Roberts v. Switzerland of Ohio Local School Dist.

[Cite as Roberts v. Switzerland of Ohio Local School Dist., 2014-Ohio-78.]

STATE OF OHIO, MONROE COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

MORGAN ROBERTS, )

)

PLAINTIFF-APPELLEE, )

) CASE NO. 12 MO 8

V. )

) OPINION

SWITZERLAND OF OHIO LOCAL )

SCHOOL DISTRICT, )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common

Pleas of Monroe County, Ohio

Case No. 2012-163

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee Attorney J. Kevin Flanagan

510 Tomlinson Avenue

Moundsville, WV 26041

For Defendant-Appellant Attorney Sandra R. McIntosh

Capitol Square Office Building

65 E. State Street, Suite 800

Columbus, Ohio 43215-7303

JUDGES:

Hon. Gene Donofrio

Hon. Joseph J. Vukovich

Hon. Cheryl L. Waite

Dated: January 7, 2014

[Cite as Roberts v. Switzerland of Ohio Local School Dist., 2014-Ohio-78.]

DONOFRIO, J.

{¶1} Defendant-appellant, the Switzerland of Ohio Local School District

Board of Education (the Board), appeals from a Monroe County Common Pleas

Court judgment denying its motion to dismiss for failure to state a claim and asserting

political subdivision immunity and recreational user immunity.

{¶2} On May 29, 2012, plaintiff-appellee, Morgan Roberts, filed a complaint

against the Board alleging that while she was participating in track and field practice

on the premises of Beallsville High School and was standing in an area designated

by the Board’s agents as a “safe zone,” she was struck in the head and face by a

discus that was thrown by another Beallsville High School student. Roberts asserted

the Board, through its agents and employees, was negligent in causing the discus to

strike her and informing her and others that it was safe to be in an area where a

discus could be thrown and in failing to erect a fence or cage around the rear of the

discus circle. Roberts claimed that she suffered multiple serious injuries as a result

of the Board’s negligence.

{¶3} In response, the Board filed a Civ.R. 12(B)(6) motion to dismiss. It

asserted that (1) it was entitled to political subdivision immunity and (2) Roberts’s

claim was barred by the recreational user statute. Roberts filed a response opposing

the motion to dismiss.

{¶4} After a hearing on the matter, the trial court denied the Board’s motion.

{¶5} The Board filed a timely notice of appeal on October 2, 2012.

{¶6} Generally, the denial of a motion to dismiss is not a final, appealable

order. State Auto Mut. Ins. Co. v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-

Ohio-1713, 844 N.E.2d 1199, ¶8. But in this case the Board's motion to dismiss was

based on the premise of governmental immunity. The Ohio Supreme Court has held:

“When a trial court denies a motion in which a political subdivision or its employee

seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged

immunity and is therefore a final, appealable order pursuant to R.C. 2744.02(C).”

Hubbell v. City of Xenia, 115 Ohio St.3d 77, 873 N.E.2d 878, 2007-Ohio-4839, at the

syllabus.

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{¶7} The standard of review for a Civ.R. 12(B)(6) motion to dismiss requires

the appellate court to independently review the complaint to determine if the

dismissal was appropriate. Ferreri v. The Plain Dealer Publishing Co., 142 Ohio

App.3d 629, 639, 756 N.E.2d 712 (8th Dist.2001). A motion to dismiss for failure to

state a claim upon which relief can be granted is a procedural motion that tests the

sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs.,

65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). In order to dismiss a complaint for

failure to state a claim upon which relief can be granted, the court must find beyond

doubt that the plaintiff can prove no set of facts warranting relief after it presumes all

factual allegations in the complaint are true, and construes all reasonable inferences

in the plaintiff's favor. State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490,

633 N.E.2d 1128 (1994).

{¶8} The Board raises three assignments of error. We will address the third

assignment of error first for ease of discussion. It states:

THE TRIAL COURT ERRED WHEN IT CONSIDERED

MATERIALS OUTSIDE THE PLEADINGS IN DECIDING THE

BOARD’S MOTION TO DISMISS.

{¶9} In this assignment of error, the Board asserts that in ruling on the

motion to dismiss, the trial court improperly considered a copy of the National

Federation of State High School Associations (NFSHSA) Rules that Roberts attached

to her response to the Board’s motion to dismiss.

