[Cite as Contreraz v. Bettsville, 2011-Ohio-4178.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




ROSALINDA CONTRERAZ,
INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE
ESTATE OF SANTOS LEON                                      CASE NO. 13-10-48
GARCIA, DECEASED,

        PLAINTIFF-APPELLANT,

        v.
                                                           OPINION
VILLAGE OF BETTSVILLE, ET AL.,

        DEFENDANTS-APPELLEES.




                  Appeal from Seneca County Common Pleas Court
                             Trial Court No. 08CV0594

                                       Judgment Affirmed

                             Date of Decision: August 22, 2011




APPEARANCES:

        R. Ethan Davis for appellant.

        John T. McLandrich and Frank H. Scialdone, for appellees.
Case No. 13-10-48




PRESTON, J.

          {¶1} Plaintiff-appellant,   Rosalinda   Contreraz,   Individually    and    as

Administratrix of the Estate of Santos Leon Garcia, deceased, appeals from the

judgment of the Seneca County Court of Common Pleas, which granted

defendants-appellees’, Village of Bettsville, Bettsville Recreation Board, and

Andrea Bender, motion for summary judgment. For the reasons that follow, we

affirm.

          {¶2} This case involves the tragic death of Santos Garcia (hereinafter

“Garcia”), who drowned at the Village of Bettsville’s public swimming area. The

case arises out of the following set of facts.

          {¶3} The Village of Bettsville owns the Eells Park Quarry, a public

recreational swimming area, which is operated by the Bettsville Recreation Board.

At the time of the incident, the general layout of the quarry, which is not in

dispute, was as follows. Located near the quarry beach there was a small single

story building, which was used as a concession stand, park pool director’s office,

the lifeguard locker/break room, and an equipment storage area.               Inside the

concession building there was a land line telephone to be used for emergencies.

With regards to the beach, there were two elevated lifeguard stands located on the

beach, while an additional elevated lifeguard stand was positioned by the diving


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Case No. 13-10-48



board and slide platform. There were two floating rafts located in the deeper end

of the quarry, and between the two floating rafts was an aquatic toy called an

“aqua bobber.”

      {¶4} Additionally, there was a floating buoy line that traversed across the

quarry for purposes of separating the shallow end from the deep end. The buoy

line was positioned at a water depth between four feet (4’) to five feet (5’). In

addition, there was another buoy line, made up of old railroad ties, located just

beyond the two floating rafts and used for purposes of separating the swim area

from the non-swim area.

      {¶5} In 2006, the Bettsville Recreation Board hired Andrea Bender

(hereinafter “Bender”) as a lifeguard. (A. Bender Depo. at 7-8). Bender worked

at the park during the summers of 2006, 2007, and 2008, and had been the on-duty

lifeguard on the beach when Garcia drowned. (Id.).

      {¶6} The incident occurred on August 3, 2007. Garcia and his sisters,

Rosalinda and Eva, along with several of Garcia’s friends and Garcia’s aunt and

uncle, decided to go swimming at the quarry. (A. Alonso Depo. at 21-22); (R.

Garcia Depo. at 18-19). At the time of the incident, Garcia was fifteen-years-old

and five feet three inches (5’3”) in height. (Coroner’s Report, Ex. K). In addition,

Garcia had taken a YMCA swim course and was described as an average swimmer

who either could not or did not like to swim underwater. (R. Garcia Depo. at 15);

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Case No. 13-10-48



(E. Garcia Depo. at 18-20). The group arrived at the quarry sometime in the late

afternoon.

       {¶7} Before entering the water, Garcia’s friend, Lamont, said that he

provided Garcia with shoelaces so that Garcia could tie his long pants up around

his knees to swim. (L. Garcia Depo. at 28-29). Rosalinda and Eva were the first

ones to enter the water. (E. Garcia Depo. at 35). Eva said she swam out to the

aqua bobber, while Rosalinda swam out to the deep-end and was treading water

near the diving boards and slide platform. (E. Garcia Depo. at 35); (R. Garcia

Depo at 35-36). Eva said that she saw Garcia and several of his friends enter the

water from the shallow end and walk out towards the outer raft closest to the

diving boards, where Rosalinda was located. (E. Garcia Depo. at 36). Lamont

said that he and Garcia then swam under the buoy line into the deeper portion of

the swimming area. (L. Garcia Depo. at 36). At this point, Rosalinda said that she

had still been treading water near the diving board and slide platform when Garcia

proceeded to swim underwater and tickle her feet. (R. Garcia Depo. at 37).

Rosalinda said that after this occurred, she and Garcia decided to race out to the

closest raft. (R. Garcia Depo. at 37). Rosalinda said that she made it to the raft in

what she believed was a few seconds but when she turned around, she did not see

Garcia. (Id. at 39). Eva, who was still on the aqua bobber, said that she had had

her back to the swimming area, but that when she turned around she also did not

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Case No. 13-10-48



see Garcia in the water. (E. Garcia Depo. at 37-38). It was at this point in time

when Rosalinda said that she began to yell for help, stating that her brother was

missing.    (R. Garcia Depo. at 43).           Overall, Rosalinda said that it was

approximately thirty to forty seconds from the time she got to the raft until a

swimmer surfaced with Garcia. (Id. at 47).

