[Cite as McCullough v. Youngstown School Dist., 2019-Ohio-3965.]




            IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                MAHONING COUNTY

                             MAXIMUS MCCULLOUGH et al.,

                                       Plaintiffs-Appellees,

                                                   v.

                  YOUNGSTOWN CITY SCHOOL DISTRICT et al.,

                                     Defendants-Appellant.


                       OPINION AND JUDGMENT ENTRY
                                       Case No. 18 MA 0075


                                   Civil Appeal from the
                      Court of Common Pleas of Mahoning County, Ohio
                                  Case No. 2015 CV 2000

                                         BEFORE:
        Carol Ann Robb, Cheryl L. Waite, Judges and Arlene Singer, Judge of the
                 Sixth District Court of Appeals, Sitting by Assignment.


                                             JUDGMENT:
                                              Reversed.


 Atty. Kevin Lomupo, Gilardi, Oliver & Lomupo, 223 Fourth Avenue, 10th Floor,
 Pittsburgh, Pennsylvania 15222 and Atty. Paul W. Flowers, Atty. Louis E. Grube, Paul
 W. Flowers Co., L.P.A., Terminal Tower, Suite 1910, 50 Public Square, Cleveland, Ohio
 44113 for Plaintiffs-Appellees and
                                                                                        –2–


 Atty. John Rasmussen, 6060 Rockside Woods Blvd., Suite 131, Independence, Ohio
 44131 for Defendants-Appellant.

                               Dated: September 19, 2019


 Robb, J.

       {¶1}   Defendant-Appellant Youngstown City School District (“the District”)
appeals the decision of the Mahoning County Common Pleas Court denying its motion
for summary judgment, thereby denying the District immunity in the lawsuit filed by
Plaintiff-Appellee Maximum McCullough, individually and as administrator of the Estate
of Faith McCullough et al. (“the Plaintiff”). This case involves the death of a high school
student who decided to roll down a hillside at the District’s East High School. When the
student stood up, she stumbled across the sidewalk and grass strip and fell into a public
road and under the back wheels of a passing school bus.
       {¶2}   As to the Plaintiff’s claim concerning the failure to prohibit student access
to the school’s hillside, we agree with the District’s contention that this was a government
function and the physical defect exception to immunity did not apply. As to the Plaintiff’s
other claim for negligent operation of a motor vehicle, we agree with the District’s
argument that the school bus driver was not negligent as no duty to the student was
breached. For the following reasons, the trial court’s judgment is reversed, and summary
judgment is granted to the District.
                                  STATEMENT OF THE CASE
       {¶3}   In November 2014, fourteen-year-old Faith McCullough (“the student”) and
her brother received permission from their parents to start walking home from East High
School, the school they attended. They were not bused as they lived nearby. After their
mother stopped escorting them, they started taking a shortcut across the football field and
down a grass-covered and terraced hill overlooking East High Avenue, a public street.
Between the bottom of the hill and the curb of the street was a sidewalk and then a strip
of grass.
       {¶4}   At deposition, the student’s brother testified the first time he and his sister
rolled down the hill was the day before the accident. He observed other students using
the shortcut, but he never observed anyone else rolling down the hill. He said they threw


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their belongings to a terraced flat spot between two parts of the hill, rolled to them, and
repeated the procedure. After school the next day (November 12, 2014), her brother said
she rolled down the hill in its entirety. He retrieved her belongings from the first terrace
and waited for her at the bottom of the hill.
       {¶5}   A school bus driven by an employee of the District had just turned onto the
public road from the school’s access road after picking up students at East High School.
The driver saw the student rolling down the hill. The bus stopped because the traffic in
front of the bus stopped. When the traffic resumed moving, the bus driver did not
immediately proceed forward as she was concerned the student could roll into the street.
(Depo. 54, 60).
       {¶6}   The student stopped rolling at the bottom of the hill near the interior edge of
the sidewalk where her brother was waiting. As the student stood with her brother’s
assistance, the driver released the brake and allowed the bus to proceed down the hill.
The student stood facing away from the bus. As the front camera on the bus approached
her position, she can be seen on video stumbling toward the road. Her brother saw her
stumble toward the road and said he could tell from her facial expression that she was
dizzy. The student fell under the rear wheels of the passing bus, suffered a head injury,
and died at the scene.
       {¶7}   A neighbor ran to the student’s house to summon the father who
immediately drove to the scene. The father testified at deposition that his daughter
squeezed his hand as she died in the roadway where he found her. He also testified the
football team has used the hill for exercise and the hillside was terraced as a result of
prior complaints that the hill was dangerous.
       {¶8}   On July 30, 2015, a lawsuit was filed against the District by the father,
individually and as the administrator of the student’s estate, and by the student’s brother.
The complaint encompassed causes of action for wrongful death and survival, alleging
the District was negligent (through its agents and employees) by failing to prohibit the
student’s access to the hillside and negligently driving the bus (listing various alleged
failures, including driver training). The individual plaintiffs sought recovery for negligent
infliction of emotional distress based on the brother witnessing the accident and the father




