J.H. v. Hamilton City School Dist.

[Cite as J.H. v. Hamilton City School Dist., 2013-Ohio-2967.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
J.H. (A Minor) By and Through his Parents :
and Next Friend Katherine and Dexter
Harris, : CASE NO. CA2012-11-236
Plaintiffs-Appellants, : OPINION
7/8/2013
:
- vs -
:
HAMILTON CITY SCHOOL DISTRICT, :
et al.,
:
Defendants-Appellees.
:
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2012-02-0727
Eric C. Deters, 5247 Madison Pike, Independence, KY 41051-7941, for plaintiffs-appellants
Brian L. Wildermuth, The Green Town Center, 50 Chestnut Street, Suite 230, Dayton, Ohio
45440, for defendants-appellees
HENDRICKSON, P.J.
{¶ 1} Plaintiffs-appellants, Katherine and Dexter Harris, along with their minor son
J.H., appeal a decision of the Butler County Court of Common Pleas awarding judgment on
the pleadings to the defendants-appellees, Hamilton City School District Board of Education
Butler CA2012-11-236
("the Board") and its employee, Brenda Asher.1 For the reasons discussed below, we affirm
the judgment of the trial court.
{¶ 2} On February 17, 2012, appellants filed a complaint for personal injury. In their
complaint, appellants stated that J.H. is a severely handicapped 14-year-old boy who
attended Garfield Middle School during the 2010-2011 school year. On October 10, 2010,
Asher was "pushing and pulling" J.H.'s wheelchair when J.H.'s leg became caught in the
wheelchair. The complaint alleged that Asher "continued to push and pull the wheel chair
[sic] even though the wheel chair [sic] was met with resistance until she heard a 'pop' and
Plaintiff J.H. started crying." Appellants asserted that J.H. suffered several injuries, including
a broken tibia, as a result of Asher's negligence in failing to operate the wheelchair with
reasonable care and safety. Appellants also asserted that the Board was responsible for
Asher's negligent acts under the doctrine of respondeat superior, as Asher was acting within
the scope of her employment at the time she caused the injury to J.H. Further, appellants
alleged that the Board had a "duty to operate the Garfield Middle School with reasonable
care and safety" and the Board breached this duty by "failing to have policies and procedures
in place to prevent the type of injury which [J.H.] received, for failing to give proper training to
* * * Asher, and by failing to hire the proper personnel."
{¶ 3} On March 29, 2012, the Board and Asher simultaneously filed an answer and a
motion for judgment on the pleadings. In their answer, the Board and Asher admitted J.H.
was enrolled as a student at Garfield Middle School on October 10, 2010, and Asher was an
employee of the Board who was acting within the scope of her employment at the time the
incident occurred. In their motion for judgment on the pleadings, the Board and Asher
1. Appellants' complaint named the "Hamilton City School District" as a defendant to the suit. Before the trial
court, all parties agreed that the Hamilton City School District is not a legal entity subject to suit and that the
Hamilton City School District Board of Education is the proper party to the lawsuit. We will reference the proper
entity for purposes of this appeal.
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asserted that they were immune from liability under R.C. 2744.02 and R.C. 2744.03.
Specifically, the Board asserted that it was a political subdivision and therefore immune from
liability as appellants had not set forth allegations in their complaint that would "strip it" of
immunity under any of the five exceptions set forth in R.C. 2744.02(B)(1)-(5). Moreover,
Asher asserted that as an employee of a political subdivision, she was immune from liability
because appellants had not alleged facts in their complaint that she acted outside the scope
of her employment, that she acted maliciously or in a wanton or reckless manner, or that civil
liability was expressly imposed in this case by Ohio law, as contemplated by R.C.
2744.03(A)(6).
{¶ 4} Appellants filed a memorandum in opposition to the motion for judgment on the
pleadings, arguing the merits of Asher and the Board's motion were "mistaken and
premature." Appellants asserted judgment on the pleadings was not appropriate as
discovery had not been conducted to determine whether appellants' damages were caused
during the course of a governmental or proprietary function, the latter of which does not
invoke immunity. The trial court disagreed with appellants' position and, on October 22,
2012, granted judgment on the pleadings to Asher and the Board.