       {¶8} Another swimmer at the quarry, Alex Fox, who had been swimming

near the buoy line with his girlfriend, testified that he heard Rosalinda yelling that

she could not find her brother. (Fox Depo. at 32-33). Alex said that his girlfriend

was asking the lifeguard to take action; however, Alex admitted that at no point

was it apparent whether the missing individual was missing in the water or

missing out of the water. (Id. at 27, 32-33). In fact, Alex was under the belief that

the missing individual was out of the water near the concession building. (Id.).

       {¶9} Nevertheless, Alex said that he decided to swim under water and swim

towards the diving board and slide platform in the deep end of the quarry. (Id. at

43-44, 56, 94). After approximately ten to fifteen feet, Alex said he saw Garcia

some distance in front of the diving board at the bottom of the quarry. (Id. at 32-

33, 43-44, 94). Alex said that he picked Garcia off the bottom of the quarry and

brought him to the surface. (Id.). When he got to the surface, Alex said that he

saw the lifeguard jump down from the lifeguard stand and run towards the

concession building. (Id.). At that point, Alex said that he, with the help of two

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Case No. 13-10-48



other male swimmers, brought Garcia to shore. (Id.). One of the two other male

swimmers,      Jacob   Pfotenhauer,   corroborated   Alex’s   version   of   events.

(Pfotenhauer Depo. at 31, 39-40, 45-46).

         {¶10} Overall, none of the witnesses saw Garcia in any type of distress nor

did they see Garcia submerged below the surface of the water.

         {¶11} Michael Abernathy testified that he had been the on-duty lifeguard

prior to the incident and that he remembered Garcia and his friends enter the

shallow area of the quarry. (Abernathy Depo. at 18). However, he said that he

never saw Garcia go beyond the buoy line and into the deep end of the quarry.

(Id.).

         {¶12} Andrea Bender testified that she took over for Michael at 7:00 p.m.

and became the on-duty lifeguard. (A. Bender Depo. at 46). She said that she did

an initial head count of swimmers and determined that there were 15 to 20

swimmers in the water. (Id. at 48). Bender testified that approximately thirty

seconds to one minute after she had taken the lifeguard stand, a woman

approached her and told her that a boy was missing. (Id. 49-50). Bender said that

she attempted to get more information from the woman and asked her where the

boy was missing. (Id. at 52). After about one minute and thirty seconds of

discussion, Bender stated that the woman told her that she believed the missing

boy had been in the water and that she did not think that the boy knew how to

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Case No. 13-10-48



swim. (Id.). Bender said that because she was unaware of the missing boy’s

location, she blew her whistle to get assistance from her pool director, Rachel

Banks, who was located in the concession building. (Id.).

       {¶13} Bender went on to state that approximately ten to fifteen seconds

after she blew her whistle, she heard a rise in voices and saw a swimmer surface

with Garcia. (Id. at 56). Bender said that she then jumped down from the

lifeguard stand, blew her whistle to clear everyone from the water, and sprinted to

the concession building, yelling for Rachel Banks to call 911. (Id. at 56, 64).

Bender explained that as she approached the concession building, lifeguard

Michael Abernathy ran down the beach towards the water. (Id. at 66). Bender

testified that she told Rachel Banks of the emergency and to call 911. (Id. at 69).

       {¶14} Michael Abernathy and another swimmer began C.P.R. on Garcia

after he was brought on to the beach. (Abernathy Depo. at 30). They continued to

provide C.P.R. until paramedics arrived, at which time a paramedic assisted

Michael Abernathy with C.P.R. (Id. at 35). Garcia was eventually transported to

a nearby hospital; however, all efforts to save Garcia were unsuccessful.

       {¶15} On November 19, 2008, Rosalinda Contreraz, Individually and as

Administratrix of the Estate of Garcia (hereinafter “the Estate” or “Mother”), filed

a complaint against the Village of Bettsville, Bettsville Recreation Board, and



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Case No. 13-10-48



Lifeguard Andrea Bender.1 In her complaint, Mother alleged that Garcia’s death

was proximately caused by the Village and Bender’s negligence. In particular,

Mother alleged the following six causes of action: wrongful death, premises

liability, physical defect, survival claim, loss of consortium, and vicarious liability.

           {¶16} On June 28, 2010, the defendants filed a motion for summary

judgment, and on October 12, 2010, they were granted leave to file a supplemental

motion for summary judgment instanter with exhibits attached. On October 18,

2010, Mother filed a memorandum in opposition to the defendants’ motion for

summary judgment. The defendants filed a response memorandum on October 28,

2010.

           {¶17} Thereafter, on December 6, 2010, the trial court issued its order and

decision granting the defendants’ motion for summary judgment.

           {¶18} Mother now appeals and raises the following four assignments of

error. For ease of our discussion, we elect to address Mother’s first and second

assignments of error together.

