Smiley v. Cleveland

[Cite as Smiley v. Cleveland, 2016-Ohio-7711.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103987
SHER SMILEY
PLAINTIFF-APPELLANT
vs.
CITY OF CLEVELAND
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-14-832319
BEFORE: Stewart, P.J., S. Gallagher, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: November 10, 2016
ATTORNEY FOR APPELLANT
Alan I. Goodman
Alan I. Goodman Co., L.P.A.
55 Public Square, Suite 1300
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Director of Law
Connor P. Nathanson
Assistant City Prosecutor
City of Cleveland Law Department
601 Lakeside Avenue, Suite 106
Cleveland, OH 44114
MELODY J. STEWART, P.J.:
{¶1} Plaintiff-appellant Sher Smiley appeals a judgment of the trial court
dismissing her complaint against the city of Cleveland, pursuant to Civ.R. 12(B)(6) for
failure to state a claim upon which relief can be granted. Smiley argues that the trial
court erred in dismissing her complaint against the city because the complaint alleges
facts that invoke an exception to the political subdivision immunity statute. For the
reasons that follow, we reverse the decision of the trial court.
{¶2} Smiley’s complaint arises from events that took place on the evening of July
6, 2013, when Smiley was at the Cuddell Recreation Center, which is owned and
managed by the city of Cleveland. Smiley slipped on a stainless steel strip, located on
the floor between the pool area and a water park area, and fell. According to the
complaint, Smiley was wearing water shoes while exiting the pool area, but took them
off when a city employee, who was controlling the entrance to the water park area,
instructed her to remove her shoes before entering. The complaint alleges that Smiley
was wearing water shoes to prevent her from slipping in wet areas. The complaint
further alleges that Smiley sustained injuries from the fall and that those injuries resulted
in financial damages.
{¶3} The city answered the complaint and asserted numerous defenses including
that it was immune from suit pursuant to Ohio’s political subdivision immunity statute.
A month later, the city filed a motion to dismiss the complaint for failure to state a claim
upon which relief can be granted pursuant to Civ.R. 12(B)(6). Smiley missed the
deadline for opposing the motion and the trial court granted the motion to dismiss, noting
that the motion went unopposed. Smiley filed a motion for relief from judgment along
with a brief in support of the motion explaining why she missed the deadline for opposing
the city’s motion to dismiss. On the same day she filed her motion for relief from
judgment, Smiley also filed a motion for leave to amend her complaint and attached the
amended complaint. The amended complaint was substantially similar to the original
complaint with the exception of a single added paragraph that clarified the negligence
claim by stating that the employee was negligent in making Smiley remove her shoes
when the employee knew that the water park area was dangerous when wet, and that it
happened to be wet in that particular instance. The paragraph further stated that the
employee’s negligence caused or allowed a dangerous condition to be present.
{¶4} The court granted the motion from relief for judgment and gave Smiley an
opportunity to oppose the motion to dismiss. However, the court did not grant the
motion to amend the complaint, but rather dismissed the motion as moot. Following
briefing and a hearing on the motion, the court once again granted the city’s motion.1
Typically, motions to dismiss under Civ.R. 12(B), must be asserted prior to filing a
1
responsive pleading. See Civ.R. 12(B). Nevertheless, courts have discretion to review a belated
Civ.R. 12(B)(6) as a Civ.R. 12(C) motion for judgment on the pleadings. State ex rel. Midwest Pride
{¶5} A Civ.R. 12(B)(6) motion to dismiss a complaint for failure to state a claim
upon which relief can be granted tests the sufficiency of a complaint. In order for a trial
court to dismiss a complaint under Civ.R. 12(B)(6), it “‘must appear beyond a doubt that
the plaintiff can prove no set of facts in support of [her] claim that would entitle [her] to
relief.’” (Emphasis added.) O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
St.2d 242, 245, 327 N.E.2d 753 (1975), quoting Conley v. Gibson, 355 U.S. 41, 45, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957); LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323,
2007-Ohio-3608, 872 N.E.2d 254, ¶ 14. It is important to note that Ohio has not adopted
the heightened federal pleading standard outlined in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), which requires a plaintiff to plead sufficient
facts that state a “plausible” claim for relief. See Tuleta v. Med. Mut. of Ohio,
2014-Ohio-396, 6 N.E.3d 106, ¶ 23-31 (8th Dist.). Instead, Ohio remains a notice
pleading jurisdiction. See id. at ¶ 31. As such, the standard requires that a plaintiff can
show “no set of facts” that entitle her to relief before a complaint is dismissed for failure
to state a claim. See id. at ¶ 31.
