02(B)(4) is limited to negligent acts associated with maintaining school buildings and grounds. See, e.g., Zellman v. Kenston Bd. of Educ., 71 Ohio App.3d 287, 290, 593 N.E.2d 392 (11th Dist. 1991). A review of Ohio law reveals a split among the state courts of appeals on this issue.
The Motion for Leave to File Instanter is granted, and we have considered appellees' Response to the Motion to Certify Conflict. Upon review of both the Motion to Certify Conflict, the Response, and the cited cases, we find that the Opinion of this Court, filed October 26, 1998, is in conflict with Doe v. Jefferson Area Local School District (1994), 97 Ohio App.3d 11 [ 646 N.E.2d 187], and Zellerman v. Kenton Board of Education (1991), 71 Ohio App.3d 287 [ 593 N.E.2d 392]. We propose the following issue for certification: Is the exception to the political subdivision immunity found in R.C. 2744.02 (B)(4), effective 7/1/89, applicable only to negligence occurring in connection with the maintenance of school property or equipment, or to physical defects within or on the grounds of school property?
Other Ohio courts of appeal have found that § 2744.02(B)(4) only applies to the maintenance of governmental property. See, e.g., Zellman v. Kenston Board of Educ., 71 Ohio App.3d 287, 593 N.E.2d 392 (11th Dist. 1991); Doe v. Jefferson Area Local School District, 97 Ohio App.3d 11, 646 N.E.2d 187 (1994) (school board is immune from negligent hiring and supervision claims); Hubbard v. Canton City School Board of Educ., No. 2000CA00313, 2001 Ohio App. LEXIS 1619, unreported (Ohio Ct.App. 5 Dist. March 30, 2001); Workman v. Franklin County, No. 00 AP-1449, 2001 Ohio App. LEXIS 3818, unreported (Ohio Ct.App. 10 Dist., Aug. 28, 2001). Without the benefit of clear direction from the Ohio Supreme Court, this Court must determine which of the lines of authority from the state courts is more persuasive.
Any acts which would fall under (B)(2) would also fall under (B)(4)." Zellman v. Kenston Bd. of Edn. (1991), 71 Ohio App.3d 287, 291-292, 593 N.E.2d 392. {¶ 24} The majority ignores a cardinal rule of statutory construction: courts must strive to avoid absurd or unreasonable results.
`[Liability is not to be found to exist simply because a responsibility is imposed.' Zellman v. Kenton Bd. of Educ. (1991), 71 Ohio App.3d 287, 290, 593 N.E.2d 392, emphasis in original. {¶ 14} "Because R.C. 4101.11 does not expressly establish liability, the R.C. 2744.01(B)(5) [sic] exception is inapplicable in this case.
"[L]iability is not to be found to exist simply because a responsibility is imposed." Zellman v. Kenton Bd. of Educ. (1991), 71 Ohio App.3d 287, 290, 593 N.E.2d 392, emphasis in original. {¶ 25} Because R.C. § 4101.11 does not expressly establish liability, the R.C. § 2744.01(B)(5) exception is inapplicable in this case.
Other Ohio courts have construed the terms of 2744.02(B)(4) in a more strict interpretation and determined that this exception applies only to injury resulting from the maintenance or failure to maintain a governmental property. See, Workman v. Franklin Cty. (August 28, 2001), Franklin App. No. 00AP-1449, unreported; Doe v. Jefferson Area Local School Dist. (1994), 97 Ohio App.3d 11; Zellman v. Kenston Bd. of Educ. (1991) 71 Ohio App.3d 287. This court has reviewed similar situations under the guise of negligent supervision.
We concede at the outset that this court has interpreted R.C. 2744.02(B)(4) differently. In Kaderly v. Blumer (October 15, 1996), Stark App. No. 1996CA00022, unreported, we found the following: We find as our sister court found in Zellman v. Kenston Board of Education (1991), 71 Ohio App.3d 287, this exception [R.C. 2744.02(B)(4)] is a premise liability exception to sovereign immunity. We conclude as the Zellman court did, `[i]f appellants' interpretation of (B)(4) [premise liability] was correct, then there would be no need for (B)(2) [liability for proprietary function acts].
The post-tort reform version of R.C. 2744.02(B)(4), which became effective January 17, 1997, adds the requirement that the injury be the result of "physical defects within or on the grounds" of government buildings. See Doe v. Jefferson Area Local School District (1994), 97 Ohio App.3d 11, 13; Cook v. Hubbard Exempted Village Bd. of Ed. (1996), 116 Ohio App.3d 564, 570; Hall v. Fort Frye Local School District Bd. of Ed. (1996), 111 Ohio App.3d 690, 696; Zellman v. Kenston Bd. of Ed. (1991), 71 Ohio App.3d 287, 291. See Hubbard v. Canton City School Bd. of Ed. (Oct. 26, 1998), Stark App. No. 1998CA00089, unreported, at 4-5; Marcum v. Talawanda City Schools (1996), 108 Ohio App.3d 412, 416; Williams v. Columbus Board of Ed. (1992), 82 Ohio App.3d 18, 22.
In addition, Ohio courts have held that the language of R.C. 2744.02(B) "support[s] the conclusion that subsection (B)(4) only applies to the maintenance of governmental property" and not to the decision-making which may take place on such property. Doe v. Jefferson Area Local School Dist. (1994), 97 Ohio App.3d 11, 13, 646 N.E.2d 187, 188, citing Zellman v. Kenston Bd. of Edn. (1991), 71 Ohio App.3d 287, 593 N.E.2d 392, As to appellants' third argument, it is undisputed in this case that (a) appellees exercised their discretion not to acquire a defibrillator for the Rossford EMS unit and (b) appellees are not liable for any injury which results from that decision unless it was made with "malicious purpose, in bad faith, or in a wanton or reckless manner."