Conley v. Wapakoneta City School Dist. Bd. of Edn.

[Cite as Conley v. Wapakoneta City School Dist. Bd. of Edn., 2022-Ohio-2915.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY

TREY R. CONLEY,

PLAINTIFF-APPELLANT, CASE NO. 2-21-18

v.

WAPAKONETA CITY SCHOOL DISTRICT
BOARD OF EDUCATION, ET AL., OPINION

DEFENDANTS-APPELLEES.

Appeal from Auglaize County Common Pleas Court
Trial Court No. 2020 CV 0097

Judgment Affirmed

Date of Decision: August 22, 2022

APPEARANCES:

Clay W. Balyeat, Aaron L. Bensinger and
Christopher A. Jackson for Appellant

Michael J. Valentine and Keona R. Padgett for Appellees
Case No. 2-21-18

MILLER, J.

{¶1} Plaintiff-appellant, Trey Conley, appeals the September 1, 2021

judgment of the Auglaize County Court of Common Pleas granting summary

judgment in favor of defendants-appellees, Wapakoneta City School District Board

of Education (“Wapakoneta City School District”) and Thomas Allison, on the

grounds of sovereign immunity. On appeal, Conley contends that defendants-

appellees were not entitled to sovereign immunity.

Background

{¶2} The case arises from an injury incurred during a March 28, 2016

baseball practice for the Wapakoneta City School District’s eighth-grade boys’

baseball team. That day, the team, which included Conley, was scheduled to have

its first baseball game of the season. However, due to rain, the game was cancelled

and the team instead practiced at the Wapakoneta High School gymnasium.

{¶3} The team spent the beginning of practice in the batting cages located on

the upper level of the gymnasium. Toward the end of the practice, Allison, a teacher

at Wapakoneta City Schools and the coach of the baseball team, set up the lower

gymnasium like a baseball field for a “team building activity.” (Allison’s Apr. 22,

2021 Depo. at 14). As part of the exercise, some members of the team assumed

positions in the makeshift field, while other members of the team took turns batting.

-2-
Case No. 2-21-18

{¶4} Allison provided the team with a “hit stick” which he found in the high

school’s equipment locker to use in the place of a bat and a tennis ball was used in

the place of a baseball. (Id. at 18, 30); (Conley’s Mar. 16, 2021 Depo. at 39). During

the game, Conley was approximately 10 to 15 feet away from the home plate and

waiting his turn to bat in the “on-deck circle.” (Conley’s Mar. 16, 2021 Depo. at

42). This area was down the third base line but not in the field of play. (Id.);

(Woodruff’s Apr. 22, 2021 Tr. at 7). Allison was in the area behind home plate.

(Allison’s Apr. 22, 2021 Depo. at 16, 38). Jeven Woodruff, a fellow member of the

baseball team, came up to bat. Woodruff swung the hit stick at the ball and the stick

left his hand and hit Conley in the eye.

{¶5} While Allison applied first aid, he immediately delegated other

members of the team to locate Conley’s emergency contact information, attempt to

locate the school’s athletic trainer, and call for emergency medical services. (Id. at

17). Conley was taken to the hospital where a surgeon removed shards from his

eye. Tragically, Conley’s left eye was subsequently removed due to the nature and

extent of the injuries.

{¶6} The hit stick was a thin, bat-like object with a handle and was used to

practice swinging and making contact with the ball. (Id. at 32). The hit stick, which

Allison recalled using as far back as 2005, was admittedly “worn.” (Id. at 17-18,

20, 30). The handle was foam, but electrical tape was wrapped around the handle.

-3-
Case No. 2-21-18

(Id. at 19; Plaintiff’s Ex. 4). Allison added some of the electrical tape to the handle

the day prior to Conley’s injury because the tape that was already covering part of

the handle was starting to tear and expose the foam underneath, and Allison wanted

to repair the rip before the damaged area increased. (Id. at 19-20, 35). At the time,

Allison did not “see any problem” with putting tape over the foam handle because

he had added tape to other pieces of equipment before and had not had “any

problems with that.” (Id. at 20). Furthermore, the hit stick already had some tape

on it. (Id. at 20, 35).

{¶7} At the time he applied the tape to the hit stick, Allison was not

concerned that he was making the hit stick more slippery or covering the knob on

the end of the stick where it is held by the batter. (Id.). He acknowledged that he

“modified” the hit stick by adding the tape and conceded that the addition of the

tape made the hit stick more dangerous. (Id. at 24). However, it was only with the

benefit of hindsight that he came to believe the addition of the electrical tape made

the hit stick more “slippery” or “dangerous.” (Id. at 37-39). Prior to the incident,

Allison had applied tape to other pieces of equipment, including the hit stick at issue

here, and it “worked fine.” (Id. at 36). Accordingly, Allison “did not give it a

thought that [the electrical tape] may make it slippery.” (Id. at 35-36). Moreover,

Allison stated that he has observed an actual baseball bat with a knob and no

-4-
Case No. 2-21-18

electrical tape on it leave the hands of a batter in a baseball game or practice

“numerous times.” (Id. at 38).

{¶8} With respect to coaching, Allison stated his “number one concern” is

the safety of his players and that he “definitely did not” want to see his players

injured. (Id. at 37-39). With respect to the hit stick, Allison stated, “From my

experience of using similar things, I felt it was safe then, and I thought it was safe

now.” (Id. at 40). However, Allison stated that he would not use the hit stick again

because it caused Conley’s injury and he would not want to take the chance of

another player being injured. (Id. at 40-41).

{¶9} In addition to the newly added electrical tape, the hit stick was also

missing the end cap. (Rex’s Apr. 22, 2021 Depo. at 13, 18, Plaintiff’s Ex. 5);

(Allison’s Apr. 22, 2021 Depo. at 24, 34-35). Allison did not recall the hit stick

ever having end caps. (Allison’s Apr. 22, 2021 Depo. at 34). Allison opined that,

in hindsight, the hit stick might have been safer to use if there had been an end cap

on it. (Id. at 34-35). However, he did not have that concern prior to Conley’s injury.

(Id.).

{¶10} On August 24, 2020, Conley filed a complaint for personal injuries

against appellees. Conley filed an amended complaint on September 8, 2020 and a

second-amended complaint on May 5, 2021. In his second amended complaint,

Conley asserted that Wapakoneta City School District acted in a wanton and

-5-
Case No. 2-21-18

reckless manner and that the school district, through its employees, including

Allison, was negligent for providing its student athletes with unsafe and defective

equipment. Appellees timely filed answers to the complaints.

{¶11} On May 18, 2021, Wapakoneta City School District and Allison filed

a motion for summary judgment asserting sovereign immunity. On July 13, 2021,

Conley filed his response to appellees’ motion for summary judgment. Attached as

an exhibit to his response was an expert opinion of Shawn Pender, the vice president

of player development of the Cincinnati Reds. In his expert opinion, Pender stated

that Allison’s actions were “reckless” and that, as a result, Allison and the

Wapakoneta School District should be liable for Conley’s injuries. On August 10,

2021, Wapakoneta City School District and Allison filed their reply in support of

their motion for summary judgment. On September 1, 2021, the trial court filed its

judgment entry granting appellees’ motion for summary judgment on the grounds

of sovereign immunity.

{¶12} Conley filed his notice of appeal on September 22, 2021. He raises

two assignments of error for our review. For ease of discussion, we will address the

assignments of error out of order.

Assignment of Error No. II

The Trial Court erred by disqualifying the Appellant’s expert
witness, when the statement and conclusion of the expert should
have been considered as the Appellant is the party entitled to have
the evidence or stipulation construed most strongly in his favor.

