[Cite as Michael v. Worthington City School Dist., 2020-Ohio-1134.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



Jay E. Michael, as Administrator of the              :
Estate of Franklin Clark,
                                                     :
                Plaintiff-Appellant,                                  No. 19AP-145
                                                     :           (C.P.C. No. 18CV-1451)
v.
                                                     :        (REGULAR CALENDAR)
Worthington Ohio City School District
et al.,                                              :

                Appellees-Appellees.                 :




                                         D E C I S I O N

                                     Rendered on March 26, 2020


                On brief: The Fitch Law Firm, and John K. Fitch; Taft
                Stettinius & Hollister, LLP, and Stephen C. Fitch, for appellant.
                Argued: Stephen C. Fitch.

                On brief: Hanna, Campbell & Powell, LLP, Douglas G. Leak,
                Kenneth A. Calderone, and Catherine E. Nagy, for appellees
                Worthington City School District, Thomas Worthington High
                School, Worthington Board of Education, Sean Luzader, Brian
                Luthy, William Romine, and Jake Guthrie; Freund, Freeze &
                Arnold, and Christopher W. Carrigg, co-counsel for William
                Romine. Argued: Douglas G. Leak.

                  APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
        {¶ 1} Plaintiff-appellant, Jay E. Michael, as Administrator of the Estate of Franklin
Clark ("the estate"), appeals from a judgment of the Franklin County Court of Common
Pleas, in which the court granted three motions for summary judgment filed by defendants-
No. 19AP-145                                                                               2

appellees, (1) Worthington City School District ("school district"), Thomas Worthington
High School ("TWHS"), and Worthington Board of Education ("board of education"),
(2) Sean Luzader and Brian Luthy, and (3) William Romine and Jake Guthrie.
         {¶ 2} At the time of the events pertinent to this case, Luzader was the head boys'
varsity basketball coach at TWHS. Luthy, Romine, and Guthrie were TWHS assistant boys'
basketball coaches. Scott Dorne was the athletic director of the school district. Trent
Bowers was the superintendent of the school district. Pete Scully was the principal of
TWHS. Franklin "Eric" Clark ("Clark") played basketball at TWHS and was 16 years old at
the time of his death. Laura Clark ("Ms. Clark") is Clark's mother.
         {¶ 3} Since 2002, the TWHS boys' varsity basketball team had taken a yearly trip
to Fripp Island, South Carolina to participate in practices, scrimmages, team bonding
experiences, and recreational activities. On March 31, 2017, Luzader sent an e-mail to the
parents of TWHS basketball players providing information about a planned trip to Fripp
Island as a team. On June 1, 2017, Luzader held a meeting with the parents to discuss the
trip. Before the trip, Ms. Clark signed a release of liability form.
         {¶ 4} On June 10, 2017, Guthrie drove several basketball players, including Clark,
to Fripp Island in the school district van, arriving at approximately 7:00 p.m. The coaches'
wives and some of their children also went to Fripp Island. The 14 players, coaches, and
family members stayed in a rented beachfront house together.
         {¶ 5} The next morning, June 11, 2017, the team practiced at a park basketball court
and then returned to the house to eat breakfast. Luzader then held a meeting for the team
at which he gave safety instructions including using the "buddy system" and staying in
water where they could touch the bottom. After the meeting, Romine and his wife took
some players to the community swimming pool, some players stayed at the house, and
others, including Clark, went to the beach with Luzader and Luthy. Guthrie went fishing
on the beach.
         {¶ 6} Luthy started fishing with Guthrie approximately eight houses down from
their house. After approximately 20 minutes, Luthy walked back to the house. He stopped
to talk to the next-door neighbors but was watching the players on the beach and in the
water.
No. 19AP-145                                                                              3

