Nonprasit v. Ohio Teaching Family Assn.

2022 Ohio 3685, 199 N.E.3d 153

• Court: Ohio Court of Appeals
• Decided: October 14, 2022
• Docket: L-22-1027
• Status: Published

Opinion

[Cite as Nonprasit v. Ohio Teaching Family Assn., 2022-Ohio-3685.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Sandra Nonprasit, Administratrix of the Court of Appeals No. L-22-1027 Estate of Pedro Salinas Trial Court No. CI0202001404 Plaintiff

v.

Ohio Teaching Family Association, et al.

Appellees

Sylvania Area Joint Recreation District DECISION AND JUDGMENT

Appellant Decided: October 14, 2022

*****

J. Mark Trimble, Tracy B. Selis, and Andrew J. Ayers, for Appellees.

Byron S. Choka and Jennifer A. McHugh, for appellant.

ZMUDA, J.

I. Introduction

{¶ 1} Appellant, Sylvania Area Joint Recreation District (SAJRD), appeals the

judgment of the Lucas County Court of Common Pleas, finding that a genuine issue of material fact exists as to whether SAJRD is entitled to political subdivision immunity and

thus denying SAJRD’s motion for summary judgment. Because we find that SAJRD is

entitled to immunity as a matter of law, we reverse.

A. Facts and Procedural Background

{¶ 2} This appeal arises out of the tragic death of a 15-year-old boy, P.S., on

July 1, 2019. At the time, P.S. was under the care and supervision of appellees, the Ohio

Teaching Family Association (OTFA) and its teaching parent, Matt Anderson. OTFA is

a residential care facility for minors and, as such, received custody of P.S. after he was

transferred to OTFA from the Lucas County Youth Treatment Center, where he was

previously incarcerated.

{¶ 3} On July 1, 2019, OTFA transported P.S. and four other residents to the

Centennial Quarry for a field trip. The Centennial Quarry is a public recreational

swimming area that is located in Sylvania, Ohio, and owned by SAJRD, an Ohio political

subdivision. Upon arrival at the quarry, P.S. and the other residents began swimming.

Anderson accompanied the group to supervise. According to Anderson, the swimming

area was crowded at the time.

{¶ 4} P.S. jumped off the 15-foot-high dive platform and into the quarry, about 20-

30 feet from shore. When P.S. did not resurface, the other residents notified Anderson

that P.S. was missing, prompting a search. Several minutes later, another swimmer

pulled P.S. from the water. Lifeguards immediately began to administer CPR and other

2. aid to P.S., and continued to do so until EMTs arrived. P.S. was eventually transferred to

the University of Toledo Medical Center where he was pronounced dead.

{¶ 5} Approximately seven months after P.S.’s death, on February 7, 2020, Sandra

Nonprasit, administratrix of P.S.’s estate, filed a wrongful death action against appellees.

In her complaint, Nonprasit sought damages from appellees in the amount of $750,000.

{¶ 6} On February 19, 2020, appellees filed an answer and a third party complaint,

in which they denied any liability for P.S.’s death and asserted that any damages they

incurred were brought about by SAJRD’s failure to supervise P.S. while he was a

business invitee on SAJRD’s property.

{¶ 7} SAJRD filed an answer to appellees’ third party complaint on March 16,

2020. In its answer, SAJRD denied any liability arising out of P.S.’s death and asserted

several affirmative defenses including political subdivision immunity.

{¶ 8} Thereafter, the matter proceeded through pretrial discovery. On January 11,

2021, SAJRD filed a motion for summary judgment, arguing that it was entitled to

judgment on appellees’ third party complaint because it was immune from suit under

Chapter 2744 of the Revised Code. In support of its argument, SAJRD cited to

deposition testimony previously provided by Anderson and SAJRD’s senior program

director, Rob Mahon. Both of these depositions were filed with the trial court and part of

the record at the time SAJRD filed its motion.

3. {¶ 9} In his deposition, Anderson testified that he and the five OTFA residents

arrived at Centennial Quarry at around 3:00 p.m. on July 1, 2019. When they arrived,

Anderson noticed that the swimming area was very crowded with “at least 200”

swimmers present. When asked about the physical characteristics of the quarry,

Anderson stated that the water was deep, with a sudden drop off after entering the water.

He was unaware of any underwater obstructions in the quarry. Anderson could not

identify any defects with the quarry that hindered its operability as a swimming facility.

{¶ 10} Anderson decided to snorkel for some time. While snorkeling, Anderson

observed three lifeguards in the area. Anderson finished snorkeling and proceeded to the

diving platform area, where he saw no additional lifeguards.

{¶ 11} Anderson and some of the other OTFA residents, including P.S., decided to

jump into the water from the diving platform, which was approximately ten feet above

the water. Anderson jumped from the diving platform two times before noticing that P.S.

was missing. Because the swimming area was so crowded, Anderson was forced to swim

around several people on his way back to shore after jumping into the water.

Consequently, Anderson was “out of breath completely” by the time he returned to the

shore the second time. According to Anderson, P.S. jumped into the water following

Anderson’s second jump, although he was not certain of that fact prior to the incident.

{¶ 12} While catching his breath on the shore, Anderson was approached by

another resident who told him that P.S. was missing. Anderson was concerned that P.S.

4. had run off and escaped, so he started searching the area outside the water. He then

alerted lifeguards of the situation, at which point he observed a diver pulling P.S. from

the water and ran over to provide assistance.