-6-
Case No. 2-21-18

{¶13} In his second assignment of error, Conley argues that the trial court

erred by excluding the expert testimony of Shawn Pender. Specifically, the trial

court excluded the opinion on the grounds that Pender was not qualified as an expert

witness on the relevant subject matter and that his expert opinion “falls short of the

requirements of the Ohio Rules of Evidence and Civil Rule 56.” (Doc. No. 83).

While the Wapakoneta City School District and Allison were critical of the affidavit

in their rebuttal to Conley’s opposition to the motion for summary judgment, a

specific objection to the admissibility of the affidavit was not filed. Nevertheless,

“[w]here the opposing party fails to object to the admissibility of the evidence under

Civ.R. 56, the court may, but is not required to consider such evidence when it

determines whether summary judgment is appropriate.” Sullinger v. Sullinger, 3d

Dist. Hardin No. 6-20-06, 2020-Ohio-5225, ¶ 27 (citations omitted).

{¶14} “The determination of the admissibility of expert testimony is within

the discretion of the trial court.” Valentine v. Conrad, 110 Ohio St.3d 42, 2006-

Ohio-3561, ¶ 9, citing Evid.R. 104(A). Such a determination will not be disturbed

absent an abuse of discretion. Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 616

(1998). An abuse of discretion constitutes more than an error of judgment; rather,

it implies that the trial court acted unreasonably, arbitrarily, or unconscionably.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

-7-
Case No. 2-21-18

{¶15} In excluding the Pender affidavit from consideration, the trial court

found the “expert” to lack the qualifications necessary to render an opinion on the

particular subject matter raised in the motion for summary judgment. Upon review

of the record, we do not find that the trial court abused its discretion by excluding

Pender’s expert opinion.

{¶16} Pender’s curriculum vitae indicates that he is employed as the vice

president of player development for a major league baseball team and has various

experience as a collegiate baseball coach and scout. However, his curriculum vitae

is conspicuously devoid of experience coaching high school or middle school

baseball. Additionally, the Pender affidavit attempts to discredit Allison and other

witnesses by citing to the Ohio High School Athletic Association (“OHSAA”) rules

and the National Federation of State High School Associations’ rules. However,

the basis for Pender’s understanding and application of the rules to his opinion is

unclear. Furthermore, as evidenced by the Rules themselves, which were attached

as an appendix to various depositions, the Rules only apply to games, not practices.

This point was further emphasized by the unrefuted testimony of Allison and Rex

and the affidavit of Jerry Snodgrass, who at the time of Conley’s injury was the

OHSAA assistant commissioner. (Allison’s Apr. 22, 2021 Depo. at 11, 33-34,

Plaintiff’s Ex. 1); (Rex’s Apr. 22, 2021 Depo. at 9-10, 23-24, Plaintiff’s Ex. 1);

(Doc. No. 79; Ex. 1).

-8-
Case No. 2-21-18

{¶17} Moreover, Conley relies heavily on Pender’s expert opinion that

Wapakoneta City School District and Allison’s actions were reckless and wanton.

However, in stating that the appellee’s actions are reckless or wanton conduct does

not create an issue of fact, but merely states a legal conclusion. Pender makes his

conclusions without demonstrating he has an understanding of how the terms are

defined by Ohio law. The determination of whether Allison’s conduct, in particular,

constituted reckless or wanton conduct is a central inquiry. The issue is “not of such

a highly technical nature to be beyond the comprehension of an average juror.”

Donlin v. Rural Metro Ambulance, Inc., 11th Dist. Trumbull No. 2002-T-0148,

2004-Ohio-1704, ¶ 26. Accordingly, expert testimony on the ultimate issue was not

necessary for the trial court to determine whether appellees’ conduct was reckless

or wanton. Michael v. Worthington Ohio City School Dist., 10th Dist. Franklin No.

19AP-145, 2020-Ohio-1134, ¶ 36. “Thus, because a fact-finder is capable of

reaching this conclusion without an expert-witness opinion, appellant’s expert-

witness testimony would be inadmissible at trial and, therefore, could not be relied

upon in a summary judgment action.” Donlin at ¶ 26.

{¶18} Accordingly, we do not find that the trial court abused its discretion

by excluding Pender’s expert opinion. Conley’s second assignment of error is

overruled.

-9-
Case No. 2-21-18

Assignment of Error No. I

The Trial Court erred when it granted summary judgment in
favor of the Appellees, by finding that the sovereign immunity
applied, thereby dismissing the Appellant’s complaint when the
Appellant had proven the exceptions to the immunity defense.

{¶19} In his first assignment of error, Conley argues that the trial court erred

by granting summary judgment in favor of Wapakoneta City School District and

Allison on the basis of sovereign immunity. For the reasons that follow, we

disagree.

Standard of Review

{¶20} “Whether a party is entitled to immunity is a question of law properly

determined by the court prior to trial pursuant to a motion for summary judgment.”

Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, ¶ 12, citing Conley v.

Shearer, 64 Ohio St.3d 284, 292 (1992).

{¶21} “We review a decision to grant a summary judgment motion on the

basis of sovereign immunity de novo.” Goebel v. Minster, 3d Dist. Auglaize No. 2-

21-19, 2022-Ohio-883, ¶ 35. “De novo review is independent and without deference

to the trial court’s determination.” ISHA, Inc. v. Risser, 3d Dist. Allen No. 1-12-47,

2013-Ohio-2149, ¶ 25, citing Costner Consulting Co. v. U.S. Bancorp, 195 Ohio

App.3d 477, 2011-Ohio-3822, ¶ 10 (10th Dist.). Summary judgment is proper

where there is no genuine issue of material fact, the moving party is entitled to

judgment as a matter of law, and reasonable minds can reach but one conclusion

-10-
Case No. 2-21-18

when viewing the evidence in favor of the non-moving party, and the conclusion is

adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City

School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

{¶22} “The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of material

fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is

not required to produce any affirmative evidence, but must identify those portions

of the record which affirmatively support his argument.” Id., citing Dresher at 292.

“The nonmoving party must then rebut with specific facts showing the existence of

a genuine triable issue; he may not rest on the mere allegations or denials of his

pleadings.” Id., citing Dresher at 292 and Civ.R. 56(E).

{¶23} Material facts are those facts “‘that might affect the outcome of the

suit under the governing law.’” Turner v. Turner, 67 Ohio St.3d 337, 340 (1993),

quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).

“Whether a genuine issue exists is answered by the following inquiry: [d]oes the

evidence present ‘a sufficient disagreement to require submission to a jury’ or is it

‘so one-sided that one party must prevail as a matter of law[?]’” Id., quoting

Anderson at 251-252.

-11-
Case No. 2-21-18

Relevant Law: Sovereign Immunity

{¶24} Ohio’s Political Subdivision Tort Liability Act, which governs tort

liability and immunity for political subdivisions and their employees, is codified in

Chapter 2744 of the Revised Code. McDonnell v. Dudley, 158 Ohio St.3d 388,

2019-Ohio-4740, ¶ 20. “Determining whether a political subdivision is immune

from tort liability pursuant to R.C. Chapter 2744 involves a familiar, three-tiered

analysis.” Pelletier, 153 Ohio St.3d 611, 2018-Ohio-2121, ¶ 15. “The general rule

is that political subdivisions are not liable in damages.” Brady v. Bucyrus Police

Dept., 3d Dist. Crawford No. 3-10-21, 2011-Ohio-2460, ¶ 44.

