, “at the time of the passage of the second paragraph of Section 16, Article I, the ability of citizens to sue the State was a proper subject for action by the General Assembly.” Fabrey, 70 Ohio St.3d at 355. Accordingly,
{¶ 25} This Court and numerous other courts have relied on Fabrey and Fahnbulleh in ruling that
Application of R.C. 2744.02
{¶ 26} Next, the Thompsons contend that even if
{¶ 27} A reviewing court must engage in a three-tiered analysis to determine whether a political subdivision is entitled to immunity from civil liability pursuant to
{¶ 28} Neither party disputes that Antwerp Local is a political subdivision as defined by
{¶ 29} In pertinent part, the version of
[A] political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:
* * *
(4) 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 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 in section2921.01 of the Revised Code.(5) In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to person or property when liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections
2743.02 and5591.37 of the Revised Code. Liability shall not be construed to exist under another section of the Revised Code merely because a responsibility is imposed upon a political subdivision or because of a general authorization that a political subdivision may sue and be sued.
{¶ 30} The Thompsons maintain that the
{¶ 31} In interpreting the version of the statute applicable to the case before us, the Ohio Supreme Court has stated that ”
{¶ 32} Christopher‘s death occurred within the Antwerp Local school building. As discussed above, neither side disputes the fact that the building was being used by Antwerp Local in connection with a governmental function. Furthermore, a material issue of fact remains concerning whether the negligence of Antwerp Local‘s employees, Altimus and Bagley, caused Christopher‘s death. Under the reasoning in Hubbard, we find that the
{¶ 33} The Appellees rely on Cater for the proposition that the
Although former
R.C. 2744.02(B)(4) may be applicable to other governmental functions, not specifically listed in the statute, we believe that it does not apply to an indoor swimming pool. (See, also, Mattox v. Bradner (Mar. 21, 1997), 6th Dist. No. WD-96-038, hich held that the exception enumerated inR.C. 2744.02(B)(4) is inapplicable to injuries sustained in a municipal swimming pool.) Unlike a courthouse or office building where government business is conducted, a city recreation center houses recreational activities. Furthermore, if we applied formerR.C. 2744.02(B)(4) to an indoor swimming pool, liability could be imposed upon the political subdivision. However, there would be no liability if the injury occurred at an outdoor municipal swimming pool, since the injury did not occur in a building. We do not believe that the General Assembly intended to insulate political subdivisions from liability based on this distinction. Therefore, we reject appellants’ contention that formerR.C. 2744.02(B)(4) applies to an indoor municipal swimming pool. Cater, 83 Ohio St.3d at 31-32.
{¶ 34} Initially, we note that this Court has serious doubts regarding the continuing validity of Cater in light of the Supreme Court‘s more recent ruling in Hubbard. In Cater the Supreme Court found that municipal swimming pools were not subject to the
{¶ 35} Additionally, as noted by Justice Moyer in a concurring opinion in Cater, outdoor pools are located on the grounds of buildings such as shelters, restrooms and storage areas that are being used in the performance of a governmental function. Cater, 83 Ohio St.3d at 35. Therefore, both outdoor and indoor municipal pools would be subject to the
{¶ 36} Furthermore, even assuming that the law as stated in Cater is still valid, Antwerp Local fails to convince us that the governmental functions being performed in its school building are recreational in nature. To the contrary, the business of running a school and educating students, even teaching them how to swim, is much more akin to the governmental business conducted in a courthouse or office building than the recreational activities of a municipal swimming pool. Therefore, the ruling in Cater that
{¶ 37} Having found that the
{¶ 38} Under
(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.
* * *
(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.
{¶ 39} The Thompsons’ claims against Antwerp Local concerning Bagley‘s conduct center around the manner in which Bagley operated and maintained the pool. They argue that Bagley‘s failure to properly operate and maintain the pool resulted in Christopher‘s death. Antwerp Local contends that Bagley‘s decisions regarding the maintenance and operation of the pool were discretionary and subject to the above defenses. In response, the Thompsons assert that Antwerp Local‘s pool is a “public swimming pool” as defined by
{¶ 40} Normally, school officials and administrators are given significant discretion in determining how best to supervise students and allocate personnel. Frederick v. Vinton County Bd. of Ed., 4th Dist. No. 03CA579, 2004-Ohio-550, at ¶ 43, citing Marcum v. Talawanda City Schools (1996), 108 Ohio App.3d 412, 416-417. Thus,
{¶ 41}
any indoor or outdoor structure, chamber, or tank containing a body of water for swimming, diving, or bathing that is intended to be used collectively for swimming, diving, or bathing and is operated by any person whether as the owner, lessee, operator, licensee, or concessionaire, regardless of whether or not fee is charged for use, but does not mean any public bathing area or private residential swimming pool.