{¶ 13} At the deposition, Anderson authenticated several photographs of the

quarry, including photographs of the diving platform area. In the photographs of the

diving platform area, a lifeguard chair is visible on the platform immediately adjacent to

the location from which divers would jump. According to Anderson, this chair was not

manned on the day of the drowning. Other photographs of the quarry revealed the

existence of a surface-level lifeguard chair in the area where Anderson went snorkeling,

with a direct line of sight to the diving platform above it, as well as an elevated lifeguard

chair in an area of the quarry that Anderson was unable to identify.

{¶ 14} Toward the end of his deposition, Anderson stated that the lifeguards he

observed on the day of the drowning appeared to have their attention focused on an area

in the middle of the quarry where floating platforms were located. Anderson indicated

that the lifeguards were not paying attention to the diving platform, and he stated that,

were he the manager of the quarry, he would have had a lifeguard stationed “up on the

platform.” When asked if the chair on the platform provided a good line of sight to the

diving area, Anderson responded: “If I were to have been sitting up there and looked

right, yeah, you could have seen that, but it’s also directionalized (sic.) out in the area that

5. we were swimming in, and not at the platform. The platform chair up there would have

been the one that would probably be responsible for that area.”

{¶ 15} In addition to referencing Anderson’s deposition in its motion for summary

judgment, SAJRD also cited evidence from Mahon’s deposition. At the beginning of his

deposition, Mahon explained the physical layout of the quarry. He described the quarry

as a “spring-fed quarry” that is more difficult to lifeguard because the water is cloudy and

thus one cannot see the bottom. Further, Mahon indicated that the sides of the quarry all

contain sudden drop-offs, with the sole exception being the stair stepped entryway.

Mahon stated that there is no vegetation or rocks that would impede swimmers in the

swimming area.

{¶ 16} According to Mahon, there are five lifeguard chairs at the quarry, plus two

lifeguard stations at the slide located at the quarry. Three of these chairs are on the south

beach of the quarry (Chairs 2, 3 and 4), and the remaining two chairs (Chairs 1 and 1 &

1/2) are located on north beach. Mahon indicated that there were no lifeguards assigned

to the chair that sits atop the diving platform (Chair 1 & 1/2) at the time of P.S.’s

drowning. Mahon explained the reason that the chair was not staffed, stating:

So to give you the background on that chair because I know it’s in an area

of interest, we always station Lifeguard Chair 1, which is at the bottom of

the stairs on what we call north beach, the main entrance in. That chair

next to the platform is what we call Chair 1 & 1/2, and that is primarily

6. used in the evenings or on days where the sun affects the guard in Chair 1.

So Chair 1 faces essentially west kind of southwest * * *.

{¶ 17} When asked to further explain the staffing situation on north beach, Mahon

clarified that a lifeguard is required to be in Chair 1 at all times, unless the sunset makes

it difficult to see, in which case the lifeguard moves from Chair 1 to Chair 1 & 1/2.

Further, a lifeguard is supposed to be in Chair 2 (located on south beach) when the diving

platform is in consistent use. However, no such lifeguard was in Chair 2 on day P.S.

drowned. Mahon testified that the diving platform falls within the responsibilities of

Chair 1, but Chair 2 is also used for the diving platform when there is a lineup of

swimmers on the platform. Mahon explained that both Chair 1 and Chair 2 have good

vantage points from which to watch divers as they jump off the diving platform.

Moreover, Mahon testified that Chair 3 also has a good vantage point of the platform, but

it too was unmanned on the day of the drowning. Mahon confirmed that none of the

lifeguards who were on duty saw P.S. jump off the diving platform or resurface at any

point in time.

{¶ 18} In response to SAJRD’s motion for summary judgment, appellees filed a

memorandum in opposition on April 13, 2021. In their memorandum, appellees

conceded that SAJRD is a governmental entity entitled to immunity under R.C. Chapter

2744. However, appellees insisted that immunity does not apply in this case because

P.S.’s death was caused by physical defects at the quarry and thus immunity was

7. excepted under R.C. 2744.02(B)(4). The physical defects identified by appellees were

two-fold. First, appellees complained of “unfiltered and cloudy” water that allegedly

obstructed the view of lifeguards positioned at the quarry. Second, appellees contended

that lifeguard stations were situated “away from the diving platform instead of next to it”

and “at a low perspective relative to the water surface,” making it difficult to see

swimmers who were in distress below the surface of the water in light of the murky water

conditions.

{¶ 19} To support their argument, appellees relied upon an affidavit from an

expert in aquatic safety and lifeguard instruction, Brett Galambos. In his affidavit,

Galambos acknowledged that P.S. was an experienced swimmer who showed no signs of

difficulty in swimming prior to jumping into the quarry from the high dive platform on

July 1, 2019. However, Galambos noted that the quarry contains cloudy water that is

spring fed, and thus “the water level frequently changes, causing variations in water

quality and visibility.” Moreover, Galambos asserted that only one of the two lifeguard

stations on the north beach of the quarry was staffed at the time of the drowning, namely

Chair 1 which is at ground level and 30 feet away from the dive platform. Thus,

Galambos reasoned that the lifeguards on duty at the time of the drowning failed to

supervise the dive platform and ensure that all divers resurfaced after diving. Galambos

stated that the positioning and elevation of Chair 1 constituted a physical defect that

8. contributed to the lifeguards’ failure to observe P.S. in distress and render aid

accordingly.

