[Cite as Roberts v. Switzerland of Ohio Local School Dist., 2014-Ohio-78.]
                             STATE OF OHIO, MONROE COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

MORGAN ROBERTS,                                         )
                                                        )
        PLAINTIFF-APPELLEE,                             )
                                                        )                    CASE NO. 12 MO 8
V.                                                      )
                                                        )                        OPINION
SWITZERLAND OF OHIO LOCAL                               )
SCHOOL DISTRICT,                                        )
                                                        )
        DEFENDANT-APPELLANT.                            )

CHARACTER OF PROCEEDINGS:                               Civil Appeal from Court of Common
                                                        Pleas of Monroe County, Ohio
                                                        Case No. 2012-163

JUDGMENT:                                               Affirmed

APPEARANCES:
For Plaintiff-Appellee                                  Attorney J. Kevin Flanagan
                                                        510 Tomlinson Avenue
                                                        Moundsville, WV 26041

For Defendant-Appellant                                 Attorney Sandra R. McIntosh
                                                        Capitol Square Office Building
                                                        65 E. State Street, Suite 800
                                                        Columbus, Ohio 43215-7303




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                        Dated: January 7, 2014
[Cite as Roberts v. Switzerland of Ohio Local School Dist., 2014-Ohio-78.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, the Switzerland of Ohio Local School District
Board of Education (the Board), appeals from a Monroe County Common Pleas
Court judgment denying its motion to dismiss for failure to state a claim and asserting
political subdivision immunity and recreational user immunity.
        {¶2}     On May 29, 2012, plaintiff-appellee, Morgan Roberts, filed a complaint
against the Board alleging that while she was participating in track and field practice
on the premises of Beallsville High School and was standing in an area designated
by the Board’s agents as a “safe zone,” she was struck in the head and face by a
discus that was thrown by another Beallsville High School student. Roberts asserted
the Board, through its agents and employees, was negligent in causing the discus to
strike her and informing her and others that it was safe to be in an area where a
discus could be thrown and in failing to erect a fence or cage around the rear of the
discus circle. Roberts claimed that she suffered multiple serious injuries as a result
of the Board’s negligence.
        {¶3}     In response, the Board filed a Civ.R. 12(B)(6) motion to dismiss. It
asserted that (1) it was entitled to political subdivision immunity and (2) Roberts’s
claim was barred by the recreational user statute. Roberts filed a response opposing
the motion to dismiss.
        {¶4}     After a hearing on the matter, the trial court denied the Board’s motion.
        {¶5}     The Board filed a timely notice of appeal on October 2, 2012.
        {¶6}     Generally, the denial of a motion to dismiss is not a final, appealable
order. State Auto Mut. Ins. Co. v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-
Ohio-1713, 844 N.E.2d 1199, ¶8. But in this case the Board's motion to dismiss was
based on the premise of governmental immunity. The Ohio Supreme Court has held:
“When a trial court denies a motion in which a political subdivision or its employee
seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged
immunity and is therefore a final, appealable order pursuant to R.C. 2744.02(C).”
Hubbell v. City of Xenia, 115 Ohio St.3d 77, 873 N.E.2d 878, 2007-Ohio-4839, at the
syllabus.
                                                                                 -2-


       {¶7}   The standard of review for a Civ.R. 12(B)(6) motion to dismiss requires
the appellate court to independently review the complaint to determine if the
dismissal was appropriate.      Ferreri v. The Plain Dealer Publishing Co., 142 Ohio
App.3d 629, 639, 756 N.E.2d 712 (8th Dist.2001). A motion to dismiss for failure to
state a claim upon which relief can be granted is a procedural motion that tests the
sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs.,
65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). In order to dismiss a complaint for
failure to state a claim upon which relief can be granted, the court must find beyond
doubt that the plaintiff can prove no set of facts warranting relief after it presumes all
factual allegations in the complaint are true, and construes all reasonable inferences
in the plaintiff's favor. State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490,
633 N.E.2d 1128 (1994).
       {¶8}   The Board raises three assignments of error. We will address the third
assignment of error first for ease of discussion. It states:

              THE    TRIAL    COURT       ERRED     WHEN        IT   CONSIDERED
       MATERIALS       OUTSIDE      THE    PLEADINGS       IN    DECIDING     THE
       BOARD’S MOTION TO DISMISS.

