[Cite as O.G. v. Middleburg Hts., 2017-Ohio-7604.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105056
O.G., ET AL.
PLAINTIFFS-APPELLANTS
vs.
CITY OF MIDDLEBURG HEIGHTS, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-16-858901
BEFORE: Laster Mays, J., E.A. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: September 14, 2017
-i-
ATTORNEY FOR APPELLANTS
Daniel J. Ryan
Ryan L.L.P., Inc.
55 Public Square, 21st Floor
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEES
Robert P. Lynch
Kathleen M. Guarente & Associates
Park Center Plaza II, Suite 450
6150 Oak Tree Boulevard
Independence, Ohio 44131
ANITA LASTER MAYS, J.:
{¶1} Plaintiffs-appellants, M.G. (“Father”) and A.G. (“Mother”), appeal the trial
court’s grant of summary judgment in favor of appellee city of Middleburg Heights
(“city”), finding that the city is immune from liability for an injury sustained by their
minor child, O.G., at the city’s recreation center (“Center”). We affirm.
I. Background
{¶2} On February 17, 2014, O.G. and his parents attended the basketball game
of O.G.’s older sibling at the Center. O.G. and his parents were waiting for the sibling to
join them after the game. O.G. was standing by a large cylindrical bar that was part of
the machine that operated the roll-up gym divider curtain. The curtain is used to separate
the gymnasium into two basketball courts, allowing multiple games to be played at one
time. One of the city’s employees activated the machine to roll up the curtain after the
game.
{¶3} O.G. reached out and touched the machine. O.G.’s hand and arm were
drawn into the machine, and O.G. was slowly lifted from the floor while Father attempted
to help by holding O.G.’s feet. The employee operating the machine was notified, and
the machine was deactivated, lowering O.G. to the ground. O.G. suffered a transverse
incomplete fracture through the mid-shaft of the humerus bone with mild angulation of
the distal fragment of the left arm, resulting in a degree of permanent residual damage to
the arm. Appellants state there were no warning signs in the area or sounds indicating
the machine’s operation. O.G. stated he did not know why he reached out and touched
the machine as it began moving.
{¶4} Appellants filed suit on February 12, 2016, alleging negligence and loss of
consortium. After discovery, the city moved for summary judgment on August 26, 2016,
asserting political subdivision immunity under R.C. Chapter 2744. Appellants responded
that the city is liable under an exception to immunity pursuant to R.C. 2744.02(B). The
trial court granted the motion on October 15, 2016, and appellants filed the instant appeal.
II. Analysis
{¶5} The single assignment of error posed on appeal challenges the propriety of
the trial court’s grant of summary judgment. We review a trial court’s entry of summary
judgment de novo, using the same standard as the trial court. Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
{¶6} Summary judgment may only be granted when the following are
established: (1) there is no genuine issue as to any material fact; (2) the moving party is
entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one
conclusion, and the conclusion is adverse to the party against whom the motion for
summary judgment is made, who is entitled to have the evidence construed most strongly
in its favor. Hairless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d
46 (1978); Civ.R. 56(C).
{¶7} The party moving for summary judgment bears the initial burden of
apprising the trial court of the basis of its motion and identifying those portions of the
record that demonstrate the absence of a genuine issue of fact on an essential element of
the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264
(1996). “Once the moving party meets its burden, the burden shifts to the nonmoving
party to set forth specific facts demonstrating a genuine issue of material fact exists.”
Willow Grove, Ltd. v. Olmsted Twp., 2015-Ohio-2702, 38 N.E.3d 1133, ¶ 15 (8th Dist.),
citing Dresher. “To satisfy this burden, the nonmoving party must submit evidentiary
materials showing a genuine dispute over material facts.” Willow Grove at ¶ 15, citing
PNC Bank v. Bhandari, 6th Dist. Lucas No. L-12-1335, 2013-Ohio-2477.
{¶8} R.C. Chapter 2744 exculpates political subdivisions of tort liability when
performing governmental or proprietary functions, subject to the statutory exceptions.
R.C. 2744.02(A)(1). Determination of immunity involves a tripartite inquiry. The first
question is whether the political subdivision is involved in a governmental or proprietary
function as defined by R.C. 2744.02(A)(1), establishing immunity. The second question
is whether immunity is eliminated by the presence of one of the exceptions listed in R.C.
2744.02(B). If immunity remains intact, there is no need to proceed to step three. If
immunity is compromised, the final inquiry is whether immunity is reinstated by
R.C. 2744.03(A). See Maddox v. E. Cleveland, 8th Dist. Cuyahoga No. 96390,
2012-Ohio-9, ¶ 17; Jacobs v. Oakwood, 8th Dist. Cuyahoga No. 103830,
2016-Ohio-5327, ¶ 9-11.
{¶9} The “design, construction, reconstruction, renovation repair, maintenance or
operation of an indoor recreational facility is a governmental function.” R.C.