{¶ 20} Notably, Galambos expressed his expert opinion that “positioning a

lifeguard in a chair at a higher angle, such as at the diving platform [Chair 1 & 1/2]

would have provided a better vantage point for a lifeguard to observe any distress of a

swimmer entering the water after jumping from the platform.” Galambos went on to

opine that “a lifeguard stationed at that diving platform, focused on that specific diving

platform, would have an increased ability to reach a swimmer in distress, before the

swimmer began to drown, because the lifeguard would observe each swimmer jumping

from the diving platform.”

{¶ 21} On April 29, 2021, SAJRD filed its reply and reiterated its immunity

arguments previously raised in the motion for summary judgment.

{¶ 22} Upon consideration of the parties’ arguments, the trial court issued its

decision on January 13, 2022. In its decision, the trial court noted that this case distilled

down to one question; namely, “[w]as there a physical defect on SAJRD’s property

which contributed to [P.S.’s] death?” The court then reviewed the case law cited by

appellees, namely Kerber v. Cuyahoga Hts., 8th Dist. Cuyahoga No. 102419, 2015-Ohio-

2766, as well as the case law cited by SAJRD, namely Contreraz v. Bettsville, 3d Dist.

Seneca No. 13-10-48, 2011-Ohio-4178. The trial court found that Kerber was more

analogous to the facts of the present case than Contreraz. Thus, the court concluded that

9. appellees presented sufficient evidence to create a genuine issue of material facts as to

whether SAJRD’s placement of lifeguard chairs at the quarry was a physical defect that

led to P.S.’s death under R.C. 2744.02(B)(4). Moreover, the trial court determined that

the question of whether immunity should be reinstated under R.C. 2744.03(A)(5) was a

factual one not suitable for resolution on summary judgment. Consequently, the trial

court denied SAJRD’s motion for summary judgment.

{¶ 23} Thereafter, on February 9, 2022, SAJRD filed its timely notice of appeal.

B. Assignments of Error

{¶ 24} On appeal, SAJRD assigns the following errors for our review:

ASSIGNMENT OF ERROR NO. 1: The trial court committed

reversible error when it found a genuine issue of material fact regarding

whether the “physical defect” exception to immunity applied under Ohio

R.C. §2744.02(B)(4), where the Third-Party Complaint pleads no facts or

allegations supporting the existence of any physical defect, that any alleged

physical defect was a proximate cause of [P.S.’s] drowning; or that any

alleged negligence by an SAJRD employee was connected to any physical

defect or a proximate cause of [P.S.’s] drowning.

ASSIGNMENT OF ERROR NO. 2: The trial court committed

reversible error when it found a genuine issue of material fact regarding

whether the “physical defect” exception to immunity applied under Ohio

10. R.C. §2744.02(B)(4), where no Ohio Civ.R. 56 evidence supports the

existence of any physical defect; that any alleged physical defect was a

proximate cause of [P.S.’s] drowning; or that any alleged negligence by an

SAJRD employee was connected to any physical defect or a proximate

cause of [P.S.’s] drowning.

ASSIGNMENT OF ERROR NO. 3: Even if the R.C.

§2744.02(B)(4) exception applied, the trial court committed reversible error

when it found a genuine issue of material fact regarding whether the

discretionary defense applied to reinstate SAJRD’s immunity pursuant to

Ohio R.C. §2744.03(A)(5), where the Third-Party Complaint pleads no

facts or allegations supporting any heightened state of culpability, and only

alleges mere negligence.

ASSIGNMENT OF ERROR NO. 4: Even if the R.C.

§2744.02(B)(4) exception applied, the trial court committed reversible error

when it did not reinstate SAJRD’s statutory immunity pursuant to the

discretionary defense in Ohio R.C. §2744.03(A)(5), because to the extent

any injury or death allegedly arose from any action or inaction of SAJRD, it

was the result of an exercise of judgment or discretion in determining

whether to acquire, or how to use, equipment, supplies, materials,

personnel, facilities, and other resources, which was not exercised with

11. malicious purpose, in bad faith, or in a wanton or reckless manner as a

matter of law.

ASSIGNMENT OF ERROR NO. 5: The trial court committed

reversible error and abused its discretion when it granted leave to amend

the Third-Party Complaint where Civ.R. 15(B) does not apply since a trial

has not yet occurred; where the Third-Party Complaint does not plead, and

waived, any exception to immunity pursuant to R.C. §2744.02(B); where

the Third-Party Complaint failed to plead, and waived, any heightened state

of culpability pursuant to R.C. §2744.03(A)(5); where no motion for leave

to amend ever was filed; where permitting leave to amend would cause

substantial and unfair prejudice to SAJRD; where Third-Party Plaintiffs

engaged in undue delay and a lack of good faith; and where amendment

would be futile.

ASSIGNMENT OF ERROR NO. 6: The trial court committed

reversible error when it denied summary judgment in favor of SAJRD.

{¶ 25} For the reasons that follow, we conclude that the trial court erred in finding

that there is a genuine issue of material fact regarding the applicability of the physical

defect exception to immunity under R.C. 2744.02(B)(4). Consequently, we need only

address SAJRD’s first, second, and sixth assignments of error, which are interrelated and

therefore will be considered together. Our determination in SAJRD’s favor on those

12. assignments of error renders the remaining assignments of error moot, and we will

therefore not consider them.

II. Analysis

A. Standard of Review

{¶ 26} This appeal is before us on the trial court’s disposition of SAJRD’s motion

for summary judgment. We review the grant or denial of a motion for summary

judgment de novo, applying the same standard as the trial court. Lorain Natl. Bank v.

Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C),

summary judgment is appropriate where (1) no genuine issue as to any material fact

exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable

minds can come to but one conclusion, and viewing the evidence most strongly in favor

of the nonmoving party, that conclusion is adverse to the nonmoving party. Harless v.

Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 27} A “material fact” is one which would affect the outcome of the proceeding

under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio

App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110

Ohio App.3d 817, 826, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Additionally,

“[w]hether a political subdivision or its employee may invoke statutory immunity under

13. R.C. Chapter 2744 generally presents a question of law.” Hoffman v. Gallia Cty.

Sheriff’s Office, 2017-Ohio-9192, 103 N.E.3d 1, ¶ 38 (4th Dist.).

{¶ 28} On a motion for summary judgment, the moving party has the burden of

demonstrating that no genuine issue of material fact exists. Dresher v. Burt, 75 Ohio

St.3d 280, 292, 662 N.E.2d 264 (1996). In doing so, the moving party must point to

some evidence in the record in the form of “pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, timely filed in the action[.]” Civ.R. 56(C); Dresher at 292-

293. The burden then shifts to the nonmoving party to provide evidence showing that a

genuine issue of material fact does exist. Dresher at 293. The failure to satisfy this

reciprocal burden warrants judgment against the nonmoving party. Id.

B. Law Governing Claims of Political Subdivision Immunity

i. The Relevant Analytical Framework

{¶ 29} As a matter of public policy in Ohio, the Ohio General Assembly “has

classified the functions of political subdivisions as ‘governmental’ or ‘proprietary,’”

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

¶ 16, and has blanketed such political subdivisions with statutory immunity by enacting

the Political Subdivision Tort Liability Act, codified in Chapter 2744 of the Ohio Revised

Code.

14. {¶ 30} “Under Ohio law, courts apply a ‘three-tiered analysis’ in determining

whether a political subdivision is entitled to immunity under R.C. Chapter 2744.”

Douglas v. Columbus City Schools Bd. of Ed., 2020-Ohio-1133, 152 N.E.3d 1245, ¶ 16

(10th Dist.), quoting Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d

954, ¶ 13. First, we must examine whether the political subdivision is entitled to the

“general grant of immunity” provided by R.C. 2744.02(A)(1). McBride at ¶ 16. This

general grant provides statutory immunity to political subdivisions for “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.” R.C. 2744.02(A)(1).

{¶ 31} If immunity is found at this initial level, the law next requires analysis of

the second tier, which requires an examination as to whether any of the five exceptions to

the general grant of political subdivision immunity are applicable under R.C. 2744.02(B).

Id. at ¶ 14.

{¶ 32} Even if an exception to the general grant of immunity set forth in R.C.

2744.02(A)(1) applies and such immunity is thereby abrogated, our analysis of the

immunity question is not complete. Under the third tier of our analysis, we must then

examine “whether any defenses in R.C. 2744.03 apply to reinstate immunity.” McBride

at ¶ 15, citing Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d

781, ¶ 9.

15. {¶ 33} The first tier of the analysis concerning the general grant of immunity is not

in dispute in this case. Under R.C. 2744.01(F), a “political subdivision” is defined 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, R.C. 2744.01(C)(2)(u)(iv) provides that a “governmental function”

includes the “design, construction, reconstruction, renovation, repair, maintenance, and

operation of * * * any recreational area or facility, including, but not limited to, * * * [a]

bath, swimming pool, pond, water park, wading pool, wave pool, water slide, or other

type of aquatic facility.”

{¶ 34} Appellees concede that SAJRD meets the definition of a political

subdivision and that its operation of the Centennial Quarry swimming area constitutes a

governmental function. Thus, SAJRD is indisputably entitled to the general grant of

immunity under R.C. 2744.025(A)(1). Consequently, we must proceed to the second tier

of our immunity analysis. As explained below, we find under the second tier that

appellees have not demonstrated that an exception to the general grant of immunity

applies. Consequently, we do not reach the third tier of the immunity analysis in this

case.

ii. The “Physical Defect” Exception to Immunity

{¶ 35} In the second tier of the analysis, we must examine whether any exceptions

to immunity are applicable. Here, appellees rely upon only one of the exceptions to

16. immunity under R.C. 2744.02(B). Specifically, appellees argue that the “physical defect”

exception outlined in R.C. 2744.02(B)(4) is applicable in this case.

{¶ 36} R.C. 2744.02(B)(4) provides an exception to statutory immunity 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.” While the phrase “physical defect” is not defined in the Revised

Code, we have construed it as “a perceivable imperfection that diminishes the worth or

utility of the object at issue.” Hamrick at ¶ 28.

{¶ 37} Construing the statutory language used in R.C. 2744.02(B)(4), we observed

in Hamrick, supra, that the general immunity afforded political subdivisions engaged in a

governmental activity under the first tier of the immunity analysis is only abrogated

under the second tier “if an injury is: 1) caused by employee negligence, 2) on the

grounds or in buildings used in connection that governmental activity, and 3) due to

physical defects on or within those grounds or buildings. All of these characteristics

must be present.” Hamrick at ¶ 25; see also Parmertor v. Chardon Local Schools, 2016-

Ohio-761, 47 N.E.3d 942, ¶ 16 (11th Dist.) (“R.C. 2744.02(B)(4) requires the injuries at

issue to be caused both by a political-subdivision employee’s negligence and a physical

defect on the grounds.” (Emphasis sic.)).

17. {¶ 38} “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, supra, 152 N.E.3d 1245, 2020-Ohio-1133, at ¶ 25. Further, “Ohio

courts have expanded the definition of ‘physical defect’ to include equipment that did not

operate as intended due to a perceivable condition.” Jacobs v. Oakwood, 8th Dist.

