Lewis v. Ayersville Local School Dist. ( 2023 )

[Cite as Lewis v. Ayersville Local School Dist., 2023-Ohio-3685.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
TRISTAN LEWIS, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 4-23-03
v.
AYERSVILLE LOCAL SCHOOL OPINION
DIST., ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Defiance County Common Pleas Court
Trial Court No. 21-CV-45398
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: October 10, 2023
APPEARANCES:
Bradley G. Olson, Jr. for Appellants
Brian L. Wildermuth and Tabitha Justice for Appellees
Case No. 4-23-03
WALDICK, J.
{¶1} This appeal, having originally been placed on the accelerated calendar,
is sua sponte being assigned and considered on the regular calendar pursuant to
Loc.R. 12(1). Under the authority of Loc.R. 12(5), we have elected to issue a full
opinion in lieu of a judgment entry.
{¶2} Plaintiffs-appellants, Tristan Lewis, Ken Lewis, and Cannina Lewis
(“the Lewises”), appeal the February 17, 2023 judgment of the Defiance County
Court of Common Pleas dismissing their complaint against defendants-appellees
Ayersville Local School District (the “school district”) and Daniel Mix, a teacher
and coach with the school district. On appeal, the Lewises argue that the trial court
erred in granting the Civ.R. 12(B)(6) motion to dismiss filed by the school district
and Mix pursuant to the political subdivision immunity statutes in R.C. Chapter
2744. For the reasons set forth below, we affirm in part and reverse in part.
Procedural History
{¶3} This case originated on April 19, 2021, when Tristan Lewis, Tristan’s
father, Ken Lewis, and Ken’s wife, Cannina Lewis, filed a complaint in the trial
court against the Ayersville school district, Ayersville teacher and coach Daniel
Mix, and Jamison Clark, a former student in the school district, as well as the
unidentified parents and guardians of Jamison Clark.1
1
The Lewises’ claims against Jamison Clark and his parents are not at issue in this appeal.
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{¶4} The complaint alleged that on May 1, 2016, Tristan Lewis was an
eighth-grade student in the Ayersville Local School District and a member of the
school’s track and field team. On that date, Tristan and other student athletes were
warming up prior to a track meet at the Ayersville High School. The complaint
alleged that Mix, the track and field coach, was not present and, in Mix’s absence
but at his direction, certain team members had formed a line and were practicing for
the shotput competition by taking turns throwing a shot into a designated area. The
complaint alleged that Tristan Lewis took his turn and was retrieving his shot from
where it had landed in the designated field when his teammate Jamison Clark threw
his own shot, which struck Tristan in the head and caused serious injuries. The
complaint alleged several different causes of action against the school district, Mix,
and Clark.
{¶5} On June 15, 2021, the school district and Mix filed a motion pursuant
to Civ.R. 12(B)(6), seeking to dismiss the complaint against them on the basis of
immunity under R.C. Chapter 2744. On July 26, 2021, the Lewises filed a response
opposing the motion to dismiss. On that same date, the school district and Mix filed
a reply in support of the motion to dismiss.
{¶6} On February 17, 2023, the trial court filed a detailed judgment entry
granting the motion to dismiss as to both the school district and Mix.
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{¶7} On March 17, 2023, the Lewises filed this appeal, in which they raise
two assignments of error.
First Assignment of Error
The trial court committed reversible error by granting
Defendant-Appellee Ayersville Local School District the benefits
of statutory immunity under R.C. Chapter 2744.
Second Assignment of Error
The trial court committed reversible error by granting
Defendant-Appellee Daniel Mix the benefits of statutory
immunity under R.C. Chapter 2744.
Standard of Review
{¶8} Appellate courts conduct a de novo review of trial court decisions
granting a Civ.R. 12(B)(6) motion to dismiss. Perrysburg Twp. v. Rossford, 103
Ohio St.3d 79, 2004-Ohio-4362, ¶ 5. “On review, ‘[t]he allegations of the complaint
must be taken as true, and those allegations and any reasonable inferences drawn
from them must be construed in the nonmoving party’s favor.’” Faber v. Seneca
Cty. Sheriff’s Dept., 3d Dist. Seneca No. 13-17-29, 2018-Ohio-786, ¶ 7, quoting
Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, ¶
12.
