[Cite as Smiley v. Cleveland, 2016-Ohio-7711.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103987



                                        SHER SMILEY
                                                       PLAINTIFF-APPELLANT

                                                 vs.

                                CITY OF CLEVELAND
                                                       DEFENDANT-APPELLEE




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-14-832319

        BEFORE: Stewart, P.J., S. Gallagher, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: November 10, 2016
ATTORNEY FOR APPELLANT

Alan I. Goodman
Alan I. Goodman Co., L.P.A.
55 Public Square, Suite 1300
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Director of Law

Connor P. Nathanson
Assistant City Prosecutor
City of Cleveland Law Department
601 Lakeside Avenue, Suite 106
Cleveland, OH 44114
MELODY J. STEWART, P.J.:

       {¶1}    Plaintiff-appellant Sher Smiley appeals a judgment of the trial court

dismissing her complaint against the city of Cleveland, pursuant to Civ.R. 12(B)(6) for

failure to state a claim upon which relief can be granted. Smiley argues that the trial

court erred in dismissing her complaint against the city because the complaint alleges

facts that invoke an exception to the political subdivision immunity statute. For the

reasons that follow, we reverse the decision of the trial court.

       {¶2} Smiley’s complaint arises from events that took place on the evening of July

6, 2013, when Smiley was at the Cuddell Recreation Center, which is owned and

managed by the city of Cleveland. Smiley slipped on a stainless steel strip, located on

the floor between the pool area and a water park area, and fell. According to the

complaint, Smiley was wearing water shoes while exiting the pool area, but took them

off when a city employee, who was controlling the entrance to the water park area,

instructed her to remove her shoes before entering. The complaint alleges that Smiley

was wearing water shoes to prevent her from slipping in wet areas. The complaint

further alleges that Smiley sustained injuries from the fall and that those injuries resulted

in financial damages.
       {¶3} The city answered the complaint and asserted numerous defenses including

that it was immune from suit pursuant to Ohio’s political subdivision immunity statute.

A month later, the city filed a motion to dismiss the complaint for failure to state a claim

upon which relief can be granted pursuant to Civ.R. 12(B)(6).                Smiley missed the

deadline for opposing the motion and the trial court granted the motion to dismiss, noting

that the motion went unopposed. Smiley filed a motion for relief from judgment along

with a brief in support of the motion explaining why she missed the deadline for opposing

the city’s motion to dismiss. On the same day she filed her motion for relief from

judgment, Smiley also filed a motion for leave to amend her complaint and attached the

amended complaint. The amended complaint was substantially similar to the original

complaint with the exception of a single added paragraph that clarified the negligence

claim by stating that the employee was negligent in making Smiley remove her shoes

when the employee knew that the water park area was dangerous when wet, and that it

happened to be wet in that particular instance. The paragraph further stated that the

employee’s negligence caused or allowed a dangerous condition to be present.

       {¶4} The court granted the motion from relief for judgment and gave Smiley an

opportunity to oppose the motion to dismiss. However, the court did not grant the

motion to amend the complaint, but rather dismissed the motion as moot. Following

briefing and a hearing on the motion, the court once again granted the city’s motion.1


         Typically, motions to dismiss under Civ.R. 12(B), must be asserted prior to filing a
       1


responsive pleading. See Civ.R. 12(B). Nevertheless, courts have discretion to review a belated
Civ.R. 12(B)(6) as a Civ.R. 12(C) motion for judgment on the pleadings. State ex rel. Midwest Pride
       {¶5} A Civ.R. 12(B)(6) motion to dismiss a complaint for failure to state a claim

upon which relief can be granted tests the sufficiency of a complaint. In order for a trial

court to dismiss a complaint under Civ.R. 12(B)(6), it “‘must appear beyond a doubt that

the plaintiff can prove no set of facts in support of [her] claim that would entitle [her] to

relief.’” (Emphasis added.) O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio

St.2d 242, 245, 327 N.E.2d 753 (1975), quoting Conley v. Gibson, 355 U.S. 41, 45, 78

S.Ct. 99, 2 L.Ed.2d 80 (1957); LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323,

2007-Ohio-3608, 872 N.E.2d 254, ¶ 14. It is important to note that Ohio has not adopted

the heightened federal pleading standard outlined in Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662,

129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), which requires a plaintiff to plead sufficient

facts that state a “plausible” claim for relief.         See Tuleta v. Med. Mut. of Ohio,

2014-Ohio-396, 6 N.E.3d 106, ¶ 23-31 (8th Dist.). Instead, Ohio remains a notice

pleading jurisdiction. See id. at ¶ 31. As such, the standard requires that a plaintiff can

show “no set of facts” that entitle her to relief before a complaint is dismissed for failure

to state a claim. See id. at ¶ 31.