       {¶ 7} Luzader was walking the beach when he saw one basketball player, Jalen
Sullinger, in the water with a boogie board. Luzader approached Sullinger in the water to
talk to him about swimming alone. Luzader then saw that Isaac Settles was out farther in
the water, and that Clark and Maurice Collins, III, were even farther out. He yelled at the
three boys to come closer and one boy gave him a thumbs up. Very quickly, Luzader
realized that something might be wrong, told Sullinger to call 911, and started to swim to
help the players. Luzader reached Settles first, who was not in any distress and who was
swimming in to get help. He saw Collins and Clark bobbing but then saw only one head.
When Luzader reached Collins, he helped him to safety, but when he turned back Luzader
could not locate Clark. Clark's body was found the next day by the Beaufort Water Search
and Rescue Team.
       {¶ 8} On February 16, 2018, the estate filed a complaint against the school district,
the board of education, the city of Worthington, TWHS, Bowers, Dorne, Scully, Luzader,
Guthrie, Romine, and Luthy, alleging claims of negligence resulting in wrongful death and
a survivorship claim. The estate dismissed the city of Worthington on March 2, 2018. On
June 28, 2018, the estate filed an amended complaint, adding a claim for willful, wanton,
reckless, and intentional misconduct. On December 18, 2018, the estate voluntarily
dismissed Bowers, Dorne, and Scully On January 31, 2019, the court issued a decision
finding the motion filed by Bowers, Dorne, and Scully moot, and granting the motions for
summary judgment of all remaining defendants. The estate asserts the following eight
assignments of error:
               [I.] The trial court erred by granting Defendants-Appellees'
               motions for summary judgment.

               [II.] The trial court erred in placing the burden of showing no
               genuine issue of material fact on the Plaintiff-Appellant.

               [III.] The trial court erred by holding that Defendants-
               Appellees Thomas Worthington City School District, Thomas
               Worthington High School, and the Worthington Board of
               Education were afforded governmental immunity pursuant to
               R.C. 2744.02.

               [IV.] The trial court erred by holding that Defendants-
               Appellees Thomas Worthington City School District, Thomas
No. 19AP-145                                                                                  4

                 Worthington High School, and the Worthington Board of
                 Education enjoyed absolute defenses under R.C. 2744.03.

                 [V.] The trial court erred by holding that a liability waiver
                 signed by the mother of Decedent Eric Clark waived all claims
                 for negligence by all potential claimants against all Defendants.

                 [VI.] The trial court erred in holding that Defendants-
                 Appellees Luzader, Luthy, Romine and Guthrie were entitled to
                 immunity under 2744.03(A)(6).

                 [VII.] The trial court erred by holding that there was no
                 genuine issue of material fact as to whether Defendants-
                 Appellees Luzader, Luthy, Romine, and Guthrie acted in a
                 wanton or reckless manner.

                 [VIII.] The trial court erred by holding that Plaintiff-
                 Appellant's claims were barred by the recreational user
                 doctrine.

          {¶ 9} The estate argues in its first assignment of error the trial court erred when it
granted appellees' motions for summary judgment. However, the estate does not present
a separate argument under this assignment of error. Instead, the estate presents its actual
arguments in the remaining assignments of error, which we will address first. Summary
judgment is appropriate when the moving party demonstrates that: (1) there is no genuine
issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and
(3) reasonable minds can come to but one conclusion when viewing the evidence most
strongly in favor of the non-moving party, and that conclusion is adverse to the non-moving
party. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v.
Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, ¶ 29. Appellate review of a trial
court's ruling on a motion for summary judgment is de novo. Hudson at ¶ 29. This means
that an appellate court conducts an independent review, without deference to the trial
court's determination. Zurz v. 770 W. Broad AGA, LLC, 192 Ohio App.3d 521, 2011-Ohio-
832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th
Dist.).
          {¶ 10} When seeking summary judgment on the ground that the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial court
of the basis for the motion and identifying those portions of the record that demonstrate
No. 19AP-145                                                                                5

