Opinion
C. A. 30405
07-19-2023
AMANDA POSAN Appellant v. WILLIAM JAMES BOYER, et al. Appellees
ORVILLE L. REED, III and DAVID H. HILKERT, Attorneys at Law, for Appellant. KENNETH A. CALDERONE and JAMES M. LYONS, JR., Attorneys at Law, for Appellees.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2020 08 2240
ORVILLE L. REED, III and DAVID H. HILKERT, Attorneys at Law, for Appellant.
KENNETH A. CALDERONE and JAMES M. LYONS, JR., Attorneys at Law, for Appellees.
DECISION AND JOURNAL ENTRY
HENSAL, Presiding Judge.
{¶1} Amanda Posan, in her individual capacity and as next friend of her minor son A.B.V., appeals an order of the Summit County Court of Common Pleas that granted summary judgment to William Boyer and the Barberton Local Schools Board of Education ("the Board"). This Court reverses.
I.
{¶2} Ms. Posen filed a complaint against Mr. Boyer and the Board alleging that A.B.V. sustained injuries while using a radial arm saw during a woodworking class at Barberton High School. She alleged that A.B.V.'s injuries occurred as the result of a lack of supervision on the part of Mr. Boyer that, combined with the condition of the saw, "created an unreasonably dangerous and defective situation" that resulted in his injuries. Mr. Boyer and the Board moved for summary judgment, arguing that Mr. Boyer's conduct was neither negligent nor reckless and that, in any event, they were entitled to the immunity provided by Revised Code Section 2744.02.
{¶3} The trial court granted summary judgment to Mr. Boyer and the Board. In doing so, the trial court concluded that Mr. Boyer's acts or omissions were not reckless under Section 2744.03(A)(6) and, therefore, that he was immune. With respect to the Board, the trial court determined that because Mr. Boyer was not negligent, further consideration of Section 2744.02(B)(4) was unnecessary. Ms. Posan appealed, raising four assignments of error for this Court's review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE PREJUDICE OF [MS. POSAN] BY REQUIRING [HER] TO PROVIDE EVIDENCE OF A "DISPOSITION TOWARD PERVERSITY" IN ORDER FOR HER TO PREVAIL ON HER CLAIM OF RECKLESS MISCONDUCT AND THEN GRANTING SUMMARY JUDGMENT IN FAVOR OF [MR. BOYER].
{¶4} Ms. Posan's first assignment of error is that the trial court erred by applying the wrong definition of recklessness for purposes of Section 2744.02(B)(4). This Court agrees.
{¶5} "The Political Subdivision Tort Liability Act, as codified in R.C. Chapter 2744, sets forth a three-tiered analysis for determining whether a political subdivision is immune from liability." Doe v. Greenville City Schools, Slip Opinion No. 2022-Ohio-4618, ¶ 9, quoting Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998). Under Section 2744.02(A)(1), political subdivisions are generally not liable for damages arising from acts or omissions of the political subdivision or its employees in connection with the performance of governmental or proprietary functions. "In most cases, the broad immunity of R.C. Chapter 2744 provides political subdivisions a complete defense to a negligence cause of action." Greenville City Schools at ¶ 9. The immunity provided by Chapter 2744, however, is not absolute. Hill v. Urbana, 79 Ohio St.3d 130, 133 (1997). Exceptions to the general immunity granted to political subdivisions are described by Section 2744.02(B), and defenses to those exceptions are set forth in Section 2744.03. Piazza v. Cuyahoga Cty., 157 Ohio St.3d 497, 2019-Ohio-2499, ¶ 11.
{¶6} With respect to employees, however, courts must look directly to Section 2744.03(A)(6) to determine whether immunity applies. Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, ¶ 17. Under Section 2744.03(A)(6), which is relevant to this case, "plaintiffs [may] sue and hold liable employees of a political subdivision if the employees' acts or omissions in the course and scope of their employment were wanton or reckless." Maternal Grandmother v. Hamilton Cty. Dept. of Job and Family Servs., 167 Ohio St.3d 390, 2021-Ohio-4096, ¶ 7. See also Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶ 2. "By implication, an employee is immune from liability for negligent acts or omissions." Anderson at ¶ 23.
