Soler v. Cleveland Metro. School Dist.

[Cite as Soler v. Cleveland Metro. School Dist., 2025-Ohio-2151.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

VICTOR SOLER, JR., :

ADMINISTRATOR,

:

Plaintiff-Appellee,

: No. 114427

v.

:

CLEVELAND METROPOLITAN,

SCHOOL DISTRICT, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: June 18, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-24-994872

Appearances:

Lamonica, Coleman & Martello, Lawrence J. Roach, and

Deneen Lamonica, for appellee.

Taft Stettinius & Hollister LLP, Adrian D. Thompson,

Philip D. Williamson, and Jack Maib, appellants.

MICHAEL JOHN RYAN, J.:

Defendant-appellant Cleveland Metropolitan School District (“CMSD”

or “appellant”) appeals the trial court’s denial of its motion to dismiss a complaint

filed by plaintiff-appellee Victor Soler, Jr., administrator of the estate of Yaniel

Rivera (“appellee”). For the reasons that follow, we reverse and remand.

I. Procedural History

Yaniel Rivera (“Yaniel”) was an 11-year-old CMSD student who

tragically passed away from a self-inflicted gunshot wound in March 2022. In

March 2024, appellee filed a complaint against CMSD, John Doe Corporations, and

John Doe Contractors alleging multiple claims related to Yaniel’s death. The claims

that are the subject of this appeal involve CMSD: Count 1 — willful and wanton

misconduct; Count 4 — wrongful death; and Count 5 — survivorship.

According to the complaint, the appellants issued digital devices to

district students, including Yaniel. Appellee alleged that CMSD was required to have

an internet safety policy that included technology protection measures to block or

filter internet access to content that was obscene or otherwise harmful to minors. In

addition, appellee alleged the CMSD was required to monitor the online activities of

its students and provide education for minors about appropriate online behavior.

The complaint alleges that Yaniel’s computer was supervised and managed by

CMSD allowing its employees to control, secure, and enforce its policies, but Yaniel,

who was on the autism spectrum, was able to use his CMSD-issued computer to

watch harmful and obscene videos. The complaint further states that the filters on

the CMSD-issued device had not been removed, damaged, or altered by any parties.

Appellee alleges that the child was watching harmful content on his CMSD-issued

device when he shot himself.

Under Count 1 — wanton and willful misconduct — appellee alleged the

following:

CMSD knew that if inadequate technology was used to block or filter

access to websites that are obscene, pornographic and/or harmful,

it would cause harm to students issued CMSD digital devices.

CMSD knew that failure to monitor online activities of its students

that it issued digital devices to would result in harm to students of

the CMSD.

CMSD knew that failure to educate students about appropriate

online behavior would result in harm to students with CMSD issued

digital devices.

CMSD’s decision to not follow its own internet safety policy

constitutes acting in a deliberate purpose.

CMSD intentionally deviated from a clear duty and policy and

purposefully engaged in wrongful acts with knowledge or

appreciation of the likelihood of resulting injury.

CMSD failed to exercise any care towards those to whom a duty of

care is owed in circumstances in which there is a greater probability

that harm will result.

CMSD’s acts or omissions were in bad faith, willful, wanton and

reckless.

CMSD’s willful, wanton and reckless acts or omissions directly and

proximately caused Yaniel Rivera’s death.

CMSD is liable for the willful and wanton misconduct of its

employees.

Under Count 4 — wrongful death — appellee alleged:

Decedent died as a direct and proximate result of the bad faith,

willful, wanton[,] and reckless conduct of the Defendants.

As a direct and proximate result of the bad faith, willful, wanton and

reckless conduct of the Defendants, Decedent’s father has suffered

and will continue to suffer damages for the loss of his society over

his life expectancy, including the loss of companionship, care, and

assistance.

As a direct and proximate result of Decedent’s wrongful death, his

father has suffered and will continue to suffer, damages for, mental

anguish and emotional trauma.

As a direct and proximate result of Decedent’s wrongful death,

Decedent’s father and/or estate have incurred expenses necessary

for Yaniel’s funeral and burial.

Under Count 5 — survivorship — appellee alleged:

As a direct and proximate result of Defendants’ willful, wanton and

reckless conduct, Decedent suffered severe physical pain and

mental anguish.

