Wilson v. McCormack , 93 N.E.3d 102 ( 2017 )

[Cite as Wilson v. McCormack, 2017-Ohio-5510.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
JAIMIE WILSON, et al., : OPINION
Plaintiffs-Appellees, :
CASE NO. 2016-A-0039
- vs - :
DONALD MCCORMACK, :
Defendant, :
JEFFERSON AREA LOCAL :
SCHOOL DISTRICT, et al.,
:
Defendant-Appellant.
:
Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015 CV
0351.
Judgment: Reversed and remanded.
Michael D. Goldstein, Goldstein & Goldstein, Co., LPA, 55 Public Square, Suite 2075,
Cleveland, OH 44113, and Christian R. Patno, McCarthy, Lebit, Crystal & Liffman Co.,
101 West Prospect Avenue, Suite 1800, Cleveland, OH 44115 (For Plaintiffs-
Appellees).
Mark Landes and Robert C. Perryman, Isaac, Wiles, Burkholder & Teetor, LLC, Two
Miranova Place, Suite 700, Columbus, OH 43215 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Jefferson Area Local School District - Board
of Education, appeals the judgment of the Ashtabula County Court of Common
Pleas, denying its Motion for Judgment on the Pleadings based on the immunity
afforded by R.C. 2744.02(B). The issue before this court is whether a school
district’s hiring, retention, and/or supervision of a high school basketball coach is
a governmental function for the purposes of sovereign immunity. For the
following reasons, we reverse the decision of the court below.
{¶2} On June 12, 2015, plaintiffs-appellees, Jaimie Wilson and Elizabeth
Ziemski, filed a Complaint in the Ashtabula County Court of Common Pleas
against defendant-appellant, Jefferson Area Local School District - Board of
Education, and others.1 The Complaint alleged, inter alia, that Donald
McCormack sexually assaulted both plaintiffs while employed by the Jefferson
Board of Education as the assistant girls’ basketball coach at Jefferson High
School.
{¶3} The plaintiffs raised claims against the Board of Education for the
negligent hiring, retention, or supervision of McCormack (Count Twelve), the
failure to report abuse as required by R.C. 2151.421 (Count Thirteen), for
McCormack’s conduct under various theories of vicarious liability (Count
Fourteen), and wanton and reckless behavior in failing to take reasonable actions
to prevent the sexual assaults (Count Fifteen).
{¶4} On July 23, 2015, the Board of Education filed its Answer, raising
the affirmative defense of statutory immunity under R.C. 2744.01 et seq.
1
. Other defendants, not parties to this appeal, include: Donald McCormack, Steven Locy, Rodney Holmes, the
Ashtabula Star Beacon, Newspaper Holdings, Inc., Ed Looman, and Neil Frieder. The original Complaint identified
the Jefferson Area Local School District as a defendant. As part of its September 10, 2015 Motion for Judgment on
the Pleadings, the Jefferson Area School District argued that “a school district is not sui juris; rather, it is the board
of education that must be sued.” An Amended Complaint was filed on October 16, 2015, with leave of the trial
court, to amend the name of this defendant by adding the “specifier” Board of Education.
2
{¶5} On September 10, 2015, the Board of Education filed a Motion for
Judgment on the Pleadings2, based, in part, on the position that it “is entitled to
statutory immunity on all claims under R.C. § 2744.02(A)(1).”
{¶6} On October 6, 2015, the plaintiffs filed a Memorandum in
Opposition to the Board of Education’s Motion for Judgment on the Pleadings.
{¶7} Thereafter, the Board of Education filed a Motion for Leave to File
Reply in Support of Motion for Judgment on the Pleadings, Instanter on October
19, 2015, and a Supplement to Motion for Judgment on the Pleadings on
December 7, 2015.
{¶8} On July 15, 2016, the trial court issued a Judgment Entry in which it
granted, in part, the Motion for Judgment on the Pleadings and overruled the
Motion for Leave to File Reply in Support of Motion for Judgment on the
Pleadings, Instanter.
{¶9} The trial court dismissed Count Thirteen as it pertained to plaintiff
Wilson for the reason that R.C. 2151.421 (the mandatory reporting statute) was
not enacted until after McCormack’s abuse of Wilson had ended as averred in
the Complaint and the statute did not apply retroactively.