{¶25} “The first tier of the sovereign-immunity analysis involves the general

grant of immunity to political subdivisions by R.C. 2744.02(A)(1), which provides

that ‘a political subdivision is not liable in damages in a civil action for injury, death,

or loss to person or property allegedly caused by any act or omission of the political

subdivision or an employee of the political subdivision in connection with a

governmental or proprietary function.’” McDonnell at ¶ 21. However, that

immunity is not absolute. Id. See R.C. 2744.02(B).

{¶26} The second tier of the analysis involves establishing if any of the five

exceptions to immunity that are listed in R.C. 2744.02(B) lift the sovereign

immunity and expose the political subdivision to liability. McDonnel at ¶ 22.

-12-
Case No. 2-21-18

{¶27} Finally, if one of the five exceptions to immunity outlined in R.C.

2744.02(B) applies and if any of the defenses that may be asserted under R.C.

2744.02(B)(1) by the political subdivision do not apply, we proceed to the third tier

of the analysis and determine if any of the defenses in R.C. 2744.03 apply to

reinstate the political subdivision’s immunity. Id. at ¶ 23.

{¶28} “Immunity is also extended to individual employees of political

subdivisions.” Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, ¶ 10; R.C.

2744.03(A)(6). However, the three-tiered analysis is not used to analyze claims

against individual employees. 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.” 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 at ¶ 10.

-13-
Case No. 2-21-18

Analysis

Wapakoneta City School District

{¶29} With respect to the first tier of the immunity analysis, the parties agree

that appellants are considered political subdivisions. Indeed, R.C. 2744.01(F)

defines a “[p]olitical subdivision” as “a municipal corporation, township, county,

school district, or other body corporate and politic responsible for governmental

activities in a geographic area smaller than that of the state.” Further, school boards

are political subdivisions under the statute. See Horen v. Bd. of Edn. of Toledo Pub.

Schools, 6th Dist. Lucas No. L-09-1143, 2010-Ohio-3631, ¶ 34. See R.C.

2744.01(F). Thus, Wapakoneta City School District is a political subdivision

generally entitled to immunity pursuant to R.C. 2744.02(A)(1).

{¶30} With immunity generally established and the first tier of the immunity

analysis complete, we next turn to the second tier of the analysis to determine if any

of the exceptions to immunity listed in R.C. 2744.02(B)(1)-(5) are applicable. Here,

Conley argues that the exceptions outlined in R.C. 2744.02(B)(2) and R.C.

2744.02(B)(4) apply.

{¶31} R.C. 2744.02(B)(2) provides that “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

subdivisions.” (Emphasis added.) Here, Conley contends that the Wapakoneta City

-14-
Case No. 2-21-18

School District was engaged in a proprietary, rather than governmental, function

when his injury occurred, and, accordingly, the Wapakoneta City School District is

not entitled to sovereign immunity. On the other hand, the Wapakoneta City School

District argues that it was engaged in a governmental function at the time of the

injury and, therefore, the R.C. 2744.02(B)(2) exception to immunity does not apply.

{¶32} “Governmental function” and “proprietary function” are mutually

exclusive terms whose definitions are outlined in R.C. 2744.01. Greene Cty.

Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 557 (2000); R.C. 2744.01. Specific

functions expressly designated as governmental functions and proprietary functions

are listed in R.C. 2744.01(C)(2) and R.C. 2744.01(G)(2), respectively. R.C.

2744.01(C)(1) provides that a “government function” is one that satisfies any of the

following criteria:

(a) A function that is imposed upon the state as an obligation of
sovereignty and that is performed by a political subdivision
voluntarily or pursuant to legislative requirement;

(b) A function that is for the common good of all citizens of the state;

(c) A function that promotes or preserves the public peace, health,
safety, or welfare; that involves activities that are not engaged in or
not customarily engaged in by nongovernmental persons; and that is
not specified in division (G)(2) of this section as a proprietary
function.

R.C. 2744.01(C)(1). Relevant to the present case, R.C. 2744.01 provides that a

“governmental function” includes “[t]he provision of a system of public education”

-15-
Case No. 2-21-18

and “[t]he design, construction, reconstruction, renovation, repair, maintenance, and

operation of any school athletic facility, school auditorium, or gymnasium or any

recreational area or facility.” R.C. 2744.01(C)(2)(c), (u). Proprietary functions, on

the other hand, are defined, in pertinent part, by R.C. 2744.01(G)(1)(b) 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.”

{¶33} Conley argues that Wapakoneta City School District’s decision to use

a modified hit stick was proprietary in nature and, therefore, the Wapakoneta City

School District is not immune from liability. In support of this argument, Conley

relies primarily on Greene County Agricultural Society v. Liming, in which the

Supreme Court of Ohio determined that an agricultural society conducting a hog

show at county fair was engaged in a proprietary rather than a governmental

function. Greene Cty. Agricultural Soc. at 561. In that case, the Supreme Court

of Ohio reasoned as follows:

It is apparent to us that even though conducting a county fair may be
an activity not customarily engaged in by nongovernmental persons,
conducting livestock competition is an activity customarily engaged
in by nongovernmental persons. Any organization, whether private
or public, can hold a competition of this type. The consideration that
many such competitions are conducted within county fairs cannot
change the fact that there is nothing inherently governmental about
them. In this situation, educational value alone is not enough to
convert what otherwise would not be a governmental function into
something that is a governmental function. We see no reason to
distinguish a livestock competition at a county fair from any other
similar competition, such as a livestock competition held elsewhere

-16-
Case No. 2-21-18

than at a county fair, or a dog or cat show, or an art show, or a chili
cook-off, or a beauty pageant, or a car show.

(Emphasis sic.) Id. at 560.

{¶34} Conley attempts to parallel Greene County Agricultural Society to the

present case by arguing that “a baseball practice is customarily engaged by athletes,

who are nongovernmental persons” and that “[a]ny baseball team, whether private

or public, can hold a baseball competition just as any agricultural society or county

fair can hold a livestock competition.” (Appellant’s Brief at 7-8). Conley reasons

that because his injury occurred at a “competition that is organized and operated by

a public entity,” the school was engaged in a proprietary function at the time of his

injury. (Id. at 8).

{¶35} However, “[t]he provision of public education is specifically identified

as a governmental, rather [than] a proprietary, function pursuant to R.C.

2744.01(C)(2)(c).” Perkins v. Columbus Bd. of Edn., 10th Dist. Franklin No. 13AP-

803, 2014-Ohio-2783, ¶ 12. “This extends to most school activities and

administrative functions of the educational process, even if not directly comprising

part of the classroom teaching process.” Id. Where, as here, the function is related

to athletic events conducted by public school systems, courts have found that the

public school system was engaging in a governmental rather than a proprietary

function. See also Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-

Ohio-2070, ¶ 10; Wilson v. McCormack, 11th Dist. Ashtabula No. 2016-A-0039,

-17-
Case No. 2-21-18

2017-Ohio-5510, ¶ 31 (“the provision of a public system of education is expressly

defined as a governmental function by R.C. 2744.01(C)(2)(c), and * * * the hiring,

retention, and supervision of a high school basketball coach is an inherent part of

that activity”). For instance, in Spaid v. Bucyrus City Schools, this court found that

a public school engaged in a governmental function by conducting a “field day” on

the public school grounds. Spaid v. Bucyrus City Schools, 144 Ohio App.3d 360,

362, 364 (3d Dist.2001). Accordingly, we find the function at issue is a

governmental, rather than a proprietary function. Accordingly, R.C. 2744.02(B)(2),

which relates only to proprietary functions, does not apply.

{¶36} Next, we address Conley’s argument that the R.C. 2744.02(B)(4)

exception from immunity applies to the instant case. R.C. 2744.02(B)(4) provides,

in relevant part, that

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 [R.C. 2921.01].

