[Cite as Hubbard v. Cleveland Metro. School Dist. Bd. of Edn., 195 Ohio App.3d 708, 2011-Ohio-5398.]




                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96676




                                           HUBBARD,
                                                          APPELLEE,

                                                     v.

             CLEVELAND METROPOLITAN SCHOOL
               DISTRICT BOARD OF EDUCATION,
                                                          APPELLANT.




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-706435


        BEFORE: COONEY, J., STEWART, P.J., and S. GALLAGHER, J.

        RELEASED AND JOURNALIZED: October 20, 2011
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      APPEARANCES

      Squire, Sanders & Dempsey (US), L.L.P., Ryan A. Sobel, Frederick R. Nance, and
Timothy J. Sheeran, for appellant.

      Donald R. Murphy, for appellee.
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        COLLEEN CONWAY COONEY, Judge.

        {¶ 1} Defendant-appellant, the Cleveland Metropolitan School District Board of

Education (“the board”), appeals the trial court’s denial of its motion for summary

judgment.      Finding merit to the appeal, we reverse and remand.

        {¶ 2} This appeal arises from a lawsuit filed in 2009 by plaintiff-appellee, Laticia

Hubbard, against the board, alleging numerous causes of action, including a claim for

defamation. The board moved for summary judgment, arguing that it is immune from

intentional-tort claims under R.C. 2744.02. Hubbard opposed the motion, claiming that

the tort involved negligence as opposed to an intentional tort, and therefore the board is

not immune. The trial court denied the board’s motion for summary judgment in March

2011, finding that genuine issues of material fact exist.

        {¶ 3} It is from this order that the board now appeals, raising one assignment of

error in which it argues that the trial court erred by denying its motion for summary

judgment because it is immune from intentional-tort claims under R.C. 2744.02.1

                                              Standard of Review

        {¶ 4} Appellate review of summary judgment is de novo.                          Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. The Ohio Supreme Court

stated the appropriate test in Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367,

369-370, 696 N.E.2d 201, as follows:


        1
          Because this appeal involves an issue of governmental immunity, the denial of the board’s motion for
summary judgment constitutes a final, appealable order. See R.C. 2744.02(C); Hubbell v. Xenia, 115 Ohio St.3d
77, 2007-Ohio-4839, 873 N.E.2d 878.
                                             4


              Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is
       no genuine issue of material fact, (2) the moving party is entitled to judgment as a
       matter of law, and (3) reasonable minds can come to but one conclusion and that
       conclusion is adverse to the nonmoving party, said party being entitled to have the
       evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp.
       (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus.
       The party moving for summary judgment bears the burden of showing that there is
       no genuine issue of material fact and that it is entitled to judgment as a matter of
       law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264,
       273-274.

       {¶ 5} Once the moving party satisfies its burden, the nonmoving party “may not

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response,

by affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial.”   Civ.R. 56(E); Mootispaw v. Eckstein (1996), 76

Ohio St.3d 383, 385, 667 N.E.2d 1197. Doubts must be resolved in favor of the

nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604

N.E.2d 138.

                                 Political Subdivision Immunity

       {¶ 6} The Political Subdivision Tort Liability Act, codified in R.C. Chapter 2744,

sets forth a three-tiered analysis for determining whether a political subdivision is

immune from liability. First, R.C. 2744.02(A) states the general rule of immunity that a

political subdivision is immune from liability incurred in performing either a

governmental function or a proprietary function.        R.C. 2744.01(C) and 2744.01(G).

However, the immunity afforded in R.C. 2744.02(A)(1) is not absolute.

       {¶ 7} “The second tier of the analysis requires a court to determine whether any

of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political
                                             5


subdivision to liability.” Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790

N.E.2d 781, ¶ 8.

       {¶ 8} “If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no

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

of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03

apply, thereby providing the political subdivision a defense against liability.” Id. at ¶ 9.

See also Cater v. Cleveland (1998), 83 Ohio St.3d 24, 697 N.E.2d 610.

       {¶ 9} Because the board is a political subdivision as defined by R.C. 2744.01(F),

the general grant of immunity in R.C. 2744.02(A)(1) applies in the instant case.

                         Exceptions to Political Subdivision Immunity

       {¶ 10} Under the second tier of the analysis, the board argues that defamation is an

intentional tort that does not fall under any of the exceptions and, therefore, the board is

immune.    The board relies on Coleman v. Cleveland School Dist. Bd. of Edn., Cuyahoga

App. Nos. 84272 and 84505, 2004-Ohio-5854, in which this court held that the school

board was entitled to statutory immunity from a teacher’s defamation claim because it

constituted an intentional tort. Hubbard argues that the board is liable in the instant case

because the slander was a negligent act that falls under one of the exceptions.

       {¶ 11} In Price v. Austintown Local School Dist. Bd. of Edn., 178 Ohio App.3d

256, 2008-Ohio-4514, 897 N.E.2d 700, the Seventh District Court of Appeals found that

the tort of defamation could either be negligent or intentional, depending on the context.

