Bossart v. Brecksville-Broadview Hts. City School Dist.

• Court: Ohio Court of Appeals
• Decided: May 21, 2026
• Docket: 115595
• Status: Published

Opinion

[Cite as Bossart v. Brecksville-Broadview Hts. City School Dist., 2026-Ohio-1866.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

MICHAEL BOSSART, :

Plaintiff-Appellant, : No. 115595 v. :

BRECKSVILLE BROADVIEW- : HEIGHTS CITY SCHOOL DISTRICT, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: May 21, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-24-105576

Appearances:

Roderick Linton Belfance LLP, Christopher L. Parker, and S. Matt Bodnar, for appellant.

Bricker Graydon Wyatt LLP, Kathryn I. Perrico, and Aaron Ross, for appellee.

LISA B. FORBES, P.J.:

Michael Bossart (“Appellant”), on behalf of his minor son, A.B.,

appeals from the trial court’s journal entry granting the appellee Brecksville-

Broadview Heights City School District’s (“the School District”) motion for judgment on the pleadings. The trial court found that the School District was

immune from liability under the Political Subdivision Tort Liability Act as to

Appellant’s negligence claim. After a thorough review of the facts and the law, we

reverse and remand for further proceedings consistent with this opinion.

I. Factual Background and Procedural History

Appellant sued the School District for negligence in the Cuyahoga

County Common Pleas Court. 1 In his complaint, Appellant alleged the following

facts. A.B. was injured on April 24, 2023, during an athletic event held at the School

District’s track. While participating in the long jump, A.B. jumped into a sand pit.

According to Appellant, cold weather had caused the sand in the pit to harden.

When A.B. landed in the sand, he ruptured a ligament in his leg. The School District

did not rake or inspect the sand pit before holding the long-jump event.

In support of Appellant’s claim for negligence, Appellant alleged that

the School District owed A.B. a duty of care “to properly maintain the sand pit for

the long jump event” and that the School District breached this duty “by failing to

properly rake the sand pit and/or cancel the long jump event due to the weather.”

The School District answered Appellant’s complaint. In its answer,

the School District denied for lack of knowledge or information sufficient to form a

belief as to the truth of the allegation that “[t]he weather on April 24, 2023, was cold

which caused the long jump pit to harden.” The School District raised the following

1 Appellant’s initial complaint also named the Ohio High School Athletic Association (“OHSAA”) as a defendant; however, the OHSAA was dismissed from this case prior to the trial court’s immunity ruling. affirmative defense pertinent to this appeal: “Defendant is completely and/or

partially immune from liability pursuant to Ohio Revised Code Chapter 2744 . . . .”

The School District filed a motion for judgment on the pleadings under Civ.R. 12(C),

arguing that it was immune from liability for Appellant’s negligence claim under

R.C. Ch. 2744.

On August 19, 2025, the court issued a journal entry granting the

School District’s motion for judgment on the pleadings, finding the School District

to be immune from liability as to Appellant’s negligence claim. The journal entry

provided, “There are five exceptions to immunity listed in R.C. 2744.02(B) which

would subject the political subdivision to liability. The court finds that none of the

exceptions apply.”

From this order, Appellant appealed, raising the following

assignment of error:

The trial court erred in holding the School District has immunity under O.R.C. 2744 et seq.

II. Law and Analysis

A. Standard of Review, Motion for Judgment on the Pleadings

Under Civ.R. 12(C), “[a]fter the pleadings are closed but within such

time as not to delay the trial, any party may move for judgment on the pleadings.”

Grant of such a motion is appropriate when, after construing all material factual

allegations in the pleadings as true, the court finds that the plaintiff could prove no

set of facts in support of plaintiff’s claim that would entitle him or her to relief.

Crenshaw v. Howard, 2022-Ohio-3914 ¶ 13 (8th Dist.). “A motion for judgment on the pleadings raises only questions of law, testing the legal sufficiency of the claims

asserted.” Id.

We review de novo a trial court’s ruling on a motion for judgment on

the pleadings. Pincus v. Pincus, 2025-Ohio-1826, ¶ 16 (8th Dist.). “‘De novo review

encompasses an independent examination of the record and law without deference

to the underlying decision.’” Torres v. Concrete Designs, Inc., 2019-Ohio-1342, ¶ 48

(8th Dist.), quoting Gateway Consultants Group, Inc. v. Premier Physicians Ctrs.,

Inc., 2017-Ohio-1443, ¶ 22 (8th Dist.). Where, as here, the relevant pleadings are a

complaint and answer, our review is limited “to the allegations in the complaint and

answer, as well as any documents properly attached as exhibits to those pleadings.”2

Crenshaw at ¶ 13.

This court has recognized that “Ohio is a notice-pleading state that

does not require a plaintiff to plead operative facts with particularity.” Carroll v.

Cuyahoga Community College, 2023-Ohio-3628, ¶ 17 (8th Dist.). “Notice pleading

requires the plaintiff to set forth claims that ‘concisely set forth only those operative

facts sufficient to give “fair notice of the nature of the action . . . ”’” Id., quoting Diaz

v. Cuyahoga Metro. Hous. Auth., 2010-Ohio-13, ¶ 15 (8th Dist.), quoting DeVore v.