{¶9} Additionally, “[w]hether a party is entitled to immunity is a question of
law properly determined by the court prior to trial * * *.” Pelletier v. Campbell, 153
Ohio St.3d 611, 2018-Ohio-2121, ¶ 12, citing Conley v. Shearer, 64 Ohio St.3d 284,
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292, 595 N.E.2d 862 (1992). Thus, appellate courts also conduct a de novo review
of a trial court’s determination regarding political-subdivision immunity. Pelletier,
at ¶ 13.
Civ.R. 12(B)(6)
Civ.R. 12(B) provides, in relevant part:
Every defense, in law or fact, to a claim for relief in any pleading,
whether a claim, counterclaim, cross-claim, or third-party claim, shall
be asserted in the responsive pleading thereto if one is required, except
that the following defenses may at the option of the pleader be made
by motion: * * * (6) failure to state a claim upon which relief can be
granted[.]
{¶10} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon
which relief can be granted tests the legal 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). For a trial court to dismiss a complaint on that basis, “it must appear beyond
doubt from the complaint that the plaintiff can prove no set of facts entitling him to
recovery.” O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242,
327 N.E.2d 753 (1975), syllabus.
{¶11} If there is a set of facts consistent with the plaintiff’s complaint that
would allow for recovery, the court must not grant the motion to dismiss. York v.
Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). In
considering a Civ.R. 12(B)(6) motion to dismiss, the court’s review is limited to the
four corners of the complaint. State ex rel. New Riegel Local School Dist. Bd. of
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Educ. v. Ohio School Facilities Comm., 3d Dist. Seneca No. 13-16-22, 2017-Ohio-
875, ¶ 10. Finally, the affirmative defense of immunity under R.C. Chapter 2744
may be the basis of a dismissal pursuant to Civ.R. 12(B)(6). Main v. Lima, 3d Dist.
Allen No. 1-14-42, 2015-Ohio-2572, ¶ 15.
R.C. Chapter 2744 – Sovereign Immunity Framework
{¶12} “The Political Subdivision Tort Liability Act, codified in R.C. Chapter
2744, governs political subdivision liability and immunity.” Oliver v. City of
Marysville, 3d Dist. Union No. 14-18-01, 2018-Ohio-1986, ¶ 24.
{¶13} As this Court explained in Martin v. Village of Payne, 3d Dist.
Paulding No. 11-20-05, 2021-Ohio-1557, at ¶ 38:
A claim of sovereign immunity by a political subdivision requires the
three-tiered analysis provided in R.C. Chapter 2744. Baker v. Wayne
Cty., 147 Ohio St.3d 51, 2016-Ohio-1566, ¶ 11, citing Rankin v.
Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d
392, 2008-Ohio-2567, ¶ 16. Under the first tier of the analysis, a
political subdivision has immunity for any act or omission of the
political subdivision, or its employees, that was conducted in
connection with a governmental or proprietary function. R.C.
2744.02(A)(1). The second tier of the analysis examines whether any
of the five exceptions to the general grant of immunity apply that are
listed in R.C. 2744.02(B). Rankin at ¶ 18. If an exception does apply,
the third tier of the analysis considers whether sovereign immunity
can be reinstated by one of the statutorily listed defenses, such as the
discretionary defenses set forth in R.C. 2744.03(A)(3) and (5). Rankin
at ¶ 27.
{¶14} “Immunity is also extended to individual employees of political
subdivisions.” Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, ¶ 10.
