[Cite as Bush v. Cleveland Mun. School Dist., 2013-Ohio-5420.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99612



                      KATHLEEN BUSH, ETC., ET AL.
                                                          PLAINTIFFS-APPELLEES

                                                    vs.

                            CLEVELAND MUNICIPAL
                           SCHOOL DISTRICT, ET AL.
                                                          DEFENDANTS-APPELLANTS




                                           JUDGMENT:
                                            REVERSED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-790506


        BEFORE: E.T. Gallagher, J., Stewart, A.J., and Keough, J.

        RELEASED AND JOURNALIZED: December 12, 2013
ATTORNEYS FOR APPELLANT

Wayne J. Belock, Chief Legal Counsel
David J. Sipusic
Cleveland Metropolitan School District
1380 East 6th Street, Room 203
Cleveland, Ohio 44114


ATTORNEY FOR APPELLEES

Ronald A. Apelt
Apelt Law Firm, L.L.C.
20600 Chagrin Blvd., Suite 400
Shaker Heights, Ohio 44122
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant Cleveland Metropolitan School District (“CMSD”) 1

appeals the denial of its motion to dismiss. We find merit to the appeal and reverse.

       {¶2} Plaintiff-appellee Kathleen Bush (“Bush”) filed a complaint on her own

behalf and on behalf of her daughter, Desiree Bush (“Desiree”)(collectively “appellees”),

against the CMSD to recover damages for personal injuries. According to the complaint,

Desiree was running from another student at Jane Addams High School, when she

jumped onto a cement planter, fell, and sustained injuries. In the first count of the

complaint, appellees allege this accident occurred because CMSD negligently allowed “a

physical defect and hazard to exist” and failed to warn students of the dangerous

condition. In the second count, they alleged that CMSD employees and agents acted in

bad faith and in a wanton or reckless manner “in allowing this hazardous condition to

exist, and in failing to warn students of said defect.” Finally, in the third count, Bush

asserts a loss of consortium claim for the loss of her daughter’s services and

companionship.

       {¶3} The CMSD filed a motion to dismiss, arguing it was immune from liability

under R.C. Chapter 2744. The trial court denied the motion and CMSD filed the instant




         CMSD is the Cleveland Metropolitan School District. The caption identifies CMSD as
       1


Cleveland Municipal School District because Bush used this name in the caption of the complaint.
appeal. In its sole assignment of error, CMSD argues the trial court erred in denying its

Civ.R. 12(B)(6) motion to dismiss for failure to state a claim.

       {¶4} We review an order denying a Civ.R. 12(B)(6) motion to dismiss de novo.

Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.

In construing the complaint, we must presume that all factual allegations are true and

make all reasonable inferences in favor of the nonmoving party. Mitchell v. Lawson Milk

Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). In contrast to factual allegations,

“unsupported conclusions of a complaint are not considered admitted * * * and are not

sufficient to withstand a motion to dismiss.” State ex rel. Hickman v. Capots, 45 Ohio

St.3d 324, 324, 544 N.E.2d 639 (1989). “‘Legal conclusions, deductions, or opinions

couched as factual allegations are not given a presumption of truthfulness.’” Allstate Ins.

Co. v. Electrolux Home Prods. Inc., 8th Dist. Cuyahoga No. 97065, 2012-Ohio-90, ¶ 8,

quoting Williams v. U.S. Bank Shaker Square, 8th Dist. Cuyahoga No. 89760,

2008-Ohio-1414, ¶ 9.

       {¶5} Ohio is a notice-pleading state, and the Ohio Rules of Civil Procedure

generally do not 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.

Civ.R. 8(A)(1) requires that a complaint include only “(1) a short and plain statement

showing that the party is entitled to relief, and (2) a demand for judgment for the relief to

which the party claims to be entitled.” Nevertheless, to constitute fair notice to the

opposing party, the complaint must allege sufficient underlying facts that relate to and
support the alleged claim, and may not simply state legal conclusions. Allstate Ins. Co.

at ¶ 9.

          {¶6} CMSD argues the trial court should have dismissed appellees’ complaint

because it is evident from the face of the complaint that it is immune from liability

pursuant to R.C. Chapter 2744. It contends the complaint fails to allege sufficient facts

to state a claim upon which relief might be granted.

          {¶7} R.C. Chapter 2744 sets forth a three-tiered analysis for determining whether

governmental immunity applies to a political subdivision. Greene Cty. Agricultural Soc.

v. Liming, 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000). First, the court must

determine whether the entity claiming immunity is a political subdivision and whether the

alleged harm occurred in connection with either a governmental or proprietary function.

Id. at 556-557; R.C. 2744.02(A)(1). Under R.C. 2744.02(A)(1), “a political subdivision

is not liable for 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 * * * in connection

with a governmental or proprietary function.”

          {¶8} The second tier of the analysis requires the court to determine whether any of

the five exceptions to immunity enumerated in R.C. 2744.02(B) apply to reinstate liability

to the political subdivision. Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610

(1998). If the court finds any of the R.C. 2744.02(B) exceptions applicable and no

defense in that section protects the political subdivision from liability, then the third tier

of the analysis requires the court to determine whether any of the defenses set forth in
R.C. 2744.03 apply, thereby providing the political subdivision a defense against liability.

 Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 9.

          {¶9} It is undisputed that CMSD is entitled to the general grant of immunity

provided in R.C. 2744.02(A)(1). R.C. 2744.01(F) provides that a public school district

qualifies as a political subdivision for purposes of R.C. Chapter 2744 immunity.

          {¶10} CMSD argues none of the five exceptions to immunity listed in R.C.

2744.02(B) apply to expose it to liability. Appellees, on the other hand, contend that the

exception set forth in R.C. 2744.02(B)(4) imposes liability on CMSD. That section

states:

          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.

          {¶11} In paragraphs four and five of the complaint, appellees alleged that

Desiree’s accident:

          was the direct and proximate result of the negligence of the
          employee/agents of the Defendants in allowing said physical defect and
          hazard to exist, and in failing to warn others, including students like Desiree
          Bush, of this known defect and hazard when it was known that this area was
          utilized by students.
          * * *
          The above described accident was due to a physical defect occurring within
          or on the grounds of Jane Addams High School, a facility used in
          connection with the performance of a governmental function and which was
          under the Defendants’ control and the control of the Defendants’
          agents/employees.
CMSD argues that because appellees simply quote the language from the statute, they rely

solely on legal conclusions, which are not sufficient to withstand a motion to dismiss.

We agree.

      {¶12} Although Civ.R. 8(A)(1) does not require a plaintiff to plead operative facts

with particularity, the plaintiff must allege some facts to support any legal conclusions.

Allstate Ins. Co., 2012-Ohio-90 at ¶ 11-12. In Allstate Ins., Allstate sought subrogation

from Electrolux for damages allegedly caused by design defects in its insured’s dryer.

Finding the complaint failed to allege sufficient facts to support a claim, this court

explained:

      Allstate’s complaint states that because Electrolux manufactures and
      designs gas dryers, and Allstate’s insured’s gas dryer caught fire, the dryer
      was defective, and therefore Electrolux is liable for damages. Even under
      Ohio’s notice pleading standard, Allstate’s complaint is insufficient.

      Paragraphs 7 through 9 of the complaint allege design and manufacturing
      defects. But the complaint merely recites the elements of the law
      governing these causes of action as a legal conclusion. It does not contain
      any facts or allegations that support its conclusions. Compare Beretta at ¶
      26 (design defect claim survives Civ.R. 12(B)(6) dismissal because the
      complaint alleges design defect by not incorporating “feasible safety
      devices that would prevent unauthorized use and foreseeable injuries”).

      Paragraph 10 of the complaint alleges that “fire and resulting damages were
      the direct and proximate result of the breach of express or implied
      warranties given to Allstate’s insured.” The complaint contains no facts or
      allegations pertaining to the warranties allegedly received by the insured,
      whether expressed or implied, nor does it contain any facts as to how the
      gas dryer did not conform to such representations.

      Paragraph 11 of Allstate’s complaint alleges that the “fire and resulting
      damages were the direct and proximate result of the Defendant’s failure to
      warn Plaintiff’s insured of the potential hazards and dangers associated with
      the operation of the gas dryer which it manufactured.” Allstate does not
       state or allege any facts, hazards, or dangers that existed that Electrolux
       should have warned the insured about or what risks Electrolux should have
       known. Compare Beretta at ¶ 34 (failure to warn survives Civ.R. 12(B)(6)
       because the complaint alleged [Beretta] manufactured or supplied guns
       without adequate warning of their dangerousness or instruction as to their
       use where specific facts alleged unforeseeable risks of the firearm that were
       not open and obvious).

       Paragraph 12 of Allstate’s complaint asserts that the “aforementioned fire
       and resulting damages were the direct and proximate result of the
       negligence of the defendant.” This general statement, without any
       supporting facts or allegation that Electrolux owed Allstate’s insured any
       duty and how it breached that duty, is insufficient to survive a Civ.R.
       12(B)(6) motion. Compare Beretta at ¶ 17 and 25 (negligence claim
       survives Civ.R. 12(B)(6) dismissal because complaint alleges negligence
       “in failing to exercise reasonable care in designing, manufacturing,
       marketing, advertising, promoting, distributing, supplying, and selling their
       firearms without ensuring that the firearms were safe for their intended and
       foreseeable use by consumers”).

Allstate Ins. at ¶ 11-14.

       {¶13} Here, appellees merely allege that CMSD was negligent because it allowed a

defective planter to remain on its property and that the defective planter proximately

caused Desiree’s injuries. They further allege that Desiree ran, jumped onto the planter,

and fell off the other side. Although appellees suggest the height differential between

the planter and the ground created a hazardous condition, they do not provide any

information to show how the planter was defective. The complaint also fails to contain

any facts to establish how CMSD was responsible for any defective condition. Reciting

language from R.C. 2744.02(B)(4) to establish an exception to CMSD’s governmental

immunity, without additional facts to support the allegation, is not sufficient to withstand

a motion to dismiss.
      {¶14} The sole assignment of error is sustained.

      {¶15} Judgment reversed.

      It is ordered that appellant recover from appellees costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to 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.



EILEEN T. GALLAGHER, JUDGE

MELODY J. STEWART, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