R.C. 2744.02(B)(4). Accordingly, to establish that the exception outlined in R.C.

2744.02(B)(4) applies, “a plaintiff must demonstrate that the injury (1) resulted from

a political subdivision employee’s negligence, (2) occurred within or on the grounds

of buildings used in connection with governmental function, and (3) resulted from

-18-
Case No. 2-21-18

a physical defect within or on those grounds.” Leasure v. Adena Local School Dist.,

4th Dist. Ross No. 11CA3249, 2012-Ohio-3071, ¶ 15.

{¶37} We address the third prong of the physical-defect exception first,

which requires that the injury result from a physical defect. “[B]ecause the term

‘physical defect’ is not defined in Chapter 2744, ‘courts have applied the common

meaning of the phrase.’” Moss v. Lorain Cty. Bd. of Mental Retardation, 9th Dist.

Lorain No. 15CA010767, 2016-Ohio-169, ¶ 11, quoting Hawsman v. Cuyahoga

Falls, 9th Dist. Summit No. 27221, 2014-Ohio-4325, ¶ 23. “Considering the

definitions of the words ‘physical’ and ‘defect’ together * * * ‘it would seem * * *

that a “physical defect” is an imperfection that possesses some materiality that

diminishes the worth or utility of the object at issue.’” Id., quoting Hawsman at ¶

23.

{¶38} Conley argues that the exception under R.C. 2744.02(B)(4) is

applicable because the hit stick was modified by Allison in a manner that caused it

not to operate as intended. Thus, Conley contends that the hit stick constitutes a

“physical defect” for the purposes of this exception. We disagree.

{¶39} “Ohio cases addressing the ‘physical defect’ exception in general

involve physical defects as part of the structure of buildings and the maintenance of

those structures.” Douglas v. Columbus City Schools Bd. of Edn., 10th Dist.

Franklin No. 18AP-940, 2020-Ohio-1133, ¶ 25. As noted, Conley seeks to invoke

-19-
Case No. 2-21-18

the exception under R.C. 2744.02(B)(4) based on the allegation that the hit stick,

modified by Allison with the addition of electrical tape, constituted a “physical

defect.” Specifically, Conley argues that adding the tape made the bat more slippery

and covered up the “knob” on the end of the hit stick designed to prevent the

equipment from leaving the batter’s hands. However, based on the facts presented,

we agree with the trial court’s determination that the alleged defect was not a

“physical defect” within or on the grounds or buildings of the political subdivision

as contemplated by R.C. 2744.02(B)(4).

{¶40} In support of Conley’s position, he primarily relies on two cases, both

of which are distinguishable from the instant case. In R.K. v. Little Miami Golf

Center, a case that Conley attempts to analogize to the present case, the appellate

court found that a tree limb which fell and caused injury to the appellant was a

physical defect pursuant to R.C. 2744.02(B)(4). R.K. v. Little Miami Golf Cent., 1st

Dist. Hamilton No. C-130087, 2013-Ohio-4939, ¶ 20. Although Conley attempts

to parallel a falling tree branch to the hit stick, we are not persuaded. The

unmaintained tree branch, which fell and caused injury in R.K. v. Little Miami Golf

Center was a physical part of the grounds of the public golf course maintained by

the park district. Here, although the hit stick was physically present in the building,

it is, by design, a readily mobile object that was not part of the building or grounds.

-20-
Case No. 2-21-18

{¶41} Conley also relies on Spaid v. Bucyrus City Schools, 144 Ohio App.3d

360 (3d Dist.2001), a case in which this court analyzed a prior version of R.C.

2744.02(B)(4) to determine that a school district was liable for an injury which

occurred at a school-sponsored track and field day. In 2003, the legislature amended

R.C. 2744.02(B)(4) to add the language “and is due to physical defects within or on

the grounds of” while keeping the rest of the statute the same. Nicholson v.

LoanMax LLC, 7th Dist. Belmont No. 16 BE 0057, 2018-Ohio-375, ¶ 21. “‘The

statute was changed to limit liability for negligence that is due to physical defects

within or on the grounds that are used in connection with a governmental function.’”

Id., quoting Roberts v. Switzerland of Ohio Local School Dist., 2014-Ohio-78, ¶ 20

(7th Dist.). See Contreraz v. Bettsville, 3d Dist. Seneca No. 13-10-48, 2011-Ohio-

4178, ¶ 33. Accordingly, Spaid is inapplicable to this case as it relates to findings

relating to physical defects within or on the grounds.

{¶42} Rather, we agree with the trial court’s determination that the hit stick

is not a physical defect within or on the grounds or buildings of the political

subdivision as contemplated by R.C. 2744.02(B)(4). Because Conley has failed to

satisfy his burden that his injury was due to a physical defect within or on the

grounds of the gymnasium, he cannot demonstrate all of the requirements under the

R.C. 2744.02(B)(4) exception. Thus, we need not discuss any questions of fact

pertaining to Wapakoneta City School District’s purported negligence. Contreraz

-21-
Case No. 2-21-18

at ¶ 26-51. Moreover, we further agree with the trial court’s conclusion that none

of the immunity exceptions under R.C. 2744.02(B) are applicable. Thus, the trial

court also properly determined that the Wapakoneta City School District was

entitled to immunity pursuant to R.C. 2744.02(A)(1) and did not err in granting its

motion for summary judgment.

{¶43} The dissent focuses on the absence of safety netting or a screen Conley

could have stood behind to constitute a physical defect.1 A “physical defect” under

the R.C. 2744.02(B)(4) exception has been defined as “a perceivable imperfection

that diminishes the worth or utility of the object at issue.” (Emphasis deleted.) See

Duncan v. Cuyahoga Community College, 8th Dist. Cuyahoga No. 97222, 2012-

Ohio-1949, ¶ 26. In Duncan, the plaintiff was injured when she was knocked to the

floor while taking part in a self-defense seminar. In the ensuing lawsuit against

Cuyahoga Community College, where the training took place, she alleged that her

injuries were caused by a “defect” in the college’s failure to use mats on the floor

while conducting the self-defense class. Id. at ¶ 25. Employing the definition of

physical defect, the Duncan court disagreed and found that a lack of mats on the

1
This assertion was not raised by Conley in the trial court below or in his arguments on appeal. We decline
to manufacture arguments for the parties, especially where the trial court did not have the opportunity to
consider the specific matter. Marysville Newspapers, Inc. v. Delaware Gazette Co., Inc., 3d Dist. Union No.
14-06-34, 2007-Ohio-4365, ¶ 21; Kelvon Properties, Ltd. v. Medina Automotive, LLC, 9th Dist. Medina No.
18CA0062-M, 2019-Ohio-584, ¶ 3 (“This Court declines to chart its own course when an appellant fails to
provide such guidance. It is not this Court’s duty to create an argument for the appellant, and we decline to
do so here.”); In re X.S., 3d Dist. Mercer Nos. 10-20-09, 10-20-10, 10-20-11, 10-20-12, and 10-20-13, 2021-
Ohio-1174, ¶ 66.

-22-
Case No. 2-21-18

floor of a classroom did not constitute a physical defect. Id. at ¶ 27, citing Hamrick

v. Bryan City School Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio-2572, ¶

29.

{¶44} Similarly, we do not find Allison’s failure to use a safety screen to

constitute a physical defect of the gymnasium where the indoor practice was taking

place. This is especially true considering Allison was using a tennis ball in place of

a baseball and the hit stick rather than an actual bat. On the contrary, cases

addressing the “physical defect” exception involve physical defects as part of the

structure of buildings and the maintenance of those structures. Douglas v.