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However, the three-tiered analysis described above is not used when analyzing
claims against individual employees. Id. “Rather, pursuant to R.C. 2744.03(A)(6),
an employee is immune from liability unless ‘(a) [t]he employee’s acts or omissions
were manifestly outside the scope of the employee’s employment or official
responsibilities; (b) [t]he employee’s acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner; [or] (c) [c]ivil liability is
expressly imposed upon the employee by a section of the Revised Code.’” Conley
v. Wapakoneta City School District Bd. of Educ., 3d Dist. Auglaize No. 2-21-18,
2022-Ohio-2915, ¶ 28, quoting R.C. 2744.03(A)(6). “For these purposes,
allegations of negligence are insufficient to overcome the immunity granted to an
employee of a political subdivision who acts within his or her official duties.
Lambert, supra, at ¶ 10.
First Assignment of Error
{¶15} In the first assignment of error, the Lewises assert that the trial court
erred in finding that the Ayersville Local School District was entitled to a grant of
immunity and in dismissing the complaint against the school district.
{¶16} The parties agree that the school district is a political subdivision
generally immune from liability. The dispute on appeal actually lies in the second
tier of the statutory analysis and focuses on whether an exception to the school
district’s immunity is applicable.
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{¶17} As an initial matter, it is important to note that once a political
subdivision establishes general immunity, the burden shifts to the plaintiff to show
that an exception to immunity applies. Martin v. Payne, 3d Dist. Paulding No. 11-
20-05, 2021-Ohio-1557, ¶ 40, citing Slane v. Hilliard, 10th Dist. Franklin No.
15AP-493, 2016-Ohio-306, ¶ 31.
{¶18} In the instant case, the Lewises contend on appeal that the “physical
defect” exception found in R.C. 2744.02(B)(4) should apply.
{¶19} R.C. 2744.02(B)(4) provides, in relevant part, that:
[P]olitical 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.
{¶20} The term “physical defect” is not defined in R.C. Chapter 2744. In
Ohio’s courts of appeals, the “prevailing authority” has defined the term “physical
defect” in the context of R.C. 2744.02(B)(4) to mean “‘a perceivable imperfection
that diminishes the worth or utility of the object at issue.’” Shaw v. Washington Ct.
House City Sch. Bd. of Educ., 12th Dist. Fayette No. CA2022-04-004, 2022-Ohio-
4226, ¶ 19, quoting Nicholas v. Lake Cty., 11th Dist. Lake No. 2012-L-140, 2013-
Ohio-4294, ¶ 23. Cases addressing the “physical defect” exception set forth in R.C.
2744.02(B)(4) have typically involved physical defects as part of the structure of
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buildings and the maintenance of those structures. Conley v. Wapakoneta City
School Dist. Bd. of Edn., 3d Dist. Auglaize No. 2-21-18, 2022-Ohio-2915, ¶ 44.
{¶21} However, in Doe v. Greenville City Schools, __ Ohio St.3d __, 2022-
Ohio-4618, reconsideration denied, 169 Ohio St.3d 1467, 2023-Ohio-773, the
Supreme Court of Ohio recently addressed the issue of whether the absence of a
device or the lack of a piece of safety equipment that was not a fixture could
constitute a “physical defect” supporting the R.C. 2944.02(B)(4) immunity
exception.2 In Doe, the plaintiffs were students who had been severely burned when
a bottle of isopropyl alcohol caught fire and exploded in a Greenville City Schools
science classroom. Id. at ¶ 2. In the complaint that was subsequently filed against
the school, “the students alleged in part that Greenville failed to provide proper
safety equipment, ‘especially, but not limited to, a fire extinguisher inside the
classroom[.]’” Id.
{¶22} In Doe, the Ohio Supreme Court first noted in its plurality opinion that
some Ohio courts have held that the lack of a safety feature could be a “physical
defect”, where other courts in the state have held that the lack of a safety feature
does not constitute such a defect. Id., at ¶ 24-26. The Supreme Court found that, on
review of the cases addressing the issue, “we agree with the courts that have held
2
Whether Doe is actually binding precedent is subject to question. See, e.g., State v. Brasher, __ Ohio St.3d
__, 2022-Ohio-4703, ¶ 18. In Doe, only three justices concurred in the lead opinion, a fourth concurred in
judgment only, and three justices dissented. Nevertheless, until the Supreme Court of Ohio provides further
guidance on the issue presented in Doe, we opt to treat Doe as highly persuasive, if not binding, authority.
