[Cite as Moss v. Lorain Cty. Bd. of Mental Retardation, 2016-Ohio-169.]


STATE OF OHIO                     )                        IN THE COURT OF APPEALS
                                  )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

JACOB MOSS, et al.                                         C.A. No.       15CA010767

        Appellees

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
LORAIN COUNTY BOARD OF MENTAL                              COURT OF COMMON PLEAS
RETARDATION, et al.                                        COUNTY OF LORAIN, OHIO
                                                           CASE No.   08CV157287
        Appellants

                                 DECISION AND JOURNAL ENTRY

Dated: January 19, 2016



        HENSAL, Presiding Judge.

        {¶1}     The Lorain County Board of Mental Retardation and Developmental Disabilities

appeals an order of the Lorain County Court of Common Pleas that denied its motion for

summary judgment. For the following reasons, this Court reverses.

                                                      I.

        {¶2}     It was supposed to be a typical school day for seven-year-old Jacob Moss, but

ended in a trip to the hospital. The previous spring, his mother and the Elyria School District had

developed an Individualized Education Program (IEP) to address his special needs. According to

the IEP, Jacob would attend a school run by the Board where he could receive more

individualized instruction. The school district would also provide him with a personal aide. The

school district and Jacob’s mother also developed a behavior support plan to try to reduce

behaviors Jacob was exhibiting in school, which included running from staff members.
                                                2


       {¶3}    When school resumed in August, Jacob had a new teacher, Renee Oppenheimer,

and a new aide, Andrea Hamilton. Ms. Oppenheimer had taught in a special needs classroom for

many years, but Ms. Hamilton had only been an aide for a short time and never for someone with

as many behaviors as Jacob. Ms. Hamilton also did not receive a copy of Jacob’s IEP or

behavior plan before starting to work with him. Although Ms. Oppenheimer told Ms. Hamilton

to stay with Jacob at all times, she found it challenging and, at one point, Jacob yanked another

child’s hair. Following that incident, Ms. Oppenheimer repeated to Ms. Hamilton that she had to

stay in very close contact with Jacob.

       {¶4}    The next day at school, Ms. Oppenheimer had her students sit around two curved

tables that had been placed close to each other to form a semi-circle. Ms. Hamilton sat directly

behind Jacob. According to Ms. Hamilton, when it was Jacob’s turn to participate at the board,

she accompanied him. As they were returning to their seats, however, Jacob suddenly pivoted

around her and began running toward the kitchen area of the classroom, which was separated

from the rest of the classroom by an island. Ms. Hamilton caught up to Jacob as he reached the

counter and took his hand to return him to his seat. Jacob, however, pulled his hand free and

grabbed the handle of a full pot of coffee that was in a coffeemaker that was on the counter. Ms.

Oppenheimer had used the coffeemaker for many years to make coffee available to the adults in

the classroom. Ms. Hamilton grabbed the top of the pot to try to keep Jacob from moving it, but

he struggled it loose, spilling scalding hot coffee on the countertop, which flowed off of it on to

his chest. As Jacob began screaming, other aides rushed over to take his shirt off and begin

administering medical attention.     An ambulance took him to the hospital, where he was

diagnosed with second-degree burns to his chest and abdomen.
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       {¶5}    Jacob’s mother filed a personal injury action on behalf of herself and Jacob

against the Board, the school district, and the staff members who were in the classroom at the

time of the incident. The Board twice sought judgment on the pleadings, but this Court upheld

the trial court’s denial of their motions. Moss v. Lorain Cty. Bd. of Mental Retardation, 185

Ohio App.3d 395, 2009-Ohio-6931, ¶ 33; Moss v. Lorain Cty. Bd. of Mental Retardation, 9th

Dist. Lorain No. 13CA010335, 2014-Ohio-969, ¶ 16. Following the second appeal, the Board

moved for summary judgment, arguing that it is immune from liability under Revised Code

Chapter 2744. The trial court denied its motion. The Board has appealed, assigning as error that

the court incorrectly denied it the benefit of statutory immunity.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN DENYING DEFENDANTS-APPELLANTS
       LORAIN COUNTY BOARD OF MENTAL RETARDATION AND LORAIN
       COUNTY BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL
       DISABILITIES THE BENEFITS OF STATUTORY IMMUNITY UNDER R.C.
       CHAPTER 2744.

       {¶6}    The Board argues that the trial court should have granted it summary judgment

because it is immune from liability under Chapter 2744. Under Civil Rule 56(C), summary

judgment is appropriate if:

       (1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for

summary judgment, the movant bears the initial burden of demonstrating that there are no

genuine issues of material fact concerning an essential element of the opponent’s case. Dresher

v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party
                                                 4


“must set forth specific facts showing that there is a genuine issue for trial.” Id. at 293, quoting

Civ.R. 56(E). We review a summary judgment order de novo. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105 (1996).

       {¶7}     “Determining whether a political subdivision is immune from liability under

[Chapter 2744] * * * involves a three-tiered analysis.” Lambert v. Clancy, 125 Ohio St.3d 231,

2010-Ohio-1483, ¶ 8. “The starting point is the general rule that political subdivisions are

immune from tort liability[.]” Shalkhauser v. Medina, 148 Ohio App.3d 41, 2002-Ohio-222, ¶

14 (9th Dist.). Under Section 2744.02(A)(1), “a political subdivision is not liable in 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.” “At the second tier, this comprehensive immunity can be abrogated pursuant to any of

the five exceptions set forth at R.C. 2744.02(B).” Shalkhauser at ¶ 16. “Finally, immunity lost

to one of the R.C. 2744.02(B) exceptions may be reinstated if the political subdivision can

establish one of the statutory defenses to liability” contained in Section 2744.03(A). Id.

       {¶8}    It is not disputed in this case that the Board is a political subdivision. The burden

on summary judgment, therefore, shifts to the Mosses to raise a genuine issue of material fact as

to whether their claims fall within one of the exceptions to immunity set forth in Section

2744.02(B). Wolford v. Sanchez, 9th Dist. Lorain No. 05CA008674, 2005-Ohio-6992, ¶ 31. The

Mosses argue that, in light of this Court’s prior decisions, the fact that an exception exists is the

law of the case. They note that in the first appeal, this Court held that “Moss has alleged

sufficient facts that if proven, demonstrate that the R.C. 2744.02(B)(4) exception applies to the

instant matter.” Moss, 2009-Ohio-6931 at ¶ 16. In the second appeal, this Court wrote that
                                                  5


“[t]he Board is not immune from suit with regard to the Mosses’ complaint.” Moss, 2014-Ohio-

969 at ¶ 14.

       {¶9}    The doctrine of law of the case “provides that the decision of a reviewing court in

a case remains the law of that case on the legal questions involved for all subsequent proceedings

in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).

Upon review of the record, we note that this Court’s prior decisions involved appeals from the

Board’s motions for judgment on the pleadings. As we explained in the first appeal, when we

review such motions, we must “confine our review to the pleadings, accept[ ] all factual

allegations in the complaint as true, and mak[e] all reasonable inferences in favor of the

nonmoving party.” Moss, 2009-Ohio-6931 at ¶ 8. Inasmuch as this appeal involves the review

of a motion for summary judgment, it involves a different legal question, which precludes the

application of the doctrine of law of the case. See Creauro v. Duko, 7th Dist. Columbiana No.

04 CO 1, 2005-Ohio-1342, ¶ 27 (explaining that the doctrine of law of the case did not apply

because the review of a motion under Civil Rule 12 “is very different than the one employed

when ruling on a motion for summary judgment.”).

       {¶10} The Mosses also argue that there is a genuine issue of material fact with respect to

whether the exception under Section 2744.02(B)(4) applies. Section 2744.02(B)(4) provides, in

relevant part, that “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 * * *.” According to the Mosses, because

Jacob’s injuries were caused by the negligence of the Board’s employees and were the result of

the dangerous conditions in his school classroom, the Section 2744.02(B)(4) exception applies.
                                                6


       {¶11} We will begin by considering whether Jacob’s injuries were “due to physical

defects within or on the grounds of” his school. This Court has noted that, because the term

“physical defect,” is not defined in Chapter 2744, “courts have applied the common meaning of

the phrase.” Hawsman v. Cuyahoga Falls, 9th Dist. Summit No. 27221, 2014-Ohio-4325, ¶ 23.

Considering the definitions of the words “physical” and “defect” together, we have explained

that “it would seem * * * that a ‘physical defect’ is an imperfection that possesses some

materiality that diminishes the worth or utility of the object at issue.” Id., citing Hamrick v.

Bryan City School Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio-2572, ¶ 28 and R.K. v.

Little Miami Golf Ctr., 1st Dist. Hamilton No. C-130087, 2013-Ohio-4939, ¶ 16.

       {¶12} The Mosses argue that leaving an easily accessible pot of hot coffee unprotected

on a countertop in the kitchen area of the classroom is a physical defect because it goes to the

negligent design and maintenance of the kitchen area. According to the Mosses, the Board

should have taken measures to prevent the classroom’s special needs students from dislodging

the coffee pot, such as closing off the kitchen area when the students were working in a different

part of the classroom.

       {¶13} Although the Mosses’ allegations that the kitchen was defectively designed,

maintained, and constructed were sufficient to survive a motion for judgment on the pleadings, to

survive a motion for summary judgment they were required to point to “specific facts showing

that there is a genuine issue for trial.” Civ.R. 56(E). They did not present any evidence,

however, that it is inherently dangerous to have a coffee pot in a special needs classroom, that

the kitchen area of the classroom was improperly designed, or that the kitchen area of a

classroom should be closed off when instruction is occurring elsewhere in the room. See

Simmons v. Yingling, 12th Dist. Warren No. CA2010-11-117, 2011-Ohio-4041, ¶ 29-30
                                                 7


(concluding that report that did not cite to specific industry standards and allegations that floor

lacked the necessary traction did not create an issue of fact as to whether there was a physical

defect). There is also no evidence that anything in the kitchen did not perform as intended. See

Hamrick, 2011-Ohio-2572 at ¶ 29 (concluding that there was no evidence that the service pit that

worker fell into had not performed as intended). But cf. Jones v. Delaware City School Dist. Bd.

of Edn., 5th Dist. Delaware No. 2013 CAE 01 0009, 2013-Ohio-3907, ¶ 26 (concluding that

physical defect may have existed if school previously maintained lighting and reflective tape to

mark the edge of orchestra pit but removed those protections before student fell into it).

       {¶14} Upon review of the record, we cannot say that there is a genuine issue of material

fact whether Jacob’s injuries were “due to” a “physical defect” in the classroom.             R.C.

2744.02(B)(4). There is nothing in the record to suggest that anything in the kitchen “did not

perform as intended or was less useful than designed.” Hamrick, 2011-Ohio-2572 at ¶ 29.

       {¶15} In light of our determination that the Mosses failed to demonstrate that Jacob’s

injuries were due to a physical defect, it is not necessary to address whether they were caused by

the negligence of the Board’s employees or whether the Board can establish that one of the

defenses contained in Section 2744.03 applies. The Board’s assignment of error is sustained.

                                                III.

       {¶16} The trial court incorrectly concluded that the Board is not immune from liability

for Jacob’s injuries under Chapter 2744. It, therefore, incorrectly denied the Board’s motion for

summary judgment. The judgment of the Lorain County Court of Common Pleas is reversed.

                                                                               Judgment reversed,
                                                                              and cause remanded.
                                                 8


       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                      JENNIFER HENSAL
                                                      FOR THE COURT



SCHAFER, J.
CONCURS.

MOORE, J.
DISSENTING.

       {¶17} Because I believe that, when construing the evidence in the light most favorable

to the Mosses, triable issues exist as to the Board’s immunity, I respectfully dissent.

       {¶18} The majority concludes that the Mosses failed to point to specific facts showing a

genuine issue for trial with respect to whether there existed a physical defect that caused the

harm. However, the undisputed purpose of the kitchen in the classroom was for instruction of

children with disabilities. The Mosses pointed to several record facts that, when construed in
                                                  9


their favor, indicate that the functionality, use, and location of the coffee pot in the instructional

kitchen constituted a defective kitchen. They cited Ms. Oppenheimer’s deposition wherein she

averred that the hot water in the building had been temperature controlled so as to prevent the

students from accidental burns and scalding, and wherein she maintained that the knobs on the

stove in the kitchen had been removed. Further, they pointed to Ms. Hamilton’s deposition,

wherein she maintained that the coffee pot was on a waist-high counter, approximately five

inches from the counter’s edge, and was within reach of the young students.

       {¶19} Therefore, I believe that the Mosses met their reciprocal summary judgment

burden of establishing a triable issue as to whether the kitchen performed as intended when it

contained a fully functioning and personally-utilized coffee pot where it could be accessed by the

students in the classroom kitchen, particularly where other measures had been taken to control

the temperature of liquids to which the students had access.

       {¶20} I would therefore proceed to discuss the remaining issues surrounding immunity,

and I would conclude that there remain triable issues as to the remaining matters as well.

Accordingly, I would affirm the decision of the trial court.


APPEARANCES:

MATTHEW JOHN MARKLING, PATRICK VROBEL, and SEAN KORAN, Attorneys at Law,
for Appellants.

FRANK GALLUCCI, III and MICHAEL SHROGE, Attorneys at Law, for Appellees.