                                ASSIGNMENT OF ERROR NO. I

           THE TRIAL COURT ERRED AS A MATTER OF LAW IN
           GRANTING   THE    DEFENDANTS’      MOTION  FOR
           SUMMARY JUDGMENT AND FINDING THAT THE
           REVISED   CODE    §2744.02(B)(4) EXCEPTION  TO
           IMMUNITY DID NOT APPLY IN THIS CASE.

1
    The Village of Bettsville and the Recreation Board will be referred to collectively as “the Village.”

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Case No. 13-10-48




                      ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT ERRED AS A MATTER OF LAW IN
      GRANTING DEFENDANTS’ MOTION FOR SUMMARY
      JUDGMENT AND FINDING THAT THERE WAS NO
      EVIDENCE OF NEGLIGENCE OR A DEFECT IN THE
      PREMISES.

      {¶19} In her first and second assignments of error, Mother argues that the

trial court erred in finding that the Village was immune from liability under R.C.

2744.02(A)(1).   In particular, Mother argues that the exception for immunity

pursuant to R.C. 2744.02(B)(4) was applicable, but that the trial court erred in

finding that, because there was no evidence of negligence and that there was no

evidence of any physical defects on the premises, the exception to immunity did

not apply.

                              Standard of Review

      {¶20} We review a decision to grant summary judgment de novo. Doe v.

Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. Under this standard of

review, we review the appeal independently, without any deference to the trial

court. Conley-Slowinski v. Superior Spinning & Stamping Co. (1998), 128 Ohio

App.3d 360, 363, 714 N.E.2d 991. A motion for summary judgment will be

granted only when the requirements of Civ.R. 56(C) are met. Thus, the moving

party must show: (1) that there is no genuine issue of material fact, (2) that the


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Case No. 13-10-48



moving party is entitled to judgment as a matter of law, and (3) that reasonable

minds can reach but one conclusion when viewing the evidence in favor of the

non-moving party, and the conclusion is adverse to the non-moving party. Civ.R.

56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69

Ohio St.3d 217, 219, 631 N.E.2d 150.

         {¶21} The party asking for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d

112, 116, 526 N.E.2d 798. The moving party must also demonstrate the absence

of a genuine issue of material fact as to an essential element of the case. Dresher

v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. Then the moving party

must demonstrate that they are entitled to summary judgment as a matter of law, at

which time, the burden then shifts to the non-moving party to produce evidence on

any issue which that party bears the burden of production at trial. Deutsche Bank

Trust Co. v. McCafferty, 3d Dist. No. 1-07-26, 2008-Ohio-520, ¶9, citing Civ.R.

56(E).

                  Ohio’s Political Subdivision Tort Liability Act

         {¶22} Under Ohio’s Political Subdivision Tort Liability Act, codified under

R.C. Chapter 2744, it is well-established that a reviewing court must engage in a

three-tiered analysis to determine whether a political subdivision is entitled to

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Case No. 13-10-48



immunity from civil liability. Hubbard v. Canton Cty. Sch. Bd. of Edn., 97 Ohio

St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶10, citing Cater v. Cleveland

(1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610. See, also, Elston v. Howland Local

Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶10. The first tier

of the analysis is to determine whether the entity claiming immunity is a political

subdivision and whether the harm occurred in connection with a governmental or

proprietary function. R.C. 2744.02(A)(1); Hubbard at ¶10. Generally, political

subdivisions are not liable for damages in civil actions for the “injury, death, or

loss to a 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).

       {¶23} However, the immunity established under R.C. 2744.02(A)(1) is not

absolute; and the subdivision’s immunity is subject to a list of exceptions under

R.C. 2744.02(B)(1)-(5).     Once general immunity has been established by the

political subdivision, the burden lies with the plaintiff to show that one of the five

exceptions under R.C. 2744.02(B) apply. Brady v. Bucyrus Police Dept., 3d Dist.

No. 3-10-21, 2011-Ohio-2460, ¶47, citing Maggio v. Warren, 11th Dist. No. 2006-

T-0028, 2006-Ohio-6880, ¶38. Thus, if the entity is a political subdivision entitled

to immunity under the first tier of the analysis, then the court must go to the

second tier of the analysis and determine whether any of the exceptions to liability

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Case No. 13-10-48



enumerated in R.C. 2744.02(B) apply. Hubbard at ¶12, citing Cater, 83 Ohio

St.3d at 28. If any of the exceptions to immunity are found to be applicable, then

the political subdivision will lose its immunity. If this occurs, then the court must

move on to the third tier of the analysis, where it must determine whether the

political subdivision’s immunity can be reinstated as long as the political

subdivision proves one of the defenses to liability under R.C. 2744.03.

       {¶24} Here, no one disputes the fact that the Village of Bettsville and

Bettsville Recreation Board are political subdivisions and were engaged in the

governmental function of maintenance and operation of a recreational swimming

area. See R.C. 2744.01(C)(2)(u)(iv). As such, they are, presumptively immune

from liability under R.C. 2744.02(A)(1) and are entitled to immunity unless one of

the exceptions in R.C. 2744.02(B) applies.