       {¶9}   In this assignment of error, the Board asserts that in ruling on the
motion to dismiss, the trial court improperly considered a copy of the National
Federation of State High School Associations (NFSHSA) Rules that Roberts attached
to her response to the Board’s motion to dismiss.
       {¶10} The trial court is not permitted to resort to evidence outside of the
complaint to support dismissal under Civ.R. 12(B)(6). Dombroski v. WellPoint, Inc.,
173 Ohio App.3d 508, 2007-Ohio-5054, 879 N.E.2d 225, ¶10 (7th Dist.) (reversed on
other grounds). If the court considers evidence outside the record, it must convert
the motion to dismiss to a motion for summary judgment. Ohio Bur. Of Workers’
Comp. v. McKinley, 7th Dist. No. 09-CO-3, 2010-Ohio-1006, ¶59.               If the court
converts the motion to one for summary judgment, it must give the parties 14 days
                                                                                -3-


notice and a reasonable opportunity to present all materials pertinent to such motion.
Id.; Calin v. Nemes, 7th Dist. No. 11-MA-12, 2010-Ohio-1409, ¶15.
       {¶11} In its judgment entry here, the trial court relied in part on Henney v.
Shelby City School Dist., 5th Dist. No. 2005 CA 0064, 2006-Ohio-1382. The trial
court noted that in Henney, the school district failed to follow the NFSHSA’s
requirements to install side mats adjacent to the pole vault landing pads. The trial
court then noted that in this case Roberts alleged the Board failed to cover the discus
pit in violation of the NFSHSA Rules. The court found that, for purposes of this
motion, the failure to surround the discus area with fencing or a cage, like the failure
to install the side pads in Henney, is not covered by political subdivision immunity.
       {¶12} The trial court did not convert the motion to dismiss to a motion for
summary judgment nor did it give the parties 14 days notice and a reasonable
opportunity to present any other pertinent materials. Thus, the court should not have
considered the copy of the NFSHSA’s Rules that Roberts attached to her response to
the motion to dismiss.
       {¶13} But the trial court’s misstep does not necessarily constitute reversible
error. This court is required to review the complaint and determine whether Roberts
has stated any claim for which relief could be granted. Our review is de novo. In
reviewing the merits of the motion to dismiss in the Board’s subsequent assignments
of error, we will not consider the NFSHSA Rules because they were not part of the
complaint and we will independently determine whether the motion to dismiss should
have been granted.
       {¶14} Accordingly, the Board’s third assignment of error is without merit.
       {¶15} The Board’s first assignment of error states:

              THE TRIAL COURT ERRED BY DENYING THE BOARD’S
       MOTION TO DISMISS ON THE BASIS OF POLITICAL SUBDIVISION
       IMMUNITY.

       {¶16} The Board first argues that the trial court incorrectly found that the
                                                                                 -4-


exception to immunity set out in R.C. 2744.02(B)(4) applied here. It asserts the trial
court relied on outdated and superseded case law that interpreted the old version of
R.C. 2744.02(B)(4). The Board contends the trial court relied solely on Hubbard v.
Canton City Bd. Of Education, 97 Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543,
which predated the amendment to R.C. 2744.02(B)(4). The Board asserts the statute
was amended to specifically limit liability for negligence due to physical defects. And
it notes that the trial court failed to explain how the current version of the statute
negates its immunity. In fact, the Board points out, the trial court specifically found in
its judgment entry that Roberts’s claim was not based on any alleged defect on the
school grounds.
       {¶17} Whether a political subdivision is entitled to immunity is analyzed using
a three-tiered process. Green Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551,
556, 733 N.E.2d 1141 (2000). Under the first tier, R.C. 2744.02(A)(1) sets out the
general rule that political subdivisions are not liable in damages. Id. at 556-557.
Under the second tier, the court must determine whether any of the exceptions to
immunity set out in R.C. 2744.02(B) apply. Id. at 557. Finally, under the third tier, if
the court finds that any of R.C. 2744.02(B)'s exceptions apply, it must consider R.C.
2744.03, which provides defenses and immunities to liability. Id.
       {¶18} A school district is a political subdivision of the State of Ohio. R.C.
2744.01(F). Moreover, the design, construction, reconstruction, renovation, repair,
maintenance, and operation of any school athletic facility or recreational area,
including a playfield, are governmental functions. R.C. 2744.01(C)(2)(u). Thus, in
this case, we must begin our analysis under the first tier with the premise that the
Board is entitled to immunity.
       {¶19} Next, under the second tier, the possible exception to immunity in this
case on which Roberts relies is set out in R.C. 2744.02(B)(4):

              (B) Subject to sections 2744.03 and 2744.05 of the Revised
       Code, a political subdivision is liable in damages in a civil action for
       injury, death, or loss to person or property allegedly caused by an act or
                                                                              -5-


      omission of the political subdivision or of any of its employees in
      connection with a governmental or proprietary function, as follows:
              ***
              (4) Except as otherwise provided in section 3746.24 of the
      Revised Code, 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 * * *.