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arriving at the scene within minutes. The bus driver was not named as a defendant. The
District’s answer raised various defenses including immunity.
       {¶9}   On December 26, 2016, the District filed a motion for summary judgment.
In addition to the depositions of the father and the brother, the depositions of the bus
driver and a trooper were filed. The bus driver received her CDL training and license in
2006 and was a substitute bus driver for the District until obtaining her full-time position
in 2012. She acknowledged children can be unpredictable and impulsive. She said she
was trained to be vigilant for children who could dart into the street; she was to stop and
watch if she had concerns and to use the horn if she thought an inattentive child may
enter the street. (Depo. 23-24). The bus driver explained that on the day before the
accident, she was driving past the hill when she noticed the student start to roll down it.
(Depo. 39-41, 50).    According to her deposition testimony, she transmitted a radio
announcement about the issue, which she believed would be heard by other bus drivers
and the bus garage and would be passed along to (or heard by) the school principal or
security. (Depo. 43-45).
       {¶10} On the day of the accident, the bus driver saw the student rolling down the
hill again. As traffic moved forward, the bus driver waited before releasing the brake to
ensure the student would not roll into the street. (Depo. 53-54, 70). She saw the student’s
brother help her up and hold her hand (as depicted in the video). (Depo. 63, 67). The
bus driver testified she never thought the student would enter the street once she had
stopped rolling, reached the sidewalk, and stood up; she believed the student “was safely
on the sidewalk.” (Depo. 69-70, 74).
       {¶11} After the bus driver released the brake and the bus proceeded forward, the
driver moved somewhat left within her lane for “precautionary reasons.” (Depo. 73-74).
Students on the bus were yelling at the student from the window, and the bus driver told
them to stop. (Depo. 64, 69-70). As the front of the bus approached the student’s
position, the video from the front of the bus shows the student stepping backward from
the side of the sidewalk near the bottom of the hill into the center of the sidewalk and then
into the grass strip bordering the street. The bus driver testified: she did not notice the
student stumbling toward the grass strip as the bus approached; when she looked in her
side mirror after the front of the bus passed the student, she saw the student stumbling



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toward the bus; and she then swerved and immediately braked. (Depo. 64, 69-71, 75,
78-80, 96).
      {¶12} A trooper from the Ohio State Highway Patrol performed a reconstruction.
He said the top of the hill was 30 feet above the road with four terraces. (Depo. 18). He
noted an area on the side of the bus (under the two windows closest to the door) which
appeared to be wiped clean of dust suggesting the student may have hit the bus at that
location before falling under the rear wheels. (Depo. 19). In collecting evidence, he also
viewed GPS information and video footage from the bus. The speed limit was 20 mph
due to the active school zone.
      {¶13} The trooper confirmed the bus was at a complete stop before the accident
and its speed had increased to 11 mph by the time of the accident. (Depo. 25, 37-38).
The speed further increased after the accident, some of which was attributable to the
wheels being turned, which skews the speed measurement. (Depo. 25-26). The final
resting place of the bus was 65 feet from where the student’s body came to rest, with an
estimated 11 feet between the final resting place of the body and the place where it was
believed she was struck by the wheels. (Depo 17, 51). The trooper opined the bus would
have traveled approximately 25 feet from the point of collision when the standard
perception-to-reaction time would have elapsed. (Depo. 41-42). He explained how the
air brakes on a bus would result in additional lag time between pressing the brakes and
the achievement of a complete stop. (Depo. 42).
      {¶14} The District also submitted the affidavit of an accident reconstruction
engineer who reviewed the depositions, reports, and videos.         He concurred in the
conclusion that the bus was moving at approximately 11 mph when the accident occurred.
He opined the bus driver did not have the opportunity to avoid the accident after becoming
aware the student entered the road and said the student’s sudden fall into the path of the
rear wheels was the sole cause of the accident.
      {¶15} The     Plaintiff’s   opposition   to   summary   judgment   relied   on   the
aforementioned depositions plus the affidavit of an accident reconstruction engineer, who
confirmed the speed of 11 mph when the tires contacted the student. This expert also
stated: when the bus started forward from its stop, the front of the bus was 40 feet from
the student who was rising to her feet; the time to rise and stumble before impact was