IV, Inc. v. Pontious, 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996); see also Civ.R. 12(H).    The
standard of review on Civ.R. 12(B)(6) and Civ.R. 12(C) motions is the same at both the trial and
appellate levels. See Mangelluzzi v. Morley, 2015-Ohio-3143, 40 N.E.3d 588, ¶ 6-8 (8th Dist.).
       {¶6} When discussing Ohio’s pleading standard, this court has stated in the past

that “‘few complaints fail to meet the liberal [pleading] standards of Rule 8 and become

subject to dismissal,’” and that “‘the motion to dismiss is viewed with disfavor and

should rarely be granted.’” Id. at ¶ 15, quoting Slife v. Kundtz Properties, Inc., 40 Ohio

App.2d 179, 182, 318 N.E.2d 557 (8th Dist.1974). When reviewing a complaint for

failure to state a claim under 12(B)(6), “[t]he allegations of the complaint must be taken

as true, and those allegations and any reasonable inferences drawn from them must be

construed in the nonmoving party’s favor.” (Emphasis added.) Antoon v. Cleveland

Clinic Found., 8th Dist. Cuyahoga No. 101373, 2015-Ohio-421, ¶ 7. Appellate courts

review the grant of a motion to dismiss de novo.2 Id. at ¶ 7.

       {¶7} In Ohio, political subdivision immunity is governed by R.C. Chapter 2744.

This chapter sets forth a three-tiered analysis for determining whether a political

subdivision is immune from liability for injury or loss to property. See Rankin v.

Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567,

889 N.E.2d 521, ¶ 8. The first tier of the analysis R.C. sets forth the general rule that

political subdivisions are not liable in damages for causing personal injuries. R.C.

2744.02(A)(1) states:




         We review Smiley’s original complaint only because the trial court did not grant her motion
       2


to amend the complaint, nor does she challenge the trial court’s denial in this appeal.
      For the purposes of this chapter, the functions of political subdivisions are

      hereby classified as governmental functions and proprietary functions.

      Except as provided in division (B) of this section, a political subdivision is

      not liable in damages in a civil action for injury, death or loss to person or

      property allegedly caused by an act or omission of the political subdivision

      or an employee of the political subdivision in connection with a

      governmental or proprietary function.

The second tier of the analysis considers whether any exceptions to immunity apply.

Rankin at ¶ 18. R.C. 2744.02(B), lays out these general exceptions. If an exception

applies, then, under the third tier in the analysis, immunity may be reinstated if the

political subdivision can demonstrate the applicability of any of the defenses set forth in

R.C. 2744.03. Id. at ¶ 27.

      {¶8} Both Smiley and the city agree that the city is generally immune from liability

under the first tier of the immunity analysis. The parties disagree however on whether

Smiley pled sufficient facts, that when viewed in the light most favorable to Smiley,

could support an argument that one of the exceptions to immunity under R.C. 2744.02(B)

applies. Specifically, Smiley argues that the facts as pled in her complaint support the

exception to immunity under subsection (B)(4), which states:
      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, as defined in section 2921.01 of

      the Revised Code.

Although the city does not dispute that Smiley has alleged facts sufficient to support a

finding that her injury occurred as a result of employee negligence, the city argues that

Smiley’s complaint fails to establish that there was a physical defect within or on the

grounds of the water park that caused her injuries, thereby precluding application of the

R.C. 2744.02(B)(4) exception to immunity. In support of its argument, the city points to

this court’s decision in Duncan v. Cuyahoga Community College, 2012-Ohio-1949, 970

N.E.2d 1092 (8th Dist.).
       {¶9} In Duncan, the plaintiff-appellee, who was employed by the Bedford Heights

