The opinion
[Cite as Nonprasit v. Ohio Teaching Family Assn., 2022-Ohio-3685.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Sandra Nonprasit, Administratrix of the Court of Appeals No. L-22-1027
Estate of Pedro Salinas
Trial Court No. CI0202001404
Plaintiff
v.
Ohio Teaching Family Association, et al.
Appellees
v.
Sylvania Area Joint Recreation District DECISION AND JUDGMENT
Appellant Decided: October 14, 2022
*****
J. Mark Trimble, Tracy B. Selis, and Andrew J. Ayers, for Appellees.
Byron S. Choka and Jennifer A. McHugh, for appellant.
*****
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Sylvania Area Joint Recreation District (SAJRD), appeals the
judgment of the Lucas County Court of Common Pleas, finding that a genuine issue of
material fact exists as to whether SAJRD is entitled to political subdivision immunity and
thus denying SAJRD’s motion for summary judgment. Because we find that SAJRD is
entitled to immunity as a matter of law, we reverse.
A. Facts and Procedural Background
{¶ 2} This appeal arises out of the tragic death of a 15-year-old boy, P.S., on
July 1, 2019. At the time, P.S. was under the care and supervision of appellees, the Ohio
Teaching Family Association (OTFA) and its teaching parent, Matt Anderson. OTFA is
a residential care facility for minors and, as such, received custody of P.S. after he was
transferred to OTFA from the Lucas County Youth Treatment Center, where he was
previously incarcerated.
{¶ 3} On July 1, 2019, OTFA transported P.S. and four other residents to the
Centennial Quarry for a field trip. The Centennial Quarry is a public recreational
swimming area that is located in Sylvania, Ohio, and owned by SAJRD, an Ohio political
subdivision. Upon arrival at the quarry, P.S. and the other residents began swimming.
Anderson accompanied the group to supervise. According to Anderson, the swimming
area was crowded at the time.
{¶ 4} P.S. jumped off the 15-foot-high dive platform and into the quarry, about 20-
30 feet from shore. When P.S. did not resurface, the other residents notified Anderson
that P.S. was missing, prompting a search. Several minutes later, another swimmer
pulled P.S. from the water. Lifeguards immediately began to administer CPR and other
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aid to P.S., and continued to do so until EMTs arrived. P.S. was eventually transferred to
the University of Toledo Medical Center where he was pronounced dead.
{¶ 5} Approximately seven months after P.S.’s death, on February 7, 2020, Sandra
Nonprasit, administratrix of P.S.’s estate, filed a wrongful death action against appellees.
In her complaint, Nonprasit sought damages from appellees in the amount of $750,000.
{¶ 6} On February 19, 2020, appellees filed an answer and a third party complaint,
in which they denied any liability for P.S.’s death and asserted that any damages they
incurred were brought about by SAJRD’s failure to supervise P.S. while he was a
business invitee on SAJRD’s property.
{¶ 7} SAJRD filed an answer to appellees’ third party complaint on March 16,
2020. In its answer, SAJRD denied any liability arising out of P.S.’s death and asserted
several affirmative defenses including political subdivision immunity.
{¶ 8} Thereafter, the matter proceeded through pretrial discovery. On January 11,
2021, SAJRD filed a motion for summary judgment, arguing that it was entitled to
judgment on appellees’ third party complaint because it was immune from suit under
Chapter 2744 of the Revised Code. In support of its argument, SAJRD cited to
deposition testimony previously provided by Anderson and SAJRD’s senior program
director, Rob Mahon. Both of these depositions were filed with the trial court and part of
the record at the time SAJRD filed its motion.
3.
{¶ 9} In his deposition, Anderson testified that he and the five OTFA residents
arrived at Centennial Quarry at around 3:00 p.m. on July 1, 2019. When they arrived,
Anderson noticed that the swimming area was very crowded with “at least 200”
swimmers present. When asked about the physical characteristics of the quarry,
Anderson stated that the water was deep, with a sudden drop off after entering the water.
He was unaware of any underwater obstructions in the quarry. Anderson could not
identify any defects with the quarry that hindered its operability as a swimming facility.
{¶ 10} Anderson decided to snorkel for some time. While snorkeling, Anderson
observed three lifeguards in the area. Anderson finished snorkeling and proceeded to the
diving platform area, where he saw no additional lifeguards.
{¶ 11} Anderson and some of the other OTFA residents, including P.S., decided to
jump into the water from the diving platform, which was approximately ten feet above
the water. Anderson jumped from the diving platform two times before noticing that P.S.
was missing. Because the swimming area was so crowded, Anderson was forced to swim
around several people on his way back to shore after jumping into the water.
Consequently, Anderson was “out of breath completely” by the time he returned to the
shore the second time. According to Anderson, P.S. jumped into the water following
Anderson’s second jump, although he was not certain of that fact prior to the incident.
{¶ 12} While catching his breath on the shore, Anderson was approached by
another resident who told him that P.S. was missing. Anderson was concerned that P.S.
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had run off and escaped, so he started searching the area outside the water. He then
alerted lifeguards of the situation, at which point he observed a diver pulling P.S. from
the water and ran over to provide assistance.
{¶ 13} At the deposition, Anderson authenticated several photographs of the
quarry, including photographs of the diving platform area. In the photographs of the
diving platform area, a lifeguard chair is visible on the platform immediately adjacent to
the location from which divers would jump. According to Anderson, this chair was not
manned on the day of the drowning. Other photographs of the quarry revealed the
existence of a surface-level lifeguard chair in the area where Anderson went snorkeling,
with a direct line of sight to the diving platform above it, as well as an elevated lifeguard
chair in an area of the quarry that Anderson was unable to identify.
{¶ 14} Toward the end of his deposition, Anderson stated that the lifeguards he
observed on the day of the drowning appeared to have their attention focused on an area
in the middle of the quarry where floating platforms were located. Anderson indicated
that the lifeguards were not paying attention to the diving platform, and he stated that,
were he the manager of the quarry, he would have had a lifeguard stationed “up on the
platform.” When asked if the chair on the platform provided a good line of sight to the
diving area, Anderson responded: “If I were to have been sitting up there and looked
right, yeah, you could have seen that, but it’s also directionalized (sic.) out in the area that
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we were swimming in, and not at the platform. The platform chair up there would have
been the one that would probably be responsible for that area.”
{¶ 15} In addition to referencing Anderson’s deposition in its motion for summary
judgment, SAJRD also cited evidence from Mahon’s deposition. At the beginning of his
deposition, Mahon explained the physical layout of the quarry. He described the quarry
as a “spring-fed quarry” that is more difficult to lifeguard because the water is cloudy and
thus one cannot see the bottom. Further, Mahon indicated that the sides of the quarry all
contain sudden drop-offs, with the sole exception being the stair stepped entryway.
Mahon stated that there is no vegetation or rocks that would impede swimmers in the
swimming area.
{¶ 16} According to Mahon, there are five lifeguard chairs at the quarry, plus two
lifeguard stations at the slide located at the quarry. Three of these chairs are on the south
beach of the quarry (Chairs 2, 3 and 4), and the remaining two chairs (Chairs 1 and 1 &
1/2) are located on north beach. Mahon indicated that there were no lifeguards assigned
to the chair that sits atop the diving platform (Chair 1 & 1/2) at the time of P.S.’s
drowning. Mahon explained the reason that the chair was not staffed, stating:
So to give you the background on that chair because I know it’s in an area
of interest, we always station Lifeguard Chair 1, which is at the bottom of
the stairs on what we call north beach, the main entrance in. That chair
next to the platform is what we call Chair 1 & 1/2, and that is primarily
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used in the evenings or on days where the sun affects the guard in Chair 1.
So Chair 1 faces essentially west kind of southwest * * *.
{¶ 17} When asked to further explain the staffing situation on north beach, Mahon
clarified that a lifeguard is required to be in Chair 1 at all times, unless the sunset makes
it difficult to see, in which case the lifeguard moves from Chair 1 to Chair 1 & 1/2.
Further, a lifeguard is supposed to be in Chair 2 (located on south beach) when the diving
platform is in consistent use. However, no such lifeguard was in Chair 2 on day P.S.
drowned. Mahon testified that the diving platform falls within the responsibilities of
Chair 1, but Chair 2 is also used for the diving platform when there is a lineup of
swimmers on the platform. Mahon explained that both Chair 1 and Chair 2 have good
vantage points from which to watch divers as they jump off the diving platform.
Moreover, Mahon testified that Chair 3 also has a good vantage point of the platform, but
it too was unmanned on the day of the drowning. Mahon confirmed that none of the
lifeguards who were on duty saw P.S. jump off the diving platform or resurface at any
point in time.
{¶ 18} In response to SAJRD’s motion for summary judgment, appellees filed a
memorandum in opposition on April 13, 2021. In their memorandum, appellees
conceded that SAJRD is a governmental entity entitled to immunity under R.C. Chapter
2744. However, appellees insisted that immunity does not apply in this case because
P.S.’s death was caused by physical defects at the quarry and thus immunity was
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excepted under R.C. 2744.02(B)(4). The physical defects identified by appellees were
two-fold. First, appellees complained of “unfiltered and cloudy” water that allegedly
obstructed the view of lifeguards positioned at the quarry. Second, appellees contended
that lifeguard stations were situated “away from the diving platform instead of next to it”
and “at a low perspective relative to the water surface,” making it difficult to see
swimmers who were in distress below the surface of the water in light of the murky water
conditions.
{¶ 19} To support their argument, appellees relied upon an affidavit from an
expert in aquatic safety and lifeguard instruction, Brett Galambos. In his affidavit,
Galambos acknowledged that P.S. was an experienced swimmer who showed no signs of
difficulty in swimming prior to jumping into the quarry from the high dive platform on
July 1, 2019. However, Galambos noted that the quarry contains cloudy water that is
spring fed, and thus “the water level frequently changes, causing variations in water
quality and visibility.” Moreover, Galambos asserted that only one of the two lifeguard
stations on the north beach of the quarry was staffed at the time of the drowning, namely
Chair 1 which is at ground level and 30 feet away from the dive platform. Thus,
Galambos reasoned that the lifeguards on duty at the time of the drowning failed to
supervise the dive platform and ensure that all divers resurfaced after diving. Galambos
stated that the positioning and elevation of Chair 1 constituted a physical defect that
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contributed to the lifeguards’ failure to observe P.S. in distress and render aid
accordingly.
{¶ 20} Notably, Galambos expressed his expert opinion that “positioning a
lifeguard in a chair at a higher angle, such as at the diving platform [Chair 1 & 1/2]
would have provided a better vantage point for a lifeguard to observe any distress of a
swimmer entering the water after jumping from the platform.” Galambos went on to
opine that “a lifeguard stationed at that diving platform, focused on that specific diving
platform, would have an increased ability to reach a swimmer in distress, before the
swimmer began to drown, because the lifeguard would observe each swimmer jumping
from the diving platform.”