Cuyahoga No. 103830, 2016-Ohio-5327, ¶ 26. However, “Courts have determined that

premises are not considered physically defective based solely upon an allegation that

modifications or improvements may render them safer.” Id. at ¶ 23, citing Piispanen v.

Carter, 11th Dist. Lake No. 2005-L-133, 2006-Ohio-2382, ¶ 21 (an assault on school

grounds was not the result of a physical defect on the grounds, even though the plaintiff

alleged the assault was a result of the board’s failure to provide a safe and secure

environment and failure to warn of the danger posed by the assailant), Duncan v.

Cuyahoga Cmty. College, 2012-Ohio-1949, 970 N.E.2d 1092, ¶ 27 (8th Dist.)

(community college’s failure to use mats on floors while conducting a self-defense class

was not a “physical defect” as used in R.C. 2744.02(B)(4)), and Hamrick, supra, at ¶ 29

(a bus-garage service pit into which the plaintiff fell was not a physical imperfection and

thus not a defect for purposes of removing immunity under R.C. 2744.02(B)(4)).

18. C. Application of the Law to this Case

{¶ 39} Having set forth the analytical framework that governs the immunity issue

before us in this appeal, we turn now to the application of that framework to the facts of

this case.

{¶ 40} In terms of whether SAJRD qualifies for immunity under the first tier of

the analysis, we note that appellees do not dispute that SAJRD is a political subdivision

whose maintenance and operation of Centennial Quarry meets the definition of a

governmental function under R.C. 2744.01(C)(2)(u)(iv). Consequently, the parties agree

that SAJRD is entitled to the general grant of immunity under R.C. 2744.02(A)(1).

{¶ 41} In the second tier of the analysis, we must consider whether any of the

exceptions to immunity under R.C. 2744.02(B) apply. In doing so, we will limit our

analysis to the physical defect exception set forth in R.C. 2744.02(B)(4) since, as already

noted, that is the only exception identified by appellees as potentially applicable.

{¶ 42} In its brief to this court, SAJRD argues that the trial court erred in finding a

genuine issue of material fact as to the applicability of the physical defect exception,

insisting that appellees presented no evidence to establish that any physical defect existed

on the grounds of the Centennial Quarry on the day of P.S.’s death. We agree.

{¶ 43} The burden of demonstrating the applicability of an exception to the

general grant of immunity lies with appellees in this case. See Contreraz, supra, 3d Dist.

Seneca No. 13-10-48, 2011-Ohio-4178, at ¶ 23 (“Once general immunity has been

19. established by the political subdivision, the burden lies with the plaintiff to show that one

of the five exceptions under R.C. 2744.02(B) apply.”) In the trial court, appellees argued

that P.S.’s death was the result of physical defects at the Centennial Quarry including

unfiltered and cloudy water and poorly configured lifeguard stations. On appeal,

appellees reference these alleged physical defects only by implication, and instead focus

on the location and actions of the lifeguards who were on duty at the time of P.S.’s death.

{¶ 44} According to appellees, they presented evidence that the lifeguards “were

not in the correct positions to observe the area where [P.S.] entered the water” and “did

not occupy an observation point by the diving platform.” Further, appellees claim that

their evidence demonstrates that the lifeguards failed to ensure P.S. was properly clothed

for swimming (i.e. he was wearing “long pants, reducing buoyancy”), failed to observe

P.S. enter the water where there are “deep drop-offs and cloudy conditions making

observation difficult,” and failed to detect that P.S. was in distress in a timely fashion.

Appellees also claim that the evidence reveals the lifeguards were delayed in their

reaction to the situation upon learning that P.S. was missing.

{¶ 45} In its brief to this court, SAJRD contends that there is no evidence of a

physical defect on the quarry premises, and further that appellees’ evidence demonstrates

employee negligence, at most. SAJRD argues that such evidence of negligence does not

establish the existence of a physical defect necessary to establish an exception to the

general grant of immunity.

20. {¶ 46} At the outset, we agree with SAJRD that most of the evidence relied upon

by appellees and set forth above refers to the alleged negligence of SAJRD employees,

not to a physical defect at the Centennial Quarry. Indeed, only the water quality and

configuration of the lifeguard stations have any potential connection to the quarry

property itself. Therefore, we now turn to an examination of whether these two

conditions constituted physical defects that contributed to P.S.’s death.

{¶ 47} In support of its argument that these conditions do not constitute physical

defects, SAJRD cites to Contreraz, supra, 3d Dist. Seneca No. 13-10-48, 2011-Ohio-

4178. In response, appellees cite to Kerber, supra, 8th Dist. Cuyahoga No. 102419,

2015-Ohio-2766, and contend that it supports their assertion that the quarry’s

configuration of lifeguard stations meets the definition of a physical defect such that

SAJRD’s immunity is abrogated. We will examine these cases in detail.

{¶ 48} Contreraz involved the tragic death of a 15-year-old swimmer, Santos

Garcia, who drowned in the Eells Park Quarry, a public recreational swimming area.

Prior to the drowning, Garcia and his sister agreed to race to a raft that was floating in the

deep end of the quarry. Id. at ¶ 7. Once Garcia’s sister arrived at the raft, she turned

around to look for Garcia. Id. When she did not see Garcia resurface, she yelled for help

and announced that Garcia was missing. Id. Moments later, “a swimmer surfaced with

Garcia.” Id. Efforts to resuscitate Garcia began, and he was transferred to the hospital,

but such efforts were unsuccessful. Id. at ¶ 14.