{¶10} The trial court denied the balance of the Motion for Judgment on
the Pleadings. With respect to the Board of Education’s claim of statutory
immunity, the court held “that providing a sports team is incidental to providing a
public education” and, therefore, constitutes a proprietary function to which
immunity does not attach.
2
. This Motion was jointly filed with Defendants Locy and Holmes and asserted other grounds for judgment not
relevant to this appeal.
3
{¶11} On August 1, 2016, the Board of Education filed its Notice of
Appeal.3 Hubbell v. Xenia, 115 Ohio St. 3d 77, 2007-Ohio-4839, 873 N.E.2d 878,
syllabus (“[w]hen 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)”). On appeal, the Board of Education raises the following
assignment of error:
{¶12} “[1.] The trial court erred in denying Appellant Jefferson Area Local
School District’s motion for judgment on the pleadings because its sports teams
are part of its provision of a public education system and thus a governmental
function under R.C. 2744.01(C)(2)(c).”
{¶13} Civil Rule 12(C) provides as follows: “After the pleadings are closed
but within such time as not to delay the trial, any party may move for judgment on
the pleadings.”
{¶14} “Under Civ.R. 12(C), dismissal is appropriate where a court (1)
construes the material allegations in the complaint, with all reasonable inferences
to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds
beyond doubt, that the plaintiff could prove no set of facts in support of his claim
that would entitle him to relief. * * * Thus, Civ.R. 12(C) requires a determination
that no material factual issues exist and that the movant is entitled to judgment
as a matter of law.” (Citations omitted.) State ex rel. Midwest Pride IV, Inc. v.
Pontious, 75 Ohio St. 3d 565, 570, 664 N.E.2d 931 (1996). Accordingly, our
3
. Locy and Holmes were identified as appellants in the Notice of Appeal but were subsequently dismissed
therefrom by this court on November 7, 2016.
4
standard of review is de novo. Oko v. Lake Erie Corr. Inst., 175 Ohio App. 3d
341, 2008-Ohio-835, 886 N.E.2d 933, ¶ 15 (11th Dist.).
{¶15} The narrow issue before this court is whether the Board of
Education enjoys immunity of suit with respect to its employment of Donald
McCormack as the assistant high school girls’ basketball coach.
{¶16} A school district, by virtue of being a “political subdivision” of the
State of Ohio, “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.” R.C. 2744.01(F) and R.C. 2744.02(A)(1).
{¶17} The plaintiffs claim the Board of Education may be liable under an
exception to the immunity granted political subdivisions “for injury, death, or loss
to person or property caused by the negligent performance of acts by their
employees with respect to proprietary functions of the political subdivisions.”
R.C. 2744.02(B)(2). The Board of Education counters that its provision of a high
school basketball team constitutes a governmental rather than a proprietary
function, thus rending the exception inapplicable.
{¶18} Relevant to the facts of the present case, “[t]he provision of a
system of public education” constitutes a “governmental function.” R.C.
2744.01(C)(2)(c).
{¶19} In addition, a “governmental function” may include any function that
satisfies one of the following:
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(a) A function that is imposed upon the state as an obligation of
sovereignty and that is performed by a political subdivision
voluntarily or pursuant to legislative requirement;
(b) A function that is for the common good of all citizens of the
state;
(c) A function that promotes or preserves the public peace, health,
safety, or welfare; that involves activities that are not engaged
in or not customarily engaged in by nongovernmental persons;
and that is not specified in division (G)(2) of this section as a
proprietary function.
R.C. 2744.01(C)(1).
{¶20} Relevant to the facts of the present case, a “‘[p]roprietary function’
means a function of a political subdivision that is specified in division (G)(2) of
this section or that satisfies both of the following:
(a) The function is not one described in division (C)(1)(a) or (b) of
this section and is not one specified in division (C)(2) of this
section;
(b) The function is one that promotes or preserves the public
peace, health, safety, or welfare and that involves activities that
are customarily engaged in by nongovernmental persons.
R.C. 2744.01(G)(1).
{¶21} It is the Board of Education’s position “that sports and
extracurricular activities are so intimately related with the school experience that
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they constitute the provision of a public education” as contemplated by R.C.
2744.01(C)(2)(c).