{¶ 5} Appellants appealed the trial court's decision, raising as their sole assignment
of error the following:
{¶ 6} THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR
BY GRANTING [APPELLEES'] MOTION FOR JUDGMENT ON THE PLEADINGS.
{¶ 7} Appellants contend that the trial court erred in granting judgment on the
pleadings to the Board and Asher on the basis of immunity. Specifically, appellants assert
that the Board and its employee, Asher, were not immune from suit in this case. Although
appellants acknowledge that their "complaint alleged negligence on its face," they contend
that they were "not required to make allegations such as wanton or reckless conduct on
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behalf of the Board or Asher in order to survive a motion for judgment on the pleadings."
{¶ 8} An appellate court reviews a trial court's decision on a Civ.R. 12(C) motion for
judgment on the pleadings de novo. Golden v. Milford Exempted Village School Bd. of Edn.,
12th District No. CA2008-10-097, 2009-Ohio-3418, ¶ 6. Civ.R. 12(C) motions are specifically
reserved for resolving questions of law and may be filed "[a]fter the pleadings are closed but
within such time as not to delay the trial." Id.; Peterson v. Teodosio, 34 Ohio St.2d 161, 166
(1973). Judgment on the pleadings is appropriate under Civ.R. 12(C) "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."
State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996). Furthermore,
in ruling on a Civ.R. 12(C) motion, a court is "limited solely to the allegations in the pleadings
and any writings attached to the pleadings." Golden at ¶ 6, citing Vinicky v. Pristas, 163 Ohio
App.3d 508, 2005-Ohio-5196, ¶ 3 (8th Dist.).
A. Immunity of the Board
{¶ 9} The Ohio Supreme Court has set forth a three-tiered analysis for determining
whether a political subdivision is immune from civil liability. Carter v. Cleveland, 83 Ohio
St.3d 24, 28 (1998). Under the first tier, a political subdivision is granted broad immunity for
any injury arising out of its governmental or proprietary functions. R.C. 2744.02(A)(1). "The
immunity afforded to the political subdivision, however, is not absolute but instead is subject
to five exceptions under R.C. 2744.02(B)." Golden at ¶ 10. Thus, the second tier of the
analysis focuses on the exceptions to immunity set forth in R.C. 2744.02(B)(1)-(5). Id."Finally, in the third tier of the analysis, if an exception exists, immunity can be reinstated if
the political subdivision can successfully argue that one of the defenses set forth in R.C.
2744.03(A) applies." Id., citing Carter at 28. However, the defenses found in R.C. 2744.03
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"do not come into play until after it is proven that a specific exception to general immunity
applies under R.C. 2744.02(B)." Id. at ¶ 12.
{¶ 10} R.C. 2744.01(F) includes school districts within the definition of "political
subdivisions." R.C. 2744.01(C)(2)(c) specifies that a system of public education is a
"governmental function." As such, the school board is a political subdivision serving a
governmental function, and it is therefore immune from liability under R.C. 2744.02(A)(1)
unless one of the five exceptions under R.C. 2744.02(B) applies.
{¶ 11} Under R.C. 2744.02(B), a political subdivision may be liable for injuries caused
by "(1) the negligent operation of a motor vehicle by a school employee; (2) the negligence of
a school employee with respect to 'proprietary functions'; (3) the political subdivision's
negligent failure to keep the public roads in repair and free from obstruction; (4) the
negligence of a school employee with respect to physical defects occurring within or on the
grounds of school buildings; and (5) civil liability that is expressly imposed by statute on the
political subdivision." Bucey v. Carlisle, 1st Dist. No. C-090252, 2010-Ohio-2262, ¶ 8, citing
R.C. 2744.02(B)(1)-(5). Appellants contend that the exceptions to political subdivision
immunity set forth in R.C. 2744.02(B)(2) and (B)(5) apply.