the absence of a genuine issue of material fact on an essential element of the non-moving
party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party does not
discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that
the non-moving party has no evidence to prove its case. Id. Rather, the moving party must
affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the
non-moving party has no evidence to support its claims. Id. If the moving party meets its
burden, then the non-moving party has a reciprocal burden to set forth specific facts
showing that there is a genuine issue for trial. Civ.R. 56(E); Dresher at 293. If the non-
moving party does not so respond, summary judgment, if appropriate, shall be entered
against the non-moving party. Id. It is with these tenets in mind that we address the
estate's arguments.
       {¶ 11} The estate argues in its second assignment of error the trial court erred when
it placed the burden of demonstrating that no genuine issue of material fact existed upon
the estate, rather than appellees. The estate sets forth this argument because the trial court
discussed the burden of proof using an example of "when a plaintiff moves for summary
judgment." However, when setting forth the standard used in determining whether to
grant a motion for summary judgment, the trial court discussed the burden in terms of the
movant and "the party against whom the motion is made." (Jan. 31, 2019 Decision at 3.)
The estate provides no other evidence or argument that the trial court applied the standard
inappropriately. The estate's second assignment of error is overruled.
       {¶ 12} The estate argues in its third assignment of error the trial court erred when it
held that the school district, TWHS, and the board of education were afforded
governmental immunity pursuant to R.C. 2744.02. The estate argues the trial court
improperly applied immunity to the school district, TWHS, and the school board because
the trip was too tenuously related to the operation of a school district to be considered a
governmental function and the coaches' negligence in failing to have a safety plan and
failing to supervise is not covered by the immunity contemplated in R.C. 2744.03(A)(3) or
(5).
       {¶ 13} The Political Subdivision Tort Liability Act, R.C. Chapter 2744, provides that
political subdivisions, their departments and agencies, and their employees are generally
immune from liability for their actions. Dearth v. Columbus, 10th Dist. No. 17AP-346,
No. 19AP-145                                                                                         6

2019-Ohio-556, ¶ 28. " 'Whether a political subdivision is immune from civil liability is
purely a question of law, properly determined prior to trial and preferably on a motion for
summary judgment.' " Id., quoting Yonkings v. Piwinski, 10th Dist. No. 11AP-07, 2011-
Ohio-6232, ¶ 18, citing Conley v. Shearer, 64 Ohio St.3d 284, 292 (1992), citing Roe v.
Hamilton Cty. Dept. of Human Servs., 53 Ohio App.3d 120, 126 (1st Dist.1988).
       {¶ 14} To determine whether a political subdivision is entitled to immunity under
R.C. Chapter 2744, a court must engage in a three-tiered analysis. Needham v. Columbus,
10th Dist. No. 13AP-270, 2014-Ohio-1457. In the first tier, a court applies the general grant
of immunity contained in R.C. 2744.02(A)(1), providing 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." ' " Id. at
¶ 6, quoting Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, ¶ 8. This grant of
immunity is not absolute and is subject to the five exceptions provided in R.C.
2744.02(B)(1) through (5). Id., citing Greene Cty. Agricultural Soc. v. Liming, 89 Ohio
St.3d 551, 557 (2000). The second tier of the immunity analysis requires a court to
determine whether any of these five exceptions apply to the facts. Id. Finally, in the third
tier of the analysis, if the facts of the case fall within any of the five exceptions, the court
must consider whether any of the defenses to liability contained in R.C. 2744.03 reinstate
immunity. Id.
       {¶ 15} In the present case, it is undisputed the school district, TWHS, and the board
of education are part of a political subdivision as defined in R.C. 2744.01(F)1 and the
coaches are employees employed by the school district, and that "[t]he provision of a system
of public education" is a governmental function pursuant to R.C. 2744.01(C)(2)(c). It is
well-recognized that a political subdivision acts through its employees. Elston v. Howland
Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070. This court, and other Ohio courts,
have held that the governmental function of providing public education "extends to most
school activities and administrative functions of the educational process, even if not directly
comprising part of the classroom teaching process." Perkins v. Columbus Bd. of Edn., 10th


1 R.C. 2744.01(F) defines "Political subdivision" as "a municipal corporation, township, county, school
district."
No. 19AP-145                                                                                  7

Dist. No. 13AP-803, 2014-Ohio-2783, ¶ 12. Therefore, the general grant of immunity under
R.C. 2744.02(A)(1) applies in this case.
       {¶ 16} The second tier in the analysis focuses on the exceptions to immunity in R.C.
2744.02(B). Pursuant to R.C. 2744.02(B), a political subdivision may be held liable for
damages in a civil action for: (1) the negligent operation of a motor vehicle, (2) the negligent
performance of a proprietary function, defined in R.C. 2744.01(G), (3) the negligent failure
to keep public roads in repair and free of obstacles, (4) the negligent failure to keep public
grounds and buildings free of physical defects, or (5) when a section of the Revised Code
expressly imposes civil liability upon the political subdivision. The trial court found that
none of the exceptions to immunity applied to these facts, and even if one of the exceptions
were applicable, the trial court found defendants have an absolute defense to liability under
R.C. 2744.02(A)(3) and (5). The estate argues the immunity statutes do not confer
protection to the school district, the board of education, and TWHS because the R.C.
2744.02(B)(2) exception applies, arguing the trip was too tenuously related to the operation
of a school district to be considered a governmental function and further, R.C.
2744.03(A)(3) and (5) do not cover the coaches' negligence. The estate contends that
political subdivisions are liable for the negligent acts of its employees in the undertaking of
proprietary functions.
       {¶ 17} The trial court found the purpose of the trip to Fripp Island was to conduct
organized practices and scrimmages, to develop close team relationships, foster bonding
among team members, and experience other geographic regions and cultures. Given that
purpose, the trial court concluded the team trip falls under the governmental function of
providing a "public education." Therefore, the court concluded because defendants were
engaged in a governmental function at the time of the incident, the school district, TWHS,
and the board of education are entitled to a general grant of immunity under R.C.
2744.02(A)(1).
       {¶ 18} A proprietary function is defined as one that is not a governmental function
and "one that promotes or preserves the public peace, health, safety, or welfare and that
involves activities that are customarily engaged in by a nongovernmental persons." R.C.
No. 19AP-145                                                                                                   8