21. {¶ 49} Garcia’s mother, Rosalinda Contreraz, individually and as the

administratrix of Garcia’s estate, brought a wrongful death action against the village of

Bettsville (the owner of the quarry), the Bettsville Recreation Board (the operator of the

quarry), and Andrea Bender (the on-duty lifeguard at the quarry). Id. at ¶ 1-5. The

defendants filed a motion for summary judgment in which they asserted that they were

immune from suit. Upon review, the trial court granted the defendants’ motion and found

that Contreraz failed to establish that Garcia’s death was due to a physical defect at the

quarry. Id. at ¶ 19.

{¶ 50} Contreraz appealed to the Third District and argued that the trial court erred

in granting summary judgment notwithstanding evidence of seven violations committed

by the village of Bettsville, including:

(1) that the Village was negligent per se and/or reckless by failing to have

the required number of lifeguards; (2) that the Village failed to

appropriately train and evaluate their lifeguard staff; (3) that the Village

was negligent and/or reckless in their hiring and training of lifeguard

Andrea Bender; (4) that Andrea Bender fell below the accepted standard of

care for a lifeguard in her response to Garcia’s drowning; (5) that the

Village failed to separately identify and warn of the presence of “deep

water” within the designated swimming area; (6) that the Village’s facility

was defective and dangerous in its failure to warn of the drastic change in

22. bottom slope and/or sudden drop off within the designated swimming area;

and (7) that the Village’s facility deviated from the accepted standards of

care by allowing copious amounts of underwater vegetation to exist within

the designated swimming area.

Id. at ¶ 39.

{¶ 51} The court of appeals reviewed these alleged violations and found that most

of them had “nothing to do with a physical defect on the property. For example, the

Village’s alleged failure to provide sufficient lifeguards, failure to appropriately train and

evaluate its lifeguards, and negligent and/or reckless hiring and training of its lifeguards

clearly do not concern any physical defect regarding the premise.” Id. at ¶ 40. The court

then examined the remaining three alleged violations concerning the failure to post signs

warning of deep water, the excessive vegetation at the quarry, and sudden drop-off in the

designated swimming area, but found that none of these violations amounted to a

physical defect under R.C. 2744.02(B)(4). Id. at ¶ 41.

{¶ 52} The court found that the failure to post appropriate signage was not a

physical defect at all since “deep water in public swimming areas is a common and

expected feature, especially if the facility has diving boards and slides” and thus the

quarry performed as intended. Id. at ¶ 42, citing Hamrick, supra, 6th Dist. Williams No.

WM-10-014, 2011-Ohio-2572, at ¶ 27-29. Further, the court concluded that Contreraz

failed to present any evidence to show that there was excessive vegetation at the quarry

23. on the day of Garcia’s drowning. Id. at ¶ 43. The court also found that Contreraz’s

evidence did not establish the existence of a sudden drop-off at the quarry. Id. at ¶ 44.

Finally, the court observed that Contreraz failed to establish that Garcia’s drowning was

due to any vegetation or slope changes at the quarry. Id. at ¶ 47-49. In light of these

findings, the court held that Contreraz failed to meet her burden to demonstrate the

presence of a physical defect on the premises of the quarry and upheld the trial court’s

determination that the physical defect exception under R.C. 2744.02(B)(4) was

inapplicable. Id. at ¶ 50.

{¶ 53} In some respects, Contreraz is analogous to the present case. First, both

cases involve claims of political subdivision immunity raised by owners of outdoor

recreational swimming quarries. Second, in each case the plaintiffs raised arguments that

the quarries were physically defective due to water conditions and the manner in which

lifeguards carried out their duties.

{¶ 54} Upon review, we find Contreraz instructive as to one of the two alleged

physical defects appellees identified by appellees, namely the condition of the water at

the Centennial Quarry. As with the argument rejected by the court in Contreraz that the

lack of signage warning of deep water was a physical defect, we find no merit to

appellees’ contention that the “unfiltered and cloudy” water at the quarry constitutes a

physical defect. The court in Contreraz took note of the deep water that is typical of a

swimming quarry and found that the presence of such conditions did not prevent the

24. quarry from performing as intended. Similarly, we cannot ignore the obvious fact that

unfiltered and cloudy water is a common element of an outdoor, spring-fed swimming

quarry. As such, it is a feature of swimming quarries, not an imperfection that diminishes

the worth or utility of the quarry. Moreover, as in Contreraz, there is no evidence that

cloudy water contributed to the drowning in this case. Indeed, there is no evidence of

drowning mechanics itself.

{¶ 55} As to the second alleged physical defect identified by appellees, namely the

configuration of lifeguard stations at the quarry, Contreraz is distinguishable. Indeed, the

plaintiff in Contreraz did not identify the configuration of lifeguard stations as a physical

defect at the quarry, as appellees do here. On this issue, therefore, we find that Contreraz

provides little guidance.

{¶ 56} This brings us to Kerber, the case appellees chiefly rely upon in support of

their argument and the case on which the trial court based its decision to deny SAJRD’s

motion for summary judgment.