(Emphasis added.)
      {¶20} R.C. 2744.02(B) was amended on April 9, 2003. The 2003 amendment
to R.C. 2744.02(B)(4) added the language “and is due to physical defects within or
on the grounds of” after “that is caused by the negligence of their employees and that
occurs within or on the grounds of.” Other than this addition, the statute remained
the same. The statute was changed to limit liability for negligence that is due to
physical defects within or on the grounds that are used in connection with a
governmental function. Aratari v. Leetonia Exempt Village School Dist., 7th Dist. No.
06-CO-11, 2007-Ohio-1567, ¶30.
      {¶21} R.C. 2744.02(B)(4) requires two elements for the exception to apply:
(1) a negligent act and (2) a physical defect within or on the grounds of the political
subdivision. DeMartino v. Poland Loc. School Dist., 7th Dist. No. 10-MA-19, 2011-
Ohio-1466, ¶34.
      {¶22} In this case, the question surrounds whether there was a physical
defect on the school grounds.     The trial court failed to address this issue when
discussing whether political subdivision immunity applied. It simply concluded that
R.C. 2744.02(B)(4) applied because “the alleged negligent, reckless, and/or wanton
                                                                                  -6-


conduct occurred on school grounds.”
       {¶23} Roberts cites to two cases that provide us with some guidance.
       {¶24} First, Roberts cites to Moore v. Lorain Metro. Housing Auth., 121 Ohio
St.3d 455, 2009-Ohio-1250, 905 N.E.2d 606, where the plaintiff alleged two children
would have escaped injury from a fire if a housing authority employee had not
removed the only working smoke detector and negligently failed to replace it. The
Ninth District certified a conflict to the Ohio Supreme Court regarding whether
operation of a public housing authority is a proprietary or a governmental function.
The only mention the Court made as to the “physical defect” element was to point out
that the trial court did not fully consider whether the absence of a required smoke
detector is a “physical defect,” which if established would dissolve immunity. Id. at
¶25.   Therefore, the Court remanded the matter to the trial court for further
proceedings to determine whether the R.C. 2744.02(B)(4) exception to immunity
applied.
       {¶25} In this case, the alleged physical defect is the “safe zone” that was not
safe. In Moore, the Supreme Court left open the possibility that the absence of a
safety feature could constitute a physical defect.
       {¶26} Next, Roberts cites to Moss v. Lorain Cty. Bd. of Mental Retardation,
185 Ohio App.3d 395, 2009-Ohio-6931, 924 N.E.2d 401 (9th Dist.), where the mother
of a developmentally-disabled seven-year-old, alleged her child was burned when he
spilled a pot of hot coffee on his chest. She claimed her child’s injury was the result
of negligent design, maintenance, and construction of the classroom that resulted in
a physical defect, namely an unsecured kitchen containing various potential hazards
that threatened the safety of the special-needs students. The Ninth District, without
elaborating on the issue, found the mother alleged sufficient facts that if proven,
demonstrated that the R.C. 2744.02(B)(4) exception applied to the matter.
       {¶27} In Moss, the alleged physical defect was the unsafe kitchen area.
Similarly, in this case the alleged physical defect was the unsafe “safe zone.”
       {¶28} Some cases have found the “physical defect” element is not satisfied by
                                                                                -7-


the failure to provide some type of safety measure. See, Hamrick v. Bryan City
School Dist., 6th Dist. No. WM-10-014, 2011-Ohio-2572 (absence of a cover and a
painted lip surrounding service pit in a school bus garage was not a “physical defect”
within the meaning of R.C. 2744.02(B)(4)); Contreraz v. Bettsville, 3d Dist. No. 13-10-
48, 2011-Ohio-4178 (failure to post warning signs of deep water in a swimming area
did not amount to a physical defect in the property). The distinction between those
cases and the case sub judice, however, is that they were decided on summary
judgment motions where the court could consider the evidence submitted. In this
case, we are simply to review the complaint and presume all factual allegations as
true.
        {¶29} The complaint in the present case states that Roberts was standing in
an area designated by the Board’s agents as a “safe zone.” While standing in the
designated safe zone, she was struck with a discus thrown by another student. The
complaint states the Board’s agents were negligent in informing Roberts that it was
safe to be in an area where a discus could be thrown and in failing to erect a fence,
cage, or other device around the rear of the discus circle.
        {¶30} Taking these facts as true and construing all reasonable inferences in
favor of Roberts, as we are required to do, we find that the trial court properly upheld
the complaint. Clearly, the complaint alleges a negligent act, the instruction by the
Board’s agent that it was safe for Roberts to stand in an area that was not, in fact,
safe. Additionally, the complaint sufficiently alleges a physical defect on the grounds
of the political subdivision. As can be seen from Moore, 121 Ohio St.3d 455, and
Moss, 185 Ohio App.3d 395, the courts have left open the possibility that the
absence of a safety feature or the existence of an unsafe area that is supposed to be
safe, can be the type of defect contemplated by R.C. 2744.02(B)(4). Whether the
specific defect here removes immunity from the Board is best left to summary
judgment proceedings.
        {¶31} Accordingly, the Board’s first assignment of error is without merit.
        {¶32} The Board’s second assignment of error states:
                                                                                 -8-


               THE TRIAL COURT ERRED BY DENYING THE BOARD’S
        MOTION TO DISMISS ON THE BASIS OF RECREATIONAL USER
        IMMUNITY.

