Appeals Court Dispels Immunity Finding in Baseball Case

Nov 18, 2005

A high school baseball player, who was struck by a baseball during practice and subsequently sued the school district, has been given another chance after an Ohio appeals court reversed a trial court’s ruling for the school district.
Jeffrey Elston was playing baseball with his teammates at Howland High School on April 29, 2002 when he was struck in the head by a baseball. At the time, Elston was pitching behind an L-screen, which is designed to protect a pitcher from being hit with a batted ball that is hit directly back at him. However, on this day, a ball ricocheted off the horizontal crossbar of the L-screen and struck Elston in the head. Elston had to have brain surgery, and four titanium plates and screws were permanently implanted in his head.
Elston and his family sued the school district and the coach, Thomas Eschman. The Trumbull County Court of Common Pleas granted the school district’s motion for summary judgment, finding immunity for the district as well as concluding that at no time did the plaintiff allege the requisite “malicious purpose, bad faith, wanton or reckless actions.”
On appeal, the plaintiffs argued the following:
“that the immunity provided by R.C. 2744.03(A)(3) applies only to employees of a political subdivision who exercise discretion with respect to policy-making, planning, or enforcement powers by virtue of their duties and responsibilities;
“that in a personal injury action against a school district predicated upon vicarious liability, the immunity provided by R.C. 2744.03(A)(5) is inapplicable because it applies only to the political subdivision’s exercise of judgment or discretion and not to the actions of employees of the political subdivision; and
“that genuine issues of material fact exist as to whether Eschman acted in a wanton manner.”
Before addressing the merits of the appeal, the court restated the relevant legislation:
R.C. 2744.03(A) states in part that: “in a civil action brought against a political subdivision or an employee of a political subdivision, to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
“(3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
“(5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.”
The appeals court then moved to address all three issues in “a consolidated fashion.”
“The liability exceptions contained within R.C. 2744.03 must be read narrowly in favor of appellants. Hallett v. Stow Bd. of Educ. (1993), 89 Ohio App.3d 309, 313, 624 N.E.2d 272. The subsections of R.C. 2744.03(A) grant immunity to either the political subdivision or its employees, not both.
“Pursuant to R.C. 2744.03(A)(3), as a defense or basis for immunity, appellee failed to show that Eschman’s position as baseball coach involved policy-making, planning, or enforcement powers. As such, R.C. 2744.03(A)(3) is inapplicable to the instant matter.
“Furthermore, appellee’s reliance upon R.C. 2744.03(A)(5), and the trial court’s determination that R.C. 2744.03(A)(5) is applicable here, is both misplaced and incorrect. A plain reading of R.C. 2744.03(A)(5) establishes that immunity is extended only to the acts of a political subdivision, not to the acts of its employees. Kiep v. Hamilton (May 19, 1997), 12th Dist. No. CA96-08-158, 1997 Ohio App. LEXIS 2121, at *13-14. Therefore, the immunity conferred by R.C. 2744.03(A)(5) only relieves liability for claims based upon the exercise of judgment or discretion of the political subdivision itself. As such, because R.C. 2744.03(A)(5) does not contain any language pertaining to the actions of a political subdivision’s employees, it does not apply to appellants’ vicarious liability claims. Thus, appellee would be vicariously liable for appellant Jeffrey Elston’s injuries based on R.C. 2744.02(B).”
The court also held that “genuine issues of material fact exist regarding whether Eschman acted with a malicious purpose, in bad faith, or in a wanton or reckless manner,” noting that the plaintiffs’ expert, John W. Zizzo, opined that Eschman breached four separate duties owed to Elston and failed to exercise any care whatsoever toward him.
“First, Zizzo stressed that appellee and Eschman had a duty to make every student athlete wear a protective helmet while in the batting cage during short toss. One could reasonably assume that appellant Jeffrey Elston’s injuries would not have occurred or would have been significantly lessened had he been required to wear a protective helmet. Second, Eschman never instructed appellant Jeffrey Elston on the proper use of the L-screen when it was positioned only thirty feet from home plate. Zizzo opined that Eschman breached a duty to provide proper instruction. Third, Zizzo stated that Eschman had a duty to conduct the short toss drill in a manner that did not consist of athletes standing and throwing. Fourth, Zizzo indicated that Eschman had a duty to require athletes to sit on a chair or kneel behind the screen.
“It is our position that the facts of this case raise questions best suited for a jury’s determination.”
Jeffrey Dana Elston, by and through his mother and next best friend, Pamela Elston, et al., v. Howland Local Schools; Ct. App. Ohio, 11th App. Dist. Trumbull Co.; Case No. 2004-T-0092; 9/9/05
Attorneys of Record: (for plaintiffs) Brian P. Kish of Betras, Maruca, Kopp, Harshman & Bernard, L.L.C., Canfield, OH (for defendant) Nick C. Tomino of Tomino & Latchney, L.L.C., Medina, OH.


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