{¶10} The trial court is not permitted to resort to evidence outside of the

complaint to support dismissal under Civ.R. 12(B)(6). Dombroski v. WellPoint, Inc.,

173 Ohio App.3d 508, 2007-Ohio-5054, 879 N.E.2d 225, ¶10 (7th Dist.) (reversed on

other grounds). If the court considers evidence outside the record, it must convert

the motion to dismiss to a motion for summary judgment. Ohio Bur. Of Workers’

Comp. v. McKinley, 7th Dist. No. 09-CO-3, 2010-Ohio-1006, ¶59. If the court

converts the motion to one for summary judgment, it must give the parties 14 days

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notice and a reasonable opportunity to present all materials pertinent to such motion.

Id.; Calin v. Nemes, 7th Dist. No. 11-MA-12, 2010-Ohio-1409, ¶15.

{¶11} In its judgment entry here, the trial court relied in part on Henney v.

Shelby City School Dist., 5th Dist. No. 2005 CA 0064, 2006-Ohio-1382. The trial

court noted that in Henney, the school district failed to follow the NFSHSA’s

requirements to install side mats adjacent to the pole vault landing pads. The trial

court then noted that in this case Roberts alleged the Board failed to cover the discus

pit in violation of the NFSHSA Rules. The court found that, for purposes of this

motion, the failure to surround the discus area with fencing or a cage, like the failure

to install the side pads in Henney, is not covered by political subdivision immunity.

{¶12} The trial court did not convert the motion to dismiss to a motion for

summary judgment nor did it give the parties 14 days notice and a reasonable

opportunity to present any other pertinent materials. Thus, the court should not have

considered the copy of the NFSHSA’s Rules that Roberts attached to her response to

the motion to dismiss.

{¶13} But the trial court’s misstep does not necessarily constitute reversible

error. This court is required to review the complaint and determine whether Roberts

has stated any claim for which relief could be granted. Our review is de novo. In

reviewing the merits of the motion to dismiss in the Board’s subsequent assignments

of error, we will not consider the NFSHSA Rules because they were not part of the

complaint and we will independently determine whether the motion to dismiss should

have been granted.

{¶14} Accordingly, the Board’s third assignment of error is without merit.

{¶15} The Board’s first assignment of error states:

THE TRIAL COURT ERRED BY DENYING THE BOARD’S

MOTION TO DISMISS ON THE BASIS OF POLITICAL SUBDIVISION

IMMUNITY.

{¶16} The Board first argues that the trial court incorrectly found that the

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exception to immunity set out in R.C. 2744.02(B)(4) applied here. It asserts the trial

court relied on outdated and superseded case law that interpreted the old version of

R.C. 2744.02(B)(4). The Board contends the trial court relied solely on Hubbard v.

Canton City Bd. Of Education, 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543,

which predated the amendment to R.C. 2744.02(B)(4). The Board asserts the statute

was amended to specifically limit liability for negligence due to physical defects. And

it notes that the trial court failed to explain how the current version of the statute

negates its immunity. In fact, the Board points out, the trial court specifically found in

its judgment entry that Roberts’s claim was not based on any alleged defect on the

school grounds.

{¶17} Whether a political subdivision is entitled to immunity is analyzed using

a three-tiered process. Green Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551,

556, 733 N.E.2d 1141 (2000). Under the first tier, R.C. 2744.02(A)(1) sets out the

general rule that political subdivisions are not liable in damages. Id. at 556-557.

Under the second tier, the court must determine whether any of the exceptions to

immunity set out in R.C. 2744.02(B) apply. Id. at 557. Finally, under the third tier, if

the court finds that any of R.C. 2744.02(B)'s exceptions apply, it must consider R.C.

2744.03, which provides defenses and immunities to liability. Id.

{¶18} A school district is a political subdivision of the State of Ohio. R.C.

2744.01(F). Moreover, the design, construction, reconstruction, renovation, repair,

maintenance, and operation of any school athletic facility or recreational area,

including a playfield, are governmental functions. R.C. 2744.01(C)(2)(u). Thus, in

this case, we must begin our analysis under the first tier with the premise that the

Board is entitled to immunity.

{¶19} Next, under the second tier, the possible exception to immunity in this

case on which Roberts relies is set out in R.C. 2744.02(B)(4):

(B) Subject to sections 2744.03 and 2744.05 of the Revised

Code, 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

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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, 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 * * *.

(Emphasis added.)

{¶20} R.C. 2744.02(B) was amended on April 9, 2003. The 2003 amendment

to R.C. 2744.02(B)(4) added the language “and is due to physical defects within or

on the grounds of” after “that is caused by the negligence of their employees and that

occurs within or on the grounds of.” Other than this addition, the statute remained

the same. The statute was changed to limit liability for negligence that is due to

physical defects within or on the grounds that are used in connection with a

governmental function. Aratari v. Leetonia Exempt Village School Dist., 7th Dist. No.