{¶7} "The definition of reckless under Section 2744.03(A)(6)(b) has had a convoluted history." Anderson v. Westlake, 9th Dist Lorain No 19CA011512, 2021-Ohio-4582, ¶ 47 (Hensal, J, concurring in part and dissenting in part) ("Westlake"). In O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, for example, the Supreme Court of Ohio defined recklessness with reference to both "perverse disregard of a known risk" and "a disposition to perversity." Id. at ¶ 73, 75. In Anderson, however, the Supreme Court of Ohio rejected this definition, noting that it conflates the meaning of the terms "wanton" and "reckless." See Anderson at ¶ 17-18, 24-36. Instead, the terms "wanton" and "reckless" have distinct meanings, and they are not interchangeable. id. at ¶ 31. "When the General Assembly used the terms * * * wanton or reckless in R.C. 2744.03(A)(6)(b) to remove the immunity of an employee of the political subdivision, it intended different degrees of care." Id. at ¶ 36. As the Supreme Court explained, "[w]anton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result." . at paragraph three of the syllabus. A "disposition to perversity," although previously needed to establish wanton misconduct, is not required. at ¶ 28, citing Hawkins v. Ivy, 50 Ohio St.2d 114 (1977). Adopting the definition of "recklessness" set forth in the Restatement, the Supreme Court also held that "[r]eckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct." at paragraph four of the syllabus. See also Maternal Grandmother at ¶ 8.
{¶8} In this case, the trial court applied a definition of "recklessness" that differed from the one adopted by the Supreme Court in Anderson: it required a demonstration that Mr. Boyer acted with "a perverse disregard of a known risk[]" and that he acted with consciousness "that his conduct [would] in all probability result in injury." In both respects, the definition applied by the trial court "originate[d] from the Ohio Supreme Court's definition of wanton misconduct, not its original understanding of reckless conduct." Westlake, 2021-Ohio-4582, at ¶ 53 (Hensal, J., concurring in part and dissenting in part). The question before the trial court under Section 2744.03(A)(6)(b), consistent with Anderson, is whether Mr. Boyer's actions were "characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct." Anderson at paragraph four of the syllabus. See also Westlake at ¶ 53. Accordingly, this Court agrees that the trial court erred, and Ms. Posan's first assignment of error is sustained.
But see Smathers v. Glass, Slip Opinion No. 2022-Ohio-4595, ¶ 33; Huber v. State Farm Mut. Auto Ins. Co., 9th Dist. Summit No. 29962, 2022-Ohio-3022, ¶ 73 (blending the two definitions of recklessness).
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED TO THE PREJUDICE OF [MS. POSAN] IN GRANTING [MR. BOYER'S] MOTION FOR SUMMARY JUDGMENT CONCLUDING (1) THAT THERE WERE NO GENUINE ISSUES OF FACT WHETHER [MR. BOYER] WAS RECKLESS IN ASSIGNING PLAINTIFF [A.B.V.] TO WORK ON AN IMPROPERLY GUARDED RADIAL ARM SAW WITHOUT DIRECT ADULT SUPERVISION AND (2) BY FAILING/REFUSING TO CONSIDER THE EXPERT OPINIONS OFFERED IN OPPOSITION TO [MR. BOYER'S] MOTION FOR SUMMARY JUDGMENT.
ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED TO THE PREJUDICE OF [MS. POSAN] IN CONCLUDING THAT [SHE] FAILED TO OFFER "SPECIFIC FACTS" TO DEMONSTRATE THE EXISTENCE OF A GENUINE ISSUE OF MATERIAL FACT ON THE RECKLESSNESS OF [MR] BOYER AND FURTHER ERRED BY FAILING/REFUSING TO ADDRESS THE RELEVANCE OF THE APPLICABLE OSHA STANDARD AS PERMITTED BY THE OHIO SUPREME COURT IN PARAGRAPH [FIVE] OF THE SYLLABUS IN ANDERSON V. CITY OF MASSILLON, 134 OHIO ST.3D[ ] 380 (2012).