As a direct and proximate result of Defendants’ willful, wanton and

reckless conduct, Decedent suffered severe and conscious

emotional and mental pain, and fear of impending death.

CMSD filed a motion to dismiss pursuant to Civ.R. 12(b)(6), arguing

that the school district was entitled to political subdivision immunity and none of

the exceptions to statutory immunity apply; appellee’s complaint failed to establish

that any of CMSD’s alleged conduct was the proximate cause of Yaniel’s death; and,

because appellee’s principal claims failed as a matter of law, the derivative claim of

survivorship also fails.

Appellee filed a brief in opposition to appellants’ motion to dismiss,

arguing that the school district’s conduct fell within exceptions to political

subdivision immunity and that the parties should be afforded the opportunity to

engage in discovery to determine, as to CMSD, whether the failure of computer

filters to protect students from online harm was a physical defect within the meaning

of R.C. 2744.02.

Appellants filed a responsive brief, arguing that appellee could not

show that an alleged failure to use filtering software or a failure to supervise

constituted a physical defect under R.C. 2744.02 and that appellee could not show

that the school district’s actions, or lack thereof, were the proximate cause of the

child’s death.

On August 8, 2024, the court held a hearing on appellants’ motion to

dismiss. On September 9, 2024, the court denied appellants’ motion to dismiss,

finding:

The court, considering the pleadings, cannot at this time determine

that it appears beyond doubt that plaintiff[] can prove no set of facts

warranting judgment in [his] favor on counts [1], [4,] and [5] of the

complaint. Plaintiff has sufficiently plead its counts for willful and

wanton misconduct, wrongful death and survivorship against

defendant CMSD. The court cannot conclude that the pleadings

obviously or conclusively establish the affirmative defense of

political subdivision immunity. The plaintiff has alleged a set of

facts that, if proven, would plausibly allow for recovery.

Furthermore, the court does not require plaintiff to establish the

proximate cause of Yaniel Rivera’s death at the pleading stage.

Therefore[,] defendant Cleveland Metropolitan School District’s

motion to dismiss is denied.

Appellants filed a timely notice of appeal, raising one assignment of

error:

The trial court erred in denying Defendant-Appellant Cleveland

Metropolitan School District’s Motion [to] Dismiss the Complaint

of Plaintiff-Appellee Victor Soler, Jr.

II. Law and Analysis

We conduct a de novo review when considering a motion to dismiss

pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief may be

granted. Fried v. Friends of Breakthrough Schools, 2020-Ohio-4215, ¶ 15

(8th Dist.), citing Caraballo v. Cleveland Metro. School Dist., 2013-Ohio-4919

(8th Dist.). Therefore, we independently review the record and afford no deference

to the decision of the trial court. Fried at id., citing Caraballo at id.

“For a trial court to dismiss a complaint under Civ.R. 12(B)(6), it must

appear beyond doubt that the plaintiff can prove no set of facts in support of his or

her claim that would entitle the plaintiff to relief.” Fried at ¶ 16, citing Doe v.

Archdiocese of Cincinnati, 2006-Ohio-2625. “In reviewing a Civ.R. 12(B)(6) motion

to dismiss, a court’s factual review is confined to the four corners of the complaint.”

Fried at id., citing Grady v. Lenders Interactive Servs., 2004-Ohio-4239 (8th Dist.).

Appellants’ motion to dismiss was based on political subdivision

immunity pursuant to R.C. Chapter 2744. “The determination of whether a political

subdivision, such as [CMSD], is entitled to the affirmative defense of immunity

involves a three-tier analysis.” Fried at ¶ 17, citing Hunt v. Cleveland, 2016-Ohio-

3176 (8th Dist.).

First, R.C. 2744.02(A)(1) provides a general grant of immunity to

political subdivisions: “[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.” To overcome this general

grant to immunity, a plaintiff must show that one of the exceptions in

R.C. 2744.02(B) applies. If no exception applies, the political subdivision is immune

from liability. If an exception applies, the burden shifts back to the political

subdivision to demonstrate that one of the defenses in R.C. 2744.03 applies.