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more than four seconds; and the student’s stumbling would have been in the driver’s
forward field of vision. This expert said an alert driver could have perceived the stumbling
and reacted earlier, which could have stopped the bus before the rear wheels reached
the point of impact.
       {¶16} The District’s motion for summary judgment argued it was immune from the
Plaintiff’s claim alleging negligence in failing to prohibit access to the hillside (“the hillside
claim”). The District argued this act or omission was connected to a governmental
function involving the provision of a public education system. The District then urged the
exception to immunity involving grounds of buildings used in connection with a
governmental function was inapplicable as there was no physical defect on the grounds
as required by R.C. 2744.02(B)(4).
       {¶17} On the claim for negligent operation of a motor vehicle by an employee in
the scope of employment and authority, which is another exception to immunity, the
District’s summary judgment motion argued the bus driver was not negligent. It was
urged: there was no breach of a duty of care by starting from a stopped position after the
student discontinued the rolling behavior; the driver was proceeding lawfully and had the
right-of-way under R.C. 4511.01(UU)(1); the student was negligent by violating various
statutes on entering the roadway; and the driver could not have reasonably anticipated a
pedestrian would dart into the road. Alternatively, as to the father’s negligent infliction of
emotional distress claim, the District urged a lack of foreseeability as the father was not
a bystander.
       {¶18} The Plaintiff’s opposition memorandum argued there was negligence in the
operation of the bus as the driver proceeded unlawfully by starting to move after the
student stopped rolling. A statute was cited providing a person shall not start a vehicle
that is stopped, standing, or parked until movement can be made with reasonable safety.
Alternatively, the Plaintiff claimed the driver breached the duty to use ordinary care in the
face of a perilous situation and/or breached the higher standard of care to be watchful of
child-pedestrians. Regarding the father’s negligent infliction of emotional distress claim,
the Plaintiff emphasized the father’s arrival at the scene within minutes of the accident
while his daughter was still in the road.




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       {¶19} As to the hillside claim, the Plaintiff’s memorandum opposing summary
judgment admitted this claim involved a governmental function. The Plaintiff argued the
immunity exception in R.C. 2744.02(B)(4) applied to this claim as: the lack of adequate
safety precautions can be a physical defect; the District failed to take measures to prevent
access after being warned a student was seen rolling toward an unprotected road; and it
was negligent to allow students to roll down a steep hill toward traffic. It was pointed out
the District’s motion did not assert a third tier defense or immunity.
       {¶20} In reply, the District urged the hillside was not hidden or defective, noting
the alleged physical defect revolved around dangerous activity by the student. The reply
added new arguments: the injury occurred on a roadway rather than on school grounds
as required by the physical defect exception to immunity; the exception only deals with
maintenance which was not involved here; and even if the exception applied, the District
would regain immunity in the third tier of the analysis under R.C. 2744.03(A)(5) as the
Plaintiff presented no evidence of malicious purpose, bad faith, wantonness, or
recklessness (but the District did not actually allege the injury resulted from the exercise
of judgment or discretion in determining whether to acquire equipment, materials, etc.).
       {¶21} As to the negligent operation of a vehicle claim, the District’s reply argued
there was no duty to search for dangers which may encroach on the right-of-way. It was
noted that the cases acknowledging a heightened duty of care for young children do not
find negligence if the child darted into the driver’s path and rendered it impossible to avoid
a collision. The District also clarified that its request for summary judgment was not based
on the student’s contributory negligence.
       {¶22} On June 12, 2018, the trial court denied the District’s motion for summary
judgment.    The court analyzed political subdivision immunity.          As to the negligent
operation of a motor vehicle claim, the court recited the facts and found there was a
genuine issue of material fact as to whether the driver was negligent by moving forward
after gaining knowledge of the dangerous activity of rolling down a hill toward a road,
noting the video showed stumbling after the student stood. Although the trial court did
not specifically refer to the hillside claim, the District’s motion for summary judgment
sought immunity on this claim by arguing the physical defect exception to immunity was
inapplicable and the trial court denied the District’s entire motion for summary judgment



