[Cite as J.H. v. Hamilton City School Dist., 2013-Ohio-2967.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




J.H. (A Minor) By and Through his Parents :
and Next Friend Katherine and Dexter
Harris,                                   :                     CASE NO.   CA2012-11-236

        Plaintiffs-Appellants,                           :          OPINION
                                                                     7/8/2013
                                                         :
    - vs -
                                                         :

HAMILTON CITY SCHOOL DISTRICT,                           :
et al.,
                                                         :
        Defendants-Appellees.
                                                         :



             CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                               Case No. CV2012-02-0727



Eric C. Deters, 5247 Madison Pike, Independence, KY 41051-7941, for plaintiffs-appellants

Brian L. Wildermuth, The Green Town Center, 50 Chestnut Street, Suite 230, Dayton, Ohio
45440, for defendants-appellees



        HENDRICKSON, P.J.

        {¶ 1} Plaintiffs-appellants, Katherine and Dexter Harris, along with their minor son

J.H., appeal a decision of the Butler County Court of Common Pleas awarding judgment on

the pleadings to the defendants-appellees, Hamilton City School District Board of Education
                                                                                     Butler CA2012-11-236

("the Board") and its employee, Brenda Asher.1 For the reasons discussed below, we affirm

the judgment of the trial court.

        {¶ 2} On February 17, 2012, appellants filed a complaint for personal injury. In their

complaint, appellants stated that J.H. is a severely handicapped 14-year-old boy who

attended Garfield Middle School during the 2010-2011 school year. On October 10, 2010,

Asher was "pushing and pulling" J.H.'s wheelchair when J.H.'s leg became caught in the

wheelchair. The complaint alleged that Asher "continued to push and pull the wheel chair

[sic] even though the wheel chair [sic] was met with resistance until she heard a 'pop' and

Plaintiff J.H. started crying." Appellants asserted that J.H. suffered several injuries, including

a broken tibia, as a result of Asher's negligence in failing to operate the wheelchair with

reasonable care and safety. Appellants also asserted that the Board was responsible for

Asher's negligent acts under the doctrine of respondeat superior, as Asher was acting within

the scope of her employment at the time she caused the injury to J.H. Further, appellants

alleged that the Board had a "duty to operate the Garfield Middle School with reasonable

care and safety" and the Board breached this duty by "failing to have policies and procedures

in place to prevent the type of injury which [J.H.] received, for failing to give proper training to

* * * Asher, and by failing to hire the proper personnel."

        {¶ 3} On March 29, 2012, the Board and Asher simultaneously filed an answer and a

motion for judgment on the pleadings. In their answer, the Board and Asher admitted J.H.

was enrolled as a student at Garfield Middle School on October 10, 2010, and Asher was an

employee of the Board who was acting within the scope of her employment at the time the

incident occurred. In their motion for judgment on the pleadings, the Board and Asher



1. Appellants' complaint named the "Hamilton City School District" as a defendant to the suit. Before the trial
court, all parties agreed that the Hamilton City School District is not a legal entity subject to suit and that the
Hamilton City School District Board of Education is the proper party to the lawsuit. We will reference the proper
entity for purposes of this appeal.
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asserted that they were immune from liability under R.C. 2744.02 and R.C. 2744.03.

Specifically, the Board asserted that it was a political subdivision and therefore immune from

liability as appellants had not set forth allegations in their complaint that would "strip it" of

immunity under any of the five exceptions set forth in R.C. 2744.02(B)(1)-(5). Moreover,

Asher asserted that as an employee of a political subdivision, she was immune from liability

because appellants had not alleged facts in their complaint that she acted outside the scope

of her employment, that she acted maliciously or in a wanton or reckless manner, or that civil

liability was expressly imposed in this case by Ohio law, as contemplated by R.C.

2744.03(A)(6).

       {¶ 4} Appellants filed a memorandum in opposition to the motion for judgment on the

pleadings, arguing the merits of Asher and the Board's motion were "mistaken and

premature."    Appellants asserted judgment on the pleadings was not appropriate as

discovery had not been conducted to determine whether appellants' damages were caused

during the course of a governmental or proprietary function, the latter of which does not

invoke immunity. The trial court disagreed with appellants' position and, on October 22,

2012, granted judgment on the pleadings to Asher and the Board.

       {¶ 5} Appellants appealed the trial court's decision, raising as their sole assignment

of error the following:

       {¶ 6} THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR

BY GRANTING [APPELLEES'] MOTION FOR JUDGMENT ON THE PLEADINGS.