06-CO-11, 2007-Ohio-1567, ¶30.

{¶21} R.C. 2744.02(B)(4) requires two elements for the exception to apply:

(1) a negligent act and (2) a physical defect within or on the grounds of the political

subdivision. DeMartino v. Poland Loc. School Dist., 7th Dist. No. 10-MA-19, 2011-

Ohio-1466, ¶34.

{¶22} In this case, the question surrounds whether there was a physical

defect on the school grounds. The trial court failed to address this issue when

discussing whether political subdivision immunity applied. It simply concluded that

R.C. 2744.02(B)(4) applied because “the alleged negligent, reckless, and/or wanton

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conduct occurred on school grounds.”

{¶23} Roberts cites to two cases that provide us with some guidance.

{¶24} First, Roberts cites to Moore v. Lorain Metro. Housing Auth., 121 Ohio

St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606, where the plaintiff alleged two children

would have escaped injury from a fire if a housing authority employee had not

removed the only working smoke detector and negligently failed to replace it. The

Ninth District certified a conflict to the Ohio Supreme Court regarding whether

operation of a public housing authority is a proprietary or a governmental function.

The only mention the Court made as to the “physical defect” element was to point out

that the trial court did not fully consider whether the absence of a required smoke

detector is a “physical defect,” which if established would dissolve immunity. Id. at

¶25. Therefore, the Court remanded the matter to the trial court for further

proceedings to determine whether the R.C. 2744.02(B)(4) exception to immunity

applied.

{¶25} In this case, the alleged physical defect is the “safe zone” that was not

safe. In Moore, the Supreme Court left open the possibility that the absence of a

safety feature could constitute a physical defect.

{¶26} Next, Roberts cites to Moss v. Lorain Cty. Bd. of Mental Retardation,

185 Ohio App.3d 395, 2009-Ohio-6931, 924 N.E.2d 401 (9th Dist.), where the mother

of a developmentally-disabled seven-year-old, alleged her child was burned when he

spilled a pot of hot coffee on his chest. She claimed her child’s injury was the result

of negligent design, maintenance, and construction of the classroom that resulted in

a physical defect, namely an unsecured kitchen containing various potential hazards

that threatened the safety of the special-needs students. The Ninth District, without

elaborating on the issue, found the mother alleged sufficient facts that if proven,

demonstrated that the R.C. 2744.02(B)(4) exception applied to the matter.

{¶27} In Moss, the alleged physical defect was the unsafe kitchen area.

Similarly, in this case the alleged physical defect was the unsafe “safe zone.”

{¶28} Some cases have found the “physical defect” element is not satisfied by

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the failure to provide some type of safety measure. See, Hamrick v. Bryan City

School Dist., 6th Dist. No. WM-10-014, 2011-Ohio-2572 (absence of a cover and a

painted lip surrounding service pit in a school bus garage was not a “physical defect”

within the meaning of R.C. 2744.02(B)(4)); Contreraz v. Bettsville, 3d Dist. No. 13-10-

48, 2011-Ohio-4178 (failure to post warning signs of deep water in a swimming area

did not amount to a physical defect in the property). The distinction between those

cases and the case sub judice, however, is that they were decided on summary

judgment motions where the court could consider the evidence submitted. In this

case, we are simply to review the complaint and presume all factual allegations as

true.

{¶29} The complaint in the present case states that Roberts was standing in

an area designated by the Board’s agents as a “safe zone.” While standing in the

designated safe zone, she was struck with a discus thrown by another student. The

complaint states the Board’s agents were negligent in informing Roberts that it was

safe to be in an area where a discus could be thrown and in failing to erect a fence,

cage, or other device around the rear of the discus circle.

{¶30} Taking these facts as true and construing all reasonable inferences in

favor of Roberts, as we are required to do, we find that the trial court properly upheld

the complaint. Clearly, the complaint alleges a negligent act, the instruction by the

Board’s agent that it was safe for Roberts to stand in an area that was not, in fact,

safe. Additionally, the complaint sufficiently alleges a physical defect on the grounds

of the political subdivision. As can be seen from Moore, 121 Ohio St.3d 455, and

Moss, 185 Ohio App.3d 395, the courts have left open the possibility that the

absence of a safety feature or the existence of an unsafe area that is supposed to be

safe, can be the type of defect contemplated by R.C. 2744.02(B)(4). Whether the

specific defect here removes immunity from the Board is best left to summary

judgment proceedings.

