An Ohio state appeals court has reversed a trial court and ruled that a school district is protected by governmental immunity in a case in which a plaintiff sued the district and several individual defendants for intentional infliction and negligent infliction of emotional distress after he was cut from the high school baseball team.
In so ruling, the panel of judges found that he did not set forth any set of facts showing the existence of an exception to the blanket governmental immunity enjoyed by the defendants. Without plaintiff having established that the general immunity of the political subdivision was pierced by one of the five statutory exceptions found in the second tier of the analysis set forth in R.C. 2744.02(B), plaintiff “could not, as a matter of law, raise a colorable claim for relief against the political subdivision.”
The plaintiff in the case, David W. Carelli, became a member of the Canfield High School baseball team during the 2011-2012 academic year as a sophomore. The following year, he transferred to Austintown Local School District, a Canfield sports rival. He successfully participated on the Austintown baseball team despite the fact that Gregory Cooper, Canfield’s athletic director, allegedly sent an email to Austintown warning of his ineligibility and “attempting to compromise his ability to play for Austintown,” according to the complaint. Carelli elected to return to the Canfield schools for his senior year of high school and sought to continue playing baseball in Canfield. Upon his return, he was cut from the team, despite the fact that he allegedly attended all baseball activities, “historically carried a batting average of .372” and “was an accomplished player for numerous travel teams.”
Carelli sued, naming Canfield Local School District Board of Education; Cooper; Matthew Koening; and Alex Geordan as defendants. On Jan. 22, 2018, a Mahoning County Common Pleas Court denied the defendants’ motion to dismiss, leading to the appeal.
In its review, the panel wrote that in Ohio, a review of claims seeking governmental immunity for political subdivisions requires a three-tiered analysis. See Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556, 2000-Ohio-486, 733 N.E.2d 1141 (2000). “First, pursuant to R.C. 2744.02(A), general immunity applies when the political subdivision or its employee is engaged in a governmental or proprietary function. If so, the political subdivision may forfeit general immunity in the second tier, based on one of the exceptions enumerated in R.C. 2744.02(B). Third, in the event one of the exceptions in R.C. 2744.02(B) is applicable, the political subdivision must prove that one of the defenses listed in R.C. 2744.03 applies in order to maintain immunity from suit.” See Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 9.
Examining the first tier, the panel noted that “it is undisputed that the Board is a political subdivision as defined in R.C. 2744.01(F). Cooper, Koening, and Geordan are employed by the Board as athletic director, varsity baseball coach and superintendent, respectively. It is also clear on the face of the complaint that each of the named defendants were sued in their official capacity, only, as the Board’s address was utilized for each employee and it is alleged in the complaint that each employee was acting within the scope of their employment.”
Further, “a school athletic program has been consistently recognized as a governmental function in Ohio. See, e.g., Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10 (high school baseball was a governmental function). … Therefore, as the Board is a political subdivision which acted through its employees engaged in a governmental function, the general grant of immunity set forth in R.C. 2744.02(A)(1) applies in this matter.
“Since immunity is presumed, (the plaintiff) has the burden of demonstrating that an exception to the general rule of immunity as set forth in R.C. 2744.02(B) applies in order to expose the Board to liability. Cooper v. Youngstown, 7th Dist. No. 15 MA 0029, 2016-Ohio-7184, ¶ 25. The five exceptions to immunity include: (1) negligent operation of a motor vehicle by employees when engaged in the scope of their employment; (2) an employee’s negligence when performing a proprietary, not a governmental function; (3) negligent repairs and negligent failure to remove obstructions from a roadway; (4) negligence of an employee occurring within or on the grounds of building used in performance of governmental functions; and (5) civil liability expressly imposed on a political subdivision by the revised code. R.C. 2744.02(B)(1)-(5). If any of these exceptions to immunity apply and no defense found in that section protects the political subdivision from liability, then we may turn to any applicable provision of the third tier. Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 9.”
The plaintiff argued on appeal that the defendants’ conduct “was not only reckless but also ‘wanton.’ However, in reviewing a motion to dismiss under Civ.R. 12(B)(6) we must conduct a review of the plaintiff’s complaint only to determine if the plaintiff alleged any set of facts in his complaint which would entitle him to a colorable claim for relief. It is also important to note that the plaintiff failed to assert claims against Cooper, Koening and Geordan in their individual capacities. As such, the claims against these three school officials must be considered claims against the political subdivision itself. Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 21.
“Even assuming arguendo, that the plaintiff is claiming the defendant’s general immunity is pierced because of alleged reckless conduct, the portion of the immunity statute with language referencing reckless conduct is found within R.C. 2744.03(A). Again, this provision is only considered as part of the third tier of the analysis and we reach this analysis only after it is properly established that one of the five exceptions provided in R.C. 2744.02(B) applies. It is well settled that R.C. 2744.03 does not, on its own, create a cause of action or create a separate claim for liability as to a political subdivision. Carabello v. Cleveland Metro. School Dist., 8th Dist. No. 99616, 2013-Ohio-4919, ¶ 32. Moreover, while R.C. 2744.03(A)(5) provides a defense to liability, it cannot be used to establish liability for a political subdivision. See Glover v. Dayton Pub. Schools, 2d Dist. No. 17601, 1999 Ohio App. LEXIS 3706, 1999 WL 958492 *10 (Aug. 13, 1999) (holding that R.C. 2744.03 does not provide a separate claim for liability against a school district and is only relevant if one of the listed exceptions to immunity set forth in R.C. 2744.02(B) has first been determined to exist.) Therefore, without the plaintiff having established that the general immunity of the political subdivision is pierced by one of the five statutory exceptions found in the second tier of the analysis set forth in R.C. 2744.02(B), the plaintiff cannot, as a matter of law, raise a colorable claim for relief against a political subdivision. As noted, the plaintiff failed to allege in his complaint, in any fashion, some exception to the general immunity enjoyed by the defendants. Therefore, construing the plaintiff’s complaint and the facts alleged therein in a light most favorable to the plaintiff, there is no set of facts alleged in this matter entitling him to relief.”
Carelli v. Canfield Local Sch. Dist. Bd. of Educ.; Court App. Ohio, 7th App. Dist., Mahoning Co.; Case No. 18 MA 0012; 3/19/19