Hubbard v. Canton City School Board of Education

Lundberg Stratton, J.,

concurring in part and dissenting in part.

{¶ 21} I concur with the majority’s affirmance of summary judgment on the claim of intentional infliction of emotional distress. However, I respectfully dissent from its interpretation of the exception to immunity in R.C. 2744.02(B)(4). Without the requirement that the negligence must arise out of a physical defect or negligent use of the grounds or buildings, a political subdivision now may be liable for any negligent act of an employee that occurs within or on the grounds of its buildings. Such a literal interpretation effectively obliterates the doctrine of sovereign immunity. It creates a situation where a political subdivision is immune from liability for negligent acts that are committed away from governmental buildings, whereas there is no immunity for negligence that occurs within or on the grounds of the buildings. I do not believe that the General Assembly intended such a contradictory result.

{¶ 22} Instead, I believe that the majority of appellate courts has correctly interpreted subsection (B)(4) as a premises-liability exception to sovereign immunity. See Steward v. Columbus (Sept. 10, 1998), Franklin App. No. 97APG12-1567, 1998 WL 598433; Kaderly v. Blumer (Oct. 15, 1996), Stark App. No. 1996CA00022,1996 WL 608480.

{¶ 23} I believe that the majority’s interpretation of R.C. 2744.02(B)(4) is inconsistent with the other provisions in the statute, as explained by various *456appellate courts. “When R.C. 2744.02(B)(4) and R.C. 2744.03(A)(5) are read in concert, it becomes apparent that, in regard to governmental buildings or facilities, the intent of the General Assembly was that a political subdivision can only be held liable for damages stemming from negligent maintenance.” (Emphasis sic.) Vance v. Jefferson Area Local School Dist. Bd. of Edn. (Nov. 9, 1995), Ashtabula App. No. 94-A-0041, 1995 WL 804523. “For example, R.C. 2744.02(B)(2) states that political subdivisions are liable for damages caused i* * * the negligent performance of acts by their employees with respect to proprietary functions * * If appellants’ interpretation of (B)(4) was correct, then there would be no need for (B)(2). Any acts which would fall under (B)(2) would also fall under (B)(4).” Zellman v. Kenston Bd. of Edn. (1991), 71 Ohio App.3d 287, 291, 593 N.E.2d 392.

Edward L. Gilbert, for appellants. Britton, McGown, Smith, Peters & Kalail Co., L.P.A., Susan S. McGown, Matthew J. Markling and David A. Rose, for appellees.

{¶ 24} The majority ignores a cardinal rule of statutory construction: courts must strive to avoid absurd or unreasonable results. Mishr v. Poland Bd. of Zoning Appeals (1996), 76 Ohio St.3d 238, 240, 667 N.E.2d 365. The majority’s interpretation grants immunity and removes it in the same stroke of a pen. Therefore, while I concur that summary judgment on the claim of intentional infliction of emotional distress was proper, I must respectfully dissent from the reversal of the judgment on the claim of negligent supervision and retention.

Resnick, J., concurs in the foregoing opinion.