{¶9} In her second and third assignments of error, Ms. Posan argues that the trial court erred by determining that there were no genuine issues of material fact with respect to whether Mr. Boyer's acts or omissions were reckless. Given this Court's resolution of Ms. Posan's first assignment of error, her second and third assignments of error are premature.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED TO THE PREJUDICE OF [MS. POSAN] IN GRANTING SUMMARY JUDGMENT TO [THE BOARD] WHEN [MS. POSAN] PLED AND ESTABLISHED GENUINE ISSUES OF FACT REGARDING THE EXCEPTION TO THE GOVERNMENTAL IMMUNITY SET FORTH IN R.C. 2744.02(B)(4) COMMONLY REFERRED TO AS THE PHYSICAL EFFECTS RULE AND BY RULING THAT THERE WAS NO EVIDENCE OF NEGLIGENCE ON THE PART OF THE HIGH SCHOOL OR THE BOARD IN ALLOWING USAGE OF AN IMPROPERLY GUARDED RADIAL ARM SAW AND BY FAILING TO ADDRESS THE TESTIMONY OF PLAINTIFF'S EXPERTS ON THE DANGERS AND THE RISKS ASSOCIATED WITH AN INADEQUATELY GUARDED RADIAL ARM SAW.
{¶10} Ms. Posan's fourth assignment of error is that the trial court erred by concluding that there were no genuine issues of material fact with respect to whether Mr. Boyer was negligent for purposes of the exception to immunity provided by Section 2744.02(B)(4). In this respect, this Court observes that the trial court did not determine the question of whether the exception provided by Section 2744.02(B)(4) applied but, instead, determined that Mr. Boyer was not negligent. Whether immunity applies, however, "is a separate question from the plaintiffs ability to establish the elements of his or her claim." Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, ¶ 10.
{¶11} Under Civil Rule 56(C), "[s]ummary judgment will be granted only when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law." Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10. The substantive law underlying the claims provides the framework for determining whether there are genuine issues of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Burkes v. Stidham, 107 Ohio App.3d 363, 371 (8th Dist.1995). "[R]eckless conduct [is] not synonymous with negligence," but the two concepts are related. Maternal Grandmother, 167 Ohio St.3d 390, 2021-Ohio-4096, at ¶ 8. Recklessness "involve[s] 'something more than mere negligence.'", quoting O'Toole, 118 Ohio St.3d 374, 2008-Ohio-2574, at paragraph three of the syllabus. Yet reckless conduct, when proved, "would suffice to prove negligence." Anderson, 134 Ohio St.3d 380, 2012-Ohio-5711, at ¶ 35.
{¶12} The questions of whether Mr. Boyer was reckless and whether he was negligent turn on a common set of facts. Because this Court has determined that the trial court applied the wrong definition of "recklessness" and must remand this matter for the trial court to apply the correct standard, it would be premature for this Court to consider whether there is a genuine issue of material fact with respect to negligence at this point. Accordingly, Ms. Posan's fourth assignment of error is also premature.
III.
{¶13} Ms. Posan's first assignment of error is sustained. Her second, third, and fourth assignments of error are premature. The judgment of the Summit County Court of Common Pleas is reversed, and this matter is remanded for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellees.
JENNIFER HENSAL FOR THE COURT
STEVENSON, J. CONCURS. CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶14} I concur in the majority's judgment but would analyze the matter differently. I would begin by reviewing Ms. Posan's fourth assignment of error because if the trial court appropriately determined there was no negligence on the part of the employee, then any error in the application of the incorrect definition of recklessness would be harmless as the employee could not be reckless if he was not negligent. I would sustain Ms. Posan's fourth assignment of error because I would determine that a genuine issue of material fact exists as to whether the employee was negligent. I would then review Ms. Posan's first assignment of error and sustain it as well as I agree with the majority that the trial court applied an improper definition of recklessness.