{¶ 12} Pursuant to R.C. 2744.02(B)(2), "political subdivisions are liable 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 subdivision." (Emphasis
added.) A "proprietary function" is defined, in relevant part, as a function 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)(b). Conversely, a
"governmental function" is defined, in relevant part, as a function that "promotes or preserves
the public peace, health, safety or welfare [and] that involves activities that are not engaged
in or not customarily engaged in by nongovernmental employees." R.C. 2744.01(C)(1)(c). A
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governmental function is one that is for the common good of all citizens, is imposed upon the
state as an obligation of sovereignty and is performed by a political subdivision voluntarily or
pursuant to a legislative requirement. R.C. 2744.01(C)(1)(a) and (b).
{¶ 13} Appellants' complaint alleges that Asher negligently maneuvered J.H.'s
wheelchair while he attended school, thereby causing injury. The provision of a system of
public education is a governmental function pursuant to R.C. 2744.01(C)(2)(c). Moreover,
"transporting students is part of providing a system of public education." Day v. Middletown-
Monroe City School Dist. Bd. of Edn., 12th Dist. No. CA99-11-186, 2000 WL 979141, *3 (July
17, 2000). Construing the allegations in the pleadings in appellants' favor, it is clear that at
the time J.H. was injured, he was at school being transported by Asher, an employee of the
Board who was acting within the scope of her employment. Accordingly, Asher was engaged
in a governmental function, not a proprietary function, and the exception to immunity
contained within 2744.02(B)(2) is inapplicable.
{¶ 14} The exception to immunity listed in R.C. 2744.02(B)(5) provides that "a political
subdivision is liable for injury, death, or loss to person or property when civil liability is
expressly imposed upon the political subdivision by a section of the Revised Code, including,
but limited to, sections 2743.02 and 5591.37 of the Revised Code." Appellants cite R.C.
2744.03(A)(5) and R.C. 2743.02(A)(1) as the portions of the Revised Code that impose
liability upon the Board.
{¶ 15} We find no merit to appellants' contention regarding R.C. 2744.03(A)(5). R.C.
2744.03(A)(5) sets forth a defense that a political subdivision and its employees may assert
when facing liability, and it specifically provides:
[t]he political subdivision is immune from liability if the injury,
death, or loss to person or property resulted from the exercise of
judgment or discretion in determining whether to acquire, or how
to use, equipment, supplies, materials, personnel, facilities, and
other resources unless the judgment or discretion was exercised
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with malicious purpose, in bad faith, or in a wanton or reckless
manner.
It is well settled that this section of the Revised Code, 2744.03, "merely provides defenses to
liability in the event that an exception to immunity under R.C. 2744.02(B) applies." (Internal
quotations omitted.) Brown Cty Bd. of Health v. Raichyk, 12th Dist. CA2012-06-011, 2013-
Ohio-1727, ¶ 22, quoting Golden, 2009-Ohio-3418 at ¶ 12. "The defenses found in R.C.
2744.03 do not come into play until after it is proven that a specific exception to general
immunity applies under R.C. 2744.02(B)." (Emphasis sic.) Id. Before R.C. 2744.03 is ever
reached, R.C. 2744.02(A) and (B), in that order, must be found to apply. Golden at ¶ 12,
citing Davis v. Malvern, 7th Dist. No. 05 CA 829, 2006-Ohio-7061, ¶ 30. Accordingly, R.C.
2744.03(A)(5) may not be used as an exception to immunity pursuant to R.C. 2744.02(B)(5).
{¶ 16} Appellants also contend that R.C. 2743.02(A)(1) imposes liability upon the
Board. This provision provides, in relevant part:
The state hereby waives its immunity from liability * * * and
consents to be sued, and have its liability determined, in the
court of claims created in this chapter * * * except as provided in
division (A)(2) or (3) of this section. * * *
Except in the case of a civil action filed by the state, filing a civil
action in the court of claims results in a complete waiver of any
cause of action, based on the same act or omission, that the
filing party has against any * * * employee * * *. The waiver shall
be void if the court determines that the act or omission was
manifestly outside the scope of the * * * employee's * * *
employment or that the * * * employee acted with malicious
purpose, in bad faith, or in a wanton or reckless manner.
(Emphasis added.) R.C. 2743.02(A)(1).
