[Cite as Duncan v. Cuyahoga Community College, 2014-Ohio-835.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100121
HEATHER DUNCAN PLAINTIFF-APPELLEE
vs.
CUYAHOGA COMMUNITY COLLEGE, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-687796 and CV-762933
BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: March 6, 2014 ATTORNEYS FOR APPELLANTS
Alexandra V. Dattilo Caroline L. Marks Brouse McDowell 600 Superior Avenue East Suite 1600 Cleveland, OH 44114
John C. Fairweather John P. Hickey Kerri L. Keller Amanda M. Leffler Brouse McDowell 388 South Main Street Suite 500 Akron, OH 44311
ATTORNEYS FOR APPELLEE
Blake A. Dickson Jacqueline M. Mathews Mark D. Tolles, II The Dickson Firm, L.L.C. Enterprise Place, Suite 420 3401 Enterprise Parkway Beachwood, OH 44122 SEAN C. GALLAGHER, P.J.:
{¶1} Defendants-appellants Cuyahoga Community College (“Tri-C”) and Greg
Soucie appeal the decision of the trial court that granted plaintiff-appellee Heather
Duncan’s motion to reinstate her negligence claims. For the reasons stated herein, we
reverse the decision of the trial court and remand for further proceedings.
{¶2} On March 18, 2009, Duncan filed a complaint for negligence and breach of
contract against appellants. Duncan, who was employed by the Bedford Heights Police
Department, was injured while attending a training program, which included a
self-defense class that was provided and sponsored by Tri-C and run by Soucie. Duncan
alleged that appellants engaged in “negligent and/or reckless and/or wanton” conduct by
conducting a self-defense class, which required participants to engage in physical activity
that resulted in their bodies striking the ground, and failing to use mats on the ground or
take other safety precautions to prevent the participants from getting injured. Duncan
maintained that the presentation of the self-defense class was “a proprietary function” and
that she “suffered injury on the property of and/or within or on the grounds of, a building
that is used in connection with the performance of a governmental function.” Among
other allegations, Duncan alleged that appellants’ “decision not to use mats was a routine,
ministerial decision and not an exercise of judgment or discretion,” and that appellants
were “negligent and/or reckless and/or wanton” in several respects, including “creating
and/or permitting the creation of and/or permitting the continued existence of a defect and/or dangerous condition and/or nuisance” on the premises. Duncan also set forth
allegations relating to her breach of contract claim.1
{¶3} Appellants filed an answer and eventually filed a Civ.R. 12(C) motion for
judgment on the pleadings on the basis of statutory immunity. The trial court denied the
motion, and the matter was appealed. In Duncan v. Cuyahoga Community College,
2012-Ohio-1949, 970 N.E.2d 1092 (“Duncan I”), the court reversed the trial court’s
ruling on the negligence claim and found that Tri-C and Soucie were entitled to the
immunity afforded by R.C. 2744.01 et seq. on that claim. The court found that Tri-C is a
political subdivision, its class providing training to peace officers constituted a
governmental function, and none of the exceptions to immunity applied. Id. Although
Duncan alleged her injuries were caused by a “defect” that appellants permitted to exist
on the premises, thereby invoking the exception to immunity provided in R.C.
2744.02(B)(4), the court determined that “the lack of mats on the floor of a classroom did
not constitute a ‘defect’ as that word is used in R.C. 2744.02(B)(4).” Id. at ¶ 25-27. In
reaching this determination, the court relied upon the decision in Hamrick v. Bryan City
School Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio-2572, ¶ 28, wherein the
court construed the term “physical defect” as a “perceivable imperfection that diminishes
the worth or utility of the object at issue.” While the court found immunity applied to the
negligence claims, the matter was remanded to the trial court for further proceedings
1 We note that the action later was consolidated with Schuch v. Cuyahoga Community College, Cuyahoga C.P. No. CV-762933. regarding the breach of contract claim that was not subject to interlocutory review.
Duncan I at ¶ 29-30, discretionary appeal not allowed, 133 Ohio St.3d 1410,
2012-Ohio-4650, 975 N.E.2d 1029.
{¶4} Several months after the decision in Duncan I, the Ohio Supreme Court
decided M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261.
