[Cite as Spradlin v. Elyria, 2013-Ohio-1602.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

JASON SPRADLIN                                       C.A. No.      11CA010102

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
CITY OF ELYRIA, et al.                               COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellee                                     CASE No.   11CV172286

                                 DECISION AND JOURNAL ENTRY

Dated: April 22, 2013



        CARR, Judge.

        {¶1}     Appellant Jason Spradlin, individually and as executor of the estate of Logan

Spradlin, appeals the judgment of the Lorain County Court of Common Pleas that granted the

City of Elyria’s motion to dismiss under Civ.R. 12(B)(6) based on political subdivision tort

immunity. This Court reverses.

                                                I.

        {¶2}     On October 10, 2009, thirteen-year old Logan Spradlin drowned in the Black

River when he fell from steps overlooking the water. According to the complaint, Logan had

been walking along the Riverwalk within Cascade Park and had stopped at an overlook above

the East Falls. In May 2011, Logan’s father, Jason Spradlin, filed a wrongful death action

against the City of Elyria. The city moved to dismiss for failure to state a claim upon which

relief can be granted, arguing that it was entitled to immunity pursuant to R.C. 2744.02(A)(1) as

a political subdivision engaged in a governmental function. Mr. Spradlin opposed the motion to
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dismiss, arguing that the city was not entitled to immunity because the negligence allegedly

occurred due to physical defects on the grounds of a building used in connection with the

performance of a governmental function. The trial court granted the motion to dismiss. Mr.

Spradlin appealed and raises one assignment of error.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLEE
       CITY OF ELYRIA’S MOTION TO DISMISS UNDER CIV.R. 12(B)(6).

       {¶3}    Mr. Spradlin argues that the trial court erred in granting the city’s motion to

dismiss for failure to state a claim upon which relief can be granted. This Court agrees.

       {¶4}    This Court reviews a trial court order granting a motion to dismiss pursuant to

Civ.R. 12(B)(6) under a de novo standard of review. Perrysburg Twp. v. Rossford, 103 Ohio

St.3d 79, 2004-Ohio-4362, ¶ 5, citing Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416,

2002-Ohio- 2480, ¶ 4-5. In reviewing a motion to dismiss, this Court must accept as true all

factual allegations in the complaint and all reasonable inferences must be drawn in favor of the

nonmoving party. Rossford at ¶ 5; Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988).

“To prevail on a Civ.R. 12(B)(6) motion to dismiss, it must appear on the face of the complaint

that the plaintiff cannot prove any set of facts that would entitle him to recover.” Raub v.

Garwood, 9th Dist. No. 22210, 2005-Ohio-1279, ¶ 4, citing O’Brien v. Univ. Community

Tenants Union, 42 Ohio St.2d 242, 245 (1975). “When a motion to dismiss for failure to state a

claim upon which relief can be granted presents matters outside the pleading and such matters

are not excluded by the court, the motion shall be treated as a motion for summary judgment and

disposed of as provided in Rule 56.” Civ.R. 12(B). Under those circumstances, the trial court

shall give the parties a reasonable opportunity to present all pertinent Civ.R. 56 evidence. Id.
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       {¶5}    Generally, political subdivisions are “not liable in damages in a civil action for

injury, death, or loss to person or property allegedly caused by any act or omission of the

political subdivision or an employee of the political subdivision in connection with a

governmental or proprietary function.”       R.C. 2744.02(A)(1).      There are several statutory

exceptions to the broad grant of immunity. One exception provides that “political subdivisions

are liable for injury, death, or loss to person or property that is caused by the negligence of their

employees and that occurs within or on the grounds of, and is due to physical defects within or

on the grounds of, buildings that are used in connection with the performance of a governmental

function, including, but not limited to, office buildings and courthouses, but not including jails,

places of juvenile detention, workhouses, or any other detention facility, as defined in section

2921.01 of the Revised Code.” R.C. 2744.02(B)(4). In other words, a political subdivision is

not immune from a claim of negligence if the basis for the claim is an injury caused by a

physical defect “within or on the grounds of” “buildings that are used in connection with the

performance of a governmental function.” Id. “‘[G]overnmental function’ includes * * * [t]he

design, construction, reconstruction, renovation, repair, maintenance, and operation of any * * *

recreational area or facility, including, but not limited to * * * [a] park, playground, or

playfield.” R.C. 2744.01(C)(2)(u)(i).

       {¶6}    Due to the procedural posture of this case, all allegations in the complaint are

presumed to be true for the purposes of our analysis. Rossford at ¶ 5. The complaint alleges that

Logan was injured at Cascade Park, which is owned and/or controlled by Elyria. According to

the complaint, Logan died as a result of the negligence of city employees and due to a physical

defect on park grounds.      Moreover, the complaint alleges that “[t]he Riverwalk stands on

grounds of buildings utilized by the City of Elyria in connection with the performance of a
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governmental function per O.R.C. 2744.01, et seq., including but not limited to the repair,

maintenance, and operations of a recreational area or facility, per O.R.C. 2744.01(C) and O.R.C.

2744.02(B).”

       {¶7}    The trial court concluded that the R.C. 2744.02(B)(4) exception to immunity did

not apply to this situation because the death occurred in a park, which is a recreational area or

facility, as opposed to on the grounds of a building. The court premised its conclusion on the

finding that Mr. Spradlin “d[id] not, however, identify with specificity the building used in

connection with the governmental function to satisfy the exception under R.C. []2744.02(B)(4).”

In doing so, the trial court applied the wrong standard in its consideration of the city’s motion to

dismiss pursuant to Civ.R. 12(B)(6). In a case where the trial court believed that the motion to

dismiss presented issues outside the pleading, it should have converted the motion to dismiss to a

motion for summary judgment and allowed the parties to present all pertinent Civ.R. 56 evidence

in support of and in opposition to the motion. Civ.R. 12(B). However, instead of properly

construing all allegations in the complaint as true, i.e., that Logan’s death occurred on the

grounds of buildings used in connection with the performance of a governmental function, the

court discounted the allegations as not supported by adequate facts. In doing so, the trial court

erred in granting the city’s motion to dismiss for failure to state a claim upon which relief can be

granted. Mr. Spradlin’s assignment of error is sustained.

                                                III.

       {¶8}    Mr. Spradlin’s sole assignment of error is sustained. The judgment of the Lorain

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this opinion.

                                                                               Judgment reversed,
                                                                              and cause remanded.
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       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 Lorain, 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 Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

JONATHAN TSILIMOS, Attorney at Law, for Appellant.

ROBERT P. LYNCH, JR., Attorney at Law, for Appellee.
