In a majority decision, an Ohio state appeals court has overruled a trial court and given new life to the claim of a couple, who maintained that a school district was liable for the injuries a woman suffered when a gust of wind blew the roof off a dugout, causing it to strike and injure the woman.
The school district maintained that it was shielded by the state’s recreational-user immunity law.
The plaintiffs in the case were Belinda and James Kerr, while the defendant was the Logan Elm School District (LESD).
The incident occurred on December 31, 2013, when Belinda Kerr was a spectator at her daughter’s softball game at an LESD facility. During the game, a gust of wind blew the roof off a dugout. The roof struck Kerr, resulting in injuries to her head and chest.
According to the Kerrs, “the school district negligently, willfully, wantonly and recklessly disregarded public safety by (1) constructing the dugout in an unsafe and unsuitable manner for public use, (2) failing to regularly and properly inspect the dugout, (3) failing to maintain and repair the dugout, (4) failing to warn of the unsafe condition of the dugout, and (5) failing to restrict the use of the field during unsafe conditions or until repairs were made.” The Kerrs sought compensatory damages, punitive damages, attorney fees, interest and costs.
The school district filed a motion for judgment on the pleadings, claiming that it is immune from liability under R.C. 1533.181, the recreational-user statute. The trial court granted the motion, concluding that Belinda Kerr “was a recreational user engaged in a recreational activity when she was injured while watching her daughter’s softball game.”
The plaintiffs appealed.
The court noted, in its analysis of the recreational-user immunity law, that the Supreme Court of Ohio has held that the property of school districts meets the definition of ‘premises’ under the statute. Fuehrer v. Bd. of Edn. of the Westerville City School Dist., 61 Ohio St.3d 201, 203, 574 N.E.2d 448 (1991).
However, the shield is vulnerable, “as the Kerrs argued, … in the trial court in their memorandum in opposition to the school district’s motion for judgment on the pleadings, and in their brief on appeal” if they can establish that “she paid a fee or that a fee was paid on her behalf for her and her daughter to use the softball field in question.”
The appeals court noted that while the school district “does not deny that a person is not a recreational user when the person pays a fee to enter its property to watch a softball game,” it does argue that the trial court’s “judgment is appropriate because the Kerrs did not include this specific allegation in their complaint and that their belief does not constitute an operative fact that the trial court could consider in its Civ.R. 12(C) determination.”
The majority on the appeals court panel disagreed.
“In so holding and stating, we believe that the view of the trial court and the appellee do not comply with the concept of notice pleading,” it wrote. “Because ‘Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with particularity.’ Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29.”
The court continued:
“Here, Belinda Kerr asserts that she paid a fee to enter the school property, either to watch her daughter’s softball game or for her daughter to use the facility. These facts could be consistent with being a spectator. In our view, holding that the Kerrs had to specifically allege facts to disprove the affirmative defense of recreational-user immunity contravenes the Rules of Civil Procedure.
“… Therefore, we believe that the trial court erred by granting the Civ.R. 12(C) motion for judgment on the pleadings. Upon our de novo review, after we construe all material factual allegations set forth in the complaint together with all reasonable inferences, in favor of the Kerrs, it does not appear beyond doubt that the Kerrs can prove no set of facts that entitle it to relief. That is, it is not beyond doubt at the pleading stage that the school district is entitled to the recreational-user immunity set forth in R.C. 1533.181 on the Kerrs’ claims. We therefore sustain the Kerrs’ assignment of error. We hasten to add, however, that our opinion should not be construed as a comment on the actual merits of the recreational user-immunity issue after the facts are fully developed and analyzed.”
In the dissenting opinion, the judge wrote that “the principal opinion infers that Kerr could have paid a fee to enter the school property, either to watch her daughter’s softball game or for her daughter to use the facility; however, Kerr never stated in her memorandum that she paid a fee to enter the school property to watch the softball game. She only alleges in her memorandum that ‘Plaintiff believes, however, that she can prove that she paid a fee or that a fee was paid on her behalf for her and her daughter to use the softball field in question.’ The trial court cannot be expected to have made the inference that Belinda Kerr paid a fee to enter the premises as a spectator from the information that was presented to it in the complaint and the memorandum.”
Belinda Kerr, et al., v. Logan Elm School District; Court of Appeals of Ohio, Fourth Appellate District, Pickaway County; Case No. 14CA6, 2014-Ohio-5838; 2014 Ohio App. LEXIS 5654; 12/24/14
Attorneys of Record: (for appellant) Terry V. Hummel, Columbus, Ohio. (for appellee) Matthew John Markling, Patrick Vrobel, and Sean Koran, McGown & Markling Co., L.P.A., Cleveland-Massillon Road, Akron, Ohio.