Case No. 18 MA 0075
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thereby rejecting all requests for summary judgment therein. It appears the court’s
rejection of the District’s hillside immunity argument was based on its application of
another exception to immunity as the trial court quoted the exception in R.C.
2744.02(B)(2): “political subdivisions are liable for injury, death, or loss to person or
property caused by the negligent performance of acts by their employees with respect to
proprietary functions of the political subdivisions.”
       {¶23} The District filed a timely notice of appeal. The District sets forth one
assignment of error containing subparts encompassing the various arguments raised on
appeal. Referring to all claims, the District broadly asserts: “Because the Defendant
Youngstown City School District is entitled to statutory immunity with regard to the
Plaintiffs’ claims, the lower court erred by failing to grant Defendant’s Motion for Summary
Judgment.”
                                              Immunity
       {¶24} The denial of summary judgment is generally not a final, appealable order,
and a court of appeals has no jurisdiction over non-final orders. Hubbell v. Xenia, 115
Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶ 9. However, in an immunity case,
there is the following statutory exception to this rule: “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.”
R.C. 2744.02(C). This includes the right to file an interlocutory appeal from a trial court's
decision finding a genuine issue of material fact on an immunity element and thus denying
a political subdivision’s Civ.R. 56(C) motion for summary judgment seeking immunity.
Hubbell, 115 Ohio St.3d 77 at ¶ 12, 20-21, 27 (emphasizing the statute’s use of the words
“benefit” and “alleged”). In such appeal, the appellate court conducts a de novo review
to determine if judgment should be entered for the political subdivision as a matter of law
or if there remains a genuine issue of material fact requiring “further development of the
facts necessary to resolve the immunity issue.” Id. at ¶ 21.
       {¶25} We therefore review an interlocutory decision on whether there was a
genuine issue of material fact on the political subdivision’s negligence when the pertinent
exception to immunity so requires. See, e.g., Davis v. Brown Local School Dist., 7th Dist.
Columbiana No. 17 CO 0026, 2019-Ohio-246, ¶ 47-49 (reviewing duty, breach, and



Case No. 18 MA 0075
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proximate cause when considering immunity of political subdivision for employee’s
negligent operation of a school bus). See also Argabrite v. Neer, 149 Ohio St.3d 349,
2016-Ohio-8374, ¶ 10 (characterizing “concepts related to duty and breach” as “part of
the statutory-immunity standards”); Hubbell, 115 Ohio St.3d 77 (where the political
subdivision argued negligence was lacking under tier two and asserted a tier three
defense and the trial court found a genuine issue for trial, the Supreme Court found the
judgment was appealable without distinguishing what tier was appealable); Tangler v.
Village of Carrollton, 7th Dist. Carroll No. 17 CA 0920, 2018-Ohio-1343, 110 N.E.3d 165,
¶ 18 (“[B]efore R.C. 2744.02(B)(2) will remove a political subdivision's immunity, the
plaintiff must establish: (1) the elements required to sustain a negligence action-duty,
breach, proximate cause, and damages; and (2) that the negligence arose out of a
‘proprietary function.’”).1
        {¶26} Pursuant to Civ.R. 56(C), summary judgment shall be granted when the
evidence shows there is no genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Summary judgment shall not be rendered unless it appears
that reasonable minds can only find in favor of movant after considering the evidence in
the light most favorable to the non-movant. Civ.R. 56(C). A summary judgment movant
has the initial burden of stating why the movant is entitled to judgment as a matter of law
and showing there is no genuine issue of material fact. Byrd v. Smith, 110 Ohio St.3d 24,
2006-Ohio-3455, 850 N.E.2d 47, ¶ 10, citing Dresher v. Burt, 75 Ohio St.3d 280, 292-
294, 662 N.E.2d 264 (1996). The non-moving party then has a reciprocal burden. Id.
The non-movant's response, by affidavit or as otherwise provided in Civ.R. 56, must set
forth specific facts showing there is a genuine issue for trial and may not rest upon mere
allegations or denials in the pleadings. Civ.R. 56(E). The material issues of each case
depend on the applicable substantive law, and “[o]nly disputes over facts that might affect