{¶ 21} On April 29, 2021, SAJRD filed its reply and reiterated its immunity
arguments previously raised in the motion for summary judgment.
{¶ 22} Upon consideration of the parties’ arguments, the trial court issued its
decision on January 13, 2022. In its decision, the trial court noted that this case distilled
down to one question; namely, “[w]as there a physical defect on SAJRD’s property
which contributed to [P.S.’s] death?” The court then reviewed the case law cited by
appellees, namely Kerber v. Cuyahoga Hts., 8th Dist. Cuyahoga No. 102419, 2015-Ohio-
2766, as well as the case law cited by SAJRD, namely Contreraz v. Bettsville, 3d Dist.
Seneca No. 13-10-48, 2011-Ohio-4178. The trial court found that Kerber was more
analogous to the facts of the present case than Contreraz. Thus, the court concluded that
9.
appellees presented sufficient evidence to create a genuine issue of material facts as to
whether SAJRD’s placement of lifeguard chairs at the quarry was a physical defect that
led to P.S.’s death under R.C. 2744.02(B)(4). Moreover, the trial court determined that
the question of whether immunity should be reinstated under R.C. 2744.03(A)(5) was a
factual one not suitable for resolution on summary judgment. Consequently, the trial
court denied SAJRD’s motion for summary judgment.
{¶ 23} Thereafter, on February 9, 2022, SAJRD filed its timely notice of appeal.
B. Assignments of Error
{¶ 24} On appeal, SAJRD assigns the following errors for our review:
ASSIGNMENT OF ERROR NO. 1: The trial court committed
reversible error when it found a genuine issue of material fact regarding
whether the “physical defect” exception to immunity applied under Ohio
R.C. §2744.02(B)(4), where the Third-Party Complaint pleads no facts or
allegations supporting the existence of any physical defect, that any alleged
physical defect was a proximate cause of [P.S.’s] drowning; or that any
alleged negligence by an SAJRD employee was connected to any physical
defect or a proximate cause of [P.S.’s] drowning.
ASSIGNMENT OF ERROR NO. 2: The trial court committed
reversible error when it found a genuine issue of material fact regarding
whether the “physical defect” exception to immunity applied under Ohio
10.
R.C. §2744.02(B)(4), where no Ohio Civ.R. 56 evidence supports the
existence of any physical defect; that any alleged physical defect was a
proximate cause of [P.S.’s] drowning; or that any alleged negligence by an
SAJRD employee was connected to any physical defect or a proximate
cause of [P.S.’s] drowning.
ASSIGNMENT OF ERROR NO. 3: Even if the R.C.
§2744.02(B)(4) exception applied, the trial court committed reversible error
when it found a genuine issue of material fact regarding whether the
discretionary defense applied to reinstate SAJRD’s immunity pursuant to
Ohio R.C. §2744.03(A)(5), where the Third-Party Complaint pleads no
facts or allegations supporting any heightened state of culpability, and only
alleges mere negligence.
ASSIGNMENT OF ERROR NO. 4: Even if the R.C.
§2744.02(B)(4) exception applied, the trial court committed reversible error
when it did not reinstate SAJRD’s statutory immunity pursuant to the
discretionary defense in Ohio R.C. §2744.03(A)(5), because to the extent
any injury or death allegedly arose from any action or inaction of SAJRD, it
was the result of an exercise of judgment or discretion in determining
whether to acquire, or how to use, equipment, supplies, materials,
personnel, facilities, and other resources, which was not exercised with
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malicious purpose, in bad faith, or in a wanton or reckless manner as a
matter of law.
ASSIGNMENT OF ERROR NO. 5: The trial court committed
reversible error and abused its discretion when it granted leave to amend
the Third-Party Complaint where Civ.R. 15(B) does not apply since a trial
has not yet occurred; where the Third-Party Complaint does not plead, and
waived, any exception to immunity pursuant to R.C. §2744.02(B); where
the Third-Party Complaint failed to plead, and waived, any heightened state
of culpability pursuant to R.C. §2744.03(A)(5); where no motion for leave
to amend ever was filed; where permitting leave to amend would cause
substantial and unfair prejudice to SAJRD; where Third-Party Plaintiffs
engaged in undue delay and a lack of good faith; and where amendment
would be futile.
ASSIGNMENT OF ERROR NO. 6: The trial court committed
reversible error when it denied summary judgment in favor of SAJRD.
{¶ 25} For the reasons that follow, we conclude that the trial court erred in finding
that there is a genuine issue of material fact regarding the applicability of the physical
defect exception to immunity under R.C. 2744.02(B)(4). Consequently, we need only
address SAJRD’s first, second, and sixth assignments of error, which are interrelated and
therefore will be considered together. Our determination in SAJRD’s favor on those
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assignments of error renders the remaining assignments of error moot, and we will
therefore not consider them.
II. Analysis
A. Standard of Review
{¶ 26} This appeal is before us on the trial court’s disposition of SAJRD’s motion
for summary judgment. We review the grant or denial of a motion for summary
judgment de novo, applying the same standard as the trial court. Lorain Natl. Bank v.
Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v.
Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C),
summary judgment is appropriate where (1) no genuine issue as to any material fact
exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable
minds can come to but one conclusion, and viewing the evidence most strongly in favor
of the nonmoving party, that conclusion is adverse to the nonmoving party. Harless v.
Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 27} A “material fact” is one which would affect the outcome of the proceeding
under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio
App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110
Ohio App.3d 817, 826, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Additionally,
“[w]hether a political subdivision or its employee may invoke statutory immunity under
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R.C. Chapter 2744 generally presents a question of law.” Hoffman v. Gallia Cty.
Sheriff’s Office, 2017-Ohio-9192, 103 N.E.3d 1, ¶ 38 (4th Dist.).
{¶ 28} On a motion for summary judgment, the moving party has the burden of
demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio
St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to
some evidence in the record in the form of “pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action[.]” Civ.R. 56(C); Dresher at 292-
293. The burden then shifts to the nonmoving party to provide evidence showing that a
genuine issue of material fact does exist. Dresher at 293. The failure to satisfy this
reciprocal burden warrants judgment against the nonmoving party. Id.
B. Law Governing Claims of Political Subdivision Immunity
i. The Relevant Analytical Framework
{¶ 29} As a matter of public policy in Ohio, the Ohio General Assembly “has
classified the functions of political subdivisions as ‘governmental’ or ‘proprietary,’”
Hamrick v. Bryan City Sch. Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio-2572,
¶ 16, and has blanketed such political subdivisions with statutory immunity by enacting
the Political Subdivision Tort Liability Act, codified in Chapter 2744 of the Ohio Revised
Code.
14.
{¶ 30} “Under Ohio law, courts apply a ‘three-tiered analysis’ in determining
whether a political subdivision is entitled to immunity under R.C. Chapter 2744.”
Douglas v. Columbus City Schools Bd. of Ed., 2020-Ohio-1133, 152 N.E.3d 1245, ¶ 16
(10th Dist.), quoting Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d
954, ¶ 13. First, we must examine whether the political subdivision is entitled to the
“general grant of immunity” provided by R.C. 2744.02(A)(1). McBride at ¶ 16. This
general grant provides statutory immunity to political subdivisions for “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.” R.C. 2744.02(A)(1).
{¶ 31} If immunity is found at this initial level, the law next requires analysis of
the second tier, which requires an examination as to whether any of the five exceptions to
the general grant of political subdivision immunity are applicable under R.C. 2744.02(B).
Id. at ¶ 14.
{¶ 32} Even if an exception to the general grant of immunity set forth in R.C.
2744.02(A)(1) applies and such immunity is thereby abrogated, our analysis of the
immunity question is not complete. Under the third tier of our analysis, we must then
examine “whether any defenses in R.C. 2744.03 apply to reinstate immunity.” McBride
at ¶ 15, citing Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d
781, ¶ 9.
15.
{¶ 33} The first tier of the analysis concerning the general grant of immunity is not
in dispute in this case. Under R.C. 2744.01(F), a “political subdivision” is defined as “a
municipal corporation, township, county, school district, or other body corporate and
politic responsible for governmental activities in a geographic area smaller than that of
the state.” Further, R.C. 2744.01(C)(2)(u)(iv) provides that a “governmental function”
includes the “design, construction, reconstruction, renovation, repair, maintenance, and
operation of * * * any recreational area or facility, including, but not limited to, * * * [a]
bath, swimming pool, pond, water park, wading pool, wave pool, water slide, or other
type of aquatic facility.”
{¶ 34} Appellees concede that SAJRD meets the definition of a political
subdivision and that its operation of the Centennial Quarry swimming area constitutes a
governmental function. Thus, SAJRD is indisputably entitled to the general grant of
immunity under R.C. 2744.025(A)(1). Consequently, we must proceed to the second tier
of our immunity analysis. As explained below, we find under the second tier that
appellees have not demonstrated that an exception to the general grant of immunity
applies. Consequently, we do not reach the third tier of the immunity analysis in this
case.
ii. The “Physical Defect” Exception to Immunity
{¶ 35} In the second tier of the analysis, we must examine whether any exceptions
to immunity are applicable. Here, appellees rely upon only one of the exceptions to
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immunity under R.C. 2744.02(B). Specifically, appellees argue that the “physical defect”
exception outlined in R.C. 2744.02(B)(4) is applicable in this case.
{¶ 36} R.C. 2744.02(B)(4) provides an exception to statutory immunity 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.” While the phrase “physical defect” is not defined in the Revised
Code, we have construed it as “a perceivable imperfection that diminishes the worth or
utility of the object at issue.” Hamrick at ¶ 28.
{¶ 37} Construing the statutory language used in R.C. 2744.02(B)(4), we observed
in Hamrick, supra, that the general immunity afforded political subdivisions engaged in a
governmental activity under the first tier of the immunity analysis is only abrogated
under the second tier “if an injury is: 1) caused by employee negligence, 2) on the
grounds or in buildings used in connection that governmental activity, and 3) due to
physical defects on or within those grounds or buildings. All of these characteristics
must be present.” Hamrick at ¶ 25; see also Parmertor v. Chardon Local Schools, 2016-
Ohio-761, 47 N.E.3d 942, ¶ 16 (11th Dist.) (“R.C. 2744.02(B)(4) requires the injuries at
issue to be caused both by a political-subdivision employee’s negligence and a physical
defect on the grounds.” (Emphasis sic.)).
17.
{¶ 38} “Ohio cases addressing the ‘physical defect’ exception in general involve
physical defects as part of the structure of buildings and the maintenance of those
structures.” Douglas, supra, 152 N.E.3d 1245, 2020-Ohio-1133, at ¶ 25. Further, “Ohio
courts have expanded the definition of ‘physical defect’ to include equipment that did not
operate as intended due to a perceivable condition.” Jacobs v. Oakwood, 8th Dist.