Mut. Of Omaha Ins. Co., 32 Ohio App.2d 36 (7th Dist. Apr. 4, 1972). In a case

involving political-subdivision immunity, this court has stated, “‘Under the rubric of

notice pleading, a plaintiff has no obligation to anticipate the assertion of an

2 No documents are referenced in or attached to the pleadings in this case. affirmative defense and allege facts to disprove that defense in its complaint.’”

Parra v. Jackson, 2021-Ohio-1188, ¶ 28 (8th Dist.), quoting DSS Servs., L.L.C. v

Eitel’s Towing, L.L.C., 2019-Ohio-3158, ¶ 10 (10th Dist.). “‘“ [A] plaintiff need not

affirmatively dispose of the immunity question altogether at the pleading stage.”’”

Id., quoting id., quoting Scott v. Columbus Dept. of Pub. Utils., 2011-Ohio-677, ¶ 8

(10th Dist.).

B. Political-Subdivision Liability

Whether a political subdivision is immune from tort liability under

the Political Subdivision Tort Liability Act “involves a three-tiered analysis.” Moore

v. Lorain Metro. Hous. Auth., 2009-Ohio-1250, ¶ 9. First, ordinarily, political

subdivisions are not liable for tort damages. Id.; R.C. 2744.02(A)(1). The parties

agree that the School District is a political subdivision. There is, therefore, no

dispute that, generally, the School District is immune from damages arising out of a

negligence claim, such as the one that Appellant brought.

We, therefore, will begin our analysis with the second tier of the

immunity test: whether exceptions in R.C. 2744.02(B) pierce the School District’s

immunity. Moore at ¶ 9. Pertinent to this appeal, a political subdivision may be

liable in tort for damages “caused by the negligence of their employees and that

occur[] within or on the grounds of, and is due to physical defects within or on the

grounds of,” buildings connected to the performance of a governmental function.

R.C. 2744.02(B)(4). “Physical defect” is not defined in R.C. 2744.01. Courts across

Ohio have found a physical defect “‘“if the instrumentality that caused [an] injury did not operate as intended due to a perceivable condition or if the instrumentality

contained a perceivable imperfection that impaired its worth or utility.”’” Soler v.

Cleveland Metro. School Dist., 2025-Ohio-2151, ¶ 21 (8th Dist.), quoting Slane v.

Hilliard, 2016-Ohio-306, ¶ 44 (10th Dist.), quoting Jones v. Delaware City School

Dist. Bd. Of Edn., 2013-Ohio-3907, ¶ 22 (5th Dist.). In a recent case, the Ohio

Supreme Court determined that “‘a physical defect’ can be reasonably understood

as a tangible imperfection that impairs the function of an object.” Hoskins v.

Cleveland, 2026-Ohio-1225, ¶ 16, quoting Webster’s Third New International

Dictionary (2002).

The parties do not dispute that the School District’s track was on the

grounds of a building connected to the performance of a governmental function

under R.C. 2744.02(B)(4). Additionally, although the School District argues in its

appellate brief that the complaint did not allege facts that, if proven, would show

that the conduct of School District employees rose to the level of negligence in the

context of this immunity analysis, the School District did not include these

arguments in its motion for judgment on the pleadings, and we decline to consider

them. See Wells Fargo Bank, N.A. v. Lundeen, 2020-Ohio-28, ¶ 14 (8th Dist.) (“[A]

party cannot raise new arguments and legal issues for the first time on appeal, and

. . . failure to raise an issue before the trial court waives that issue for appellate

purposes.”). The parties dispute whether Appellant pled facts that, if proven,

demonstrate a physical defect. If the answer is yes, the School District may lose

immunity and can be held liable. C. Physical Defect

In support of its only assignment of error, Appellant argues that the

trial court erred in holding that the physical-defect exception does not apply to the

School District. As an initial matter, because this appeal concerns the trial court’s

grant of judgment on the pleadings as to the School District’s political-subdivision

immunity, we make no findings of fact in this opinion relative to Appellant’s claim

of negligence. We do not find, assuming all allegations in the complaint to be true,

that Appellant could prove no set of facts to show that the condition of the sand pit

constituted a physical defect under R.C. 2744.02(B)(4).

As noted, the complaint alleges, “The weather on April 24, 2023, was

cold which caused the long jump pit to harden,” which the School District denied for

lack of knowledge or information. On appeal, Appellant maintains that an “unraked,

unmaintained long-jump pit presented a physical defect.” The School District

argues in response that the hardness of sand is not “perceivable,” in the context of

its immunity analysis. This blanket claim appears to be based on a belief that a

physical defect under R.C. 2744.02(B)(4) must be immediately perceivable to the

naked eye, without any further inspection by the School District’s employees.3 The

School District points us to no case law to support that assertion. Notably,

perceivability was absent from the “physical defect” definition set out in Hoskins.