1 Issues unrelated to the denial of immunity, including comparative negligence, cannot be addressed in the
interlocutory appeal. Sickles v. Jackson Cty. Hwy. Dept., 196 Ohio App.3d 703, 2011-Ohio-6102, 965
N.E.2d 330, ¶ 4-5, 21-30 (4th Dist.) (addressing duty and foreseeability as to the claimed negligent
operation of a salt truck but refusing to address whether contributory negligence barred recovery). See also
Riscatti v. Prime Props. Ltd. Partnership, 137 Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437, ¶ 19 (“a
statute-of-limitations defense does not deny the benefit of immunity and is not a final, appealable order
even though it arose along with a political subdivision's immunity claim”).


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the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Byrd, 110 Ohio St.3d 24 at ¶ 12.
       {¶27} A school district is a political subdivision. R.C. 2744.01(F).               Political
subdivision immunity entails three statutory tiers: (1) the general grant of immunity in
R.C. 2744.02(A) for a government or proprietary function; (2) the exceptions in R.C.
2744.02(B) which strip the political subdivision of immunity; and (3) the defenses or
immunities contained in R.C. 2744.02(B) or R.C. 2744.03 which establish non-liability.
Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845,
¶ 10-13. Regarding tier one, R.C. 2744.02(A)(1) provides: “Except as provided in division
(B) of this section, 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.” This general grant of immunity applies to governmental and
proprietary functions.
       {¶28} As for tier two, division (B) of R.C. 2744.02 lists exceptions to immunity,
which strip immunity from the political subdivision for injury, death, or loss to person or
property caused by: (1) negligent operation of a motor vehicle by an employee in the
scope of employment and authority; (2) negligent performance of an act by an employee
with respect to proprietary functions of the political subdivisions; (3) negligent failure to
keep public roads in repair or to remove obstructions from public roads; or (4) negligence
of an employee causing injury that occurs within or on the grounds of, and is due to
physical defects within or on the grounds of, buildings used in connection with the
performance of a governmental function. R.C. 2744.02(B)(1)-(4). A fifth exception exists
when civil liability is expressly imposed upon the political subdivision by another statute.
R.C. 2744.02(B)(5). The parties in this case addressed the first exception (negligent
operation of a motor vehicle) and the fourth exception (physical defect on grounds) each
corresponding to a different claim.
       {¶29} As for the third tier, R.C. 2744.03(A) provides “defenses or immunities” that
“may be asserted” by the political subdivision “to establish nonliability.” See also R.C.
2744.02(B)(1)(a)-(c) (defense to the negligent operation of a vehicle exception if a certain
driver was responding to an emergency call). Contrary to the Plaintiff’s suggestion, the