Columbus City Schools Bd. of Edn., 10th Dist. Franklin No. 18AP-940, 2020-Ohio-

1133, ¶ 26 (teacher’s failure to take proper precautions during a science experiment

was not a “physical defect” within or on the grounds or buildings of the school).

Coach Allison

{¶45} Allison individually is entitled to immunity as an employee of a

political subdivision pursuant to R.C. 2744.03(A)(6) unless his actions 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.

R.C. 2744.03(A)(6).

-23-
Case No. 2-21-18

{¶46} Conley does not argue that Allison’s actions were outside his scope of

employment or official responsibilities or that civil liability is expressly imposed

upon him by a section of the Revised Code. Rather, Conley contends that Allison’s

actions were wanton and reckless. We disagree.

{¶47} “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.

{¶48} “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.

{¶49} “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.

{¶50} “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.

-24-
Case No. 2-21-18

{¶51} “All three standards-willful, wanton, and reckless-describe conduct

that is more than mere negligence. * * * If reasonable minds could only conclude

that the employee’s conduct demonstrates, at most, negligence, then summary

judgment is appropriate.” Hoffman v. Gallia Cty. Sheriff’s Office, 4th Dist. Gallia

No. 17CA2, 2017-Ohio-9192, ¶ 47. Here, Conley concedes that Allison’s actions

were not willful misconduct but argues that his actions were wanton and reckless.

We disagree.

{¶52} Conley contends that Allison, while exercising his duties as baseball

coach, “failed to take any care towards his duty * * * to protect his players when

there was great probability that the hit stick would cause harm.” (Appellant’s Brief

at 14-15). Conley argues that by choosing to use a hit stick that was worn and did

not have protective end caps and by further modifying the hit stick by wrapping

electrical tape on its handle, Allison caused the hit stick to become more dangerous.

Yet, Allison still set up the gymnasium as a small baseball field and permitted the

team to use the modified hit stick.

{¶53} However, after reviewing the record, we do not find that Allison’s

actions were wanton or reckless. The events that occurred in this case are largely

undisputed. According to Allison, the hit stick had been in use since at least 2005

when it was obtained by the Wapakoneta City School District. Allison recalled

-25-
Case No. 2-21-18

using it on other occasions and had used the equipment with at least one other team

without issue. (Allison’s Apr. 22, 2021 Depo. at 18).

{¶54} On the day before Conley’s injury, Allison added electrical tape to the

hit stick in an effort to repair a “rip” on the hit stick’s handle which was starting to

expose the foam underneath. (Id. at 19-20). Allison conceded the tape was

“slippery,” however, he did not “see any problem” with putting the electrical tape

on the equipment because the hit stick already had tape on it. (Id. at 20, 36). Further,

Allison had added tape to other equipment in the past without problem. (Id. at 36).

The tape did cover part of the “knob” at the bottom of the foam handle. (Id. at 24).

{¶55} Allison conceded he made a modification to the hit stick by adding

electrical tape to the handle of the equipment and that the modification made the hit

stick more dangerous. However, it was only with the benefit of hindsight that he

came to realize that the hit stick was more dangerous and that, based on his past

experience, he did not believe that adding the electrical tape to the handle of the

equipment would make it more dangerous.

{¶56} Allison had coached school athletics for many years, in a number of

different capacities, and he cited the safety of his athletes as his “number one

concern” in his role as baseball coach. (Id. at 37). At the time of the incident,

Allison did not have any safety concerns with respect to the hit stick and, in fact,

-26-
Case No. 2-21-18

was standing “behind the plate” at the time of the injury without concern of being

injured. (Id. at 16, 38-39).

{¶57} It is undisputed that, immediately following the injury, Allison

attempted to apply first aid and delegated several other members of the team to call

the ambulance, attempt to locate the school athletic trainer, and notify Conley’s

parents of the injury. Allison arrived to visit Conley at the hospital immediately

following the incident, and Conley’s mother described Allison as “pale and

shaking.” (Schleter’s Mar. 16, 2021 Depo. at 14).

{¶58} Although it is possible that the facts presented could constitute

negligence, in order for Allison to be subject to personal liability, his conduct had

to be more than negligent. There is no indication that Allison failed to exercise any

care, as is the standard for wanton misconduct or that his actions were “substantially

greater than negligent conduct” as required for his actions to be deemed reckless.

{¶59} By all indications, Allison did not believe adding electrical tape to the

hit stick would cause injury, a belief that was based on his past experience. Further,

he did not appreciate the potential probability of an injury. Although Allison’s

actions in applying electrical tape may have been, in hindsight, unwise, the facts

provided indicate Allison’s actions were well-intended and he genuinely did not

appreciate the risk of harm.

-27-
Case No. 2-21-18

{¶60} Accordingly, we do not find that Allison’s actions amounted to willful,

wanton, or reckless conduct such as to expose him to personal liability pursuant to

R.C. 2744.03(A)(6). Therefore, we find that the trial court did not err by

determining sovereign immunity shielded Allison from personal liability for

Conley’s injuries.

Conclusion

{¶61} This case presents a tragic accident and we are sympathetic to the

injury Conley suffered and the resulting losses he sustained. However, the

immunity statutes were designed to prevent liability unless certain situations or

conduct are present, and those situations or conduct are not present here.

{¶62} Accordingly, we find that the trial court did not err by determining that

sovereign immunity applied to Allison and the Wapakoneta City School District.

{¶63} Conley’s first assignment of error is overruled.

{¶64} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the Auglaize County

Court of Common Pleas.

Judgment Affirmed

WILLAMOWSKI, J., concurs.

-28-
Case No. 2-21-18

ZIMMERMAN, P.J., concurring in part and dissenting in part.

{¶65} I respectfully dissent from the majority opinion’s decision affirming

the trial court’s decision granting summary judgment in favor of the defendants.

Nevertheless, I do not dispute that there is no genuine issue of material fact that

Wapakoneta School District is not excepted from its political-subdivision immunity

under R.C. 2744.02(B)(2). That is, as a matter of law, a public-school district

providing after-school sports is considered a governmental function. See Wilson v.

McCormack, 11th Dist. No. 2016-A-0039, 2017-Ohio-5510, ¶ 31 (holding that “the

provision of a public system of education is expressly defined as a governmental

function by R.C. 2744.01(C)(2)(c), and, for the reasons set forth above, the hiring,

retention, and supervision of a high school basketball coach is an inherent part of

that activity”). However, that is where my consensus diverges.

{¶66} Based on my review of the record, there are evidentiary disputes which

must be presented to a jury to determine whether Wapakoneta School District is

entitled to political-subdivision immunity under R.C. 2744.02(B)(4) and whether

Allison is entitled to immunity under R.C. 2744.03(A)(6).

{¶67} To review, “R.C. 2744.02(B)(4) requires two elements for the

exception to apply: (1) a negligent act and (2) a physical defect within or on the

grounds of the political subdivision.” (Emphasis added.) Roberts v. Switzerland of

Ohio Local School Dist., 7th Dist. Monroe No. 12 MO 8, 2014-Ohio-78, ¶ 21.

-29-
Case No. 2-21-18

{¶68} Under the R.C. 2744.02(B)(4) exception to political-subdivision

immunity, the majority opinion focuses on whether Allison’s modification of the hit

stick (bat) constitutes a physical defect. Even though that is one way to assess the

question presented, because decisions granting summary judgment are reviewed de

novo, another way to approach the inquiry is to consider whether the absence of a

safety feature satisfies the definition of a physical defect for purposes of R.C.

2744.02(B)(4). In other words, whether there is a genuine issue of material fact that

the absence of an appropriate safety feature for the indoor-baseball practice rendered

the school gymnasium physically defective under R.C. 2744.02(B)(4).