Cuyahoga No. 103830, 2016-Ohio-5327, ¶ 26. However, “Courts have determined that
premises are not considered physically defective based solely upon an allegation that
modifications or improvements may render them safer.” Id. at ¶ 23, citing Piispanen v.
Carter, 11th Dist. Lake No. 2005-L-133, 2006-Ohio-2382, ¶ 21 (an assault on school
grounds was not the result of a physical defect on the grounds, even though the plaintiff
alleged the assault was a result of the board’s failure to provide a safe and secure
environment and failure to warn of the danger posed by the assailant), Duncan v.
Cuyahoga Cmty. College, 2012-Ohio-1949, 970 N.E.2d 1092, ¶ 27 (8th Dist.)
(community college’s failure to use mats on floors while conducting a self-defense class
was not a “physical defect” as used in R.C. 2744.02(B)(4)), and Hamrick, supra, at ¶ 29
(a bus-garage service pit into which the plaintiff fell was not a physical imperfection and
thus not a defect for purposes of removing immunity under R.C. 2744.02(B)(4)).
18.
C. Application of the Law to this Case
{¶ 39} Having set forth the analytical framework that governs the immunity issue
before us in this appeal, we turn now to the application of that framework to the facts of
this case.
{¶ 40} In terms of whether SAJRD qualifies for immunity under the first tier of
the analysis, we note that appellees do not dispute that SAJRD is a political subdivision
whose maintenance and operation of Centennial Quarry meets the definition of a
governmental function under R.C. 2744.01(C)(2)(u)(iv). Consequently, the parties agree
that SAJRD is entitled to the general grant of immunity under R.C. 2744.02(A)(1).
{¶ 41} In the second tier of the analysis, we must consider whether any of the
exceptions to immunity under R.C. 2744.02(B) apply. In doing so, we will limit our
analysis to the physical defect exception set forth in R.C. 2744.02(B)(4) since, as already
noted, that is the only exception identified by appellees as potentially applicable.
{¶ 42} In its brief to this court, SAJRD argues that the trial court erred in finding a
genuine issue of material fact as to the applicability of the physical defect exception,
insisting that appellees presented no evidence to establish that any physical defect existed
on the grounds of the Centennial Quarry on the day of P.S.’s death. We agree.
{¶ 43} The burden of demonstrating the applicability of an exception to the
general grant of immunity lies with appellees in this case. See Contreraz, supra, 3d Dist.
Seneca No. 13-10-48, 2011-Ohio-4178, at ¶ 23 (“Once general immunity has been
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established by the political subdivision, the burden lies with the plaintiff to show that one
of the five exceptions under R.C. 2744.02(B) apply.”) In the trial court, appellees argued
that P.S.’s death was the result of physical defects at the Centennial Quarry including
unfiltered and cloudy water and poorly configured lifeguard stations. On appeal,
appellees reference these alleged physical defects only by implication, and instead focus
on the location and actions of the lifeguards who were on duty at the time of P.S.’s death.
{¶ 44} According to appellees, they presented evidence that the lifeguards “were
not in the correct positions to observe the area where [P.S.] entered the water” and “did
not occupy an observation point by the diving platform.” Further, appellees claim that
their evidence demonstrates that the lifeguards failed to ensure P.S. was properly clothed
for swimming (i.e. he was wearing “long pants, reducing buoyancy”), failed to observe
P.S. enter the water where there are “deep drop-offs and cloudy conditions making
observation difficult,” and failed to detect that P.S. was in distress in a timely fashion.
Appellees also claim that the evidence reveals the lifeguards were delayed in their
reaction to the situation upon learning that P.S. was missing.
{¶ 45} In its brief to this court, SAJRD contends that there is no evidence of a
physical defect on the quarry premises, and further that appellees’ evidence demonstrates
employee negligence, at most. SAJRD argues that such evidence of negligence does not
establish the existence of a physical defect necessary to establish an exception to the
general grant of immunity.
20.
{¶ 46} At the outset, we agree with SAJRD that most of the evidence relied upon
by appellees and set forth above refers to the alleged negligence of SAJRD employees,
not to a physical defect at the Centennial Quarry. Indeed, only the water quality and
configuration of the lifeguard stations have any potential connection to the quarry
property itself. Therefore, we now turn to an examination of whether these two
conditions constituted physical defects that contributed to P.S.’s death.
{¶ 47} In support of its argument that these conditions do not constitute physical
defects, SAJRD cites to Contreraz, supra, 3d Dist. Seneca No. 13-10-48, 2011-Ohio-
4178. In response, appellees cite to Kerber, supra, 8th Dist. Cuyahoga No. 102419,
2015-Ohio-2766, and contend that it supports their assertion that the quarry’s
configuration of lifeguard stations meets the definition of a physical defect such that
SAJRD’s immunity is abrogated. We will examine these cases in detail.
{¶ 48} Contreraz involved the tragic death of a 15-year-old swimmer, Santos
Garcia, who drowned in the Eells Park Quarry, a public recreational swimming area.
Prior to the drowning, Garcia and his sister agreed to race to a raft that was floating in the
deep end of the quarry. Id. at ¶ 7. Once Garcia’s sister arrived at the raft, she turned
around to look for Garcia. Id. When she did not see Garcia resurface, she yelled for help
and announced that Garcia was missing. Id. Moments later, “a swimmer surfaced with
Garcia.” Id. Efforts to resuscitate Garcia began, and he was transferred to the hospital,
but such efforts were unsuccessful. Id. at ¶ 14.