{¶ 57} In Kerber, the administrator of the estate of Daniel Papcke filed a wrongful

death action against the village of Cuyahoga Heights, the Cuyahoga Heights Board of

Education, and two lifeguards, Cynthia Lusk and Courtney Stock, after Papcke drowned

at an indoor pool located inside the Cuyahoga Heights High School. Kerber, supra, 8th

Dist. Cuyahoga No. 102419, 2015-Ohio-2766, at ¶ 2. Following discovery, the

defendants filed a motion for summary judgment, arguing that they were entitled to

25. political subdivision immunity under R.C. Chapter 2744. Id. at ¶ 3. The trial court

ultimately denied the motion after it found that there was a genuine issue of material fact

as to whether Papcke’s death was caused by lifeguard negligence and physical defects at

the indoor pool facility. Id.

{¶ 58} Relevant here, there were two lifeguard chairs covering the indoor pool on

the day of the drowning: “a high one, which had not been used in years, and a short one,

which Stock was using on the evening in question. The short chair was positioned in

front of the shallow end of the pool.” Id. at ¶ 6. As to the higher lifeguard chair, Lusk

testified that the chair was only used prior to the removal of the high diving board,

because it was “easier to see the pool from the lower [chair].” Id. at ¶ 7. Since the high

diving board was removed, the high chair was no longer in use. Id.

{¶ 59} After the trial court denied their motion for summary judgment, the

defendants appealed, and argued that the trial court erred in denying the motion for

summary judgment. Id. at ¶ 14. On review, the Eighth District identified the “main

issue” as “whether, under the second tier [of the immunity analysis], any exceptions to

immunity apply.” Id. at ¶ 19. The court went on to note the physical defect exception

under R.C. 2744.02(B)(4) was the only exception that was relevant. Id.

{¶ 60} After examining the evidence as to whether the lifeguards were perhaps

negligent and concluding that there was at least a genuine issue of material fact on that

issue, the court turned its attention to the question of whether there was a physical defect

26. on the pool grounds that contributed to the drowning. In doing so, the court zeroed in on

the “short, low deck chair, which was positioned at the pool’s edge.” Id. at ¶ 24. The

court took special note of Stock’s deposition testimony, during which she acknowledged

that she could not see Papcke struggling in the water from her vantage point sitting on the

short chair. Id. Further, the court referenced the affidavit of plaintiff’s aquatic safety

expert, who opined that the placement of the short chair was ineffective and reduced the

sight lines of the on-duty lifeguards, thereby delaying the lifeguards from responding in a

timely fashion in Papcke’s moment of distress. Id. at ¶ 25.

{¶ 61} Taken together, the court of appeals found that Stock’s acknowledgement

and the expert’s affidavit created a genuine issue of material fact as to whether the use of

a low deck lifeguard chair created a physical defect at the indoor pool. Id. at ¶ 26. The

court then proceeded to examine the defendants’ immunity claim under the third tier of

the analysis to determine whether immunity should be reinstated as a matter of law, and

concluded that a genuine issue of material fact existed on this issue as well, thereby

precluding summary judgment. Id. at ¶ 31.

{¶ 62} Having compared Kerber to this case, we find it analogous in some

respects. Like the plaintiff in Kerber, appellees identify the lifeguard chairs used at the

quarry as a physical defect in this case. Moreover, both cases involve multiple lifeguard

chairs, only one of which was manned at the time of the drowning.

27. {¶ 63} However, in the final analysis, we find that Kerber is distinguishable from

this case in at least one important respect. As noted above, the indoor swimming facility

at issue in Kerber contained two lifeguard chairs, a high chair and a low chair, but the

high chair was no longer in use. Thus, the facility effectively had one lifeguard chair, a

short one that the plaintiff’s expert opined did not have adequate sight lines to cover the

entire swimming pool.

{¶ 64} By contrast, the Centennial Quarry contains five lifeguard chairs plus two

additional lifeguard stations at the bottom and top of the water slide. All of these

lifeguard stations are used by lifeguards at various times according to the discretion of the

lifeguards who are on duty. Unlike in Kerber, where the lifeguards only used a surface-

level lifeguard chair, the lifeguards at the quarry were able to make use of surface-level

and elevated lifeguard chairs, including Chair 1 & 1/2, which was elevated and

positioned immediately adjacent to the diving platform.

{¶ 65} In supporting their contention that Chair 1 was physically defective

because it was not elevated and thus did not provide a line of sight to the diving platform

or an adequate view into the water around where P.S. dove into the water from the

platform, appellees rely upon the affidavit completed by Galambos. In his affidavit,

Galambos stated that the positioning and elevation of Chair 1 constituted a physical

defect that contributed to the lifeguards’ failure to observe P.S. in distress and render aid

accordingly. However, Galambos acknowledged that Chair 1 & 1/2 was appropriately

28. positioned to enable effective lifeguarding of the diving platform area and the swimming

area below. Galambos stated that “positioning a lifeguard in a chair at a higher angle,

such as at the diving platform [Chair 1 & 1/2] would have provided a better vantage point

for a lifeguard to observe any distress of a swimmer entering the water after jumping

from the platform.” Galambos further opined that “a lifeguard stationed at that diving

platform, focused on that specific diving platform, would have an increased ability to

reach a swimmer in distress, before the swimmer began to drown, because the lifeguard

would observe each swimmer jumping from the diving platform.”

{¶ 66} Taken together, Galambos’s testimony evidences, at most, SAJRD’s

negligence pertaining to the staffing decision not to have a lifeguard stationed at Chair 1

1/2. The testimony does not establish that Chair 1 was physically defective. Thus, the

evidence relied upon by appellees to satisfy their burden of demonstrating the existence

of a genuine issue of material fact as to whether a physical defect existed and whether its

existence led to the death of P.S. is unavailing.