R.C. 2744.01(F) provides that a public school district qualifies as a

political subdivision for purposes of R.C. Chapter 2744 immunity. Bush v.

Cleveland Mun. School Dist., 2013-Ohio-5420, ¶ 9. The parties do not dispute that

CMSD is a “political subdivision” pursuant to R.C. 2744.02(A)(1). Therefore, we

must determine whether appellee can show that an exception to immunity applies

so as to withstand appellants’ motion to dismiss.

Appellee contends that the exception found in R.C. 2744.02(B)(4)

applies. R.C. 2744.02(B)(4) provides that, except as otherwise provided in

R.C. 3746.24, which governs immunity from tort actions for harm caused,

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, 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 section 2921.01 of the Revised Code.

Appellee alleged that Yaniel’s death was caused by defective filtering

software that failed to restrict student access to harmful and obscene content and by

the failure of CMSD employees to properly use the filtering software.

To show that the exception applies, appellee would have to show that

(1) the filtering software on Yaniel’s district-issued device was a “physical defect”

“within or on the grounds” of CMSD and (2) that Yaniel’s injury occurred within or

on the school grounds.

As to the first element of the exception, appellee argues that the

filtering software did not act as was intended and therefore could constitute a

physical defect. We disagree.

The physical defect exception to immunity set forth in

R.C. 2744.02(B)(4) applies “‘if the instrumentality that caused [the] injury did not

operate as intended due to a perceivable condition or if the instrumentality

contained a perceivable imperfection that impaired its worth or utility.’” Slane v.

Hilliard, 2016-Ohio-306, ¶ 44, quoting Jones v. Delaware City School Dist. Bd. of

Edn., 2013-Ohio-3907 (5th Dist.). Here, however, appellee did not allege in his

complaint that there was a physical defect in the filtering software; in fact, the

complaint concedes that the filters on the child’s district issued device “had not been

removed, damaged, or altered by any party,” which would include CMSD.

While appellee argues on appeal that CMSD employees misused or

failed to monitor software, he does not make those allegations in his complaint.

Rather, the complaint states, under Count 1, that the school district “failed to

exercise any care towards those to whom a duty of care is owed.”

When reviewing a motion to dismiss under Civ.R. 12(B)(6), we

“‘presume all factual allegations contained in the complaint to be true and must

make all reasonable inferences in favor of the plaintiff.’” Konkel v. Ohio Parole Bd.,

2025-Ohio-1071, ¶ 14 (10th Dist.), quoting Bullard v. McDonald’s, 2021-Ohio-150

(10th Dist.). That said, we need not “‘accept as true any unsupported and conclusory

legal propositions advanced in the complaint.’” Konkel at id., quoting Bullard at id.

While appellee now claims that the filtering software was defective, he did not plead

so in his complaint.

Appellee also argues that CMSD employees misused or failed to

monitor the filtering software. Again, this allegation was not pled in the complaint.

Moreover, even if the complaint could be construed to support appellee’s claim that

CMSD employees misused or failed to monitor the filtering software, the alleged

misuse of filtering software does not constitute a “physical defect” under

R.C. 2744.02(B)(4).

The phrase “physical defect” is not statutorily defined; therefore, we

look to common usage of the words in the context of the statute as a whole to

determine its meaning. Hamrick v. Bryan City School Dist., 2011-Ohio-2572, ¶ 27

(6th Dist.). The word “physical” is defined as “having a material existence:

perceptible especially through senses and subject to the laws of nature." Merriam-

Webster Online, https://www.merriam-webster.com/dictionary/physical (accessed

May 20, 2025), [https://perma.cc/T72J-LTNX]. A “defect” is “an imperfection or

abnormality that impairs quality, function, or utility.” Merriam-Webster Online,

https://www.merriam-webster.com/dictionary/defect (accessed May 20, 2025),

[https://perma.cc/7VRH-BRUP].

“It would seem then that a ‘physical defect’ is a perceivable

imperfection that diminishes the worth or utility of the object at issue.” (Emphasis

added.). Hamrick at ¶ 28; see also Duncan v. Cuyahoga Community College, 2012-

Ohio-1949, ¶ 26 (relying on Hamrick for the same proposition). The misuse of or

the failure to monitor filtering software is not in and of itself a physical defect.