       {¶25} Under the second tier of the immunity analysis, we note that a

political subdivision’s immunity is typically subject to the five exceptions listed in

R.C. 2744.02(B)(1)-(5). On appeal, the parties’ arguments center around only one

of the five exceptions, R.C. 2744.02(B)(4), thus, our discussion will be limited to

R.C. 2744.02(B)(4)’s application. However, before we can analyze the merits of

the R.C. 2744.02(B)(4) exception, we must address two initial arguments

presented by the parties.



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Case No. 13-10-48



                               Cater v. Cleveland

      {¶26} The first initial argument raised on appeal concerns whether R.C.

2744.02(B)(4) should even apply given the Ohio Supreme Court’s decision in

Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610.

      {¶27} The Village claims that, pursuant to the Supreme Court’s decision in

Cater, R.C. 2744.02(B)(4) is inapplicable to recreational swimming areas. As

such, the Village argues that, because R.C. 2744.02(B)(4) does not apply to

recreational swimming areas, they are presumptively entitled to immunity under

R.C. 2774.02(A)(1).    In response, Mother claims that, in light of the Ohio

Supreme Court’s recent decisions, it’s holding in Cater is no longer binding.

Mother also points to a recent decision by this Court where she claims that we

declined to follow the Ohio Supreme Court’s rationale in Cater. See Thomas v.

Bagley, 3d Dist. No. 11-04-12, 2005-Ohio-1921.

      {¶28} In Cater, the Ohio Supreme Court was asked to consider whether

R.C. 2744.02(B)(4) applied to an indoor municipal swimming pool. Cater, 83

Ohio St.3d at 27-28. Ultimately, the Court concluded that the exception did not

apply to indoor municipal swimming pools, and reasoned as follows:

      Although former R.C. 2744.02(B)(4) may be applicable to other
      governmental functions, not specifically listed in the statute, we
      believe that it does not apply to an indoor swimming pool. (See,
      also, Mattox v. Bradner [Mar. 21, 1997], Wood App. No. WD-
      96-038, unreported, 1997 WL 133330, which held that the

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Case No. 13-10-48



        exception enumerated in R.C. 2744.02[B][4] is inapplicable to
        injuries sustained in a municipal swimming pool.) Unlike a
        courthouse or office building where government business is
        conducted, a city recreation center houses recreational activities.
        Furthermore, if we applied former R.C. 2744.02(B)(4) to an
        indoor swimming pool, liability could be imposed upon the
        political subdivision. However, there would be no liability if the
        injury occurred at an outdoor municipal swimming pool, since
        the injury did not occur in a building. We do not believe that the
        General Assembly intended to insulate political subdivisions
        from liability based on this distinction. Therefore, we reject
        appellants’ contention that former R.C. 2744.02(B)(4) applies to
        an indoor municipal swimming pool.

Cater, 83 Ohio St.3d at 31-32.

        {¶29} There has been at least one other appellate district that has recently

applied Cater to outdoor swimming facilities and has held that the physical-defect

exception does not apply, even if the injury was proximately caused by the

negligence of an employee and due to a physical defect.2 O’Connor v. City of

Fremont, 6th Dist. No. S-10-008, 2010-Ohio-4159. However, we acknowledge

that this Court has also recently addressed the Supreme Court’s decision in Cater,

but unlike the other appellate district, we questioned the validity of Cater,

especially in light of the Supreme Court’s more recent ruling in Hubbard. See

Thomas, 2005-Ohio-1921. In Thomas, this Court noted:


2
 We note that the Court of Appeals for the Ninth District recently released an opinion on August 3, 2011,
which overruled one of its prior decisions that had applied Cater to outdoor swimming facilities.
Hawsman v. Cuyahoga Falls, 9th Dist. No. 25582, 2011-Ohio-3795, overruling Hopper v. Elyria, 182 Ohio
App.3d 521, 2009-Ohio-2517, 913 N.E.2d 997, not accepted for review, Hopper v. Elyria, 123 Ohio St.3d
1424, 2009-Ohio-5340, 914 N.E.2d 1064.

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Case No. 13-10-48



       Initially, we note that this Court has serious doubts regarding
       the continuing validity of Cater in light of the Supreme Court’s
       more recent ruling in Hubbard. In Cater the Supreme Court
       found that municipal swimming pools were not subject to the
       R.C. 2744.02(B)(4) exception based on the fact that the
       governmental function being performed by municipal pools was
       recreational in nature and not the kind of “government
       business” being conducted in a courthouse or government office
       building. Id. at 31-32, 697 N.E.2d 610. The Court made this
       finding despite having recognized earlier in the same opinion
       that “the General Assembly has already classified the operation
       of a municipal swimming pool as a governmental function under
       R.C. 2744.01(C)(2)(u).” Id at 28, 697 N.E.2d 610. No such
       distinction has been made by the Court since Cater. In fact, in
       Hubbard the Court stressed that the only relevant inquiry in
       such a case is whether “the injuries claimed by plaintiffs were
       caused by negligence occurring on the grounds of a building
       used in connection with a government function * * *.” Hubbard
       at ¶ 18. There was no discussion regarding whether the
       governmental function in the building involved was recreational
       in nature.