       {¶ 7} Appellants contend that the trial court erred in granting judgment on the

pleadings to the Board and Asher on the basis of immunity. Specifically, appellants assert

that the Board and its employee, Asher, were not immune from suit in this case. Although

appellants acknowledge that their "complaint alleged negligence on its face," they contend

that they were "not required to make allegations such as wanton or reckless conduct on
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behalf of the Board or Asher in order to survive a motion for judgment on the pleadings."

       {¶ 8} An appellate court reviews a trial court's decision on a Civ.R. 12(C) motion for

judgment on the pleadings de novo. Golden v. Milford Exempted Village School Bd. of Edn.,

12th District No. CA2008-10-097, 2009-Ohio-3418, ¶ 6. Civ.R. 12(C) motions are specifically

reserved for resolving questions of law and may be filed "[a]fter the pleadings are closed but

within such time as not to delay the trial." Id.; Peterson v. Teodosio, 34 Ohio St.2d 161, 166

(1973). Judgment on the pleadings is appropriate under Civ.R. 12(C) "where a court (1)

construes the material allegations in the complaint, with all reasonable inferences to be

drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the

plaintiff could prove no set of facts in support of his claim that would entitle him to relief."

State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996). Furthermore,

in ruling on a Civ.R. 12(C) motion, a court is "limited solely to the allegations in the pleadings

and any writings attached to the pleadings." Golden at ¶ 6, citing Vinicky v. Pristas, 163 Ohio

App.3d 508, 2005-Ohio-5196, ¶ 3 (8th Dist.).

                                  A. Immunity of the Board

       {¶ 9} The Ohio Supreme Court has set forth a three-tiered analysis for determining

whether a political subdivision is immune from civil liability. Carter v. Cleveland, 83 Ohio

St.3d 24, 28 (1998). Under the first tier, a political subdivision is granted broad immunity for

any injury arising out of its governmental or proprietary functions. R.C. 2744.02(A)(1). "The

immunity afforded to the political subdivision, however, is not absolute but instead is subject

to five exceptions under R.C. 2744.02(B)." Golden at ¶ 10. Thus, the second tier of the

analysis focuses on the exceptions to immunity set forth in R.C. 2744.02(B)(1)-(5). Id.

"Finally, in the third tier of the analysis, if an exception exists, immunity can be reinstated if

the political subdivision can successfully argue that one of the defenses set forth in R.C.

2744.03(A) applies." Id., citing Carter at 28. However, the defenses found in R.C. 2744.03
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                                                                       Butler CA2012-11-236

"do not come into play until after it is proven that a specific exception to general immunity

applies under R.C. 2744.02(B)." Id. at ¶ 12.

       {¶ 10} R.C. 2744.01(F) includes school districts within the definition of "political

subdivisions."   R.C. 2744.01(C)(2)(c) specifies that a system of public education is a

"governmental function." As such, the school board is a political subdivision serving a

governmental function, and it is therefore immune from liability under R.C. 2744.02(A)(1)

unless one of the five exceptions under R.C. 2744.02(B) applies.

       {¶ 11} Under R.C. 2744.02(B), a political subdivision may be liable for injuries caused

by "(1) the negligent operation of a motor vehicle by a school employee; (2) the negligence of

a school employee with respect to 'proprietary functions'; (3) the political subdivision's

negligent failure to keep the public roads in repair and free from obstruction; (4) the

negligence of a school employee with respect to physical defects occurring within or on the

grounds of school buildings; and (5) civil liability that is expressly imposed by statute on the

political subdivision." Bucey v. Carlisle, 1st Dist. No. C-090252, 2010-Ohio-2262, ¶ 8, citing

R.C. 2744.02(B)(1)-(5). Appellants contend that the exceptions to political subdivision

immunity set forth in R.C. 2744.02(B)(2) and (B)(5) apply.

       {¶ 12} Pursuant to R.C. 2744.02(B)(2), "political 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 subdivision." (Emphasis

added.) A "proprietary function" is defined, in relevant part, as a function that "promotes or

preserves the public peace, health, safety, or welfare and that involves activities that are

customarily engaged in by nongovernmental persons." R.C. 2744.01(G)(1)(b). Conversely, a

"governmental function" is defined, in relevant part, as a function that "promotes or preserves

the public peace, health, safety or welfare [and] that involves activities that are not engaged

in or not customarily engaged in by nongovernmental employees." R.C. 2744.01(C)(1)(c). A
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governmental function is one that is for the common good of all citizens, is imposed upon the

state as an obligation of sovereignty and is performed by a political subdivision voluntarily or

pursuant to a legislative requirement. R.C. 2744.01(C)(1)(a) and (b).

       {¶ 13} Appellants' complaint alleges that Asher negligently maneuvered J.H.'s

wheelchair while he attended school, thereby causing injury. The provision of a system of

public education is a governmental function pursuant to R.C. 2744.01(C)(2)(c). Moreover,

"transporting students is part of providing a system of public education." Day v. Middletown-

Monroe City School Dist. Bd. of Edn., 12th Dist. No. CA99-11-186, 2000 WL 979141, *3 (July

17, 2000). Construing the allegations in the pleadings in appellants' favor, it is clear that at

the time J.H. was injured, he was at school being transported by Asher, an employee of the

Board who was acting within the scope of her employment. Accordingly, Asher was engaged

in a governmental function, not a proprietary function, and the exception to immunity

contained within 2744.02(B)(2) is inapplicable.

       {¶ 14} The exception to immunity listed in R.C. 2744.02(B)(5) provides that "a political

subdivision is liable for injury, death, or loss to person or property when civil liability is

expressly imposed upon the political subdivision by a section of the Revised Code, including,

but limited to, sections 2743.02 and 5591.37 of the Revised Code." Appellants cite R.C.

2744.03(A)(5) and R.C. 2743.02(A)(1) as the portions of the Revised Code that impose

liability upon the Board.

       {¶ 15} We find no merit to appellants' contention regarding R.C. 2744.03(A)(5). R.C.

2744.03(A)(5) sets forth a defense that a political subdivision and its employees may assert

when facing liability, and it specifically provides:

              [t]he political subdivision is immune from liability if the injury,
              death, or loss to person or property resulted from the exercise of
              judgment or discretion in determining whether to acquire, or how
              to use, equipment, supplies, materials, personnel, facilities, and
              other resources unless the judgment or discretion was exercised
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              with malicious purpose, in bad faith, or in a wanton or reckless
              manner.

It is well settled that this section of the Revised Code, 2744.03, "merely provides defenses to

liability in the event that an exception to immunity under R.C. 2744.02(B) applies." (Internal

quotations omitted.) Brown Cty Bd. of Health v. Raichyk, 12th Dist. CA2012-06-011, 2013-

Ohio-1727, ¶ 22, quoting Golden, 2009-Ohio-3418 at ¶ 12. "The defenses found in R.C.

2744.03 do not come into play until after it is proven that a specific exception to general

immunity applies under R.C. 2744.02(B)." (Emphasis sic.) Id. Before R.C. 2744.03 is ever

reached, R.C. 2744.02(A) and (B), in that order, must be found to apply. Golden at ¶ 12,

citing Davis v. Malvern, 7th Dist. No. 05 CA 829, 2006-Ohio-7061, ¶ 30. Accordingly, R.C.

2744.03(A)(5) may not be used as an exception to immunity pursuant to R.C. 2744.02(B)(5).

       {¶ 16} Appellants also contend that R.C. 2743.02(A)(1) imposes liability upon the

Board. This provision provides, in relevant part:

              The state hereby waives its immunity from liability * * * and
              consents to be sued, and have its liability determined, in the
              court of claims created in this chapter * * * except as provided in
              division (A)(2) or (3) of this section. * * *

              Except in the case of a civil action filed by the state, filing a civil
              action in the court of claims results in a complete waiver of any
              cause of action, based on the same act or omission, that the
              filing party has against any * * * employee * * *. The waiver shall
              be void if the court determines that the act or omission was
              manifestly outside the scope of the * * * employee's * * *
              employment or that the * * * employee acted with malicious
              purpose, in bad faith, or in a wanton or reckless manner.

(Emphasis added.) R.C. 2743.02(A)(1).

       {¶ 17} We find R.C. 2743.02(A)(1) to be inapplicable to the present case. The

exception in R.C. 2744.02(B)(5) requires a statute to expressly impose liability upon the

political subdivision.   R.C. 2743.02(A)(1), however, discusses the state's waiver of




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immunity—not the political subdivision's waiver of immunity. The definition statute in Chapter

2743 specifically distinguishes a political subdivision from the state as follows:

                (A) "State" means the state of Ohio, including, but not limited
                to, the general assembly, the supreme court, the offices of all
                elected state officers, and all departments, boards, offices,
                commissions, agencies, institutions, and other instrumentalities
                of the state. "State" does not include political subdivisions.

                (B) "Political subdivisions" means municipal corporations,
                townships, counties, school districts, and allother bodies
                corporate and politic responsible for governmental activities only
                in geographic areas smaller than that of the state to which the
                sovereign immunity of the state attaches.

(Emphasis added.) R.C. 2743.01(A), (B). Thus, civil liability is not expressly imposed against

a political subdivision by R.C. 2743.02(A)(1) as the statute does not apply to political

subdivisions but, rather, is limited in application to those entities falling under the definition of

"state." See Fediaczko v. Mahoning Cty. Children Servs., 7th Dist. No. 11 MA 199, 2012-

Ohio-6095, ¶ 22-25. A school district is unequivocally a "political subdivision." See R.C.

2744.01(F); R.C. 2743.01(B). As such, R.C. 2743.02(A)(1) cannot be used to impose liability

upon the Board.2

        {¶ 18} As appellants failed to plead facts demonstrating that an exception to immunity

exists under any of the five exceptions set forth in R.C. 2744.02(B), we find that the trial court

did not err in granting judgment on the pleadings to the Board.

                                    B. Immunity of the Employee

        {¶ 19} We further find that the trial court did not err in entering judgment on the

pleadings to Asher as the allegations set forth in appellants' complaint do not contain facts

invoking any of the exceptions to the immunity granted to employees of political subdivisions.

R.C. 2744.03(A)(6) provides that an employee of a political subdivision is immune from


2. We further note that as Asher is an employee of a political subdivision, and not an employee of the "state,"
R.C. 2743.01(A) cannot be used to impose liability upon her.
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liability unless "(a) [t]he employee's acts or omissions were manifestly outside the scope of

the employee's employment or official responsibilities; (b) [t]he employee's acts or omissions

were with malicious purpose, in bad faith, or in a wanton or reckless manner; [or] (c) [c]ivil

liability is expressly imposed upon the employee by a section of the Revised Code." Here,

the pleadings do not allege that Asher acted outside the scope of her employment, and

appellants did not identify a section of the Revised Code that expressly imposes liability on

Asher. Accordingly, the only issue remaining is whether appellants asserted allegations to

sufficiently raise the exception set forth in R.C. 2744.03(A)(6)(b).

       {¶ 20} "Malice" is the willful and intentional design to do injury or the intention or desire

to harm another, usually seriously, through conduct that is unlawful or unjustified. Frazier v.

Clinton Cty. Sheriff's Office, 12th Dist. No. CA2008-04-015, 2008-Ohio-6064, ¶ 36. "Bad

faith" involves a dishonest purpose, conscious wrongdoing, the intent to mislead or deceive,

or the breach of a known duty through some ulterior motive or ill will. Id. An individual acts in

a "wanton" manner when that person fails "to exercise any care toward those to whom a duty

of care is owed in circumstances which there is a great probability that harm will result."

Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶ 33. Finally, a person acts in

a "reckless" manner when that individual "causes an unreasonable risk of harm" and

engages in misconduct "substantially greater than that which is necessary to make the

conduct negligent." Frazier at ¶ 36, citing Thompson v. McNeil, 53 Ohio St.3d 102, 104-105

(1990).

       {¶ 21} As discussed above, appellants' complaint is couched in negligence.

Specifically, appellants assert that Asher was "pushing and pulling" J.H.'s wheelchair when

his leg became caught in chair, and she continued to push the wheelchair "even though the

wheel chair [sic] was met with resistance until she heard a 'pop.'" Contrary to appellants'

argument, such allegations do not indicate that Asher acted with malicious purpose, in bad
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                                                                        Butler CA2012-11-236

faith, or in a wanton or reckless manner. Accordingly, as appellants failed to set forth

allegations from which a trier of fact might plausibly infer that Asher acted maliciously, in bad

faith, wantonly, or recklessly in causing harm to J.H., we find that Asher is immune from

liability in accordance with R.C. 2744.03(A)(6). The trial court properly granted judgment on

the pleadings to Asher.

       {¶ 22} Appellants' sole assignment of error is overruled.

       {¶ 23} Judgment affirmed.


       S. POWELL and PIPER, JJ., concur.




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