{¶69} The Supreme Court of Ohio has “left open the possibility that the

absence of a safety feature could constitute a physical defect.” Roberts at ¶ 25,

citing Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250,

¶ 25. Specifically, “[t]he only mention the [c]ourt made as to the ‘physical defect’

element was to point out that the trial court did not fully consider whether the

absence of a required smoke detector is a ‘physical defect,’ which if established

would dissolve immunity.” Id., citing Moore at ¶ 25. Since that decision, Ohio’s

courts of appeal, including this court, have grappled with the issue. See, e.g.,

Contreraz v. Bettsville, 3d Dist. Seneca No. 13-10-48, 2011-Ohio-4178, ¶ 41;

Roberts at ¶ 30; Doe v. Greenville City Schools, 2d Dist. Darke No. 2020-CA-4,

2021-Ohio-2127, ¶ 27; Hamrick v. Bryan City School Dist., 6th Dist. Williams No.

-30-
Case No. 2-21-18

WM-10-014, 2011-Ohio-2572, ¶ 29. Consequently, the Supreme Court of Ohio

recently accepted review of the issue. See Doe v. Greenville City Schools, 165 Ohio

St.3d 1449, 2021-Ohio-3908.

{¶70} Importantly, however, (based on the current state of the law) the issue

here is not whether the absence of a safety feature (as a matter of law) can constitute

a physical defect for purposes of R.C. 2744.02(B)(4). Rather, the issue for this court

to resolve in this appeal is whether the evidence provided by the parties in this case

reflects a genuine (triable) issue that the absence of such safety feature constitutes a

physical defect within the meaning of the statute.

{¶71} Even though the trial court (without providing specific reasons why)

disqualified the affidavit of Shawn Pender (“Pender”) opposing summary judgment

provided by Conley for the limited basis that Pender did not adequately qualify as

an expert witness, the majority opinion aptly points out that an expert opinion is

unnecessary since “[t]he issue ‘is not of such a highly technical nature to be beyond

the comprehension of the average juror.’” Majority Opinion at ¶ 17, quoting Donlin,

2004-Ohio-1704, at ¶ 26. Thus, if an expert opinion is unnecessary to resolve

underlying issue, the simple facts (notwithstanding any conclusory legal statements)

in Pender’s affidavit is Civ.R. 56-style evidence that can create a genuine issue of a

material fact. Specifically, none of the evidence from Pender’s affidavit (that

-31-
Case No. 2-21-18

appears below) requires any special technical expertise. See Marshall & Melhorn,

LLC v. Sullinger, 6th Dist. Lucas No. L-18-1218, 2020-Ohio-1240, ¶ 36.

{¶72} Importantly, “Civ.R. 56(E) requires that ‘affidavits shall be made on

personal knowledge, shall set forth such facts as would be admissible in evidence,

and shall show affirmatively that the affiant is competent to testify to the matters

stated in the affidavit.’” Natl. City Bank v. TAB Holdings, Ltd., 6th Dist. Erie No.

E-10-060, 2011-Ohio-3715, ¶ 12, citing Civ.R. 56(E). See also State ex rel. Mayes

v. Holman, 76 Ohio St.3d 147, 148 (1996). Thus, “[w]hile a trial court is permitted

to exclude materials from consideration in summary judgment, it must do so

pursuant to Civ.R. 56(E).” A-M.R. v. Columbus City School Dist., 10th Dist.

Franklin No. 14AP-1066, 2015-Ohio-3781, ¶ 16.

{¶73} Because “Civ.R. 56(E) states that a ‘court may permit affidavits to be

supplemented or opposed by depositions or by further affidavits,” it is within the

trial court’s discretion to permit the introduction of supplemental affidavits. Walter

v. AlliedSignal, Inc., 131 Ohio App.3d 253, 263 (3d Dist.1999), quoting Civ.R.

56(E) and citing Renfro v. Black, 52 Ohio St.3d 27, 32 (1990) (holding that a trial

judge has wide discretion when determining the admissibility of such evidence, and

will not be disturbed on appeal absent a clear showing of abuse of discretion).

Consequently, a trial court’s decision to allow the introduction of such supplemental

affidavits will not be reversed absent an abuse of discretion. See Harvard Mtge

-32-
Case No. 2-21-18

Corp. v. Phillips, 11th Dist. Geauga No. 2007-G-2783, 2008-Ohio-1132, ¶ 29. See

also Beattie v. McCoy, 1st Dist. Hamilton No. C-170197, 2018-Ohio-2535, ¶ 25.

An abuse of discretion suggests the trial court’s decision is unreasonable, arbitrary,

or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶74} Here, based on Pender’s experience as a baseball coach and baseball

player, it is uncontroverted that the evidence that follows is not only made on his

personal knowledge but also complies with the full dictates of Civ.R. 56(E). Accord

Salemi v. Cleveland Metroparks, 145 Ohio St.3d 408, 2016-Ohio-1192, ¶ 18 (noting

that “‘personal knowledge can be inferred from the nature of the facts in the affidavit

and the identity of the affiant’”), quoting State ex rel. Lanham v. DeWine, 135 Ohio

St.3d 191, 2013-Ohio-199, ¶ 15.). Therefore, it is my opinion that the trial court

acted outside the bounds of its discretion by discounting Pender’s affidavit.

{¶75} Furthermore, it is imperative to point out that when a party fails to

object to the admissibility of evidence submitted in support of, or in opposition to,

a motion for summary judgment , the trial court may consider such evidence when

determining whether summary judgment is appropriate. See A-M.R. at ¶ 16; Armaly

v. Wapakoneta, 3d Dist. Auglaize No. 2-05-45, 2006-Ohio-3629, ¶ 17 (“Where the

opposing party fails to object to the admissibility of the evidence under Civ.R. 56,

the court may, but is not required to consider such evidence when it determines

whether summary judgment is appropriate.”). See also Churchwell v. Red Roof

-33-
Case No. 2-21-18

Inns, Inc., 10th Dist. Franklin No. 97APE08-1125, 1998 WL 134329, *1 (Mar. 24,

1998), fn. 1 (“Failure to move to strike or otherwise object to documentary evidence

submitted by a party in support of, or in opposition to, a motion for summary

judgment, waives any error in considering that evidence under Civ.R. 56(C).”).

Here, neither moving party—Wapakoneta School district or Allison—opposed

Pender’s affidavit. Consequently, I see no reason why the trial court should not

have construed the basic evidence of Pender’s affidavit (notwithstanding the

conclusory legal statements, which the trial court is more than capable of separating)

in a light most favorable to the non-moving party—Conley. Accordingly, based on

the facts presented, it is my opinion that the trial court acted unreasonably,

arbitrarily, and unconscionably by excluding Pender’s affidavit.

{¶76} Indeed, based on my review of Pender’s affidavit, there is a genuine

issue of material fact reflecting an absence of a safety feature constituting a physical

defect within the meaning of R.C. 2744.02(B)(4). To illustrate, Pender explained

that “[i]t is the responsibility of the coach/staff in charge to create a safe space for

any practice or workout particularly when that event is taking place in a more

restricted or limited space area.” (Doc. No. 71, Ex. 14).

{¶77} In his deposition, Allison testified that he set up the “gym like a

baseball field [and] home plate would have been in the northeast corner going out,

because most of [the] guys are right-handed [so he] set it up that way.” (Apr. 22,

-34-
Case No. 2-21-18

2021 Depo. at 15). According to Pender, Allison demonstrated “a regard to safely

make the team building exercise work within the limited space available” by

“creating greater space for the flight of the ball for most hitters.” (Doc. No. 71, Ex.

14).