This court need not consider whether the alleged defamation is an intentional tort, nor the
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impact on the board’s governmental immunity,2 because even if we assume arguendo that

Hubbard’s claim is one of negligence, her cause of action still fails as a matter of law.

       {¶ 12} The exceptions to governmental immunity are enumerated in R.C. 2744.02

(B)(1 through 5):

              [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 omission of the
       political subdivision or of any of its employees in connection with a governmental
       or proprietary function, as follows:

             (1) * * * [P]olitical subdivisions are liable for injury, death, or loss to
       person or property caused by the negligent operation of any motor vehicle * * *.

              (2) * * * [P]olitical subdivisions are liable for injury, death, or loss to
       person or property caused by the negligent performance of acts by their employees
       with respect to proprietary functions of the political subdivisions.

              (3) * * * [P]olitical subdivisions are liable for injury, death, or loss to
       person or property caused by their negligent failure to keep public roads in repair
       and other negligent failure to remove obstructions from public roads * * *.

              (4) * * * [P]olitical 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 * * *.

              (5) * * * [P]olitical subdivision is liable for injury, death, or loss to person
       or property when civil liability is expressly imposed upon the political subdivision
       * * *.

       {¶ 13} Hubbard argues that her claim falls within the R.C. 2744.02(B)(2)

exception, because the board’s tort was negligent slander by one of its employees.

However, the R.C. 2744.02(B)(2) exception imposes liability on a subdivision for the

       2
           Liability under R.C. 2744.09(B) was not raised below and thus is not part of this appeal.
                                                7


negligent acts of its employees with respect to the proprietary functions of the

subdivision, as opposed to governmental functions.

          {¶ 14} A proprietary function is defined by R.C. 2744.01(G)(1 through 2), which

states:

                 (1) “Proprietary function” means a function of a political subdivision that is
          specified in division (G)(2) of this section or that satisfies both of the following:

                 (a) The function is not one described in division (C)(1)(a) or (b) of this
          section and is not one specified in division (C)(2) of this section;

                 (b) The function is one that promotes or preserves the public peace, health,
          safety, or welfare and that involves activities that are customarily engaged in by
          nongovernmental persons.

                 (2) A “proprietary function” includes, but is not limited to, the following:

                 (a) The operation of a hospital by one or more political subdivisions;

                (b) The design, construction, reconstruction, renovation, repair,
          maintenance, and operation of a public cemetery other than a township cemetery;

                  (c) The establishment, maintenance, and operation of a utility, including,
          but not limited to, a light, gas, power, or heat plant, a railroad, a busline or other
          transit company, an airport, and a municipal corporation water supply system;

                 (d) The maintenance, destruction, operation, and upkeep of a sewer system;

                 (e) The operation and control of a public stadium, auditorium, civic or
          social center, exhibition hall, arts and crafts center, band or orchestra, or off-street
          parking facility.

          {¶ 15} Although Hubbard maintains that her claim was based on negligent acts of a

board employee while engaged in a proprietary function of the subdivision, her actual

defamation claim is premised on facts that illustrate that the board employee was engaged

in a governmental function at the time of the incident. The parties do not dispute that
                                            8


the alleged slanderous remarks were made by a school-board employee, while on school

grounds, during a school function.         The act of providing a public education is

specifically defined by R.C. 2744.01(C)(2)(c) as a governmental function.                The

operation of a public school is a governmental function.     Coleman, 2004-Ohio-5854, at

¶ 66.

        {¶ 16} It follows that this employee acted in the course of a governmental function

at the time of the alleged incident.   “[W]ith respect to governmental functions, political

subdivisions retain their cloak of immunity from lawsuits stemming from employees’

negligent or reckless acts.” Wilson v. Stark Cty. Dept. of Human Servs. (1994), 70 Ohio

St.3d 450, 639 N.E.2d 105.         Hubbard has not supported her argument that the

circumstances constitute a proprietary function with any case law or additional facts.

        {¶ 17} Thus, as was the case in Price, 178 Ohio App.3d 256, 2008-Ohio-4514, 897

N.E.2d 700, Hubbard’s claim involves a board employee engaged in a governmental

function at the time of the act in question, and “governmental functions retain the blanket

protection of statutory immunity for both negligence and intentional torts.” Id. at ¶ 32.

Therefore, Hubbard’s argument fails as a matter of law because the employee was not

engaged in a proprietary function and none of the other R.C. 2744.02(B) exceptions are

applicable. Thus, the board is entitled to summary judgment on this claim.

        {¶ 18} Accordingly, the sole assignment of error is sustained.

        {¶ 19} The judgment is reversed, and the matter is remanded with instructions for

the trial court to enter summary judgment in favor of the board on the defamation claim.
                                        9


                                               Judgment reversed

                                              and cause remanded.

STEWART, P.J., and GALLAGHER, J., concur.