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District does not raise a third tier defense on the negligent operation claim but briefly
outlines a third tier defense on the hillside claim.      Citing R.C. 2744.03(A)(5) (injury
“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”).
                          HILLSIDE WAS NOT A PHYSICAL DEFECT
       {¶30} The District begins by addressing its request for immunity on the Plaintiff’s
hillside claim. The parties disputed whether the physical defect exception to immunity in
R.C. 2744.02(B)(4) applied to the hillside claim. The trial court instead applied the
proprietary function exception to immunity in (B)(2), which provides:               “political
subdivisions are liable for injury, death, or loss to person or property caused by the
negligent performance of acts by their employees with respect to proprietary functions of
the political subdivisions.” R.C. 2744.02(B)(2). The District states the Plaintiff’s hillside
claim involved an injury “allegedly caused by any act or omission of the political
subdivision or an employee of the political subdivision in connection with a governmental
* * * function.” R.C. 2744.01(A).
       {¶31} A governmental function is a function of a political subdivision that is
specified in R.C. 2744.01(C)(2) or that satisfies any of the following:

       (a) A function that is imposed upon the state as an obligation of sovereignty
       and that is performed by a political subdivision voluntarily or pursuant to
       legislative requirement;

       (b) A function that is for the common good of all citizens of the state;

       (c) 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.

R.C. 2744.01(C)(1).     Division (C)(2) specifically defines a governmental function as
including the provision of a system of public education. R.C. 2744.02(C)(2)(c). See also
R.C. 2744.02(C)(2)(x) (a governmental function includes a function the general assembly


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mandates a political subdivision to perform). The general grant of immunity attaches to
acts or omissions “in connection” with a governmental function.
       {¶32} The complaint claimed the school district “negligently failed to prohibit
access, by students, to the hillside.” The Plaintiff’s opposition to summary judgment
complained the driver reported the student rolling down the hillside the day before the
accident in order to alert school officials “so they could have someone go out and stop
the activity. No one in the school administration responded to her report.” The suggestion
that a school official should have lectured, disciplined, better supervised, or restricted a
student due to her dangerous behavior on school property during dismissal is an alleged
omission in connection with a governmental function. See R.C. 2744.01(C)(2)(c). See
also R.C. 2744.01(C)(2)(e) (regulation of the use of public grounds is a governmental
function). “Maintaining order and security in the classroom and on school grounds is an
integral part of providing a system of public education.” Craycraft v. Simmons, 2d Dist.
Montgomery No. 24313, 2011-Ohio-3273, ¶ 21 (“providing school security and related
tasks cannot be separated from the provision of a system of public education”). See also
Bush v. Beggrow, 10th Dist. Franklin No. 03AP-1238, 2005-Ohio-2426, ¶ 35 (government
function where it was alleged a school had a duty to ensure a student could safely leave
school premises and to supervise as children were walking home after school).
       {¶33} The Plaintiff’s opposition to summary judgment also said “the steep hill here
was not inherently dangerous. However, when the school negligently permitted the young
students to roll down the hill toward an unprotected roadway and failed to take steps to
prevent those students from falling into bus traffic despite warnings, it created or at least
allowed to exist a defect on the property that contributed to the [the student’s] death.” To
the extent the hillside claim alleged the lack of physical barrier, the failure to place a
certain feature on the school’s hill was also connected to a governmental function.
       {¶34} The District focused on the fact any omissions regarding the hillside were
connected to the governmental function of providing a public education system under
R.C. 2744.01(C)(2)(c). The statute includes in its definition of a governmental function
the “design, construction, reconstruction, renovation, repair, maintenance, and operation
of any school athletic facility * * * or any recreational area or facility, including, but not
limited to, any of the following:     (i) A park, playground, or playfield * * *.”       R.C.