{¶78} However, Pender asserted that Allison did “not go far enough to

establish safe space [based on Allison’s testimony of Conley’s distance] from the

batting action.” (Id.). That is, Allison testified that Conley (and two other players)

were standing in the on-deck circle—approximately 10 feet from the batter—down

the third-base line. (Apr. 22, 2021 Depo. at 16-17). See Roberts, 2014-Ohio-78, at

30 (emphasizing that “the complaint alleges a negligent act, the construction by the

Board’s agent that it was safe for Roberts to stand in an area that was not, in fact,

safe”). Importantly,

10 feet is simply not enough space in a gymnasium to create a safety
window that protects the on deck hitter or the hitting team members
unless portable netting or a similar barrier to protect the players is
put in place. Had there been more distance between the batter and on
deck hitters or had there been a portable screen or netting set up
between the batter and on deck hitters this incident would not have
occurred.

(Emphasis added.) (Doc. No. 71, Ex. 14).

{¶79} Very plainly, based on that evidence, there is a genuine issue of

material fact whether the absence of such safety features constitutes a physical

defect for purposes of R.C. 2744.02(B)(4). See Roberts at ¶ 29-30 (alleging that the

-35-
Case No. 2-21-18

school was excepted from immunity under R.C. 2744.02(B)(4) because “the

Board’s agents were negligent in informing Roberts that it was safe to be in an area

where a discus could be thrown and in failing to erect a fence, cage, or other device

around the rear of the discus circle”). Therefore, this issue must be presented to a

trier of fact to be resolved.2

{¶80} Finally, my review of the record in this case reveals a genuine issue of

material fact whether Allison is entitled to immunity under R.C. 2744.03(A)(6).

More specifically, applying the appropriate definition for immunity for employees

of a political subdivision under R.C. 2744.03(A)(6), it is my opinion that the issue

must be presented to a jury to resolve. See Anderson v. Massillon, 134 Ohio St.3d

380, 2012-Ohio-5711, ¶ 39 (“R.C. 2744.03(A)(6)(b) provides immunity to

employees of a political subdivision for acts that are not committed in a wanton or

reckless manner.”). See also Maternal Grandmother v. Hamilton Cty. Dept. of Job

& Family Services, ___ Ohio St.3d ___, 2021-Ohio-4096, ¶ 7-8. That is, the

Supreme Court of Ohio specifically held that “willful” conduct is not a degree of

care within the meaning of R.C. 2744.03(A)(6)(b). See Anderson at ¶ 40 (“The

2
Based on my resolution of Allison’s immunity under R.C. 2744.06(A)(6), there is no genuine issue of
material fact that Conley can establish the other elements of the physical-defect exception under R.C.
2744.02(B)(4). See Leasure v. Adena Local School Dist., 4th Ross No. 11CA3249, 2012-Ohio-3071, ¶ 15.
That is, there is no genuine issue of material fact that Conley’s injury resulted from Allison’s negligence and
that his injury occurred in the school’s gymnasium. See Anderson v. Massillon, 134 Ohio St.3d 380, 2012-
Ohio-5711, ¶ 35 (noting that proof of reckless conduct will suffice to prove negligence).

-36-
Case No. 2-21-18

terms willful,’ ‘wanton,’ and ‘reckless’ as used in [R.C. 2744.02(B)(1)(b) and

2744.03(A)(6)(b)] are not interchangeable.”).

{¶81} In this case, as a matter of law, Allison loses his political-subdivision

immunity if he engaged in wanton or reckless conduct. Accord id. at ¶ 43

(Lanzinger, J., concurring in part and dissenting in part). As the majority opinion

describes, wanton misconduct is defined as “the failure to exercise any care toward

those to whom a duty of care is owed in circumstances in which there is great

probability that harm will result.” Id. at paragraph three of the syllabus. Likewise,

as the majority opinion defines, “[r]eckless 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. To contrast, “negligence

is conduct that falls below the reasonable standard of ordinary care and relates to

protecting against foreseeable risks to others” and is defined as “‘[t]he failure to

exercise the standard of care that a reasonably prudent person would have exercised

in a similar situation.’” Id. at ¶ 45 (Lanzinger, J., concurring in part and dissenting

in part), quoting Black’s Law Dictionary 1133 (9th Ed.2009).

{¶82} I define these terms again to stress that “wanton conduct is more

culpable than reckless” conduct and both types of conduct exceed negligence. Id.

at ¶ 43, 46-47 (Lanzinger, J., concurring in part and dissenting in part). In sum,

-37-
Case No. 2-21-18

“[t]he goal of the immunity statute is to protect political subdivisions and their

employees from liability for negligent conduct, but not for conduct exceeding

negligence.” (Emphasis added.) Id. at ¶ 47 (Lanzinger, J., concurring in part and

dissenting in part).

{¶83} Therefore, the issue before this court is whether there are genuine

issues of material fact for a jury to determine as to whether Allison’s conduct was

greater than negligence—that is, whether Allison’s conduct was wanton or reckless.

In other words, it is for this court to determine if there is a triable issue as to (1)

whether Allison failed to exercise any care toward Conley in a circumstance in

which there was great probability that harm will result or (2) whether Allison

disregarded a known or obvious risk of harm to Conley that was unreasonable under

the circumstances and is substantially greater than negligent conduct.

{¶84} Importantly, the record reflects that Allison knew of the risk of harm

(or the risk of harm was obvious to him) in this case. Notably, the evidence

presented by Conley reflects that Allison was generally aware of the risk of harm of

playing baseball inside a gymnasium and that Allison appreciated the safety of the

youth-baseball players. (See, e.g., Allison Depo. at 37). Conspicuously absent from

the definition of recklessness is a desire to cause the harm which results from a

person’s actions. See Davis v. Brown Local School Dist., 7th Dist. Columbiana No.

17 CO 0026, 2019-Ohio-246, ¶ 91. It is without question that Allison did not intend

-38-
Case No. 2-21-18

the specific harm sustained by Conley. However, there is a genuine issue of material

fact whether Allison perversely disregarded the known risk of harm. See A.J.R. v.

Lute, 163 Ohio St.3d 172, 2020-Ohio-5168, ¶ 17 (defining “‘recklessness’ [under

R.C. 2744.03(A)(6)(b)] as ‘a perverse disregard of a known risk.’”), quoting

O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, paragraph three of the

syllabus.

{¶85} To begin with, based on my physical-defect analysis above, those facts

also create a genuine issue of material fact that Allison’s conduct was (at a

minimum) reckless. To be clear, instructing Conley (and the two other players) (1)

to position themselves in the on-deck circle; (2) approximately 10 feet from the

batter; (3) down the third-base line; (4) while playing baseball inside a gymnasium;

and (5) without ensuring that there was an adequate safety feature rises to the level

of (at a minimum) reckless conduct. Stated another way, that evidence creates a

genuine issue of material fact whether Allison disregarded a known or obvious risk

of harm to Conley (and the two other players) by putting them in a situation that

was unreasonable under the circumstances. Indeed, Pender offered that, because

Allison instructed the youth-baseball players to position themselves in the location

that he did, it was Allison’s responsibility to ensure adequate safety features were

in place “regardless of the bat used.” (Emphasis added.) (Doc. No. 71, Ex. 14).

Consequently, there is a genuine issue of material fact that Allison engaged in

-39-
Case No. 2-21-18

conduct that exceeds negligence—that is, there is a genuine issue of material fact

that Allison engaged in conduct exceeding the standard of care that a reasonably

prudent person would have exercised in a similar situation.

{¶86} The proposition that Allison perversely disregarded the known (or

obvious) risk of harm is further emphasized by the following evidence.