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{¶ 49} Garcia’s mother, Rosalinda Contreraz, individually and as the
administratrix of Garcia’s estate, brought a wrongful death action against the village of
Bettsville (the owner of the quarry), the Bettsville Recreation Board (the operator of the
quarry), and Andrea Bender (the on-duty lifeguard at the quarry). Id. at ¶ 1-5. The
defendants filed a motion for summary judgment in which they asserted that they were
immune from suit. Upon review, the trial court granted the defendants’ motion and found
that Contreraz failed to establish that Garcia’s death was due to a physical defect at the
quarry. Id. at ¶ 19.
{¶ 50} Contreraz appealed to the Third District and argued that the trial court erred
in granting summary judgment notwithstanding evidence of seven violations committed
by the village of Bettsville, including:
(1) that the Village was negligent per se and/or reckless by failing to have
the required number of lifeguards; (2) that the Village failed to
appropriately train and evaluate their lifeguard staff; (3) that the Village
was negligent and/or reckless in their hiring and training of lifeguard
Andrea Bender; (4) that Andrea Bender fell below the accepted standard of
care for a lifeguard in her response to Garcia’s drowning; (5) that the
Village failed to separately identify and warn of the presence of “deep
water” within the designated swimming area; (6) that the Village’s facility
was defective and dangerous in its failure to warn of the drastic change in
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bottom slope and/or sudden drop off within the designated swimming area;
and (7) that the Village’s facility deviated from the accepted standards of
care by allowing copious amounts of underwater vegetation to exist within
the designated swimming area.
Id. at ¶ 39.
{¶ 51} The court of appeals reviewed these alleged violations and found that most
of them had “nothing to do with a physical defect on the property. For example, the
Village’s alleged failure to provide sufficient lifeguards, failure to appropriately train and
evaluate its lifeguards, and negligent and/or reckless hiring and training of its lifeguards
clearly do not concern any physical defect regarding the premise.” Id. at ¶ 40. The court
then examined the remaining three alleged violations concerning the failure to post signs
warning of deep water, the excessive vegetation at the quarry, and sudden drop-off in the
designated swimming area, but found that none of these violations amounted to a
physical defect under R.C. 2744.02(B)(4). Id. at ¶ 41.
{¶ 52} The court found that the failure to post appropriate signage was not a
physical defect at all since “deep water in public swimming areas is a common and
expected feature, especially if the facility has diving boards and slides” and thus the
quarry performed as intended. Id. at ¶ 42, citing Hamrick, supra, 6th Dist. Williams No.
WM-10-014, 2011-Ohio-2572, at ¶ 27-29. Further, the court concluded that Contreraz
failed to present any evidence to show that there was excessive vegetation at the quarry
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on the day of Garcia’s drowning. Id. at ¶ 43. The court also found that Contreraz’s
evidence did not establish the existence of a sudden drop-off at the quarry. Id. at ¶ 44.
Finally, the court observed that Contreraz failed to establish that Garcia’s drowning was
due to any vegetation or slope changes at the quarry. Id. at ¶ 47-49. In light of these
findings, the court held that Contreraz failed to meet her burden to demonstrate the
presence of a physical defect on the premises of the quarry and upheld the trial court’s
determination that the physical defect exception under R.C. 2744.02(B)(4) was
inapplicable. Id. at ¶ 50.
{¶ 53} In some respects, Contreraz is analogous to the present case. First, both
cases involve claims of political subdivision immunity raised by owners of outdoor
recreational swimming quarries. Second, in each case the plaintiffs raised arguments that
the quarries were physically defective due to water conditions and the manner in which
lifeguards carried out their duties.
{¶ 54} Upon review, we find Contreraz instructive as to one of the two alleged
physical defects appellees identified by appellees, namely the condition of the water at
the Centennial Quarry. As with the argument rejected by the court in Contreraz that the
lack of signage warning of deep water was a physical defect, we find no merit to
appellees’ contention that the “unfiltered and cloudy” water at the quarry constitutes a
physical defect. The court in Contreraz took note of the deep water that is typical of a
swimming quarry and found that the presence of such conditions did not prevent the
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quarry from performing as intended. Similarly, we cannot ignore the obvious fact that
unfiltered and cloudy water is a common element of an outdoor, spring-fed swimming
quarry. As such, it is a feature of swimming quarries, not an imperfection that diminishes
the worth or utility of the quarry. Moreover, as in Contreraz, there is no evidence that
cloudy water contributed to the drowning in this case. Indeed, there is no evidence of
drowning mechanics itself.
{¶ 55} As to the second alleged physical defect identified by appellees, namely the
configuration of lifeguard stations at the quarry, Contreraz is distinguishable. Indeed, the
plaintiff in Contreraz did not identify the configuration of lifeguard stations as a physical
defect at the quarry, as appellees do here. On this issue, therefore, we find that Contreraz
provides little guidance.
{¶ 56} This brings us to Kerber, the case appellees chiefly rely upon in support of
their argument and the case on which the trial court based its decision to deny SAJRD’s
motion for summary judgment.