       Additionally, as noted by Justice Moyer in a concurring opinion
       in Cater, outdoor pools are located on the grounds of buildings
       such as shelters, restrooms and storage areas that are being used
       in the performance of a governmental function. Cater, 83 Ohio
       St.3d at 35, 697 N.E.2d 610. Therefore, both outdoor and indoor
       municipal pools would be subject to the R.C. 2744.02(B)(4)
       exception, and the distinction relied on by the majority in Cater
       involving outdoor and indoor municipal pools would appear to
       be invalid.

Thomas, 2005-Ohio-1921, ¶¶34-35.

       {¶30} While we acknowledge this Court’s prior decision in Thomas, we

ultimately find that the trial court did not err in granting the Village’s motion for

summary judgment because Mother failed to present sufficient evidence that a

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physical defect on the premise caused Garcia’s death. We will discuss this in

further detail below; however, before we can discuss the merits of the physical

defect arguments raised on appeal, we must next address Mother’s argument that

R.C. 2744.02(B)(4) is unconstitutional and that the physical-defect requirement

should not apply.

                    Constitutionality of R.C. 2744.02(B)(4)

      {¶31} Mother briefly argues in her appellate brief that she was not required

to present evidence of a physical defect in the premises pursuant to the Ohio

Supreme Court’s ruling in Hubbard v. Canton City School Bd. of Edn. (2002), 97

Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543. She also claims that she did

not have to prove the physical-defect requirement because the legislation that

amended that particular statutory provision was declared unconstitutional.

      {¶32} In Hubbard, in interpreting the previous version of R.C.

2744.02(B)(4), the Ohio Supreme Court held that:

      R.C. 2744.02(B)(4) applies to all cases where an injury resulting
      from the negligence of an employee of a political subdivision
      occurs within or on the grounds of buildings that are used in
      connection with the performance of a governmental function.
      The exception is not confined to injury resulting from physical
      defects or negligent use of grounds or buildings.




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Case No. 13-10-48



Hubbard, at the syllabus. It is this holding that Mother relies on in support of her

position that there was no need to prove that there was a physical defect in the

premises.

      {¶33} However, we find that Mother’s reliance on Hubbard is misplaced.

In Hubbard, the Ohio Supreme Court interpreted the prior version of R.C.

2744.02(B)(4), effective July 6, 2001. See Hubbard, 2002-Ohio-6718, at ¶¶15-18.

Because the statute in effect at the time did not contain any explicit language

concerning a “physical defect,” the Supreme Court refused to interpret the statute

as having such a requirement, even though it acknowledged the legislature’s prior,

consistent, but ultimately failed attempts to change the statutory language in R.C.

2744.02(B)(4) to include such a requirement. Id. at ¶¶16-18. Nevertheless, in

2003, the Ohio General Assembly amended R.C. 2744.02(B)(4) and explicitly

added the language “and is due to physical defects within or on the grounds.” This

is the current version of the statute. Because the current version of the statute

clearly contains the additional “physical defect” language, it has essentially

invalidated the analysis rendered in Hubbard. Moreover, the amendment to the

statute became effective on April 9, 2003, and contrary to Mother’s argument, has

not been declared unconstitutional by the Ohio Supreme Court. Since that time,

appellate courts have generally limited the R.C. 2744.02(B)(4) exception to

injuries that were “due to physical defects.” DeMartino v. Poland Local School

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Case No. 13-10-48



Dist., 7th Dist. No. 10 MA 19, 2011-Ohio-1466, ¶40; Troutman v. Jonathon Alder

Local School Dist. Bd. of Edn., 12th Dist. No. CA2009-08-016, 2010-Ohio-855,

¶24; Yeater v. LaBrae School Dist. Bd. of Edn., 11th Dist. No. 2009-T-0107, 2010-

Ohio-3684, ¶14, citing Dunfee v. Oberlin School Dist., 9th Dist. No. 08CA009497,

2009-Ohio-3406, ¶13; Dynowski v. Solon, 8th Dist. No. 92264, 2009-Ohio-3297,

¶19; Hopkins v. Columbus Bd. of Educ., 10th Dist. No. 07AP-700, 2008-Ohio-

1515, ¶18. But see, Grine v. Sylvania Schools Bd. of Edn., 6th Dist. No. L-06-

1314, 2008-Ohio-1562, ¶56 (finding that the Ohio Supreme Court had interpreted

the prior version of R.C. 2744.02(B)(4), effective July 6, 2001, but concluding that

the Ohio Supreme Court has declared new amendment unconstitutional).