{¶22} The Board of Education cites to several cases in which it is
presupposed that the provision of extracurricular sports teams by a school district
constitutes a governmental function. Although, as plaintiffs point out, the issue of
whether the provision of sports teams by a school district was not being
challenged in these cases, they nevertheless constitute persuasive authority that
such activity is a governmental function.
{¶23} In Elston v. Howland Local Schools, 113 Ohio St. 3d 314, 2007-
Ohio-2070, 865 N.E.2d 845, the plaintiff was injured during school baseball
practice. Id. at ¶ 4-5. The Ohio Supreme Court recognized that the plaintiff’s
claims were directed against the “baseball coach employed by the school district,
who acted within the scope of his employment, and that ‘[t]he provision of a
system of public education’ as well as the ‘operation of any school athletic facility,
school auditorium, or gymnasium’ are governmental functions pursuant to R.C.
2744.01(C)(2)(c) and (u).” Id. at ¶ 10. The court proceeded to analyze the
plaintiff’s claims under R.C. 2744.02(B)(4) (“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”). “The allegations contained in
[the plaintiff’s] amended complaint match this provision because a claim
sounding in negligence is asserted against Howland Local Schools, arising from
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an injury that occurred at a school gymnasium used in connection with the
performance of a governmental function.” Id. at ¶ 11.
{¶24} Similarly, this court in Schnarrs v. Girard Bd. of Edn., 168 Ohio
App.3d 188, 2006-Ohio-3881, 858 N.E.2d 1258 (11th Dist.), treated the claims of
a member of the girls’ varsity basketball team who was injured during practice as
claims based on the negligence of a school district employee (the coach) in
connection with the performance of a governmental function arising under R.C.
2744.02(B)(4). Id. at ¶ 17. See also Golden v. Milford Exempted Village School
Bd. of Edn., 12th Dist. Clermont No. CA2008-10-097, 2009-Ohio-3418, ¶ 2 (the
plaintiff was sexually assaulted prior to basketball practice); Marcum v.
Talawanda City Schools, 108 Ohio App. 3d 412, 414, 670 N.E.2d 1067 (12th
Dist.1996) (the plaintiff was assaulted during a student council meeting).4
{¶25} Other Ohio courts which have considered the specific issue of
whether an extracurricular activity constitutes a governmental or proprietary
function support the conclusion that the provision of sports teams is a
governmental function and/or inherent in the provision of a system of public
education, as is employment of persons to administer such activities.
{¶26} In Perkins v. Columbus Bd. of Edn., 10th Dist. Franklin No. 13AP-
803, 2014-Ohio-2783, the court recognized that “[t]he provision of public
education is specifically identified as a governmental, rather th[a]n a proprietary,
function pursuant to R.C. 2744.01(C)(2)(c),” and that “[t]his extends to most
4
. It should be noted that resolution of these cases ultimately turned on the applicability of immunities afforded to
political subdivisions contained in Revised Code Chapter 2744.03, the provisions of which have yet to be considered
in the course of the present proceedings. As noted by the trial court, the exceptions contained in R.C. 2744.03
typically require the “development of facts through evidence” and, therefore, are properly raised through a motion
for summary judgment rather than judgment on the pleadings.
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school activities and administrative functions of the educational process, even if
not directly comprising part of the classroom teaching process.” Id. at ¶ 12
(cases cited); see also DiMartino v. Poland Local School Dist., 7th Dist.
Mahoning No. 10 MA 19, 2011-Ohio-1466, ¶ 29 (“[s]chool bands are * * * an
extension of the school’s music program, and, hence, a part of the provision of a
system of public education”); Summers v. Slivinsky, 141 Ohio App. 3d 82, 90, 749
N.E.2d 854 (7th Dist.2001) (“high school cheerleading events fall under the
governmental function umbrella”); Neelon v. Conte, 8th Dist. Cuyahoga No.
72646, 1997 WL 711232, 2 (Nov. 13, 1997) (“the Board was engaged in a
governmental function-the provision of a system of public education”-by
sanctioning an event for cheerleaders at the school principal’s home).