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that the lack of safety equipment or other safety features could amount to a physical
defect.” Id., at ¶ 27. The Court then specifically held in the plurality opinion that
“the absence of a fire extinguisher or other safety equipment within a science
classroom could be a physical defect such that an exception to immunity could exist
under R.C. 2744.02(B)(4)”, noting that “[i]n this case, the [plaintiffs] have alleged
that their injuries were caused by the negligent supervision of the science teacher
and the lack of a fire extinguisher and other safety equipment in the classroom.” Id.,
¶ 27-28.
{¶23} In the case sub judice, the Lewises urge that their complaint set forth
sufficient facts that, if proven, establish the school district is not entitled to immunity
due to a physical defect on school grounds, combined with employee negligence,
having contributed to Tristan Lewis’s injuries. We disagree.
{¶24} Our thorough review of the complaint in this case reflects no factual
allegations whatsoever in support of a theory that some aspect of the school
premises was physically defective so as to fall within the exception listed in R.C.
2744.02(B)(4).3 No mention of the existence of a physical defect, or facts
suggesting the same, appear anywhere in the complaint. Unlike the complaint in
Doe v. Greenville City Schools, supra, here there is no allegation that some lack of
safety equipment or devices on the school premises rendered the premises unsafe.
3
Although the allegations contained in the complaint may have been sufficient to withstand a Civ.R.
12(B)(6) challenge under the prior version of R.C. 2744.02(B)(4), under current law they are not.
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To the contrary, the sole focus of the complaint against the school district here is
the alleged failure of Mix to supervise the track team at practice, combined with the
lack of safety rules, protocols, and precautions for the athletes to follow. Alleging
that there existed a lack of “safety precautions and measures” to be “followed by
[the] student-athletes” simply does not equate to an allegation that a physical defect
was present on the school premises.
{¶25} Therefore, the trial court did not err in granting the school district’s
motion to dismiss pursuant to Civ.R. 12(B)(6) as the Lewises’ complaint fails to
allege any set of facts under which the Lewises might plausibly demonstrate that the
R.C. 2944.02(B)(4) exception to immunity is applicable here.
{¶26} In the first assignment of error, the Lewises alternatively argue that,
even if there were insufficient factual averments in the complaint regarding a
physical defect, the trial court erred in failing to permit the Lewises to amend their
complaint.
{¶27} Civ.R. 15(A) provides:
A party may amend its pleading once as a matter of course within
twenty-eight days after serving it or, if the pleading is one to which a
responsive pleading is required within twenty-eight days after service
of a responsive pleading or twenty-eight days after service of a motion
under Civ. R. 12(B), (E), or (F), whichever is earlier. In all other cases,
a party may amend its pleading only with the opposing party’s written
consent or the court’s leave. The court shall freely give leave when
justice so requires. Unless the court orders otherwise, any required
response to an amended pleading must be made within the time
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remaining to respond to the original pleading or within fourteen days
after service of the amended pleading, whichever is later.
{¶28} In the instant case, however, the record is devoid of any indication that
the Lewises ever sought to amend their complaint, much less that the trial court
deprived them of a right to do so. A reviewing court need not consider any claim
that error was committed by a lower court if that claim was not preserved by
objection, ruling, or otherwise in that court. Loyal Order of Moose Lodge No. 1473,
Celina v. Liquor Control Comm., 95 Ohio App.3d 109, 114, 641 N.E.2d 1182, 1185
(1994). Critically, the Lewises have waived this alternative claim of error by not
seeking to amend their complaint in the trial court.
{¶29} The first assignment of error is overruled.