2744.01(G)(1)(b).2 Proprietary functions include the operation of a hospital, a public
cemetery, a utility such as a light, gas, power, or heat plant, a railroad, a business or other
transit company, an airport, and a municipal corporation water supply system, a sewer
system, a public stadium, auditorium, civic or social center, exhibition hall, arts and crafts
center, band or orchestra, or off-street parking facility. R.C. 2744.01(G)(2)(c). Many Ohio
courts have interpreted extracurricular activities as an extension of the educational process
and found political subdivisions entitled to immunity. See Perkins (alleged failure to
comply with statutory reporting requirements); Elston (injury during baseball practice);
DeMartino v. Poland Local School Dist., 7th Dist. No. 10MA19, 2011-Ohio-1466 (injury
during band practice in a school band not a "public" band and, thus, an extension of the
school's music program); Doe v. Massillon City School Dist., 5th Dist. No. 2006CA00227,
2007-Ohio-2801 (assault during after school chess club); Neelon v. Conte, 8th Dist. No.
72646 (Nov. 13, 1997) (cheerleader videotaped in bathroom during party at school
principal's house); Frederick v. Vinton Cty. Bd. of Edn., 4th Dist. No. 03CA579, 2004-Ohio-
550 (second grader injured from fall on playground); Schnarrs v. Girard Bd. of Edn., 168
Ohio App.3d 188, 2006-Ohio-3881 (11th Dist.) (player injured during basketball practice).
Ohio courts have held that coaching athletic teams is a governmental function.
        {¶ 19} Furthermore, the Fripp Island trip was an authorized school event. The trip
was organized by the head varsity coach, Luzader. Luzader's job description indicates that
the job is year-round, and the trip counted toward the number of days that Luzader is
permitted to provide organized basketball instruction to the team per the Ohio High School
Athletic Association ("OHSAA") guidelines. The athletic director (Dorne), TWHS principal
(Scully), the superintendent (Bowers) were aware of and approved the Fripp Island trip.
The school district provided a vehicle to transport players. The team wore school practice
uniforms and participated in a practice on the morning of June 11, 2017. Other practices
and scrimmages against other teams were scheduled for the five days.




2R.C. 2744.01(G)(1) defines "Proprietary function" as "a function of a political subdivision that is specified in
division (G)(2) of this section or that satisfies both of the following: (a) The function is not one described in
division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section; (b) The
function is one that promotes or preserves the public peace, health, safety, or welfare and that involves
activities that are customarily engaged in by nongovernmental persons."
No. 19AP-145                                                                                 9