{¶ 57} In Kerber, the administrator of the estate of Daniel Papcke filed a wrongful
death action against the village of Cuyahoga Heights, the Cuyahoga Heights Board of
Education, and two lifeguards, Cynthia Lusk and Courtney Stock, after Papcke drowned
at an indoor pool located inside the Cuyahoga Heights High School. Kerber, supra, 8th
Dist. Cuyahoga No. 102419, 2015-Ohio-2766, at ¶ 2. Following discovery, the
defendants filed a motion for summary judgment, arguing that they were entitled to
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political subdivision immunity under R.C. Chapter 2744. Id. at ¶ 3. The trial court
ultimately denied the motion after it found that there was a genuine issue of material fact
as to whether Papcke’s death was caused by lifeguard negligence and physical defects at
the indoor pool facility. Id.
{¶ 58} Relevant here, there were two lifeguard chairs covering the indoor pool on
the day of the drowning: “a high one, which had not been used in years, and a short one,
which Stock was using on the evening in question. The short chair was positioned in
front of the shallow end of the pool.” Id. at ¶ 6. As to the higher lifeguard chair, Lusk
testified that the chair was only used prior to the removal of the high diving board,
because it was “easier to see the pool from the lower [chair].” Id. at ¶ 7. Since the high
diving board was removed, the high chair was no longer in use. Id.
{¶ 59} After the trial court denied their motion for summary judgment, the
defendants appealed, and argued that the trial court erred in denying the motion for
summary judgment. Id. at ¶ 14. On review, the Eighth District identified the “main
issue” as “whether, under the second tier [of the immunity analysis], any exceptions to
immunity apply.” Id. at ¶ 19. The court went on to note the physical defect exception
under R.C. 2744.02(B)(4) was the only exception that was relevant. Id.
{¶ 60} After examining the evidence as to whether the lifeguards were perhaps
negligent and concluding that there was at least a genuine issue of material fact on that
issue, the court turned its attention to the question of whether there was a physical defect
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on the pool grounds that contributed to the drowning. In doing so, the court zeroed in on
the “short, low deck chair, which was positioned at the pool’s edge.” Id. at ¶ 24. The
court took special note of Stock’s deposition testimony, during which she acknowledged
that she could not see Papcke struggling in the water from her vantage point sitting on the
short chair. Id. Further, the court referenced the affidavit of plaintiff’s aquatic safety
expert, who opined that the placement of the short chair was ineffective and reduced the
sight lines of the on-duty lifeguards, thereby delaying the lifeguards from responding in a
timely fashion in Papcke’s moment of distress. Id. at ¶ 25.
{¶ 61} Taken together, the court of appeals found that Stock’s acknowledgement
and the expert’s affidavit created a genuine issue of material fact as to whether the use of
a low deck lifeguard chair created a physical defect at the indoor pool. Id. at ¶ 26. The
court then proceeded to examine the defendants’ immunity claim under the third tier of
the analysis to determine whether immunity should be reinstated as a matter of law, and
concluded that a genuine issue of material fact existed on this issue as well, thereby
precluding summary judgment. Id. at ¶ 31.
{¶ 62} Having compared Kerber to this case, we find it analogous in some
respects. Like the plaintiff in Kerber, appellees identify the lifeguard chairs used at the
quarry as a physical defect in this case. Moreover, both cases involve multiple lifeguard
chairs, only one of which was manned at the time of the drowning.
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{¶ 63} However, in the final analysis, we find that Kerber is distinguishable from
this case in at least one important respect. As noted above, the indoor swimming facility
at issue in Kerber contained two lifeguard chairs, a high chair and a low chair, but the
high chair was no longer in use. Thus, the facility effectively had one lifeguard chair, a
short one that the plaintiff’s expert opined did not have adequate sight lines to cover the
entire swimming pool.
{¶ 64} By contrast, the Centennial Quarry contains five lifeguard chairs plus two
additional lifeguard stations at the bottom and top of the water slide. All of these
lifeguard stations are used by lifeguards at various times according to the discretion of the
lifeguards who are on duty. Unlike in Kerber, where the lifeguards only used a surface-
level lifeguard chair, the lifeguards at the quarry were able to make use of surface-level
and elevated lifeguard chairs, including Chair 1 & 1/2, which was elevated and
positioned immediately adjacent to the diving platform.
{¶ 65} In supporting their contention that Chair 1 was physically defective
because it was not elevated and thus did not provide a line of sight to the diving platform
or an adequate view into the water around where P.S. dove into the water from the
platform, appellees rely upon the affidavit completed by Galambos. In his affidavit,
Galambos stated that the positioning and elevation of Chair 1 constituted a physical
defect that contributed to the lifeguards’ failure to observe P.S. in distress and render aid
accordingly. However, Galambos acknowledged that Chair 1 & 1/2 was appropriately
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positioned to enable effective lifeguarding of the diving platform area and the swimming
area below. Galambos stated that “positioning a lifeguard in a chair at a higher angle,
such as at the diving platform [Chair 1 & 1/2] would have provided a better vantage point
for a lifeguard to observe any distress of a swimmer entering the water after jumping
from the platform.” Galambos further opined that “a lifeguard stationed at that diving
platform, focused on that specific diving platform, would have an increased ability to
reach a swimmer in distress, before the swimmer began to drown, because the lifeguard
would observe each swimmer jumping from the diving platform.”
{¶ 66} Taken together, Galambos’s testimony evidences, at most, SAJRD’s
negligence pertaining to the staffing decision not to have a lifeguard stationed at Chair 1
1/2. The testimony does not establish that Chair 1 was physically defective. Thus, the
evidence relied upon by appellees to satisfy their burden of demonstrating the existence
of a genuine issue of material fact as to whether a physical defect existed and whether its
existence led to the death of P.S. is unavailing.