       {¶34} Furthermore, with respect to Mother’s argument that the legislation

that   amended    the   R.C.   2744.02(B)(4)     exception   has   been    declared

unconstitutional, as we mentioned above, the Ohio Supreme Court has not

declared the current version of R.C. 2744.02(B)(4), effective on April 9, 2003, to

be unconstitutional. In fact, the Court has recently analyzed the physical defect

requirement with respect to the absence of a required smoke detector. See Moore

v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d

606, ¶¶22-25 (reversing and remanding the case to the trial court because the trial

court had failed to consider whether the absence of a required smoke detector on

property owned by a political subdivision constituted a physical defect pursuant to

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R.C. 2744.02(B)(4)). See, also, Hamrick v. Bryan City School Dist., 6th Dist. No.

WM-10-014, 2011-Ohio-2572, ¶22 (rejecting the appellant’s argument that R.C.

2744.02(B)(4) has been declared unconstitutional by the Ohio Supreme Court).

       {¶35} More significantly, we note that Mother failed to raise this issue

below at the trial court. “In order for a party to challenge the constitutionality of a

state statute, ‘the issue must be raised in the complaint or the initial pleading and

the Ohio Attorney General must be properly served.’” Troutman, 2010-Ohio-855,

at ¶12, quoting M.B. v. Elyria City Bd. of Edn., 9th Dist. No. 05CA008831, 2006-

Ohio-4533, ¶6. As such, we find that Mother has waived the issue for purposes of

appeal. See State v. Heft, 3d Dist. No. 8-09-08, 2009-Ohio-5908, ¶29, quoting

State v. Rice, 3d Dist. Nos. 1-02-15, 1-02-29, 1-02-30, 2002-Ohio-3951, ¶7,

quoting State v. Awan (1986), 22 Ohio St.3d 120, 489 N.E.2d 277, syllabus,

limited by In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, syllabus.

       {¶36} Now that we have addressed all of the parties’ initial arguments, we

will discuss the applicability of the R.C. 2744.02(B)(4) exception as it relates to

the facts and circumstances of this particular case.

                                 R.C. 2744.02(B)(4)

       {¶37} As we stated above, once general immunity has been established by

the political subdivision, the burden lies with the plaintiff to show that one of the

five exceptions under R.C. 2744.02(B) apply. Brady, 2011-Ohio-2460, at ¶47,

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citing Maggio, 2006-Ohio-6880, at ¶38. Here, the only exception that is being

argued before us concerns the application of R.C. 2744.02(B)(4).            R.C.

2744.02(B)(4) provides:

      [s]ubdivisions 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 * *
      *.

Under the terms of R.C. 2744.02(B)(4), the Village’s presumptive immunity

should have been abrogated only if Mother demonstrated that the injury was: (1)

caused by employee negligence, (2) on the grounds or in buildings used in

connection with the performance of a governmental function, and (3) due to

physical defects on or within those grounds or buildings.

      {¶38} Here, after considering all of the evidence, the trial court found as

follows:

      In addition, the R.C. 2744.02(B)(4) exception is inapplicable
      because the injury was not due to a “physical defect.” Although
      the Complaint alleges that Garcia became submerged below the
      water due to a sudden drop-off, absent is any evidence
      supporting this allegation. There is no evidence that a sudden
      drop-off existed and there is no evidence that the drowning
      could have been caused by an increase in water depth. In short,
      the evidence establishes that Garcia was swimming just prior to
      the incident and the relevant areas of the park quarry had only a
      very gradual water depth increase. For this additional reason,
      the R.C. 2744.02(B)(4) exception does not apply.

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Case No. 13-10-48




       There is also no evidence of any underwater obstruction present
       at the time of the incident, which could represent a “physical
       defect” that caused the drowning. The testimony of Alex Fox
       establishes that Garcia was not entangled or trapped by an
       underwater obstruction. There was also no evidence of trauma
       to Garcia’s body.

       Because none of the immunity exceptions under R.C.
       2744.02(B)(1)-(5) apply, the Village of Bettsville and Bettsville
       Recreation Board are entitled to immunity under R.C.
       2744.02(A)(1).

(Dec. 6, 2010 JE at 15-16).

       {¶39} On appeal, in attempting to establish the exception under R.C.

2744.02(B)(4), Mother claims that the trial court erred in failing to consider

evidence of the following seven violations committed by the Village: (1) that the

Village was negligent per se and/or reckless by failing to have the required

number of lifeguards; (2) that the Village failed to appropriately train and evaluate

their lifeguard staff; (3) that the Village was negligent and/or reckless in their

hiring and training of lifeguard Andrea Bender; (4) that Andrea Bender fell below

the accepted standard of care for a lifeguard in her response to Garcia’s drowning;

(5) that the Village failed to separately identify and warn of the presence of “deep

water” within the designated swimming area; (6) that the Village’s facility was

defective and dangerous in its failure to warn of the drastic change in bottom slope

and/or sudden drop off within the designated swimming area; and (7) that the


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Case No. 13-10-48



Village’s facility   deviated from the accepted standards of care by allowing

copious amounts of underwater vegetation to exist within the designated

swimming area.