       {¶ 20} The estate cites Greene Cty. for the proposition that a trip to the beach and
swimming in the ocean are activities that non-governmental persons typically conduct, and
we must examine the activities on the trip as discrete components to determine whether it
was a governmental or proprietary function. In Greene Cty., the county agricultural society
conducted a livestock competition at the county fair and an investigation into the
allegations of irregularity surrounding one of the hogs in the competition. The Supreme
Court of Ohio determined the agricultural society was a political subdivision but that having
the society conduct a livestock competition at a county fair was a proprietary function.
       {¶ 21} The Supreme Court specifically stated that "[i]n a situation such as the
present case, when the political subdivision at issue is not one of the bodies specifically
mentioned within R.C. 2744.01(F), the exceptions to immunity of R.C. 2744.02(B) should
be construed in a way that leads to a finding of immunity for only the central core functions
of the political subdivision. If the exceptions in R.C. 2744.02(B) are interpreted too
expansively in this situation, the balance of competing interests reflected in the structure of
R.C. Chapter 2744 is undermined." Id. at 560-61. However, Greene Cty. is distinguishable
from this case.
       {¶ 22} In Greene Cty., the court focused on R.C. 2744.01(C)(1)(c) which defines a
governmental function as a "function that promotes or preserves the public peace, health,
safety, or welfare; that involves activities that are not engaged in or not customarily engaged
in by nongovernmental persons; and that is not specified in division (G)(2) of this section
as a proprietary function." The court concluded that conducting a livestock competition is
an activity customarily engaged in by non-governmental persons and, thus, the activity was
proprietary. In this case, the coaches, as employees of the political subdivision took the
players on a trip to practice basketball and bond as a team. Such a trip is not an activity
customarily engaged in by non-governmental persons. The activity here is a governmental
function.
       {¶ 23} And as we stated, a political subdivision acts through its employees. Elston.
None of the exceptions in R.C. 2744.02(B) apply to these facts. The trial court found that
even if one of the exceptions in R.C. 2744.02(B) applied, the school district, the board of
education, and TWHS had an absolute defense to liability pursuant to R.C. 2744.03(A)(3)
and (5) in the third tier of the analysis. R.C. 2744.03 provides in pertinent part:
No. 19AP-145                                                                                 10

               (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 defenses or immunities may
               be asserted to establish nonliability:

               ***

               (3) The political subdivision is immune from liability if the
               action or failure to act by the employee involved that gave rise
               to the claim of liability was within the discretion of the
               employee with respect to policy-making, planning, or
               enforcement powers by virtue of the duties and responsibilities
               of the office or position of the employee.

               ***

               (5) The 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 with malicious purpose, in bad
               faith, or in a wanton or reckless manner.

       {¶ 24} Ohio courts have applied this R.C. 2744.03(A)(3) immunity to an athletic
coach's discretionary policy making, planning, and enforcement powers with respect to
activities associated with the athletic program. See Schnarrs at ¶ 35 (basketball coach "was
vested with significant discretion in managing the affairs of the girl's varsity basketball team
such that his actions pertaining thereto could be reasonably construed as involving the type
of discretion contemplated by R.C. 2744.03(A)(3)"); Pope v. Trotwood-Madison City
School Dist. Bd. of Edn., 2d Dist. No. 20072, 2004-Ohio-1314 (the coach participating and
supervising the open gym basketball games was within his discretion); Starkey v. Hartzler,
9th Dist. No. 96CA0048 (Mar. 26, 1997) (middle school football coach's method of
discipline was within his discretion).
       {¶ 25} Exhibit 1 to Luzader's deposition is a head coach job description and
demonstrates his responsibilities as head coach included off-season team activities
"[w]ithin the OHSAA, OCC [Ohio Capital Conference], and District guidelines, implement
appropriate out of season activities for sports participants." The assistant coach's job
No. 19AP-145                                                                                 11

description also includes"[a]ssist with the proper out-of-season activities for participants
in the sport, within the guidelines of the OHSAA and the School District." The school
district delegated to Luzader the authority to plan and coordinate the trip, its activities, and
the authority to set and enforce the safety rules for the trip. Luzader decided to use five of
his OHSAA off-season coaching days on the trip. The coaches were responsible for
supervising the players the entire time during the trip. The planning and enforcing policies
and procedures during the trip involved the coaches' judgment or discretion and were
within the R.C. 2744.03(A)(3) discretionary policy making, planning, and enforcement
authority and, thus, the R.C. 2744.03(A)(3) defense applies and the school district, the
board of education, and TWHS are immune from liability.
       {¶ 26} The trial court also found the school district, the board of education and
TWHS immune from liability under the third tier pursuant to R.C. 2744.03(A)(5). In Elston
at ¶ 20, the Supreme Court recognized that teachers and coaches have wide discretion in
supervising students and this discretion falls within R.C. 2744.03(A)(5) immunity, as
follows:
               Furthermore, teachers and coaches, as employees of a political
               subdivision, have "wide discretion under R.C. 2744.03(A)(5) to
               determine what level of supervision is necessary to ensure the
               safety of the children in" their care. See Marcum v. Talawanda
               City Schools (1996), 108 Ohio App.3d 412, 416, 670 N.E.2d
               1067; see, also, Frederick v. Vinton Cty. Bd. of Edn., Vinton
               App. No. 03CA579, 2004-Ohio-550, ¶ 43. In Marcum, a
               student suffered injury at the hands of other students when a
               teacher left a student council meeting of students in her
               classroom unsupervised to attend a faculty meeting. 108 Ohio
               App.3d at 414, 670 N.E.2d 1067. The court of appeals held that
               the Talawanda City School District was immune from liability
               and determined that the teacher's decision to leave the students
               unattended was within the scope of her discretionary authority
               pursuant to R.C. 2744.03(A)(5). Marcum at 416, 670 N.E.2d
               1067.