IV, Inc. v. Pontious, 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996); see also Civ.R. 12(H). The
standard of review on Civ.R. 12(B)(6) and Civ.R. 12(C) motions is the same at both the trial and
appellate levels. See Mangelluzzi v. Morley, 2015-Ohio-3143, 40 N.E.3d 588, ¶ 6-8 (8th Dist.).
{¶6} When discussing Ohio’s pleading standard, this court has stated in the past
that “‘few complaints fail to meet the liberal [pleading] standards of Rule 8 and become
subject to dismissal,’” and that “‘the motion to dismiss is viewed with disfavor and
should rarely be granted.’” Id. at ¶ 15, quoting Slife v. Kundtz Properties, Inc., 40 Ohio
App.2d 179, 182, 318 N.E.2d 557 (8th Dist.1974). When reviewing a complaint for
failure to state a claim under 12(B)(6), “[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.” (Emphasis added.) Antoon v. Cleveland
Clinic Found., 8th Dist. Cuyahoga No. 101373, 2015-Ohio-421, ¶ 7. Appellate courts
review the grant of a motion to dismiss de novo.2 Id. at ¶ 7.
{¶7} In Ohio, political subdivision immunity is governed by R.C. Chapter 2744.
This chapter sets forth a three-tiered analysis for determining whether a political
subdivision is immune from liability for injury or loss to property. See Rankin v.
Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567,
889 N.E.2d 521, ¶ 8. The first tier of the analysis R.C. sets forth the general rule that
political subdivisions are not liable in damages for causing personal injuries. R.C.
2744.02(A)(1) states:
We review Smiley’s original complaint only because the trial court did not grant her motion
2
to amend the complaint, nor does she challenge the trial court’s denial in this appeal.
For the purposes of this chapter, the functions of political subdivisions are
hereby classified as governmental functions and proprietary functions.
Except as provided in division (B) of this section, a political subdivision is
not liable in damages in a civil action for injury, death or loss to person or
property allegedly caused by an act or omission of the political subdivision
or an employee of the political subdivision in connection with a
governmental or proprietary function.
The second tier of the analysis considers whether any exceptions to immunity apply.
Rankin at ¶ 18. R.C. 2744.02(B), lays out these general exceptions. If an exception
applies, then, under the third tier in the analysis, immunity may be reinstated if the
political subdivision can demonstrate the applicability of any of the defenses set forth in
R.C. 2744.03. Id. at ¶ 27.
{¶8} Both Smiley and the city agree that the city is generally immune from liability
under the first tier of the immunity analysis. The parties disagree however on whether
Smiley pled sufficient facts, that when viewed in the light most favorable to Smiley,
could support an argument that one of the exceptions to immunity under R.C. 2744.02(B)
applies. Specifically, Smiley argues that the facts as pled in her complaint support the
exception to immunity under subsection (B)(4), which states:
Except as otherwise provided in section 3746.24 of the Revised Code,
political subdivisions are liable for injury, death, or loss to person or
property that is caused by the negligence of their employees and that occurs
within or on the grounds of, and is due to physical defects within or on the
grounds of, buildings that are used in connection with the performance of a
governmental function, including, but not limited to, office buildings and
courthouses, but not including jails, places of juvenile detention,
workhouses, or any other detention facility, as defined in section 2921.01 of
the Revised Code.
Although the city does not dispute that Smiley has alleged facts sufficient to support a
finding that her injury occurred as a result of employee negligence, the city argues that
Smiley’s complaint fails to establish that there was a physical defect within or on the
grounds of the water park that caused her injuries, thereby precluding application of the
R.C. 2744.02(B)(4) exception to immunity. In support of its argument, the city points to
this court’s decision in Duncan v. Cuyahoga Community College, 2012-Ohio-1949, 970
N.E.2d 1092 (8th Dist.).