{¶ 67} First, this evidence does not establish the existence of a physical defect. To
reiterate, a physical defect is defined as “a perceivable imperfection that diminishes the
worth or utility of the object at issue.” Hamrick, supra, 6th Dist. Williams No. WM-10-
014, 2011-Ohio-2572, at ¶ 28. The testimony of appellees’ own expert makes it clear that
in this case, unlike in Kerber, the placement and design of Chair 1 did not diminish its
worth or utility.
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{¶ 68} The worth or utility of Chair 1 must be evaluated in light of the scope of its
use. Chair 1 was not the only lifeguard station at the quarry. Rather, Chair 1 was part of
a network of lifeguard chairs and lifeguard stations that blanketed the swimming area at
the quarry. This network included five chairs, several of which had lines of sight at the
diving platform, including Chair 1 & 1/2, which was positioned on the diving platform
immediately adjacent to the location from which divers jump into the water.
{¶ 69} Appellees contend that Chair 1 was defective because it did not provide an
adequate vantage point to enable lifeguards to observe P.S. in distress. However, this
contention ignores the fact that there were many other stations available to the lifeguards
that would indisputably offer this vantage point and that Chair 1 & 1/2 was properly
positioned to cover divers, such as P.S., as they dive from the platform. The problem,
therefore, lies in the staffing of the lifeguard stations, not the design and placement of the
lifeguard stations. Viewing appellees’ evidence in light of the quarry facility as a whole,
we do not find that it creates a genuine issue of material fact as to whether Chair 1 was
physically defective.
{¶ 70} Moreover, we find that the evidence does not support the notion that P.S.’s
drowning was due to the placement and design of Chair 1. Having carefully reviewed
Galambos’s affidavit, which was the only evidence produced by appellees to establish the
applicability of the physical defect exception, it is clear that even Galambos viewed the
staffing of the lifeguard chairs that were available to on-duty lifeguards at the time of the
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drowning, and not the placement of any individual chair or its physical characteristics, as
the determinative factor in the drowning.
{¶ 71} By his own admission, Galambos acknowledged that the lifeguards who
were on duty had the discretion to occupy other stations with a better vantage point from
which to monitor those swimmers who were diving from the high-dive platform.
Specifically, Galambos opined that staffing a lifeguard in Chair 1 & 1/2 would have
provided an appropriate vantage point for a lifeguard to observe a swimmer in distress
after jumping from the platform. Therefore, to the extent that Chair 1’s placement at the
quarry facility could be construed as somehow defective (which we have found that it is
not), we find that appellees’ own evidence undercuts the notion that such a defect the
cause of P.S.’s drowning, for it was the lack of a lifeguard in Chair 1 & 1/2, not the line
of sight between Chair 1 and the high-dive platform, that Galambos considered the cause
of the drowning.
{¶ 72} To avoid summary judgment in this case, appellees had the burden of
creating a genuine issue of material fact as to the applicability of the physical defect
exception under R.C. 2744.02(B)(4). To do so, they needed to introduce evidence to
demonstrate that P.S.’s death was caused by employee negligence on the quarry grounds,
and that the drowning was due to physical defects on or within those grounds.
{¶ 73} Galambos’s affidavit created a genuine issue of material fact as to whether
the drowning was caused by employee negligence. However, employee negligence alone
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is insufficient to trigger the physical defect exception to the general grant of immunity
afforded SAJRD under R.C. 2744.02(A)(1). “R.C. 2744.02(B)(4) requires the injuries at
issue to be caused both by a political-subdivision employee’s negligence and a physical
defect on the grounds.” (Emphasis sic.) Parmertor, supra, 2016-Ohio-761, 47 N.E.3d
942, at ¶ 16. Appellees did not demonstrate that P.S.’s death was due to a physical defect
on the quarry grounds. They failed to meet their burden on this issue in two respects: (1)
they failed to show the existence of a physical defect in the first instance; and (2) they
failed to show how a physical defect, and not a staffing decision, led to the drowning.
{¶ 74} Since there is no evidence in the record to demonstrate that P.S.’s death
was due to a physical defect on the quarry grounds, the physical defect exception under
R.C. 2744.02(B)(4) is inapplicable in this case. Therefore, SAJRD is entitled to political
subdivision immunity as a matter of law, and its motion for summary judgment should
have been granted.
{¶ 75} Accordingly, SAJRD’s first, second, and sixth assignments of error are
well-taken. Because we have found, as a matter of law, that SAJRD is entitled to
immunity under the first tier of our analysis and appellees did not establish an exception
to such immunity under the second tier of our analysis, there is no need to consider
whether immunity should be reinstated under the third tier of the analysis. Therefore, we
need not address SAJRD’s third and fourth assignments of error, in which SAJRD argues
that the discretionary defense to reinstate immunity under in R.C. 2744.03(A)(5) is
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applicable. Moreover, our conclusion that summary judgment should have been granted
to SAJRD based upon its immunity from suit renders moot SAJRD’s fifth assignment of
error challenging that portion of the trial court’s decision in which the trial court
permitted appellees to amend their third-party complaint. Consequently, we do not
address the fifth assignment of error.
III. Conclusion
{¶ 76} In light of the foregoing, the judgment of the Lucas County Court of
Common Pleas is reversed, and this matter is remanded to the trial court with instructions
for the trial court to enter judgment in favor of SAJRD consistent with this decision. The
costs of this appeal are assessed to appellees under App.R. 24.
Judgment reversed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Myron C. Duhart, P.J. JUDGE
CONCUR.
____________________________
JUDGE
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This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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