In that case, the court concluded that Cuyahoga Falls was not immune from liability in an
action in which a minor was injured at an indoor swimming pool maintained by Cuyahoga
Falls. Id. at ¶ 1. The court found that R.C. 2744.02(B)(4) applied where the complaint
alleged the injury was caused by the negligence of the city in its care or control of its pool
or diving board and the pool was “within the grounds of a building used in connection
with the performance a governmental function.” Id. at ¶ 8.
{¶5} After M.H. was decided, Duncan filed several motions in this court that were
premised upon the argument that the Ohio Supreme Court’s holding in M.H. required
reconsideration of the immunity issue in Duncan’s case. Those motions were denied,
and the Ohio Supreme Court declined any further review. Discretionary appeal not
allowed, Duncan, 135 Ohio St.3d 1459, 2013-Ohio-2285, 988 N.E.2d 579; and Duncan,
135 Ohio St.3d 1470, 2013-Ohio-2512, 989 N.E.2d 70.
{¶6} Duncan also filed in the trial court a motion to reinstate negligence claims.
On July 13, 2013, the trial court granted that motion “in light of the Ohio Supreme
Court’s decision in M.H. v. Cuyahoga Falls[.]” Tri-C and Soucie timely appealed. {¶7} Appellants’ sole assignment of error claims that the trial court erred by
reinstating the negligence claims. Appellants argue that the trial court disregarded the
law-of-the-case doctrine and erred in determining that the M.H. case constituted an
intervening decision. We find merit to these arguments.
{¶8} Pursuant to the law-of-the-case doctrine, “‘absent extraordinary
circumstances, such as an intervening decision by the Supreme Court, an inferior court
has no discretion to disregard the mandate of a superior court in a prior appeal in the same
case.’” Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, ¶ 1,
quoting Nolan v. Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410 (1984), syllabus. An
intervening decision by the Ohio Supreme Court is one that states a rule of law that is
inconsistent with the legal conclusion or mandate reached by the appellate court. See
Hopkins at ¶ 3; State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d
180, 183, 652 N.E.2d 742 (1995). In addition, the denial of jurisdiction over a
discretionary appeal by the Ohio Supreme Court settles the issue of law appealed.
Sheaffer v. Westfield Ins.
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[Cite as Duncan v. Cuyahoga Community College, 2014-Ohio-835.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100121
HEATHER DUNCAN PLAINTIFF-APPELLEE
vs.
CUYAHOGA COMMUNITY COLLEGE, ET AL. DEFENDANTS-APPELLANTS
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-687796 and CV-762933
BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: March 6, 2014 ATTORNEYS FOR APPELLANTS
Alexandra V. Dattilo Caroline L. Marks Brouse McDowell 600 Superior Avenue East Suite 1600 Cleveland, OH 44114
John C. Fairweather John P. Hickey Kerri L. Keller Amanda M. Leffler Brouse McDowell 388 South Main Street Suite 500 Akron, OH 44311
ATTORNEYS FOR APPELLEE
Blake A. Dickson Jacqueline M. Mathews Mark D. Tolles, II The Dickson Firm, L.L.C. Enterprise Place, Suite 420 3401 Enterprise Parkway Beachwood, OH 44122 SEAN C. GALLAGHER, P.J.:
{¶1} Defendants-appellants Cuyahoga Community College (“Tri-C”) and Greg
Soucie appeal the decision of the trial court that granted plaintiff-appellee Heather
Duncan’s motion to reinstate her negligence claims. For the reasons stated herein, we
reverse the decision of the trial court and remand for further proceedings.
{¶2} On March 18, 2009, Duncan filed a complaint for negligence and breach of
contract against appellants. Duncan, who was employed by the Bedford Heights Police
Department, was injured while attending a training program, which included a
self-defense class that was provided and sponsored by Tri-C and run by Soucie. Duncan
alleged that appellants engaged in “negligent and/or reckless and/or wanton” conduct by
conducting a self-defense class, which required participants to engage in physical activity
that resulted in their bodies striking the ground, and failing to use mats on the ground or
take other safety precautions to prevent the participants from getting injured. Duncan
maintained that the presentation of the self-defense class was “a proprietary function” and
that she “suffered injury on the property of and/or within or on the grounds of, a building
that is used in connection with the performance of a governmental function.” Among
other allegations, Duncan alleged that appellants’ “decision not to use mats was a routine,
ministerial decision and not an exercise of judgment or discretion,” and that appellants
were “negligent and/or reckless and/or wanton” in several respects, including “creating
and/or permitting the creation of and/or permitting the continued existence of a defect and/or dangerous condition and/or nuisance” on the premises. Duncan also set forth
allegations relating to her breach of contract claim.1
{¶3} Appellants filed an answer and eventually filed a Civ.R. 12(C) motion for
judgment on the pleadings on the basis of statutory immunity. The trial court denied the
motion, and the matter was appealed. In Duncan v. Cuyahoga Community College,
2012-Ohio-1949, 970 N.E.2d 1092 (“Duncan I”), the court reversed the trial court’s
ruling on the negligence claim and found that Tri-C and Soucie were entitled to the
immunity afforded by R.C. 2744.01 et seq. on that claim. The court found that Tri-C is a
political subdivision, its class providing training to peace officers constituted a
governmental function, and none of the exceptions to immunity applied. Id. Although
Duncan alleged her injuries were caused by a “defect” that appellants permitted to exist
on the premises, thereby invoking the exception to immunity provided in R.C.
2744.02(B)(4), the court determined that “the lack of mats on the floor of a classroom did
not constitute a ‘defect’ as that word is used in R.C. 2744.02(B)(4).” Id. at ¶ 25-27. In
reaching this determination, the court relied upon the decision in Hamrick v. Bryan City
School Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio-2572, ¶ 28, wherein the
court construed the term “physical defect” as a “perceivable imperfection that diminishes
the worth or utility of the object at issue.” While the court found immunity applied to the
negligence claims, the matter was remanded to the trial court for further proceedings
1 We note that the action later was consolidated with Schuch v. Cuyahoga Community College, Cuyahoga C.P. No. CV-762933. regarding the breach of contract claim that was not subject to interlocutory review.
Duncan I at ¶ 29-30, discretionary appeal not allowed, 133 Ohio St.3d 1410,
2012-Ohio-4650, 975 N.E.2d 1029.
{¶4} Several months after the decision in Duncan I, the Ohio Supreme Court
decided M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261.
In that case, the court concluded that Cuyahoga Falls was not immune from liability in an
action in which a minor was injured at an indoor swimming pool maintained by Cuyahoga
Falls. Id. at ¶ 1. The court found that R.C. 2744.02(B)(4) applied where the complaint
alleged the injury was caused by the negligence of the city in its care or control of its pool
or diving board and the pool was “within the grounds of a building used in connection
with the performance a governmental function.” Id. at ¶ 8.
{¶5} After M.H. was decided, Duncan filed several motions in this court that were
premised upon the argument that the Ohio Supreme Court’s holding in M.H. required
reconsideration of the immunity issue in Duncan’s case. Those motions were denied,
and the Ohio Supreme Court declined any further review. Discretionary appeal not
allowed, Duncan, 135 Ohio St.3d 1459, 2013-Ohio-2285, 988 N.E.2d 579; and Duncan,
135 Ohio St.3d 1470, 2013-Ohio-2512, 989 N.E.2d 70.
{¶6} Duncan also filed in the trial court a motion to reinstate negligence claims.
On July 13, 2013, the trial court granted that motion “in light of the Ohio Supreme
Court’s decision in M.H. v. Cuyahoga Falls[.]” Tri-C and Soucie timely appealed. {¶7} Appellants’ sole assignment of error claims that the trial court erred by
reinstating the negligence claims. Appellants argue that the trial court disregarded the
law-of-the-case doctrine and erred in determining that the M.H. case constituted an
intervening decision. We find merit to these arguments.
{¶8} Pursuant to the law-of-the-case doctrine, “‘absent extraordinary
circumstances, such as an intervening decision by the Supreme Court, an inferior court
has no discretion to disregard the mandate of a superior court in a prior appeal in the same
case.’” Hopkins v. Dyer, 104 Ohio St.3d 461, 2004-Ohio-6769, 820 N.E.2d 329, ¶ 1,
quoting Nolan v. Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410 (1984), syllabus. An
intervening decision by the Ohio Supreme Court is one that states a rule of law that is
inconsistent with the legal conclusion or mandate reached by the appellate court. See
Hopkins at ¶ 3; State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d
180, 183, 652 N.E.2d 742 (1995). In addition, the denial of jurisdiction over a
discretionary appeal by the Ohio Supreme Court settles the issue of law appealed.