{¶9} In Duncan, the plaintiff-appellee, who was employed by the Bedford Heights
Police Department, was injured while taking part in a required employee self-defense
seminar that was provided and sponsored by Cuyahoga Community College (Tri-C). The
plaintiff’s injuries occurred when she was engaged in a self-defense simulation that
involved her being knocked to the floor. The plaintiff alleged that her injuries were
caused by a “defect” that appellants permitted to exist on the premises, thereby invoking
the exception to immunity provided in R.C. 2744.02(B)(4). The only “defect” set forth in
her complaint, however, was appellant’s failure to use mats on the floor while conducting
the self-defense class. This court, looking to other cases defining the term “physical
defect” as a “perceivable imperfection that diminishes the worth or utility of the object at
issue,” concluded that a lack of mats on a floor did not constitute a defect within the
meaning of R.C. 2477.02(B)(4). See id. at ¶ 26, quoting Hamrick v. Bryan City School
Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio-2572, ¶ 28. Accordingly, this
court found that Tri-C was entitled to immunity and reversed the trial court’s order
denying the appellant’s Civ.R. 12(C) motion for judgment on the pleadings.
{¶10} The city likens the facts of this case to the Duncan case and argues that like
the plaintiff in Duncan, Smiley has failed to show a defect on the premises. We
disagree. When viewing the complaint in the light most favorable to Smiley, we are
satisfied that she has pled sufficient facts to suggest that the city is not entitled to
immunity due to a defect on the premises. It should be remembered that Smiley is not
required at the pleading stage to prove her allegations and disprove governmental
immunity, rather she must only assert facts that if believed, would state a claim for relief.
Diaz v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga No. 92907, 2010-Ohio-13, ¶
15. Additionally, all reasonable inferences should be made in favor of Smiley, the
nonmoving party.
{¶11} In her complaint, Smiley alleges that she was walking from the pool area to
the splash area of the recreation facility when an employee controlling the threshold
between the two areas instructed her to take off the water shoes she was wearing for
safety reasons. Upon taking off her shoes and proceeding to the water park area, she
slipped and fell on a metal strip located between those two areas. Although Smiley did
not explicitly claim that the metal strip was wet, such fact is a reasonable inference that
can be drawn from the other facts alleged, which were that 1) Smiley was wearing water
shoes to prevent her from slipping in wet areas, and 2) that she slipped on the metal strip
after an employee told her to take off her shoes prior to crossing the threshold where the
metal strip was located.
{¶12} Whether the wet metal strip constitutes a physical defect on the premises is a
question of fact that cannot be resolved through a motion to dismiss. Sacksteder v.
Senney, 2d Dist. Montgomery No. 24993, 2012-Ohio-4452, ¶ 88; see also Kincaid v. Erie
Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 25-26 (explaining,
“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.”). Applying Ohio’s liberal pleading
standard, we cannot say at this stage in proceedings that there exists no set of facts that
could conceivably cause the metal strip to be defective. Under the facts as alleged, it is
not inconceivable that the water could have interacted with the metal strip in some way
that caused a “perceivable imperfection that diminished the utility or worth of the object,”
see Duncan, 2012-Ohio-1949, 970 N.E.2d 1092 (8th Dist.) at ¶ 26-27.
{¶13} Moreover, since deciding Duncan, this court has further adopted the
position that a physical defect may include an object or instrumentality that does “not
operate as intended due to a perceivable condition.” See Jacobs v. Oakwood, 8th Dist.
Cuyahoga No. 103830, 2016-Ohio-5327, ¶ 16, citing Jones v. Delaware City School Dist.
Bd. of Edn., 2013-Ohio-3907, 995 N.E.2d 1252, ¶ 22 (5th Dist.) (indicating that an unlit
orchestra pit could be a physical defect where it did not operate safely). Although the
city claims in its brief on appeal that the metal strip was part of the doorway and
functioned to close the gap between the doors and the floor, this fact, if true, is outside of
the pleadings and cannot be considered in a motion to dismiss.
{¶14} Thus, unlike the plaintiff in Duncan who did not allege facts that would
support the allegation of a perceivable imperfection on the floor of the Tri-C gymnasium,
Smiley has alleged a perceivable imperfection in her complaint. She is not required to
plead specific details in her complaint in order to survive a motion to dismiss. See
Diaz, 8th Dist. Cuyahoga No. 92907, 2010-Ohio-13, at ¶ 15-16. Rather, the standard for
dismissal under Civ.R. 12(B)(6) is that “it must appear beyond doubt from the complaint
that the plaintiff can prove no set of facts entitling [her] to recovery.” O’Brien, 42 Ohio
St.2d 242, 245, 327 N.E.2d 753 at syllabus.
{¶15} Judgment reversed and remanded.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR