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School bleachers case from Ohio

Court Deals Blow to School District in Negligence Action
From Sport Litigation Allert, 9/21/12– file:///C:/Users/gfried/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Files/Content.Outlook/WIUZA4FB/SLA%20volume%209%20issue%2017.html

An Ohio state appeals court has affirmed the ruling of a trial court, agreeing that a school district was not immune from a lawsuit brought by a married couple, who sued after the wife fell on the bleachers in one of the district’s gymnasiums.

The district had argued that it was entitled to immunity under R.C. Chapter 2744 and under the open-and-obvious doctrine.

The incident in question occurred on September 17, 2007. Heidi Leasure, III, was descending the gymnasium bleachers with her young child in her arms when she fell.

Joined by her husband, she sued, alleging that the school district “negligently configured, installed, or maintained the bleachers and negligently failed to warn of the dangerous condition.”

The school district moved for summary judgment based on the aforementioned grounds.

In her deposition, the plaintiff testified that she had been to the school gym more than a dozen times before her accident to watch her nieces’ volleyball games and that on the date of her injury, the bleachers did not look any different than they had in the past. She testified that before she fell, she was not aware that the bleachers had not been fully extended. The accident occurred when the plaintiff’s foot “became stuck on the steps.”

The trial court denied the district’s summary judgment motion and determined that genuine issues of material fact remained regarding whether appellant is entitled to R.C. 2744.02(B)(4) immunity. The court concluded that genuine issues of material fact exist as to whether (1) the condition of the bleachers constituted a physical defect, and (2) the open and obvious doctrine barred appellees’ negligence claim.

The district appealed, asserting that the trial court “improperly determined that genuine issues of material fact remain as to whether the condition of the bleachers constitutes a physical defect under the R.C. 2744.02(B)(4) exception.”

In its analysis, the appeals court reviewed R.C. 2744.02(B)(4) which states: “Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows:

“(4) 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.

“Thus, to establish that the R.C. 2744.02(B)(4) exception 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 a governmental function, and (3) resulted from a physical defect within or on those grounds. Moss v. Lorain Cty. Bd. Of Mental Retardation, 185 Ohio App.3d 395, 2009 Ohio 6931, 924 N.E.2d 401, ¶13.”

The defendant conceded the first two points, but challenged whether “injury resulted from a physical defect.”

The appeals court sided with the plaintiff, writing that “the alleged failure to properly set up the bleachers caused them to become unstable and thus to fail to operate as intended.”

It pointed to a handful cases in support of its finding.

In Yeater v. Board of Ed., LaBrae Sch. Dist., Trumbull App. No. 2009-T-0107, 2010 Ohio 3684, “the court determined that loose bolts within volleyball equipment may constitute a perceivable imperfection that diminishes the equipment’s utility or worth. In Yeater, the plaintiff suffered an injury when a stanchion, a piece of equipment used to hold volleyball nets, fell on her foot in the school gymnasium. The school district alleged that it was statutorily immune from liability and no genuine issues of material fact remained as to whether the plaintiff’s injury resulted from a physical defect. The appellate court determined, however, that genuine issues of material fact remained as to whether the plaintiff’s injury resulted from a physical defect because evidence existed that the stanchion contained loose bolts. Id. at 28. The Yeater court thus also appears to have determined that the equipment constituted a physical defect because it did not operate as intended (i.e., the equipment fell) due to a perceivable condition (i.e., the loose bolts).”

Turning back to the instant case, the panel noted that the “improperly set up bleachers contained a perceivable imperfection that impaired their utility. The bleachers were obviously meant to be used in a safe and stable manner. The improper set up resulted in the bleachers having the ability to move while in use.”

Heidi Leasure, et al. v. Adena Local School District, et al., Ct. App. Ohio, 4th App. Dist.; Case No. 11CA3249. 2012 Ohio 3071; 2012 Ohio App. LEXIS 2686; 6/28/12

Attorneys of record: (for appellants) Richard W. Ross and Mark A. Weiker, Means, Bichimer, Burkholder & Baker Co., L.P.A., Columbus, Ohio. (for appellees) James S. Savage, McFadden, Winner, Savage & Segerman, L.L.P., Columbus, Ohio.

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