       {¶ 27} The decisions regarding supervising the players fell within the coaches'
discretionary authority to determine the level of supervision necessary.            The estate
contends the coaches exercised that judgment or discretion with malicious purpose, in bad
faith, or in a wanton and reckless manner and that the coaches failed to supervise the
players and that failure resulted in Clark's death.
No. 19AP-145                                                                              12

       {¶ 28} "Malicious purpose 'means the "willful and intentional design to do injury, or
the intentional or desire to harm another, usually seriously, through * * * unlawful or
unjustified" conduct.' " Hayes v. Columbus, 10th Dist. No. 13AP-695, 2014-Ohio-2076,
¶ 26, quoting VanDyke v. Columbus, 10th Dist. No. 07AP-918, 2008-Ohio-2652, ¶ 13,
quoting Cook v. Hubbard Exempted Village Bd. of Edn., 116 Ohio App.3d 564, 569 (11th
Dist.1996). "Bad faith denotes a 'dishonest purpose, moral obliquity, conscious wrong
doing, breach of a known duty through some ulterior motive or ill will partaking of the
nature of fraud. ' " VanDyke at ¶ 13, quoting Jackson v. McDonald, 144 Ohio App.3d 301,
309 (5th Dist.2001). "Wanton misconduct is the failure to exercise any care toward those
to whom a duty of care is owed in circumstances in which there is great probability that
harm will result." Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, paragraph
three of the syllabus. "Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable under the
circumstances and is substantially greater than negligent conduct." Id. at paragraph four
of the syllabus. "Recklessness is a perverse disregard of a known risk. Recklessness,
therefore, necessarily requires something more than mere negligence. The actor must be
conscious that his conduct will in all probability result in an injury." O'Toole v. Denihan,
118 Ohio St.3d 374, 2008-Ohio-2574, paragraph three of the syllabus.
       {¶ 29} The estate argues the coaches wantonly and recklessly failed to properly
prepare for a known danger. Thus, the coaches had to have been aware of a great probability
of harm and failed to exercise any care or consciously disregarded or were indifferent to a
known or obvious risk of harm to another that is unreasonable under the circumstances
and their conduct had to have been substantially greater than negligent conduct. The estate
contends the coaches recklessly failed to follow basic protocols of water safety and
management in the face of a grave and known danger. The affidavit of the estate's expert,
Gerald Dworkin, criticized the safety plan of the coaches. Dworkin testified that the coaches
engaged in "willful, wanton, and reckless misconduct" because the coaches did not assess
the ability of the players to swim in an ocean environment known for rip currents, the
coaches created a buddy system which was likely to put two or more players at risk, the
coaches told the players they could go in the water as long as they could touch bottom,
which could be up to their chin, and no coach was supervising Clark before he drowned.
No. 19AP-145                                                                               13

       {¶ 30} The coaches took several steps to exercise a degree of care for the players.
Initially, Luzader sent a letter to the parents inviting the players to the trip. The parents
were sent information through e-mail regarding Fripp Island including a web link to the
house, a web link to information about Fripp Island, and rip currents information. Before
the trip, the coaches conducted a meeting with the parents to discuss the trip. They
provided the beach house address and a daily itinerary. All the boys were asked if they
could swim, and Luthy testified that during the parent meeting, he asked Ms. Clark whether
Clark could swim.
       {¶ 31} During the drive to Fripp Island, while Guthrie was driving, he discussed with
the boys the dangers of the water and tides and safety. Collins testified Clark responded to
Guthrie that if he were caught in a current, he would let it take him. Settles also testified
regarding Clark's response. The morning after everyone arrived at Fripp Island, after
basketball practice, the coaches held a safety meeting and discussed rules for the players,
including talking about the ocean, tides, sandbars, and the weather, including high winds
or stormy weather, no swimming in the ocean further than if the player could touch bottom,
and to follow the buddy system at all times. Guthrie testified he checked with an app on his
phone to determine the tides and walked the beach to check the waves and the weather
before any players went to the beach. Luthy and Luzader were supervising the players on
the beach immediately before the accident (Romine was supervising players at the
swimming pool and Guthrie was fishing further down the beach at the time of the accident).
Further, Luthy and Luzader's wives were on the deck and also chaperoning players. Luthy
testified he was watching the players in the water.
       {¶ 32} There is no evidence the coaches acted with a malicious purpose or a willful
and intentional design to do injury to Clark, or in bad faith, with a dishonest purpose, moral
obliquity, conscious wrong doing, breach of a known duty through some ulterior motive or
ill will partaking of the nature of fraud. There is no evidence that any of the coaches
intended to harm Clark. In fact, there was testimony that the players and coaches thought
of each other like family, including the coaches' wives, and had a close relationship.
Furthermore, the coaches exercised a degree of care toward the players in an effort to keep
them safe and, therefore, their actions cannot be characterized as wanton since wanton
misconduct is the failure to exercise any care.
No. 19AP-145                                                                                                   14

        {¶ 33} Reckless behavior is characterized as the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable under the
circumstances and is substantially greater than negligent conduct. The estate contends that
Clark was caught in a rip current and drowned as a result and the coaches were warned of
the dangers of rip currents at Fripp Island but did not adequately prepare a safety plan.
        {¶ 34} Although the coaches were aware that rip currents are possible along the
coasts of the United States,3 and the estate argued that Fripp Island security provided
literature regarding rip current dangers to all visitors, there was no evidence of a prior
drowning on Fripp Island beach. Clayton Emminger testified he has lived in Beaufort
County all his life (other than when he was in the Air Force) and is a member of the Beaufort
Water Search and Rescue Team and he has never witnessed a rip current on or close to
Fripp Island beach. He is unaware of a history of rip currents forming along Fripp Island
beach. Further, to his knowledge, Clark's drowning was the only drowning incident on
Fripp Island beach. David Refosco, the First Mate of Beaufort Water Search and Rescue,
who acted as the beachmaster during the incident, testified he has never responded to a
mission on Fripp Island that involved a rip current. He was unaware of any prior drowning
incidents occurring along the Fripp Island beach area. Refosco testified Fripp Island beach
does not have a history of rip currents occurring along the beach.
        {¶ 35} The estate's expert, Dworkin testified that Beaufort County has no reporting
agencies, however, Charleston County, one county north of Beaufort, has a reporting agency
and had 57 rescues due to rip currents in 2017. However, Dworkin provided no evidence
that Fripp Island beach presented a known or obvious risk of harm that is unreasonable
under the circumstances.
        {¶ 36} Further, in his affidavit, Dworkin testified that the coaches "engaged in
willful, wanton, and reckless misconduct." (Dworkin Aff. at ¶ 14.) Such legal conclusions
by an expert do not automatically create an issue of fact, but merely states appellant's
position, which is a legal conclusion. Such a determination, the determination of whether


3"Rip currents are powerful, narrow channels of fast-moving water that are prevalent along the East, Gulf, and

West coasts of the U.S., as well as along the shores of the Great Lakes. Moving at speeds of up to eight feet per
second, rip currents can move faster than an Olympic swimmer. * * * While the terms are often confused, rip
currents are different than rip tides. A rip tide is a specific type of current associated with the swift movement
of tidal water through inlets and the mouths of estuaries, embayments, and harbors." National Ocean Service
https://oceanservice.noaa.gov/facts/ripcurrent.html.
No. 19AP-145                                                                                 15