Second Assignment of Error
{¶30} In the second assignment of error, the Lewises assert that the trial court
erred in finding that Coach Mix was entitled to a grant of immunity and in
dismissing the complaint against him.
{¶31} As set forth above, Mix individually is entitled to immunity as an
employee of a political subdivision pursuant to R.C. 2744.03(A)(6) unless his
actions or omissions were manifestly outside the scope of his employment or official
responsibilities; his actions were with malicious purpose, in bad faith, or in a wanton
or reckless manner; or civil liability is expressly imposed upon him by a section of
the Revised Code.
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{¶32} On appeal, the Lewises contend that, to the extent necessary to
withstand dismissal pursuant to Civ.R. 12(B)(6), their complaint sufficiently alleged
that Mix’s acts or omissions were willful, wanton or reckless. This Court agrees.
{¶33} “The Supreme Court of Ohio has defined all of the requisite operative
terms—willful, wanton, and reckless—finding that they describe different and
distinct degrees of care and are not interchangeable.” Riehm v. Green Springs Rural
Volunteer Fire Dept., 3d Dist. Seneca No. 13-18-15, 2018-Ohio-4075, ¶ 42.
{¶34} “Willful misconduct implies an intentional deviation from a clear duty
or from a definite rule of conduct, a deliberate purpose not to discharge some duty
necessary to safety, or purposefully doing wrongful acts with knowledge or
appreciation of the likelihood of resulting injury.” Anderson v. Massillon, 134 Ohio
St.3d 380, 2012-Ohio-5711, paragraph two of the syllabus.
{¶35} “Wanton misconduct is the failure to exercise any care toward those
to whom a duty of care is owed in circumstances in which there is a great probability
that harm will result.” Id. at paragraph three of the syllabus.
{¶36} “Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable
under the circumstances and is substantially greater than negligent conduct.” Id. at
paragraph four of the syllabus.
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{¶37} In the instant case, the complaint alleges in relevant part that Mix, a
teacher within the Ayersville School District, also served as the track and field coach
for the eighth-grade students; that Mix was supposed to be present to monitor the
warmup exercises and drills prior to track meets; that Mix often failed to appear for
that duty and, instead, recklessly delegated the duty to upperclassmen, who were
not qualified to handle the same; and that, at the time in question here, Mix failed
to appear for the warmup drills prior to the track meet, and therefore knowingly and
recklessly ignored his duties and obligations as a coach by leaving the student-
athletes unsupervised while they were engaging in an inherently dangerous activity.
{¶38} As the Supreme Court of Ohio explained in Maternal Grandmother v.
Hamilton Cty. Dept. of Job and Family Servs., 167 Ohio St.3d 390, 2021-Ohio-
4096, at ¶ 10, Ohio is a notice-pleading state, meaning “that outside of a few specific
circumstances, such as claims involving fraud or mistake * * *, a party will not be
expected to plead a claim with particularity.” “Rather, ‘a short and plain statement
of the claim’ will typically do.” Id., quoting Civ.R. 8(A).
{¶39} In the instant case, while the Lewises’ complaint could have perhaps
been more developed as to the facts alleged in support of the claims against Mix,
we find that, similar to the findings made by the Ohio Supreme Court in Maternal
Grandmother, supra, the Lewises’ complaint nonetheless met the requirements of
putting Mix on notice of the claims against him and raising the possibility that the
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exception to his statutory immunity might apply. Given that determination and this
Court’s inability to say at this juncture in the proceedings that there is no set of facts
that would entitle the Lewises to relief after taking the material allegations in the
complaint as true, we conclude that the trial court erred in dismissing the complaint
against Mix pursuant to Civ.R. 12(B)(6).
{¶40} The second assignment of error is sustained on that basis.
{¶41} Having found error prejudicial to the appellants in the particulars
assigned and argued, the judgment of the Defiance County Court of Common Pleas
is affirmed in part and reversed in part.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
MILLER, P.J., and ZIMMERMAN, J. concur.
/jlr
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