{¶ 17} We find R.C. 2743.02(A)(1) to be inapplicable to the present case. The
exception in R.C. 2744.02(B)(5) requires a statute to expressly impose liability upon the
political subdivision. R.C. 2743.02(A)(1), however, discusses the state's waiver of
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immunity—not the political subdivision's waiver of immunity. The definition statute in Chapter
2743 specifically distinguishes a political subdivision from the state as follows:
(A) "State" means the state of Ohio, including, but not limited
to, the general assembly, the supreme court, the offices of all
elected state officers, and all departments, boards, offices,
commissions, agencies, institutions, and other instrumentalities
of the state. "State" does not include political subdivisions.
(B) "Political subdivisions" means municipal corporations,
townships, counties, school districts, and allother bodies
corporate and politic responsible for governmental activities only
in geographic areas smaller than that of the state to which the
sovereign immunity of the state attaches.
(Emphasis added.) R.C. 2743.01(A), (B). Thus, civil liability is not expressly imposed against
a political subdivision by R.C. 2743.02(A)(1) as the statute does not apply to political
subdivisions but, rather, is limited in application to those entities falling under the definition of
"state." See Fediaczko v. Mahoning Cty. Children Servs., 7th Dist. No. 11 MA 199, 2012-
Ohio-6095, ¶ 22-25. A school district is unequivocally a "political subdivision." See R.C.
2744.01(F); R.C. 2743.01(B). As such, R.C. 2743.02(A)(1) cannot be used to impose liability
upon the Board.2
{¶ 18} As appellants failed to plead facts demonstrating that an exception to immunity
exists under any of the five exceptions set forth in R.C. 2744.02(B), we find that the trial court
did not err in granting judgment on the pleadings to the Board.
B. Immunity of the Employee
{¶ 19} We further find that the trial court did not err in entering judgment on the
pleadings to Asher as the allegations set forth in appellants' complaint do not contain facts
invoking any of the exceptions to the immunity granted to employees of political subdivisions.
R.C. 2744.03(A)(6) provides that an employee of a political subdivision is immune from
2. We further note that as Asher is an employee of a political subdivision, and not an employee of the "state,"
R.C. 2743.01(A) cannot be used to impose liability upon her.
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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." Here,
the pleadings do not allege that Asher acted outside the scope of her employment, and
appellants did not identify a section of the Revised Code that expressly imposes liability on
Asher. Accordingly, the only issue remaining is whether appellants asserted allegations to
sufficiently raise the exception set forth in R.C. 2744.03(A)(6)(b).
{¶ 20} "Malice" is the willful and intentional design to do injury or the intention or desire
to harm another, usually seriously, through conduct that is unlawful or unjustified. Frazier v.
Clinton Cty. Sheriff's Office, 12th Dist. No. CA2008-04-015, 2008-Ohio-6064, ¶ 36. "Bad
faith" involves a dishonest purpose, conscious wrongdoing, the intent to mislead or deceive,
or the breach of a known duty through some ulterior motive or ill will. Id. An individual acts in
a "wanton" manner when that person fails "to exercise any care toward those to whom a duty
of care is owed in circumstances which there is a great probability that harm will result."
Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶ 33. Finally, a person acts in
a "reckless" manner when that individual "causes an unreasonable risk of harm" and
engages in misconduct "substantially greater than that which is necessary to make the
conduct negligent." Frazier at ¶ 36, citing Thompson v. McNeil, 53 Ohio St.3d 102, 104-105
(1990).
{¶ 21} As discussed above, appellants' complaint is couched in negligence.
Specifically, appellants assert that Asher was "pushing and pulling" J.H.'s wheelchair when
his leg became caught in chair, and she continued to push the wheelchair "even though the
wheel chair [sic] was met with resistance until she heard a 'pop.'" Contrary to appellants'
argument, such allegations do not indicate that Asher acted with malicious purpose, in bad
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faith, or in a wanton or reckless manner. Accordingly, as appellants failed to set forth
allegations from which a trier of fact might plausibly infer that Asher acted maliciously, in bad
faith, wantonly, or recklessly in causing harm to J.H., we find that Asher is immune from
liability in accordance with R.C. 2744.03(A)(6). The trial court properly granted judgment on
the pleadings to Asher.
{¶ 22} Appellants' sole assignment of error is overruled.
{¶ 23} Judgment affirmed.
S. POWELL and PIPER, JJ., concur.
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