Significantly, the record unequivocally reflects that Allison provided the youth-

baseball players with a modified and significantly damaged device to use for a

purpose other than its intended purpose. Indeed, Pender acknowledged that Allison

made use of the hit stick as “a non-traditional bat” and that the “hit stick was used

as a bat.” (Doc. No. 71, Ex. 14). Specifically, a hit stick is meant to be used as a

“training device” and “not [as] a bat” as Allison instructed the youth-baseball

players to utilize the hit stick. (Emphasis added.) (See id.).

{¶87} Moreover, not only does the evidence in the record reflect that Allison

instructed the youth-baseball players to use the hit stick in a manner other than its

intended purpose, the evidence in the record unequivocally reflects that Allison

knew that it was a damaged “hitting device” and that such damage was in

contravention of the rules of the baseball association. Likewise, the record reflects

that Allison purposely modified the hit stick in contravention of the rules of the

baseball association.

-40-
Case No. 2-21-18

{¶88} Importantly, it is undisputed that Allison modified the hit-stick handle

with slick-electrical tape and it is undisputed that Allison knew that the hit stick did

not have an appropriate knob or protective end caps. Specifically, by taping the hit-

stick handle, Allison obscured the “knob” of the hit stick (which is different than a

knob of a traditional bat) with the electrical tape. (See Allison Depo. at 24). Further,

the record reflects that one of the ends of the hit stick is “jagged” and that Conley

sustained an injury requiring “shards” to be removed from his eye. (Id. at 25, 31);

(Doc. No. 71). Allison testified that, had the hit stick had the protective end caps,

the shards “would not have gone into [Conley’s] eye.” (Allison Depo. at 42).

{¶89} Moreover, Bradley R. Rex (“Rex”), the athletic administrator for

Wapakoneta School District, testified that the Ohio High School Athletic

Association follows the rules of the National Federation of State High School

Associations (“NFSHSA”) and that those rules apply to the junior high school at

which Conley was a student athlete. (Rex Depo. at 10). The NFSHSA baseball

rules provide, in their relevant part, as follows:

ART. 2. . . The bat shall have the following characteristics and
components.

a. Each legal wood, aluminum or composite bat shall:

***

2. Not have * * * rough or sharp edges or any form of exterior
fastener that would present a potential hazard.

-41-
Case No. 2-21-18

3. * * * Bats that are broken [or] altered * * * are illegal.

b. Each legal wood, aluminum, or composite bat shall have the
following components:

1. Knob – The bat knob shall protrude from the handle. * * *
[W]rappings are permitted except those that cause the knob to
become flush with the handle. A one piece rubber knob and
bat grip combination is illegal.

***

5. End Cap – The end cap is made of rubber, vinyl, plastic or
other approved material. It shall be firmly secured and
permanently affixed to the end of the bat so that it cannot be
removed by anyone other than the manufacturer, without
damaging or destroying it. By definition, a one-piece
construction bat does not have an end cap.

c. Each bat not made of a single piece of wood shall:

1. Have a safety grip made of cork, tape (no smooth, plastic
tape) or commercially manufactured composition material. * *
* Slippery tape or similar material shall be prohibited.

***

ART. 5 . . . Bats that are altered from the manufacturer’s original
designed and production, or that do not meet the rule specifications,
are illegal.

(Emphasis added.) (Doc. No. 71, Ex. 1).

{¶90} Even though Allison contends that he does not consider a hit stick to

be a bat and argues that the rules only apply to games, Allison testified that he is

aware of the NFSHSA rule prohibiting the application of slippery tape to bats and

the rules requiring bats to have a knob and protective end caps. (Allison Depo. at

-42-
Case No. 2-21-18

32-34); (Doc. No. 71, Ex. 1). See Davis, 2019-Ohio-246, at ¶ 85 (observing that

“the violation of a statute, ordinance, or departmental policy enacted for the safety

of the public is not per se willful, wanton, or reckless conduct, but may be relevant

to determining the culpability of a course of conduct.”), quoting Anderson, 134 Ohio

St.3d 380, 2012-Ohio-5711, at ¶ 37. See also Baab v. Medina City Schools Bd. of

Education, 9th Dist. Summit No. 28969, 2019-Ohio-510, ¶ 15 (analyzing the

violation of a school policy under R.C. 2744.03(A)(6)(b)). Notably, as I discussed

above, the record supports that the hit stick is not a bat but that Allison instructed

the youth-baseball players to use it as a bat.

{¶91} Nevertheless, Allison agreed that it is “more dangerous to use [the hit

stick] without having the appropriate [knob and protective end caps] on the bat” and

Rex concurred. (Allison Depo. at 24); (Rex Depo at 17-19, 22, 24). Compare Davis

at ¶ 85-86 (noting evidence of a policy violation demonstrates negligence at best

without evidence of knowledge that the violation of the policy will likely result in

an injury). Likewise, Allison testified that the purpose of the knob is “so your hand

at the end [does not] slip off.” (Allison Depo at 23). In this case, Conley was injured

after the batter’s hand slipped off the end of the hit stick. (See id. at 21). Allison

further testified that his intention for putting the electrical tape on the bat was not

for the safety of the players; rather, his intent was “to repair [the hit stick] so that

[the players] would not cause any damage.” (Allison Depo at 20). However, despite

-43-
Case No. 2-21-18

the rule prohibiting the use of slippery tape on bats during a game, Allison testified

that he did not think using slick-electrical tape would make the hit stick slippery.

(Allison Depo. at 36).

{¶92} Notwithstanding Allison’s argument as to the application of the rules,

such decision on the application of the rules is a determination for the trier of fact.

Indeed, Pender asserts that it the intent of the rules “is to establish regulations that

protect the participants in a baseball sporting event regardless of location, venue or

in a game, [or] in practice status.” (Doc. No. 71, Ex. 14). Consequently, the

presence of the rules and Allison’s awareness of their purpose create a genuine issue

of material fact of the risk of harm that Allison consciously disregarded. Compare

Artim v. Lorain Cty. Bd. of Dev. Disabilities, 9th Dist. Lorain No. 12CA010214,

2013-Ohio-2372, ¶ 16 (concluding that the intentional violation of a “policy without

a reasonable purpose to do so” constitutes evidence of failing “to exercise any care

and consciously disregarded a ‘known or obvious risk of harm,’ which a jury might

conclude is greater than negligence”), quoting Anderson, 134 Ohio St.3d 380, 2012-

Ohio-5711, at paragraphs three and four of the syllabus.

{¶93} In sum, viewing that evidence in a light most favorable to Conley, it

is my opinion that there is (at a minimum) a genuine issue of material fact that

Allison acted recklessly—that is, there is a genuine issue of material fact that there

was a known risk of harm and that Allison perversely disregarded that harm. See

-44-
Case No. 2-21-18

id. Importantly, it is not the function of this court to weigh the evidence in any way

or to pass judgement on it. Rather this court’s role is to determine whether Conley

presented evidence creating a genuine, triable issue. See A.J.R., 163 Ohio St.3d 172,

2020-Ohio-5168, at ¶ 26 (asserting that, when “responding to a motion for summary

judgment, the nonmovant ‘must show that the issue to be tried is genuine and may

not rely merely upon the pleadings or upon unsupported allegations.’”), quoting

Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, ¶ 21. I contend

that he has. Therefore, construing the evidence in the record (mostly strongly in

Conley’s favor as we are required to do), this court cannot say that reasonable minds

can come to only one conclusion and that one conclusion being that Allison is

entitled to a judgment as a matter of law.

{¶94} Thus, based on the foregoing, I would reverse the trial court’s decision

granting summary judgment in favor of Wapakoneta School District and Allison.

/jlr

-45-