       {¶40} However, as found by the trial court, most of Mother’s allegations

have nothing to do with a physical defect on the property. For example, the

Village’s alleged failure to provide sufficient lifeguards, failure to appropriately

train and evaluate its lifeguards, and negligent and/or reckless hiring and training

of its lifeguards clearly do not concern any physical defect regarding the premise.

       {¶41} The only three allegations this Court can find may amount to a

physical defect would be the allegation that the Village failed to post signs

warning of deep water, the allegation that there was copious amounts of vegetation

in the designated swim area, and the allegation that there was drastic change in the

slope or a sudden drop-off in the designated swim area. Nevertheless, for the

following reasons, under the facts and circumstances of this particular case, we

find that none of the allegations rise to the level of a physical defect for purposes

of R.C. 2744.02(B)(4).

       {¶42} With respect to the Village’s failure to post signs warning of the

presence of deep water, we find that Mother has failed to present any evidence

demonstrating how this amounted to a physical defect in the property. As both

parties’ experts stated, deep water in public swimming areas is a common and

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Case No. 13-10-48



expected feature, especially if the facility has diving boards and slides. There is

nothing in the record to suggest that this feature did not perform as intended or

was less useful than designed. See Hamrick v. Bryan City School Dist., 6th Dist.

No. WM-10-014, 2011-Ohio-2572, ¶¶27-29 (analyzing the plain meaning of the

phrase “physical defect” and concluding that the appellant failed to present

evidence that there was any discernible imperfection that diminished the utility of

either the bus garage or the service pit).

       {¶43} Next, with respect to the copious amount of vegetation allegation, we

find that, even if this amounted to a physical defect, Mother failed to present

sufficient evidence that this alleged defect existed at the time of the incident. The

only evidence presented by Mother in regards to the copious amount of vegetation

was from the plaintiff’s expert witness, who found that the designated swim area

had copious amounts of vegetation. However, the plaintiff’s expert made her

inspection of the premises on July 6, 2010, almost three years after the incident,

which again occurred back on August 3, 2007. There is no evidence in the record

that this vegetation existed at the time of the incident.

       {¶44} Finally, with respect to the sudden drop-off or drastic change in slope

allegation, again we find that Mother failed to present sufficient evidence that this

amounted to a physical defect. The only evidence introduced that indicates that

there was such a physical defect was the affidavit from the plaintiff’s expert

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Case No. 13-10-48



witness. At one point in her affidavit, the plaintiff’s expert concluded that in the

area where Garcia had drowned, “[s]uddenly and without warning, * * * the

bottom slope suddenly and drastically changes.” (Bella Aff. at 4). However,

during her deposition, which had taken place prior to her affidavit, the plaintiff’s

expert was specifically asked whether she believed that there was a significant

drop-off in the area where Garcia drowned. (Bella Depo. at 113). The plaintiff’s

expert replied, “I wouldn’t define that area as having a significant drop-off based

upon my definition.” (Id.).

       {¶45} ‘“[W]hen an affidavit is inconsistent with affiant’s prior deposition

testimony as to material facts and the affidavit neither suggests affiant was

confused at the deposition nor offers a reason for the contradiction in her prior

testimony, the affidavit does not create a genuine issue of fact which would

preclude summary judgment.’” Swiger v. Kohl’s Dept. Store, Inc., 2nd Dist. No.

23713, 2010-Ohio-6230, ¶5, quoting Byrd v. Smith, 110 Ohio St.3d 24, 2006-

Ohio-3455, 850 N.E.2d 47, ¶29, quoting Lemaster v. Circleville Long Term Care,

Inc. (Feb. 22, 1988), 4th Dist. No. 87 CA 2, at *3. Based on the above, we find

the plaintiff’s expert’s prior deposition testimony is inconsistent with her affidavit

testimony – she testified first that there were no significant drop-offs in the area

where Garcia drowned, but later averred that this area did have a sudden and

drastic change, such that it made that particular area defective and dangerous.

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Case No. 13-10-48



Because there is no explanation as to the contradiction in her testimony, we find

that her affidavit alone did not create a genuine issue of material fact which would

have precluded summary judgment.

       {¶46} Mother also tries to utilize the defense expert witness’s testimony in

support of her position that there was a physical defect in the property by the

presence of a drastic change in slope and/or sudden drop-off. However, upon a

review of the defense expert’s testimony, we find that Mother has

mischaracterized his testimony and has taken his conclusions out of context by

only selecting certain portions of his deposition testimony to highlight on appeal.

A review of the defense expert’s testimony reveals that he did not find a drastic

change in slope or a sudden drop-off in the area Garcia drowned. (Griffiths Depo.

at 91-108).

       {¶47} Nevertheless, even if there was sufficient evidence that these

allegations involved physical defects on the premise, the fact of the matter remains

that Mother failed to show how Garcia’s drowning was due to these alleged

physical defects. There was no evidence linking Garcia’s drowning to any sort of

vegetation in the quarry. In fact, the patron who discovered Garcia’s body under

water and pulled him to shore, specifically testified that Garcia had not been

entangled by any obstructions when he found him at the bottom of the deep end of



                                       -25-
Case No. 13-10-48



the quarry. There was also evidence that there had been no noticeable trauma to

Garcia’s body.