3 The School District argues, in its appellate brief, “[o]ne cannot determine or

perceive the ‘hardness’ of [the sand in the pit] simply by feeling on one’s skin that the ambient air temperature is cold and observing that the surface of the sand may not have been raked.” (Emphasis added.) 2026-Ohio-1225, at ¶ 16. The Court instead analyzed whether an imperfection was

tangible and impaired the function of an object. Hoskins at ¶ 18, 19.

Contrary to the School District’s position, this court has found issues

of material fact regarding the existence of a physical defect that would have been

perceivable only upon physical inspection. Jacobs v. Oakwood, 2016-Ohio-5327,

¶ 27-28 (8th Dist.) (reversing a trial court’s determination that a political

subdivision was entitled to immunity on a motion for summary judgment). In

Jacobs, a political subdivision installed a swing on a public playground despite

instructions printed on the bottom of the swing stating that it was intended “for

residential use by one child only.” Id. at ¶ 27. The plaintiff, an adult, alleged injury

resulting from the swing breaking while he was using it. This court remanded the

matter to the trial court, finding “a genuine issue of material fact regarding whether

Oakwood’s installation of a residential-grade swing, fit for use by one child only, on

the playground caused the equipment to not operate as intended.” Id. at ¶ 28.

We are not persuaded by the School District’s comparison between

this case and Simmons v. Yingling, 2011-Ohio-4041 (12th Dist.). In Simmons, the

trial court granted a school board’s motion for summary judgment, finding that the

board was immune from liability for injuries a student purportedly sustained while

roller skating during gym class. The appellate court affirmed, finding that the

“assertion that [the student] slipped on the floor while skating, does not, without

additional evidence, demonstrate that the floor lacked the necessary traction for safe

skating.” Id. at ¶ 30. The appeals court summarized evidence presented in the parties’ summary-judgment briefing regarding the condition of the floor. Two

witnesses had “testified that they had never before noticed any students slipping on

the gymnasium floor in skates.” Id. Another witness testified that he had viewed

the floor and that “there was nothing” about it that “would have made him hesitant

to” facilitate skating on that surface. Id. Unlike in Simmons, here, no evidence has

yet been adduced regarding the hardness of the sand pit or whether such condition

was perceivable. That the record in Simmons did not include sufficient evidence to

demonstrate a physical defect to a surface being used for athletics does not mean

that under no set of circumstances could the Appellant present such evidence here.

We find no merit to the School District’s argument that “[t]he fact that

one long jumper was injured at the end of his jump, by itself, does not establish that

the sand had a diminished worth or utility and was therefore defective.” The

complaint contains no allegations regarding the number of long jumpers, only that

A.B. was injured when he jumped. As noted, Appellant’s complaint need not

conclusively establish that the long-jump pit was defective. See Jackson, 2021-

Ohio-1188, at ¶ 28 (8th Dist.), quoting DSS Servs., 2019-Ohio-3158, at ¶ 10 (10th

Dist.) (“‘[A] plaintiff need not affirmatively dispose of the immunity question

altogether at the pleading stage.’”). Again, to survive the School District’s motion

for judgment on the pleadings, Appellant’s complaint need only set forth factual

allegations that could show a physical defect, if proven. We find that the Appellant’s

complaint did so through its allegations as to the condition of the sand pit, as to

A.B.’s interaction therewith, and as to the injury that subsequently occurred. Finally, we find this case distinct from Hoskins, which concerned

whether an elevated lifeguard chair was defective because it was “‘[f]irm’ and

‘uncomfortable,’” causing a lifeguard to choose to sit in a folding chair from which

he had a purportedly lesser view of a swimmer who drowned. Hoskins, 2026-Ohio-

1225, at ¶ 8, 18. The Court noted that the plaintiff’s expert “did not opine that either

of the chairs was physically defective” and instead “focused primarily on [the

lifeguard’s] decision not to use the lifeguard chair because it was uncomfortable.”

Hoskins at ¶ 18. Unlike in Hoskins, which arose from a grant of summary judgment,

we do not know at this stage of proceedings what evidence Appellant may produce

regarding the condition of the sand pit.

Appellant further argues that no defenses under R.C. 2744.03 —

which lays out the third step of the immunity analysis — would revive immunity for

the School District. The trial court did not reach this part of the analysis, which we

decline to address for the first time on appeal. See Pivonka v. Partika, 2026-Ohio-

557, ¶ 13 (8th Dist.), quoting You v. N.E. Ohio Med. Univ., 2020-Ohio-4661, ¶ 30

(10th Dist.) (“‘[Q]uestions not addressed by the trial court generally will not be ruled

on by the appellate court.’”).

We do not find that the allegations in the complaint, if proven, cannot

give rise to any set of facts that would pierce the School District’s immunity under

R.C. 2744.02(B)(4). Accordingly, the assignment of error is sustained.

Judgment reversed. Case remanded to the trial court for further

proceedings consistent with this opinion. It is ordered that appellant recover from appellee the 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

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.

______________________________ LISA B. FORBES, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and ANITA LASTER MAYS, J., CONCUR