Police Department, was injured while taking part in a required employee self-defense

seminar that was provided and sponsored by Cuyahoga Community College (Tri-C). The

plaintiff’s injuries occurred when she was engaged in a self-defense simulation that

involved her being knocked to the floor. The plaintiff alleged that her injuries were

caused by a “defect” that appellants permitted to exist on the premises, thereby invoking

the exception to immunity provided in R.C. 2744.02(B)(4). The only “defect” set forth in

her complaint, however, was appellant’s failure to use mats on the floor while conducting

the self-defense class. This court, looking to other cases defining the term “physical

defect” as a “perceivable imperfection that diminishes the worth or utility of the object at

issue,” concluded that a lack of mats on a floor did not constitute a defect within the

meaning of R.C. 2477.02(B)(4). See id. at ¶ 26, quoting Hamrick v. Bryan City School

Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio-2572, ¶ 28. Accordingly, this

court found that Tri-C was entitled to immunity and reversed the trial court’s order

denying the appellant’s Civ.R. 12(C) motion for judgment on the pleadings.
       {¶10} The city likens the facts of this case to the Duncan case and argues that like

the plaintiff in Duncan, Smiley has failed to show a defect on the premises.             We

disagree. When viewing the complaint in the light most favorable to Smiley, we are

satisfied that she has pled sufficient facts to suggest that the city is not entitled to

immunity due to a defect on the premises. It should be remembered that Smiley is not

required at the pleading stage to prove her allegations and disprove governmental

immunity, rather she must only assert facts that if believed, would state a claim for relief.

Diaz v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga No. 92907, 2010-Ohio-13, ¶

15. Additionally, all reasonable inferences should be made in favor of Smiley, the

nonmoving party.

       {¶11} In her complaint, Smiley alleges that she was walking from the pool area to

the splash area of the recreation facility when an employee controlling the threshold

between the two areas instructed her to take off the water shoes she was wearing for

safety reasons. Upon taking off her shoes and proceeding to the water park area, she

slipped and fell on a metal strip located between those two areas. Although Smiley did

not explicitly claim that the metal strip was wet, such fact is a reasonable inference that

can be drawn from the other facts alleged, which were that 1) Smiley was wearing water

shoes to prevent her from slipping in wet areas, and 2) that she slipped on the metal strip

after an employee told her to take off her shoes prior to crossing the threshold where the

metal strip was located.
       {¶12} Whether the wet metal strip constitutes a physical defect on the premises is a

question of fact that cannot be resolved through a motion to dismiss. Sacksteder v.

Senney, 2d Dist. Montgomery No. 24993, 2012-Ohio-4452, ¶ 88; see also Kincaid v. Erie

Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 25-26 (explaining,

“Civ.R. 12(C) requires a determination that no material factual issues exist and that the

movant is entitled to judgment as a matter of law.”). Applying Ohio’s liberal pleading

standard, we cannot say at this stage in proceedings that there exists no set of facts that

could conceivably cause the metal strip to be defective. Under the facts as alleged, it is

not inconceivable that the water could have interacted with the metal strip in some way

that caused a “perceivable imperfection that diminished the utility or worth of the object,”

see Duncan, 2012-Ohio-1949, 970 N.E.2d 1092 (8th Dist.) at ¶ 26-27.

       {¶13} Moreover, since deciding Duncan, this court has further adopted the

position that a physical defect may include an object or instrumentality that does “not

operate as intended due to a perceivable condition.” See Jacobs v. Oakwood, 8th Dist.

Cuyahoga No. 103830, 2016-Ohio-5327, ¶ 16, citing Jones v. Delaware City School Dist.

Bd. of Edn., 2013-Ohio-3907, 995 N.E.2d 1252, ¶ 22 (5th Dist.) (indicating that an unlit

orchestra pit could be a physical defect where it did not operate safely). Although the

city claims in its brief on appeal that the metal strip was part of the doorway and

functioned to close the gap between the doors and the floor, this fact, if true, is outside of

the pleadings and cannot be considered in a motion to dismiss.
       {¶14} Thus, unlike the plaintiff in Duncan who did not allege facts that would

support the allegation of a perceivable imperfection on the floor of the Tri-C gymnasium,

Smiley has alleged a perceivable imperfection in her complaint. She is not required to

plead specific details in her complaint in order to survive a motion to dismiss. See

Diaz, 8th Dist. Cuyahoga No. 92907, 2010-Ohio-13, at ¶ 15-16. Rather, the standard for

dismissal under Civ.R. 12(B)(6) is that “it must appear beyond doubt from the complaint

that the plaintiff can prove no set of facts entitling [her] to recovery.” O’Brien, 42 Ohio

St.2d 242, 245, 327 N.E.2d 753 at syllabus.

       {¶15} Judgment reversed and remanded.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