The definition of person in
{¶ 42} Antwerp Local‘s pool is open to the general public during the summer, but used exclusively by students during the school year. Antwerp Local admits that its pool as operated during summer is a public swimming pool and is subject to the regulations of
{¶ 43} The only statute that Antwerp Local cites to as authorizing it to operate a dual use pool is
{¶ 44} The record reflects that since 1993 Antwerp Local has been applying for and receiving a license in accordance with
{¶ 45} Accordingly, it was error for the trial court to find that Antwerp Local was entitled to political subdivision immunity for Bagley‘s alleged negligence. In this respect, the trial court‘s judgment granting Antwerp Local summary judgment is reversed and the cause is remanded for the trial court to determine whether Bagley negligently maintained and operated the pool and, if so, whether such negligence resulted in Christopher‘s death.
{¶ 46} Turning to the Thompsons’ claim against Altimus, the Thompsons allege that Altimus was negligent in the manner in which he supervised Christopher and responded to Christopher‘s emergency and that this negligent supervision and response resulted in Christopher‘s death. Antwerp Local asserts that Altimus’ supervision of Christopher and response to his emergency was discretionary in nature and falls within the purview of the same defenses that it claimed applied to Bagley‘s actions.
{¶ 47}
{¶ 48} Nevertheless, this does not end our inquiry into
{¶ 49} In the context of political subdivision immunity, malicious purpose has been defined as the willful and intentional design to do injury. Piro v. Franklin Township (1995), 102 Ohio App.3d 130, 139, citing Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App.3d 448, 453. Bad faith “connotes a `dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud.” Id., quoting Slater v. Motorists Mut. Ins. Co. (1962), 174 Ohio St. 148, paragraph two of the syllabus. Wanton misconduct is the failure to exercise any care whatsoever and establishes a disposition to perversity on the part of the tortfeasor. Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d at 356. “Such perversity must be under such conditions that the actor must be conscious that his conduct will in all probability result in injury.” Id. Finally, reckless “conduct refers to an act done with knowledge or reason to know of facts that would lead a reasonable person to believe that the conduct creates an unnecessary risk of physical harm and that this risk is greater than that necessary to make the conduct negligent.” Piro, 102 Ohio App.3d at 139, citing Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104-105, citing 2 Restatement of the Law 2d, Torts (1965) 587, Section 500.
{¶ 50} After reviewing the entire record, we find there is no evidence that Altimus acted with a malicious purpose, in bad faith, or in a wanton manner. Each of these requires some sort of purposeful or conscious wrongdoing on the part of the tortfeasor. There simply is no such evidence in the record.
{¶ 51} However, we do find that a material issue of fact remains concerning whether Altimus’ supervision of Christopher and response to his emergency were reckless. The record shows that at least one aquatic safety expert believes Altimus failed to properly provide for Christopher‘s supervision and safety. Whether such actions rises to the level of recklessness is normally a question to be determined by the trier of fact. Edinger v. Board of Allen County Com‘rs (April 26, 1995), 3rd Dist. No. 1-94-84; see, also, Summers v. Slivinsky, 141 Ohio App.3d 82, 92, 2001-Ohio-3169. Therefore, we find that a material issue of fact remains concerning whether Altimus recklessly provided for Christopher‘s supervision and safety, and it was error for the trial court to grant Antwerp Local summary judgment on the Thompsons’ claims that were based upon Altimus’ allegedly reckless actions. Accordingly, the judgment of the trial court is reversed and the cause is remanded for the trier of fact to determine whether Altimus’ actions rose to such a level as to eradicate Antwerp Local‘s defense under
{¶ 52} In sum, Antwerp Local‘s political subdivision immunity is subject to the exception in
Assignment of Error II
{¶ 53} In their second assignment of error, the Thompsons contend that the trial court erred by finding that Altimus and Bagley were personally immune from liability under
{¶ 54} An employee of a political subdivision is immune from individual 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 a wanton or reckless manner;
(c) Liability is expressly imposed upon the employee by a section of the Revised Code.2
{¶ 55} None of the Thompsons’ allegations against either Altimus or Bagley involve actions that were outside of the scope of their employment or official responsibilities. Therefore, the exception to liability in
{¶ 56} Furthermore, no section of the Revised Code expressly imposes liability upon either Altimus or Bagley. The Thompsons claim that
{¶ 57} Turning to
{¶ 58} Accordingly, we find that neither
{¶ 59} Having found error prejudicial to the appellant herein, in the particulars assigned and argued, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Bryant and Shaw, JJ., concur.