{¶31} Accordingly, the Board’s first assignment of error is without merit.

{¶32} The Board’s second assignment of error states:

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THE TRIAL COURT ERRED BY DENYING THE BOARD’S

MOTION TO DISMISS ON THE BASIS OF RECREATIONAL USER

IMMUNITY.

{¶33} The Board contends here that it is immune from liability because

Roberts was a recreational user and track practice is a recreational pursuit. The

Board asserts it did not owe Roberts a duty to keep the track field safe for use under

R.C. 1533.181(A)(1). And it asserts that while R.C. 1533.18(A) appears to limit the

statute to privately-owned premises, a political subdivision has derivative immunity

from tort liability to a recreational user to the same extent an owner of private land

does. The Board further contends the recreational user statute provides it with

immunity for informing Roberts that it was safe to be in an area where a discus could

be thrown. Finally, the Board claims it is immune from liability because Roberts’s

injury was caused by another recreational user.

{¶34} R.C. 1533.181 gives owners of premises held open to the public for

recreational use immunity from liability for injuries sustained by persons using the

premises. R.C. 1533.181 reads:

(A) No owner, lessee, or occupant of premises:

(1) Owes any duty to a recreational user to keep the premises safe for

entry or use;

(2) Extends any assurance to a recreational user, through the act of

giving permission, that the premises are safe for entry or use;

(3) Assumes responsibility for or incurs liability for any injury to person

or property caused by any act of a recreational user.

(B) Division (A) of this section applies to the owner, lessee, or occupant

of privately owned, nonresidential premises, whether or not the

premises are kept open for public use and whether or not the owner,

lessee, or occupant denies entrance to certain individuals.

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{¶35} R.C. 1533.18(B) defines a “recreational user” as a person to whom

permission has been granted to enter upon premises “to hunt, fish, trap, camp, hike,

or swim, * * * or to engage in other recreational pursuits.” (Emphasis added.)

{¶36} It is well-settled that R.C. 1533.181 applies to incidents occurring on

school district property. Mason v. Bristol Loc. School Dist. Bd. Of Edn., 11th Dist. No.

2005-T-0067, 2006-Ohio-5174, ¶56.

{¶37} The Board relies on a similar case, where a student athlete participating

in a track and field event was hit in the face with a discus thrown by another student

athlete. Mason, 11th Dist. No. 2005-T-0067. She filed a complaint alleging the

school board was negligent in failing to construct, maintain, and design a safe discus

pit, in its failure to warn people regarding the discus pit, and in supervising the

students. The trial court granted the board’s motion for summary judgment and the

student appealed. The Eleventh District found that the student was a recreational

user when she was struck with the discus. Id. at ¶57. Noting that the student

maintained the discus pit was unsafe in its construction, maintenance, and design

and therefore implicating the safety of the “premises,” the court concluded that the

board was entitled to immunity under the recreational user statute. Id. at ¶63.

{¶38} While Mason appears to be factually similar to the present case, there

is one notable distinction. Mason was decided on summary judgment. Here we are

faced with a motion to dismiss on the pleadings. The evidence has yet to be

developed in this case.

{¶39} Moreover, evidence has yet to be developed as to whether the

Beallsville High School track and field practice area was open to the public. In

commenting on this issue, the Ninth District stated:

In past decisions on recreational user immunity, the Ohio

Supreme Court held that, in order for a property owner to be immune

under R.C. 1533.181, the property upon which the injury occurred must

have been held open for public use. See Fryberger v. Lake Cable

Recreation Assn., Inc. (1988), 40 Ohio St.3d 349, 350-351, 533 N.E.2d

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738, 739-741. Effective September 29, 1995, however, the General

Assembly amended R.C. 1533.181 to no longer require that “privately

owned, nonresidential” property be “kept open for public use.” Under

R.C. 1533.181(B), an “owner, lessee, or occupant of privately owned,

nonresidential premises” is immune from liability “whether or not the

premises are kept open for public use and whether or not the owner,

lessee, or occupant denies entry to certain individuals.”

Stiner v. Dechant, 114 Ohio App.3d 209, 214, 683 N.E.2d 26 (9th Dist.1996).

{¶40} In this case, Roberts was a member of the track and field team and was

on the Beallsville High School property for track and field practice. Whether she was

a recreational user as defined by the statute and the characterization of the school

property are questions best left for summary judgment.

{¶41} Accordingly, the Board’s second assignment of error is without merit.

{¶42} For the reasons stated above, the trial court’s judgment is hereby

affirmed.

Vukovich, J., concurs.

Waite, J., concurs in judgment only.