Appellee now alleges on appeal that “any filtering and monitoring

had to have been or should have been done through its IT Department and/or a

central location [where] CMSD’s servers are located. The extraordinary volume of

devices likely means that any defect in filtering, monitoring and reporting happened

at a CMSD dedicated site.” Thus, according to appellee, the defect occurred on

school grounds. Again, this allegation was not pled in the complaint.

Appellee also must show that the injury occurred on school grounds.

Appellee did not allege in his complaint that the injury occurred on school grounds,

and there is no dispute the child’s death occurred at home.

Even if we were to construe the complaint as appellee urges us to do,

Ohio courts have routinely interpreted the phrase “within or on the grounds of the

[political subdivision’s] property” pursuant to the plain language of the statute.

Fried, 2020-Ohio-4215, at ¶ 54 (8th Dist.), citing Vento v. Strongsville Bd. of Edn.,

2007-Ohio-4172 (8th Dist.) (exception to statutory immunity did not apply because

injury to plaintiff-appellant’s property occurred adjacent to school property).

See also Keller v. Foster Wheel Energy Corp., 2005-Ohio-4821 (10th Dist.)

(finding that R.C. 2744.02(B)(4) requires the injury, not the negligent act or

omission, to occur on public grounds); Kennerly v. Montgomery City Bd. of

Commrs., 2004-Ohio-4258, ¶ 19 (2d Dist.) (exception did not apply because the

decedent’s “death did not occur in or on the grounds of a building where the

governmental function took place from which the death allegedly arose”).

The Ohio Supreme Court has held that R.C. 2744.02(B)(4) clearly

“[limits] the reach of a political subdivision’s liability to injuries or losses that occur

on property within the political subdivision.” Fried at id., citing Sherwin-Williams

Co. v. Dayton Freight Lines, Inc., 2006-Ohio-6498.

In Fried, the decedent was enrolled as a student at EPrep School when

she was abducted and murdered on her way to school; the abduction and murder

occurred off school grounds. The plaintiffs alleged in their complaint that EPrep did

not timely notify the decedent’s parents about the child’s absence from school. The

plaintiffs argued that the location of the injury was not relevant because all injuries

caused by employee negligence on the political subdivision’s property are actionable

and that the actual negligence occurred on school grounds. This court disagreed,

finding that under the plain meaning of statute, R.C. 2744.02(B)(4) did not extend

to a finding that the injury occurred on school ground.

The plaintiffs in Fried also argued that the injury was due to a physical

defect on school grounds: that being an allegedly malfunctioning notification

system. Id., 2020-Ohio-4215 (8th Dist.), at ¶ 52. This court disagreed, reasoning:

Given how much of our society, including our public education

system, increasingly relies on technology, we cannot hold that a

“malfunctioning” parental notification system constitutes a physical

defect of the sort envisioned by the legislature in crafting the

R.C. 2744.02(B)(4) exception. Therefore, the exception in

R.C. 2744.02(B)(4) does not apply here.

Id. at ¶ 55.

Although we are cognizant that the law often struggles to keep up with

the changes in technology, here, we cannot find that the alleged defective filtering

software constituted a physical defect of the sort envisioned by the legislature in

drafting R.C. 2744.02(B)(4).

While appellee was only required to plead facts sufficient to assert

that an exception to immunity applies, he has not satisfied this requirement.

“Where there is no set of facts that remove immunity, courts err in denying a motion

to dismiss based on immunity.” Fried at ¶ 49, citing Hendrickson v. Haven Place,

2014-Ohio-3726 (8th Dist.).

Finally, appellee has not alleged that CMSD’s conduct falls within any

of the other exceptions enumerated in R.C. 2744.02(B).

Because appellee failed to establish that an exception to the broad

immunity laid out in R.C. Chapter 2744 applies, the trial court erred in denying

CMSD’s motion to dismiss.

The sole assignment of error is sustained.

Judgment is reversed and remanded to the trial court for further

proceedings consistent with this opinion.

It is ordered that appellants recover from appellee 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.

MICHAEL JOHN RYAN, JUDGE

LISA B. FORBES, P.J., and

EILEEN T. GALLAGHER, J., CONCUR