2744.01(C)(2)(u)(ii). Brister v. Cleveland, 8th Dist. Cuyahoga No. 100016,
2014-Ohio-1232, ¶ 7. The parties do not dispute that the city’s operation of the Center is
a governmental function is entitled to immunity.
{¶10} We next consider whether immunity is eliminated under R.C. 2744.02(B).
Appellants argue that there is a genuine issue of material fact as to whether R.C.
2744.02(B)(4) applies:
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.
“‘[U]nder R.C. 2744.02(B)(4), a political subdivision can be held liable for injury caused
by the negligence of its employees that occurred within the grounds of buildings used in
performing a governmental function * * *.’” Brister at ¶ 9, quoting M.H. v. Cuyahoga
Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 1.
{¶11} Appellants contend that the three elements establishing liability under R.C.
2744.02(B)(4) are present in this case because the injury was: “‘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.”’
Duncan v. Cuyahoga Community College, 2012-Ohio-1949, 970 N.E.2d 1092, ¶ 26 (8th
Dist.), quoting Hamrick v. Bryan City School Dist., 6th Dist. Williams No. WM-10-014,
2011-Ohio-2572, ¶ 25. Note, however, that, “‘[a]ll of these characteristics must be
present.’” Id.
{¶12} There is no evidence in this case that the curtain storage machine
constitutes or contains a physical defect:
“The word ‘physical’ is defined as ‘having a material existence: perceptible
especially] through senses and subject to the laws of nature.’ Merriam
Webster’s New Collegiate Dictionary (10 Ed.1996) 877. A ‘defect’ is ‘an
imperfection that impairs worth or utility.’ Id. at 302. It would seem then
that a ‘physical defect’ is a perceivable imperfection that diminishes the
worth or utility of the object at issue. (Emphasis added.)”
Duncan at ¶ 26, quoting Hamrick at ¶ 28.
{¶13} Post-Duncan, this court determined that “a physical defect may include an
object or instrumentality that does ‘not operate as intended due to a perceivable
condition.’” Smiley v. Cleveland, 8th Dist. Cuyahoga No. 103987, 2016-Ohio-7711, ¶ 13,
quoting Jacobs, 8th Dist. Cuyahoga No. 103830, 2016-Ohio-5327, at ¶ 16, citing Jones v.
Delaware City School Dist. Bd. of Edn., 2013-Ohio-3907, 995 N.E.2d 1252, ¶ 22 (5th
Dist.) (finding that a lack of reflective tape and lighting around the edge of an orchestra
pit providing indication of a difference in elevation may be deemed a physical defect).
{¶14} The record does not demonstrate that the machine failed to operate
properly or that a defect existed. According to the testimony of the director of the
Center, Jeffrey C. Minch (“Minch”), there is no indication in the maintenance and repair
records for the machine of any issues, defects, or malfunctions, though the curtain is
raised and lowered several times a day.
{¶15} Appellants’ negligence allegations are also based on the Center’s
improper training of employees to operate the machine, failure to warn of the danger to
children when the machine was activated, and failure to maintain or operate the machine
in a safe manner. Appellants also argue that the Center’s employees should have
recognized that there was no safety device on the machine to prevent accidents. There is
no evidence in the record supporting any of appellants’ suppositions including that a
safety device was required or missing.
{¶16} We also consider the testimony of Father and O.G. regarding the incident.
O.G. had seen the curtain being raised during prior visits. He saw the curtain going up
and touched it, but did not know why. Father testified that “a six-year-old sees
something like that moving and was curious about it and reached his hand out. And his
hand got stuck in there.”
{¶17} Based on our review of the record, there is no indication of a “‘perceivable
imperfection that diminishes the worth or utility’” of the machine, Jacobs, 8th Dist.
Cuyahoga No. 103830, 2016-Ohio-5327, at ¶ 16, quoting Canidate v. Cuyahoga Metro.
Hous. Auth., 8th Dist. Cuyahoga No. 101753, 2015-Ohio-880, ¶ 19. In addition, there is
no evidence that the machine “‘did not operate as intended due to a perceivable
condition.’” Id., quoting Jones, 2013-Ohio-3907, 995 N.E.2d 1252, at ¶ 22.
{¶18} We find that, construed in a light most favorable to appellants, there is no
genuine issue of material fact. The record lacks evidence of all three necessary factors to
constitute an exception to immunity, namely no physical defect. Duncan,
2012-Ohio-1949, 970 N.E.2d 1092, at ¶ 26, quoting Hamrick, 6th Dist. Williams
No. WM-10-014, 2011-Ohio-2572, at ¶ 25.
{¶19} The assigned error lacks merit. In light of the failure to impugn
immunity, we do not reach the third step of the analysis.
{¶20} Judgment affirmed.
It is ordered that appellee recover of appellant 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 Cuyahoga
County 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.
_________________________________________
ANITA LASTER MAYS, JUDGE
EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR