[Cite as Sickles v. Jackson Cty. Hwy. Dept., 196 Ohio App.3d 703, 2011-Ohio-6102.]




                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     JACKSON COUNTY

SICKLES, et al.,                      :    Case No. 11CA7
                                      :
     Appellees,                       :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
JACKSON COUNTY HIGHWAY                :
DEPARTMENT et al.,                    :    RELEASED 11/17/11
                                      :
     Appellants.                      :
______________________________________________________________________
                            APPEARANCES:

        Cooper & Elliott, L.L.C. and Rex H. Elliott, Charles H. Cooper Jr., Bradley A.
        Strickling, and Adam P. Richards, for appellees.

        Lambert Law Office and Randall Lambert, for appellants.

______________________________________________________________________

        Harsha, Presiding Judge.

        {¶ 1} The Sickles family filed suit against Jackson County and Thomas Keaton,

alleging that Keaton, a county employee, had negligently and recklessly operated a salt

truck, causing them personal and derivative injuries. The defendants now appeal the

trial court’s denial of their motion for summary judgment.

        {¶ 2} Appellants contend that the Jackson County Highway Department is not a

proper party, because the department does not have the capacity to sue or be sued.

However, the trial court’s decision to deny the department summary judgment based on

this argument did not deny the department the benefit of an alleged immunity from suit.

Therefore, the general rule that a denial of summary judgment is a not a final,
appealable order applies to this issue. And without a final order, we lack jurisdiction to

consider this argument and must dismiss this portion of the appeal.

       {¶ 3} Next, appellants argue that the trial court erred when it denied the

engineer and the commissioners immunity from the Sickleses’ claims of respondeat

superior liability for Keaton’s alleged negligent operation of the salt truck. The parties

agree that the engineer’s and the commissioners’ offices qualify for the general grant of

immunity under the Political Subdivision Tort Liability Act.      However, they disagree

about whether statutory exceptions to immunity potentially expose appellants to liability.

Appellants implicitly acknowledge that the Sickleses’ allegations implicate the exception

for negligent operation of a motor vehicle but argue that their claims are barred for

various reasons.

       {¶ 4} First, appellants contend that the Sickleses failed to present summary-

judgment evidence demonstrating that Keaton drove in a negligent manner.

Specifically, they argue that Keaton did not breach a common-law duty of care and that

the accident was not foreseeable. Because genuine issues of material fact exist as to

these issues, the trial court properly denied summary judgment.

       {¶ 5} Second, appellants argue that Shannon’s contributory negligence bars

recovery in this case. However, the trial court’s rejection of this argument did not deny

the engineer or the commissioners the benefit of an alleged immunity from suit. A

plaintiff’s contributory negligence does not reinstate a political subdivision’s immunity; it

merely acts as an affirmative defense to the negligence claims against a defendant.

Therefore, the general rule that a denial of summary judgment is a not a final,

appealable order applies to this issue. And without a final order, we lack jurisdiction to


                                             2
consider this argument and dismiss this portion of the appeal.

       {¶ 6} Third, appellants argue that even if genuine issues of material fact exist

concerning the issues of negligence and comparative negligence, the engineer and the

commissioners have a full defense to liability under R.C. 2744.02(B)(1)(c) or R.C.

2744.03(A)(3) reinstates their immunity.      Because appellants failed to raise these

additional immunity arguments in the trial court, we will not consider them for the first

time on appeal.

       {¶ 7} Finally, Keaton contends that he is entitled to immunity from suit based on

the additional statutory immunity provided to employees of a political subdivision.

Because he failed to raise this defense in the motion for summary judgment, we will not

address it for the first time on appeal. Accordingly, we affirm the trial court’s judgment.

                                          I. Facts

       {¶ 8} In their complaint, the Sickleses alleged that they were involved in an

accident when Robert Johnson drove into their vehicle and forced it down an

embankment. After the Sickleses exited their vehicle, Ronald Sickles went to get help

while Shannon Sickles and Ryan Sickles waited by Johnson’s vehicle. Soon, Keaton

approached the scene driving a salt truck. According to the Sickleses, “[a]t least two

people flagged Mr. Keaton to stop his truck given the hazard in front of him.” Keaton

“slowed his truck almost to a stop at the top of a hill where he could see the crash

scene” but “carelessly decided to proceed ahead.” The Sickleses alleged that Keaton

failed to control his vehicle, crossed onto the left side of the roadway, and struck

Shannon and Ryan. The Sickleses brought claims against Keaton for negligence per

se, negligent and reckless conduct in his operation of the salt truck, negligent infliction


                                             3
of emotional distress, and Ronald’s loss of Shannon’s consortium. The Sickleses also

alleged that Keaton was an employee or agent of the Jackson County Highway

Department, the Jackson County engineer, and the Jackson County commissioners.

The Sickleses claimed that those defendants were liable for Keaton’s conduct under the

doctrine of respondeat superior.

        {¶ 9} The defendants filed a motion for summary judgment, raising various

arguments. The trial court denied the motion, simply stating that “there are genuine

issues of material fact and * * * Defendants’ motion is not well taken.” This appeal

followed.

                                       II. Assignments of Error

        {¶ 10} Appellants assign the following errors for our review:1


                       The Jackson County Highway Department is not a proper
                party to this suit because it is not a political subdivision capable of
                being sued.

                        R.C. §2744 provides sovereign immunity to appellants,
                Thomas Keaton, the Jackson County engineer, and the Jackson
                County commissioners, concerning appellees’ claims, and as a
                result, the trial court erred by holding that the appellants were not
                afforded sovereign immunity.


                                       III. Standard of Review

        {¶ 11} When reviewing a trial court’s decision on a motion for summary

judgment, we conduct a de novo review governed by the standard set forth in Civ.R. 56.

Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at ¶ 8.

Summary judgment is appropriate when the movant has established (1) that there is no

1
 Appellants did not specifically designate these statements as assignments of error in their brief.
Nonetheless, we recognize them as such.

                                                     4
genuine issue of material fact, (2) that reasonable minds can come to but one

conclusion, and that conclusion is adverse to the nonmoving party, with the evidence

against that party being construed most strongly in its favor, and (3) that the moving

party is entitled to judgment as a matter of law. Bostic v. Connor (1988), 37 Ohio St.3d

144, 146, 524 N.E.2d 881, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio

St.2d 64, 66, 375 N.E.2d 46. See Civ.R. 56(C).

       {¶ 12} The burden of showing that no genuine issue of material fact exists falls

upon the party who moves for summary judgment. Dresher v. Burt (1996), 75 Ohio

St.3d 280, 294, 662 N.E.2d 264. To meet its burden, the moving party must specifically

refer to “the pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action,” that affirmatively demonstrate that the nonmoving party has no evidence to

support the nonmoving party’s claims. Civ.R. 56(C). See also Hansen v. Wal-Mart

Stores, Inc., Ross App. No. 07CA2990, 2008-Ohio-2477, at ¶ 8. Once the movant

supports the motion with appropriate evidentiary materials, 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 [Civ.R. 56], must set forth specific

facts showing that there is a genuine issue for trial.” Civ.R. 56(E). “If the party does not

so respond, summary judgment, if appropriate, shall be entered against the party.” Id.

                                      IV. Jurisdiction

       {¶ 13} Appellate courts “have such jurisdiction as may be provided by law to

review and affirm, modify, or reverse judgments or final orders of the courts of record

inferior to the court of appeals within the district.” Section 3(B)(2), Article IV, Ohio


                                              5
Constitution. If a court’s order is not final and appealable, we have no jurisdiction to

review the matter and must dismiss the appeal. Eddie v. Saunders, Gallia App. No.

07CA7, 2008-Ohio-4755, at ¶ 11. “The denial of a motion for summary judgment does

not determine the action and prevent a judgment, and thus generally does not constitute

a final order under R.C. 2505.02.” Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 90,

554 N.E.2d 1292. See Essman v. Portsmouth, Scioto App. No. 08CA3244, 2009-Ohio-

3367, at ¶ 10 (Essman I).

       {¶ 14} However, R.C. 2744.02(C) provides:          “An order that denies a political

subdivision or an employee of a political subdivision the benefit of an alleged immunity

from liability as provided in this chapter or any other provision of the law is a final order.”

Even if the case involves multiple claims and parties, as this case does, “there is no

reason for a trial court to certify under Civ.R. 54(B) that ‘there is no just cause for delay.’

When the denial of political-subdivision immunity is concerned, the trial court has no

discretion to determine whether to separate claims or parties and permit an interlocutory

appeal.” Sullivan v. Anderson Twp., 122 Ohio St.3d 83, 2009-Ohio-1971, 909 N.E.2d

88, at ¶ 12. Thus, to the extent that appellants challenge the trial court’s denial of their

R.C. Chapter 2744 immunity claims, we have jurisdiction to consider their arguments.

However, as we explain below, some of appellants’ arguments do not relate to a denial

of immunity, so we lack jurisdiction to consider them.

                                         V. Analysis

                         A. Jackson County Highway Department

       {¶ 15} In their first assignment of error, appellants contend that the Jackson

County Highway Department “is not a political subdivision and is not a proper party


                                              6
because such department does not have the capacity to sue or be sued. Accordingly,

Jackson County Highway Department should have been dismissed from this action.”

As the Sickleses correctly point out, the trial court’s rejection of this argument did not

deny the Highway Department the benefit of an alleged immunity from liability. Rather,

it simply rejected the contention that the Jackson County Highway Department lacks the

capacity to be sued. Regardless of the propriety of this decision, it does not address

statutory immunity, i.e., capacity to be sued and statutory immunity are distinct legal

concepts. Capacity refers to a legal qualification that determines one’s ability to sue or

be sued.    Immunity is an exception from liability, i.e., a defense, that a party with

capacity to be sued can raise. See Black’s Law Dictionary (7th Ed.1999) 199, 752.

      {¶ 16} Absent an exception to the general rule that a denial of summary

judgment is a not a final, appealable order, we cannot address the appellants’

argument.     See Essman I, 2009-Ohio-3367, at ¶ 10, ¶ 12 (appellate court had

jurisdiction to consider an order denying summary judgment to the extent that the trial

court denied R.C. Chapter 2744 immunity but not to the extent that the court rejected a

statute-of-limitations defense because that ruling did not deny the appellant the benefit

of an alleged immunity); Carter v. Complete Gen. Constr. Co., Franklin App. No. 08AP-

309, 2008-Ohio-6308, at ¶ 8. Accordingly, we dismiss the appeal of the trial court’s

decision concerning the Highway Department for lack of a final, appealable order.

            B. Jackson County Commissioners and Jackson County Engineer

      {¶ 17} In their second assignment of error, appellants argue in part that the trial

erred when it denied the Jackson County commissioners and Jackson County engineer

the benefit of immunity from liability under R.C. Chapter 2744. Although appellants


                                            7
frame this assignment of error broadly, their argument focuses solely on the respondeat

superior liability claims based on Keaton’s alleged negligent operation of the salt truck.

Their argument does not make specific mention of the Sickleses’ other respondeat

superior liability claims, such as the claim based on Keaton’s alleged negligent infliction

of emotional distress or alleged reckless conduct. Therefore, we limit our analysis to

the claims founded on Keaton’s alleged negligent operation of the salt truck.

       {¶ 18} R.C. Chapter 2744 “addresses when political subdivisions, their

departments and agencies, and their employees are immune from liability for their

actions.” Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, at

¶ 8. The issue of whether a political subdivision is entitled to immunity from state-law

claims under R.C. Chapter 2744 presents a question of law that we review de novo.

Essman v. Portsmouth, Scioto App. No. 09CA3325, 2010-Ohio-4837, at ¶ 24 (Essman

II), citing Conley v. Shearer (1992), 64 Ohio St.3d 284, 292, 595 N.E.2d 862.

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

R.C. 2744.02 involves a three-tiered analysis.       Lambert at ¶ 8.     The first tier, R.C.

2744.02(A)(1), provides a general grant of immunity, stating in part that “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 or an

employee of the political subdivision in connection with a governmental or proprietary

function.” The second tier in the analysis focuses on the five exceptions to the general

grant of immunity, which are listed in R.C. 2744.02(B). Lambert at ¶ 9. If any of the

exceptions to immunity apply, thereby exposing the political subdivision to liability, the

third tier of the analysis assesses whether any of the defenses to liability in R.C.


                                              8
2744.03 apply to reinstate immunity. Id.

       {¶ 20} The Sickleses do not dispute appellants’ contention that claims against the

Jackson County commissioners and Jackson County engineer generally qualify for the

broad grant of immunity under R.C. 2744.02(A)(1). However, appellants also argue that

none of the five exceptions to immunity in R.C. 2744.02(B) expose them to potential

liability. Although the Sickleses apparently concede that R.C. 2744.02(B)(2) through (5)

do not apply, they contend that the commissioners and the engineer are exposed to

potential liability under R.C. 2744.02(B)(1), which provides:

               (B) Subject to sections 2744.03 and 2744.05 of the Revised Code,
       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) Except as otherwise provided in this division, political
       subdivisions are liable for injury, death, or loss to person or property
       caused by the negligent operation of any motor vehicle by their employees
       when the employees are engaged within the scope of their employment
       and authority. The following are full defenses to that liability:

              ***

              (c) A member of an emergency medical service owned or operated
       by a political subdivision was operating a motor vehicle while responding
       to or completing a call for emergency medical care or treatment, the
       member was holding a valid commercial driver's license issued pursuant
       to Chapter 4506. or a driver’s license issued pursuant to Chapter 4507. of
       the Revised Code, the operation of the vehicle did not constitute willful or
       wanton misconduct, and the operation complies with the precautions of
       section 4511.03 of the Revised Code.

       {¶ 21} Appellants implicitly acknowledge that the Sickleses’ respondeat superior

liability claims implicate R.C. 2744.02(B)(1), i.e., the exception for immunity involving

negligent operation of a motor vehicle. Nonetheless, they contend that these claims are

barred because the Sickleses failed to present any summary-judgment evidence that

                                              9
shows that Keaton in fact drove negligently. Specifically, they contend that Keaton did

not breach a common-law duty of care and that Keaton could not foresee the accident.

Alternatively, they argue that even if a genuine issue of material fact exists about

Keaton’s negligence, Shannon’s contributory negligence bars the Sickleses’ recovery.

      {¶ 22} The Sickleses admit that to ultimately prevail on their claims, they must

establish all of the elements of a negligence action, i.e., “ ‘the existence of a duty, a

breach of the duty, and an injury resulting proximately therefrom.’ ” Jeffers v. Olexo

(1989), 43 Ohio St.3d 140, 142, 539 N.E.2d 614, quoting Menifee v. Ohio Welding

Prods., Inc. (1984), 15 Ohio St.3d 75, 77, 472 N.E.2d 707. However, they contend that

appellants’ arguments go to their burden of proof on the underlying merits of the

negligence claims, not the threshold question of whether immunity bars the claims. So

they assert that we lack jurisdiction to consider the trial court’s rejection of those

arguments at this time. However, “[w]hen a trial court denies a motion in which a

political subdivision or its employee seeks immunity under R.C. Chapter 2744, that

order denies the benefit of an alleged immunity and is therefore a final, appealable

order pursuant to R.C. 2744.02(C).” Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-

4839, 873 N.E.2d 878, at syllabus. Thus, we must address appellants’ negligence

arguments.

      {¶ 23} Appellants contend that Keaton was not negligent, because he did not

breach a common-law duty of care owed to the Sickleses. Even if we were to assume

that the court erred when it rejected this argument, that error would not automatically

require the court to grant summary judgment to the commissioners and the engineer. In

their complaint, the Sickleses alleged that Keaton violated both a common-law duty of


                                           10
care and committed negligence per se. “In Ohio, it is a well settled principle of law that

violation of a specific safety statute, absent a showing of some legal excuse for failure

to comply with the conduct required by the statute, constitutes negligence per se.” Zehe

v. Falkner (1971), 26 Ohio St.2d 258, 261-262, 271 N.E.2d 276.            “The concept of

negligence per se allows the plaintiff to prove the first two prongs of the negligence test,

duty and breach of duty, by merely showing that the defendant committed or omitted a

specific act prohibited or required by statute; no other facts are relevant.” Lang v. Holly

Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909 N.E.2d 120, at ¶ 15. In their

motion for summary judgment and on appeal, appellants did not challenge the

Sickleses’ claims of negligence per se. Thus even if Keaton did not breach a common-

law duty of care, the claims of negligence per se remain pending and might preclude

immunity. In other words, the Sickleses might establish duty and breach through an

alternative method. Nonetheless, we still address the merits of appellants’ common-law

argument.

       {¶ 24} Appellants contend that Keaton did not breach a common-law duty of

care. Whether the defendant had a duty is a question of law for the court. Mussivand v.

David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265.           However, once a plaintiff

establishes that the defendant had a duty, whether the defendant breached that duty is

generally a question of fact for the jury. See Commerce & Industry Ins. Co. v. Toledo

(1989), 45 Ohio St.3d 96, 98, 543 N.E.2d 1188. “Negligence in motor vehicle cases, as

in negligence cases generally, is the failure to exercise ordinary care so as to avoid

injury to others. Ordinary care is that degree of care which persons of ordinary care and

prudence are accustomed to observe under the same or similar circumstances, and the


                                            11
degree of care required of a motorist is always controlled by and depends upon the

place, circumstances, conditions, and surroundings.” McDonald v. Lanius (Oct. 28,

1993), Marion App. No. 9-93-23, 1993 WL 451201, at *2, quoting 7 Ohio Jurisprudence

3d (1978) 483-484, Automobiles and Other Vehicles, Section 312.

        {¶ 25} Appellants appear to acknowledge that Keaton had a duty to exercise

ordinary care, but they contend that Keaton did not breach that duty, because he took

all necessary precautions and followed the standards he was taught for driving a salt

truck.2 Specifically, they argue that (1) Keaton was unaware of any problem on the

roadway until he saw people standing on the berm on the right side of the road, (2)

Keaton was traveling only five miles per hour, (3) Keaton was going around a curve

when he saw the people and, in accordance with his training, took his foot off the gas

instead of braking because the road was slick, and (4) Keaton slid anyway and could

not straighten his vehicle. Appellants also point to the opinion of their expert, Robert

Reed, who opined that Keaton acted in a “reasonable and professional manner in

accordance with recognized standards of professional operation of commercial

vehicles.” As evidence of Reed’s opinion, appellants refer to a document attached to

their appellate brief titled “Robert Reed Report/Analysis.” As the Sickleses point out,

this report is not part of the record on appeal, so we cannot consider it. However,

Reed’s opinion also appears in his affidavit, which is part of the record, since appellants

attached it to their motion for summary judgment.

        {¶ 26} Nonetheless, in their complaint, the Sickleses alleged that Keaton “slowed


2
  Keaton maintains that he did not hit Shannon and Ryan but instead struck a vehicle on the other side of
the roadway. However, we presume that appellants do not emphasize this fact in their appeal because
Shannon’s affidavit squarely contradicts Keaton’s testimony on this point, creating a genuine issue of
material fact.

                                                   12
his truck almost to a stop at the top of a hill where he could see the crash scene.

However, rather than pull off to the side due to the road conditions ahead and the

disabled vehicles involved in the crash, defendant Keaton carelessly decided to proceed

ahead.” In their answer, appellants “acknowledge[d] that Keaton did slow down at the

top of the hill and view the area and then did proceed to perform his job of placing salt

on the roadway.” In an affidavit, Shannon also averred: “Mr. Keaton slowed his truck

almost to a stop at the top of a hill where he could see the crash scene. Mr. Keaton,

however, did not pull off to the side of the road.” Therefore, a question of fact exists

concerning whether Keaton knew about a problem on the roadway sooner than he

testified, and thus whether he exercised ordinary care when he proceeded given the icy

conditions or should have pulled over as the Sickleses contend.

      {¶ 27} Appellants also contend that Keaton did not act negligently, because the

accident was not foreseeable to him. “[T]he concept of foreseeability is intertwined not

only with duty, but also with proximate cause.” Oiler v. Willke (1994), 95 Ohio App.3d

404, 410, 642 N.E.2d 667. However, foreseeability “is but a manner of addressing the

limits of an actor’s legal responsibility, regardless of whether the analysis is conducted

under the element of duty or proximate cause.”        Id. at 411.   Therefore, it is more

important to recognize the policy nature of this limitation on liability rather than to

emphasize the particular element giving it effect. See id.

      {¶ 28} “Foreseeability is determined by whether a reasonably prudent person

would have anticipated that an injury was likely to result from the performance or non-

performance of the act.” (Emphasis sic.) Id. at 412, citing Menifee, 15 Ohio St.3d at 77,

472 N.E.2d 707. “[T]he well-settled rule in Ohio is that a defendant need not anticipate


                                           13
the particular harm or the severity of the injury that results from the negligent act.

Instead, it is sufficient that an injury was reasonably foreseeable.” (Emphasis sic.) Oiler

at 412, citing Mussivand, 45 Ohio St.3d at 321, 544 N.E.2d 265.

       {¶ 29} Appellants contend that the accident could not be foreseeable, because

Keaton “had no forewarning that a crash had occurred further down the road.” But we

have already concluded that a question of fact exists concerning when Keaton knew

about a problem on the roadway. Thus a question of fact exists about whether Keaton

could have foreseen an accident if he continued to drive on an icy roadway that already

contained one crash scene. And because genuine issues of material fact exist as to

whether Keaton acted negligently, the trial court did not err when it determined that

genuine issues of material fact exist about whether R.C. 2744.02(B)(1) exposes the

engineer and the commissioners to liability.

       {¶ 30} Appellants contend that even if Keaton acted negligently, the contributory

negligence of Shannon bars the Sickleses’ recovery as a matter of law. However, the

trial court’s rejection of this argument did not deny the engineer or the commissioners

the benefit of an alleged immunity from liability. If a political subdivision is exposed to

liability under R.C. 2744.02(B)(1), no provision of the Revised Code reinstates immunity

if the plaintiff is contributorily negligent. The contributory fault of the plaintiff is only an

affirmative defense to a tort claim. R.C. 2315.32(B). In other words, while contributory

fault affects the ultimate success of a plaintiff’s negligence claims, it does not affect a

political subdivision’s immunity from liability.    And again, absent an exception to the

general rule that a denial of summary judgment is a not a final, appealable order, we

cannot address the appellants’ argument. See Essman I, 2009-Ohio-3367 at ¶ 10 and


                                              14
12; Carter, 2008-Ohio-6308, at ¶ 8. Accordingly, we have no jurisdiction to consider the

issue of contributory negligence.

          {¶ 31} Next, appellants argue that even if R.C. 2744.02(B)(1) generally applies,

they have a full defense to liability under subsection (c) of that statute. And they claim

that even if we reject that argument, we should apply R.C. 2744.03(A)(3) to reinstate

immunity. However, appellants did not make either of these arguments in their motion

for summary judgment. In their motion, appellants simply argued that Keaton did not

drive negligently, so R.C. 2744.02(B)(1) did not apply. We will not address these issues

for the first time on appeal. Ratcliff v. Darby, Scioto App. No. 02CA2832, 2002-Ohio-

6626, at ¶ 18. See Lillie v. Meachem, Allen App. No. 1-09-09, 2009-Ohio-4934, at ¶ 20.

See also Stratford Chase Apts. v. Columbus (2000), 137 Ohio App.3d 29, 33, 738

N.E.2d 20 (explaining that the appellate court’s independent review of a summary-

judgment decision should not replace the trial court’s function of initially determining the

propriety of summary judgment).

                                          C. Keaton

          {¶ 32} Also, in the second assignment of error, Keaton contends that he is

entitled to individual immunity under R.C. Chapter 2744. “For claims against individual

employees, the three-tiered analysis used to determine whether a political subdivision is

immune is not used.” Lambert, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585,

at ¶ 10. The analysis for individual immunity appears in R.C. 2744.03(A)(6), which

states:

                 (A) In a civil action brought against a political subdivision or an
          employee of a political subdivision to recover damages for injury, death, or
          loss to person or property allegedly caused by any act or omission in
          connection with a governmental or proprietary function, the following

                                              15
       defenses or immunities may be asserted to establish nonliability:

              ***

              (6) In addition to any immunity or defense referred to in division
       (A)(7) of this section and in circumstances not covered by that division or
       sections 3314.07 and 3746.24 of the Revised Code, the employee is
       immune from liability unless one of the following applies:

             (a) The employee’s acts or omissions were manifestly outside the
       scope of the employee’s employment or official responsibilities;

              (b) The employee’s acts or omissions were with malicious purpose,
       in bad faith, or in a wanton or reckless manner;

              (c) Civil liability is expressly imposed upon the employee by a
       section of the Revised Code.

       {¶ 33} On appeal, Keaton recognizes that R.C. 2744.03(A)(6) applies to his

immunity claim. However, as the Sickleses point out, Keaton did not rely on this code

section in the motion for summary judgment. Instead, Keaton mistakenly argued that he

was entitled to immunity under the three-tiered political-subdivision-immunity analysis.

We will not consider Keaton’s individual-immunity analysis for the first time on appeal.

Ratcliff, 2002-Ohio-6626, at ¶ 18.     See Lillie, 2009-Ohio-4934, at ¶ 20.    See also

Stratford Chase Apts., 137 Ohio App.3d at 33, 738 N.E.2d 20. Accordingly, we reject

this argument.

                                      VI. Summary

       {¶ 34} We lack jurisdiction to consider appellants’ first assignment of error and

therefore dismiss it. In addition, we lack jurisdiction to consider appellants’ second

assignment of error to the extent that it raises the issue of contributory negligence and

dismiss that portion of the appeal. In all other regards, we overrule appellants’ second

assignment of error and affirm the trial court’s judgment.


                                            16
                                               Judgment affirmed in part,
                                            and appeal dismissed in part.

ABELE and MCFARLAND, JJ., concur.

                         ________________




                                    17