       {¶48} Furthermore, there was no evidence connecting Garcia’s drowning to

any drastic slope change or drop-off nor the failure to post signs warning patrons

of the presence of deep water. Mother proposes a theory that Garcia drowned

when he had been walking from the shallow end to the deep end when he either

encountered a drop-off, a drastic change in slope, or had not been properly warned

of the presence of deep water. However, the evidence indicates that Garcia had

actually been swimming in the deep-end of the quarry by the diving board and

slide platform before he disappeared and was found subsequently laying at the

bottom of the quarry. (R. Garcia Depo. at 37-39); (L. Garcia Depo at 36). The

evidence also indicates that, right before he disappeared, Garcia had decided to

race his sister out to the raft, which was further away in the deep-end. (R. Garcia

at 37-39). Even though Garcia’s body was discovered in the deep-end of the

quarry, none of the witnesses actually saw Garcia drown – no one saw him under

the surface of the water, no one saw him struggling in the water, and no one saw

any signs that Garcia had been in distress prior to his disappearance.

       {¶49} Moreover, we note that, regardless of whether or not Mother

presented evidence that raised questions regarding Bender’s response to the

incident, Mother still had to show that Garcia’s drowning was also due to a

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Case No. 13-10-48



physical defect on the grounds of the quarry. As we illustrated above, Mother has

failed to satisfy her burden, thus we need not discuss any questions of fact

pertaining to Bender’s purported negligence since Mother cannot demonstrate all

of the requirements under the R.C. 2744.02(B)(4) exception.

      {¶50} Therefore, we find that the trial court correctly determined that the

exception to immunity pursuant to R.C. 2744.02(B)(4) was inapplicable, because

Mother failed to demonstrate that there was a physical defect on the premises.

Consequently, the trial court also properly concluded that the Village was entitled

to immunity pursuant to R.C. 2744.02(A)(1) and did not err in granting the

Village’s motion for summary judgment.

      {¶51} Mother’s first and second assignments of error are, therefore,

overruled.

                     ASSIGNMENT OF ERROR NO. III

      THE TRIAL COURT ERRED IN FINDING THAT
      DEFENDANTS’ IMMUNITY IS REINSTATED PURSUANT
      TO R.C. §2744.03(A)(5) AND (6).

      {¶52} In her third assignment of error, Mother argues that the trial court

erred in finding that even if the Village was excepted out of immunity, the

Village’s immunity could nonetheless be reinstated pursuant to the defenses in

R.C. 2744.03(A)(5) and (6).



                                       -27-
Case No. 13-10-48



       {¶53} However, because we found that the exception under R.C.

2744.02(B)(4) was not applicable and that, as a result, the Village was entitled to

immunity under R.C. 2744.02(A), we find that this assignment of error has been

rendered moot.    Thus, we decline to address the applicability of any of the

defenses pursuant to R.C. 2744.03(A). App.R. 12(A)(1)(c).

       {¶54} Mother’s third assignment of error is, therefore, overruled as moot.

                      ASSIGNMENT OF ERROR NO. IV

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY
       FAILING TO CONSTRUE THE EVIDENCE IN A LIGHT
       MOST FAVORABLE TO APPELLANT.

       {¶55} Finally, in her last assignment of error, Mother argues that the trial

court overall erred in failing to consider all of the evidence in a light most

favorable to her, the non-moving party.

       {¶56} Again, given our discussion above, we find that as it relates to the

Village of Bettsville and the Bettsville Board of Recreation, the trial court did not

err in granting summary judgment in their favor.

       {¶57} As it relates to Bender, it appears that Mother has not raised any

specific claim regarding Bender’s liability on appeal. Nevertheless, to the extent

Mother may have raised any issues regarding Bender’s liability on this appeal, we

note that, pursuant to R.C. 2744.03(A)(6), Bender was entitled to immunity unless

Mother showed that one of the exceptions in R.C. 2744.03(A)(6) applied. Hawk v.

                                          -28-
Case No. 13-10-48



Am. Elec. Power Co., 3d Dist. No. 1-04-65, 2004-Ohio-7042, ¶10, quoting Wooton

v. Vogele (2001), 147 Ohio App.3d 216, 221, 796 N.E.2d 889. Based on Mother’s

arguments, the only exception that could apply would be R.C. 2744.03(A)(6)(b),

thus Bender would be entitled to immunity unless her “acts or omissions were

with malicious purpose, in bad faith, or [done] in a wanton or reckless manner.”

However, when reviewing Mother’s complaint, we find that she only alleged that

Bender acted negligently and did not assert any other culpability higher than

negligence in the proceedings below. Therefore, because there were never any

allegations that Bender acted “with malicious purpose, in bad faith, or in a wanton

or reckless manner,” we find that Bender was immune from liability and that the

trial court also did not err in granting summary judgment in Bender’s favor.

       {¶58} Mother’s fourth assignment of error is, therefore, overruled.

       {¶59} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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