{¶ 67} First, this evidence does not establish the existence of a physical defect. To

reiterate, a physical defect is defined as “a perceivable imperfection that diminishes the

worth or utility of the object at issue.” Hamrick, supra, 6th Dist. Williams No. WM-10-

014, 2011-Ohio-2572, at ¶ 28. The testimony of appellees’ own expert makes it clear that

in this case, unlike in Kerber, the placement and design of Chair 1 did not diminish its

worth or utility.

29. {¶ 68} The worth or utility of Chair 1 must be evaluated in light of the scope of its

use. Chair 1 was not the only lifeguard station at the quarry. Rather, Chair 1 was part of

a network of lifeguard chairs and lifeguard stations that blanketed the swimming area at

the quarry. This network included five chairs, several of which had lines of sight at the

diving platform, including Chair 1 & 1/2, which was positioned on the diving platform

immediately adjacent to the location from which divers jump into the water.

{¶ 69} Appellees contend that Chair 1 was defective because it did not provide an

adequate vantage point to enable lifeguards to observe P.S. in distress. However, this

contention ignores the fact that there were many other stations available to the lifeguards

that would indisputably offer this vantage point and that Chair 1 & 1/2 was properly

positioned to cover divers, such as P.S., as they dive from the platform. The problem,

therefore, lies in the staffing of the lifeguard stations, not the design and placement of the

lifeguard stations. Viewing appellees’ evidence in light of the quarry facility as a whole,

we do not find that it creates a genuine issue of material fact as to whether Chair 1 was

physically defective.

{¶ 70} Moreover, we find that the evidence does not support the notion that P.S.’s

drowning was due to the placement and design of Chair 1. Having carefully reviewed

Galambos’s affidavit, which was the only evidence produced by appellees to establish the

applicability of the physical defect exception, it is clear that even Galambos viewed the

staffing of the lifeguard chairs that were available to on-duty lifeguards at the time of the

30. drowning, and not the placement of any individual chair or its physical characteristics, as

the determinative factor in the drowning.

{¶ 71} By his own admission, Galambos acknowledged that the lifeguards who

were on duty had the discretion to occupy other stations with a better vantage point from

which to monitor those swimmers who were diving from the high-dive platform.

Specifically, Galambos opined that staffing a lifeguard in Chair 1 & 1/2 would have

provided an appropriate vantage point for a lifeguard to observe a swimmer in distress

after jumping from the platform. Therefore, to the extent that Chair 1’s placement at the

quarry facility could be construed as somehow defective (which we have found that it is

not), we find that appellees’ own evidence undercuts the notion that such a defect the

cause of P.S.’s drowning, for it was the lack of a lifeguard in Chair 1 & 1/2, not the line

of sight between Chair 1 and the high-dive platform, that Galambos considered the cause

of the drowning.

{¶ 72} To avoid summary judgment in this case, appellees had the burden of

creating a genuine issue of material fact as to the applicability of the physical defect

exception under R.C. 2744.02(B)(4). To do so, they needed to introduce evidence to

demonstrate that P.S.’s death was caused by employee negligence on the quarry grounds,

and that the drowning was due to physical defects on or within those grounds.

{¶ 73} Galambos’s affidavit created a genuine issue of material fact as to whether

the drowning was caused by employee negligence. However, employee negligence alone

31. is insufficient to trigger the physical defect exception to the general grant of immunity

afforded SAJRD under R.C. 2744.02(A)(1). “R.C. 2744.02(B)(4) requires the injuries at

issue to be caused both by a political-subdivision employee’s negligence and a physical

defect on the grounds.” (Emphasis sic.) Parmertor, supra, 2016-Ohio-761, 47 N.E.3d

942, at ¶ 16. Appellees did not demonstrate that P.S.’s death was due to a physical defect

on the quarry grounds. They failed to meet their burden on this issue in two respects: (1)

they failed to show the existence of a physical defect in the first instance; and (2) they

failed to show how a physical defect, and not a staffing decision, led to the drowning.

{¶ 74} Since there is no evidence in the record to demonstrate that P.S.’s death

was due to a physical defect on the quarry grounds, the physical defect exception under

R.C. 2744.02(B)(4) is inapplicable in this case. Therefore, SAJRD is entitled to political

subdivision immunity as a matter of law, and its motion for summary judgment should

have been granted.

{¶ 75} Accordingly, SAJRD’s first, second, and sixth assignments of error are

well-taken. Because we have found, as a matter of law, that SAJRD is entitled to

immunity under the first tier of our analysis and appellees did not establish an exception

to such immunity under the second tier of our analysis, there is no need to consider

whether immunity should be reinstated under the third tier of the analysis. Therefore, we

need not address SAJRD’s third and fourth assignments of error, in which SAJRD argues

that the discretionary defense to reinstate immunity under in R.C. 2744.03(A)(5) is

32. applicable. Moreover, our conclusion that summary judgment should have been granted

to SAJRD based upon its immunity from suit renders moot SAJRD’s fifth assignment of

error challenging that portion of the trial court’s decision in which the trial court

permitted appellees to amend their third-party complaint. Consequently, we do not

address the fifth assignment of error.

III. Conclusion

{¶ 76} In light of the foregoing, the judgment of the Lucas County Court of

Common Pleas is reversed, and this matter is remanded to the trial court with instructions

for the trial court to enter judgment in favor of SAJRD consistent with this decision. The

costs of this appeal are assessed to appellees under App.R. 24.

Judgment reversed and remanded.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, P.J. JUDGE CONCUR. ____________________________ JUDGE

33. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

34.