        {¶33} The Board contends here that it is immune from liability because
Roberts was a recreational user and track practice is a recreational pursuit. The
Board asserts it did not owe Roberts a duty to keep the track field safe for use under
R.C. 1533.181(A)(1). And it asserts that while R.C. 1533.18(A) appears to limit the
statute to privately-owned premises, a political subdivision has derivative immunity
from tort liability to a recreational user to the same extent an owner of private land
does.    The Board further contends the recreational user statute provides it with
immunity for informing Roberts that it was safe to be in an area where a discus could
be thrown. Finally, the Board claims it is immune from liability because Roberts’s
injury was caused by another recreational user.
        {¶34} R.C. 1533.181 gives owners of premises held open to the public for
recreational use immunity from liability for injuries sustained by persons using the
premises. R.C. 1533.181 reads:

        (A) No owner, lessee, or occupant of premises:
        (1) Owes any duty to a recreational user to keep the premises safe for
        entry or use;
        (2) Extends any assurance to a recreational user, through the act of
        giving permission, that the premises are safe for entry or use;
        (3) Assumes responsibility for or incurs liability for any injury to person
        or property caused by any act of a recreational user.
        (B) Division (A) of this section applies to the owner, lessee, or occupant
        of privately owned, nonresidential premises, whether or not the
        premises are kept open for public use and whether or not the owner,
        lessee, or occupant denies entrance to certain individuals.
                                                                                 -9-


      {¶35} R.C. 1533.18(B) defines a “recreational user” as a person to whom
permission has been granted to enter upon premises “to hunt, fish, trap, camp, hike,
or swim, * * * or to engage in other recreational pursuits.” (Emphasis added.)
      {¶36} It is well-settled that R.C. 1533.181 applies to incidents occurring on
school district property. Mason v. Bristol Loc. School Dist. Bd. Of Edn., 11th Dist. No.
2005-T-0067, 2006-Ohio-5174, ¶56.
      {¶37} The Board relies on a similar case, where a student athlete participating
in a track and field event was hit in the face with a discus thrown by another student
athlete. Mason, 11th Dist. No. 2005-T-0067. She filed a complaint alleging the
school board was negligent in failing to construct, maintain, and design a safe discus
pit, in its failure to warn people regarding the discus pit, and in supervising the
students. The trial court granted the board’s motion for summary judgment and the
student appealed. The Eleventh District found that the student was a recreational
user when she was struck with the discus. Id. at ¶57.          Noting that the student
maintained the discus pit was unsafe in its construction, maintenance, and design
and therefore implicating the safety of the “premises,” the court concluded that the
board was entitled to immunity under the recreational user statute. Id. at ¶63.
      {¶38} While Mason appears to be factually similar to the present case, there
is one notable distinction. Mason was decided on summary judgment. Here we are
faced with a motion to dismiss on the pleadings.        The evidence has yet to be
developed in this case.
      {¶39} Moreover, evidence has yet to be developed as to whether the
Beallsville High School track and field practice area was open to the public.          In
commenting on this issue, the Ninth District stated:

             In past decisions on recreational user immunity, the Ohio
      Supreme Court held that, in order for a property owner to be immune
      under R.C. 1533.181, the property upon which the injury occurred must
      have been held open for public use. See Fryberger v. Lake Cable
      Recreation Assn., Inc. (1988), 40 Ohio St.3d 349, 350-351, 533 N.E.2d
                                                                              - 10 -


      738, 739-741. Effective September 29, 1995, however, the General
      Assembly amended R.C. 1533.181 to no longer require that “privately
      owned, nonresidential” property be “kept open for public use.” Under
      R.C. 1533.181(B), an “owner, lessee, or occupant of privately owned,
      nonresidential premises” is immune from liability “whether or not the
      premises are kept open for public use and whether or not the owner,
      lessee, or occupant denies entry to certain individuals.”

Stiner v. Dechant, 114 Ohio App.3d 209, 214, 683 N.E.2d 26 (9th Dist.1996).
      {¶40} In this case, Roberts was a member of the track and field team and was
on the Beallsville High School property for track and field practice. Whether she was
a recreational user as defined by the statute and the characterization of the school
property are questions best left for summary judgment.
      {¶41} Accordingly, the Board’s second assignment of error is without merit.
      {¶42} For the reasons stated above, the trial court’s judgment is hereby
affirmed.

Vukovich, J., concurs.

Waite, J., concurs in judgment only.