{¶27} Also relevant are cases where the courts have considered whether
a particular activity “is so fundamental to the provision of a system of public
education that it cannot be considered apart from the governmental function of
‘providing a system of public education.’” Bucey v. Carlisle, 1st Dist. Hamilton
No. C-090252, 2010-Ohio-2262, ¶ 16; Perkins v. Columbus Bd. of Edn., 10th
Dist. Franklin No. 13AP-803, 2014-Ohio-2783, ¶ 12 (“[t]he provision of public
education * * * extends to most school activities and administrative functions of
the educational process, even if not directly comprising part of the classroom
teaching process”). In Bucey, the court recognized that the hiring of teachers
and administrators is an activity without which “the governmental function of
‘providing a system of public education’ cannot be accomplished.” Bucey at ¶
16.
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{¶28} Finally, as the Board of Education points out, the provision of sports
teams by a school district is regulated by the Ohio Revised Code. For example,
students must maintain a minimum grade point average to participate in such
activities pursuant to R.C. 3313.535. Likewise, participation in sports teams must
be made available, under certain conditions, to students enrolled in nonpublic
schools and students receiving home instruction, i.e. home-schooled, pursuant to
R.C. 3313.5311 and R.C. 3313.5312 respectively.
{¶29} Furthermore, the conclusion that the Board of Education enjoys
immunity in connection with the provision of its girls’ basketball team is also
supported by the line of cases finding that the provision of transportation and
school lunch programs constitute governmental functions. Taylor v. Boardman
Twp. Local School Dist. Bd. of Edn., 7th Dist. Mahoning No. 08 MA 209, 2009-
Ohio-6528, ¶ 21 (“R.C. 3313.813(C) does obligate local boards of education to
establish food service programs if certain basic conditions apply”; thus “the
provision of lunches is generally a necessary part of the provision of a system of
public education”); Day v. Middletown-Monroe City School Dist. Bd. of Edn., 12th
Dist. Butler No. CA99-11-186, 2000 WL 979141, 3 (July 17, 2000) (“[t]he decision
of the Board to undertake transporting students and assign bus stops is
unquestionably a governmental function, as that decision directly relates to the
provision of a system of public education” in light of R.C. 3327.01 which
“mandates transportation be provided by city, local, and exempted village school
districts for all resident students in grades kindergarten through eight who live
within a specified distance from their assigned school”).
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{¶30} The plaintiffs in the present case argue that Summers was
overruled in Allied Erecting & Dismantling Co., Inc. v. Youngstown, 151 Ohio
App.3d 16, 2002-Ohio-5179, 783 N.E.2d 523 (7th Dist.). However, Allied
Erecting did not overrule the holding in Summers that the sponsorship of
cheerleading events constitutes a governmental function. Rather, the court in
Allied Erecting took exception with conclusion that R.C. 2744.02(B) should be
construed liberally in favor of political subdivisions defined as such by R.C.
2744.01(F). Id. at ¶ 47.5 Instead of promoting a liberal or narrow construction of
a political subdivision’s immunity (at least those specifically listed in R.C.
2744.01(F)), the court reaffirmed the approach based on the statutory language
of R.C. Chapter 2744: “When deciding whether a political subdivision is engaged
in a governmental or proprietary function pursuant to R.C. 2744.01(G)(1)(b), a
court should look to the particular activity the subdivision is engaged in and
decide whether that particular activity is of the type customarily engaged in by
nongovernmental persons.” Id. at ¶ 52.
{¶31} This court takes no exception with the conclusion reached by Allied
Erecting which does not alter the outcome of the present case. Here, the
provision of a public system of education is expressly defined as a governmental
function by R.C. 2744.01(C)(2)(c), and, for the reasons set forth above, the
hiring, retention, and supervision of a high school basketball coach is an inherent
part of that activity.
{¶32} The sole assignment of error is with merit.
5
. This conclusion was based upon an erroneous interpretation of the Ohio Supreme Court’s decision in Greene Cty.
Agricultural Soc. v. Liming, 89 Ohio St. 3d 551, 560, 733 N.E.2d 1141 (2000), the details of which are not necessary
to consider here.
11
{¶33} For the foregoing reasons, the judgment of the Ashtabula County
Court of Common Pleas, denying the Board of Education judgment on the
pleadings based on the immunity afforded by R.C. 2744.02(B), is reversed and
this matter is remanded for further proceedings consistent with this opinion.
Costs to be taxed against the appellees.
TIMOTHY P. CANNON, J.,
THOMAS R. WRIGHT, J.,
concur.
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