the coaches' actions constituted willful and wanton misconduct, is the ultimate question for
resolution. It requires a determination of whether the evidence demonstrated appellees
intentionally failed to prepare for a known danger or established an absence of all care for
the safety of the players. Expert testimony on the ultimate issue in this case was not
necessary for the court to make that determination. Blair v. Columbus Div. of Fire, 10th
Dist. No. 10AP-575, 2011-Ohio-3648, citing Donlin v. Rural Metro Ambulance, Inc., 11th
Dist. No 2002-T-0148, 2004-Ohio-1704, ¶ 26, citing Hackathorn v. Preisse, 104 Ohio
App.3d 768 (9th Dist.1995).
       {¶ 37} As outlined, the coaches took steps to implement a safety plan. Guthrie
specifically talked to the players in the van during the drive to Fripp Island regarding the
ocean and tides and explained to the players the steps to take if caught in a current. Clark
was involved in that conversation. Luzader testified that he was walking on the beach and
noticed four boys in the water. Sullinger was closer to the beach. Luzader walked to
Sullinger to admonish him for not following the safety plan because he was not with a
buddy. Luzader was observing Clark, Collins, and Settles in the water and waved to them
to come in closer. Sullinger testified that Luzader called the other three players to come
closer to shore. Luzader believes one of them acknowledged him with a thumbs up signal.
Settles testified that Luzader was waving them into shore, but the three players tried to
move out further into the ocean. Luzader testified he sensed something was wrong and he
entered the water to attempt to reach the players. Luzader was able to get Settles and
Collins to safety but could not find Clark.
       {¶ 38} Further, Luzader and Sullinger testified they did not feel a rip current but
only felt the normal pull of the waves. Settles testified that he felt a pull at his feet, not a
pull at the surface of the water, and when he swam toward the shore for help, he swam
straight into shore. Collins testified that the players were in the water up to their necks (he
was 6'3") and a big wave crashed over them and knocked them over. He believes Clark
began yelling for help because he may have had a cramp and with the big waves and deep
water, he began drowning. Settles testified that he believed they were too far from shore
when Clark began saying, "[c]hill, chill." (Settles Depo. at 18.) Settles did not know why
Clark was in distress but also thought Clark may have had a cramp.
No. 19AP-145                                                                                 16

         {¶ 39} Given these facts and circumstances, we cannot say the coaches acted
recklessly or consciously disregarded or acted indifferently to a known or obvious risk of
harm that is unreasonable under the circumstances and is substantially greater than
negligent conduct. The coaches' acts or omissions were not made with a malicious purpose,
bad faith, or in a wanton or reckless manner.         Thus, the school district, the board of
education, and TWHS are immune from liability. The exceptions to liability in R.C.
2744.02(B) do not apply and even if an exception applied, the defenses in R.C.
2744.03(A)(3) and (5) would reinstate immunity. The estate's third assignment of error is
overruled.
         {¶ 40} Our findings further overrule the estate's fourth, sixth, and seventh
assignments of error. In its fourth assignment of error, the estate contends the trial court
erred when it held that the school district, TWHS, and the board of education enjoyed
absolute defenses under R.C. 2744.03. The estate argued in its sixth assignment of error
the trial court erred when it held that Luzader, Luthy, Romine, and Guthrie were entitled
to immunity under R.C. 2744.03(A)(6). Finally, in its seventh assignment of error, the
estate argued the trial court erred when it held that there was no genuine issue of material
fact as to whether Luzader, Luthy, Romine, and Guthrie acted in a wanton or reckless
manner. We found the coaches did not act in a wanton or reckless manner, thus, they are
entitled to immunity pursuant to R.C. 2744.03(A)(6)(b).            We have addressed these
assignments of error within our discussion of the second assignment of error and find no
merit to the estate's arguments and overrule the fourth, sixth, and seventh assignments of
error.
         {¶ 41} The estate argues in its fifth assignment of error the trial court erred when it
held that a liability waiver signed by Ms. Clark waived all claims for negligence by all
potential claimants against all appellees. The estate argues in its eighth assignment of error
the trial court erred when it held the estate's claims were barred by the recreational user
doctrine. These assignments of error have been rendered moot by our rulings on the other
assignments of error.
         {¶ 42} Having overruled or rendered moot all of the assignments of error that the
estate argues are reasons the trial court erred in granting appellees' summary judgment
No. 19AP-145                                                                               17

motions, we find the trial court did not err in granting appellees' motions for summary
judgment and also overrule the first assignment of error.
       {¶ 43} For the foregoing reasons, the estate's first, second, third, fourth, sixth, and
seventh assignments of error are overruled, the estate's fifth and eighth assignments of
error are rendered moot, and the judgment of the Franklin County Court of Common Pleas
is affirmed.
                                                                        Judgment affirmed.

                        KLATT and BEATTY BLUNT, JJ., concur.

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