Sheaffer v. Westfield Ins. Co., 110 Ohio St.3d 265, 2006-Ohio-4476, 853 N.E.2d 275, ¶
16.2
{¶9} Our review reflects that M.H., 134 Ohio St.3d 65, 2012-Ohio-5336, 979
N.E.2d 1261, was not an intervening decision by the Ohio Supreme Court. The M.H.
case did not construe the “physical defect” requirement of R.C. 2744.02(B)(4). Rather,
2 We need not consider the parties’ arguments pertaining to the denial of discretionary review in this matter. Cuyahoga Falls had moved for summary judgment on the ground that indoor municipal
swimming pools do not fall under R.C. 2744(B)(4). Id. at ¶ 2. In finding that the
exception under R.C. 2744.02(B)(4) applied, the court determined that an injury occurring
at an indoor municipal swimming pool occurred “within or on the grounds of a building
that was used in connection with the performance of a governmental function.” Id. at ¶
11. Also, the court recognized the complaint alleged the city had been negligent in the
care or control of its pool or diving board and that the negligence caused the child’s
injury. Id. at ¶ 8.
{¶10} Unlike M.H., in this case the parties do not dispute that the alleged injury
occurred within or on the grounds of a building used in connection with the performance
of a governmental function. Further, there are no allegations of negligence that can be
construed as involving a “physical defect” as required by R.C. 2744.02(B)(4). Pertinent
to our analysis, the M.H. case sets forth no rule of law that is inconsistent with the
determination in Duncan I that “a lack of mats on the floor of a classroom did not
constitute a ‘defect’ as that word is used in R.C. 2744.02(B)(4).” Duncan I, 8th Dist.
Cuyahoga No. 97222, 2012-Ohio-1949, 970 N.E.2d 1092, at ¶ 27.
{¶11} Additionally, we find no basis to conclude that the Ohio Supreme Court
abrogated the “physical defect” element of R.C. 2744.02(B)(4). In fact, the court
advocated application of “the plain language of the statute.” Id. at ¶ 10. The plain
language of the immunity exception in R.C. 2744.02(B)(4) holds political subdivisions
“[l]iable for injury, death, or loss to person or property that is caused by the negligence of their employees and occurs within or on the grounds of, and is due to physical defects
within or on the grounds, of buildings that are used within the performance of
governmental functions * * *.” (Emphasis added.)
{¶12} Tri-C also cites as supplemental authority Caraballo v. Cleveland Metro.
School Dist., 8th Dist. Cuyahoga No. 99616, 2013-Ohio-4919. Caraballo does not
involve the law-of-the-case doctrine. The court in Caraballo upheld the denial of a
motion to dismiss on immunity grounds and determined that sufficient facts were pled to
invoke the immunity exceptions set forth in R.C. 2744.02(B)(2) and (B)(4) and that
further discovery was warranted. Id. With regard to R.C. 2744.02(B)(4), the court
recognized that the plaintiff had asserted a physical defect within or on the grounds of the
school. Id. at ¶ 23-25. More specifically, the plaintiff asserted that he might be able to
prove that a metal binder clip, which allegedly was in his daughter’s school lunch, came
to be in the food because of employee negligence and physical defects within or on the
grounds of the school. Id. at ¶ 24. As an example, the plaintiff claimed that a physical
defect on the grounds of the school may have caused the collapse of a negligently or
recklessly located and/or maintained storage shelf, which in turn, led to the binder clip
landing in the food preparation area. Id. The Caraballo case is factually distinguishable
and inapposite to this action.
{¶13} Because M.C. is not an intervening decision and there is a lack of
extraordinary circumstances, the trial court had no discretion to disregard the mandate of Duncan I that dismissed the negligence claims. Therefore, the trial court erred by
reinstating the negligence claims.
{¶14} Judgment reversed. Case remanded.
It is ordered that appellants recover from appellee 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.
SEAN C. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and MELODY J. STEWART, J., CONCUR KEY WORDS: Appeal No. 100121-- Heather Duncan v. Cuyahoga Community College, et al.
law of the case; mandate; intervening decision; extraordinary circumstances; immunity; R.C. 2744.02(B)(4); physical defect. Applying the law of the case doctrine, the trial court had no discretion to disregard the mandate issued in a prior appeal in the same case because the authority relied upon was not was an intervening decision and there was a lack of extraordinary circumstances. The requirement for a physical defect under the immunity exception in R.C. 2744.02(B)(4) has not been abrogated.