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2744.01(C)(2)(u)(i). In addition, the regulation of the use of public grounds and sidewalks,
and maintenance and repair of these places are governmental functions.                                            R.C.
2744.01(C)(2)(e). The already-terraced hill physically supported the school’s football field
and other school grounds surrounding the school building. See id. See also DeMartino
v. Poland Local School Dist., 7th Dist. Mahoning No. 10 MA 19, 2011-Ohio-1466, ¶ 31
(maintaining public grounds by mowing grass is a governmental function).
         {¶35} Finally, the parties agreed the hillside claim involved an act or omission in
connection with a governmental function. (S.J. Mot. at 13; Opp.Memo. at F). The
District’s motion for summary judgment stated: the general grant of immunity applied in
tier one of the analysis; the hillside claim involved a governmental function; and the
exception for the negligent performance of acts with respect to a proprietary function was
not applicable. The Plaintiff’s response agreed with these positions. The physical defect
exception in R.C. 2744.02(B)(4) was the only exception to immunity alleged by the
Plaintiff to be applicable to the hillside claim. And, the Plaintiff’s brief does not argue the
hillside claim involved a proprietary function.
         {¶36} As the hillside claim does not involve the negligent performance of acts by
employees with respect to proprietary functions of the political subdivision, we turn to the
District’s arguments that the physical defect exception to immunity was inapplicable.2
This exception provides in pertinent part: “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
* * *.” R.C. 2744.02(B)(4).
         {¶37} The District sets forth various arguments against the application of this
exception and briefly mentions a third tier defense, concluding that even if the physical
defect exception applied to the hillside claim, immunity would be restored under R.C.
2744.03(A)(5) (exercise of discretion in certain decisions). As we agree the hillside was
not a physical defect, we need not address the District’s alternative arguments.



2 See Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 13 (where the lower courts applied a

common law rule instead of the immunity statute, the Court noted it would ordinarily remand for application of the proper
immunity standard but then opined, “this case calls out for a different course”).


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       {¶38} The District correctly argues the existence of the hill was not a physical
defect on the school grounds. A physical defect has been defined as “a perceivable
imperfection that diminishes the worth or utility of the object at issue.” Stanfield v.
Reading Bd. of Edn., 2018-Ohio-405, 106 N.E.3d 197, ¶ 14 (1st Dist.). See also O.G. v.
City of Middleburg Hts., 2017-Ohio-7604, 97 N.E.3d 796, ¶ 12-13, 17 (8th Dist.) (and may
include the situation where the instrumentality causing the injury failed to operate as
intended due to a perceivable condition); Slane v. Hilliard, 2016-Ohio-306, 59 N.E.3d 545,
¶ 44 (10th Dist.) (failure to activate lights for “zero period” did not constitute a physical
defect).
       {¶39} The Plaintiff’s opposition to summary judgment acknowledged “the steep
hill here was not inherently dangerous” but then said the existence of the unprotected
public roadway near the bottom of the hill allowed the hill to be considered a physical
defect.    The Plaintiff noted a physical defect includes a potentially dangerous and
unprotected condition on school property. Citing Kerber v. Cuyahoga Hts., 8th Dist.
Cuyahoga No. 102419, 2015-Ohio-2766, ¶ 26 (finding a genuine issue of material fact as
to whether the use of a low-deck lifeguard chair created a physical defect on the pool
grounds); Roberts v. Switzerland of Ohio Local School Dist., 7th Dist. Monroe No. 12 MO
8, 2014-Ohio-78, 7 N.E.3d 526, ¶ 2, 25, 30 (affirming the denial of a motion to dismiss
where the alleged physical defect was a discus “safe zone” that lacked a protective cage
or net).
       {¶40} However, these cases involved an unprotected danger existing on the
pertinent grounds. The course traveled by the student down the hill admittedly contained
no internal defects. It is as if the Plaintiff was saying the hill became defective once the
high school student decided to roll down it toward traffic; however, a hill bordering a
sidewalk and street does not become defective because a person decides to roll down it,
just as the unfenced flat portions of the high school’s grounds would not become defective
because a student decides to run into the street. As the District points out: the hill
operated as a hill would be expected to operate; the hill was not alleged to contain a
physical or perceivable imperfection in itself; there was no impairment of the hill’s utility
as a physical support for the school grounds or even as a path for traversing the property;
and any appreciable danger near the hill existed outside of the school grounds.



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       {¶41} Notably, the Plaintiff makes no argument as to the hillside claim on appeal,
the Plaintiff’s brief does not seek to apply the physical defect exception or discuss any of
its elements, and the Plaintiff disclosed at oral argument that it “was not pursuing” the
hillside claim. As the hill was not a physical defect on the school grounds, the denial of
summary judgment on the hillside claim is reversed and summary judgment is granted on
the hillside claim on the basis of political subdivision immunity.
                      NEGLIGENT OPERATION OF A MOTOR VEHICLE
       {¶42} The District’s assignment of error states the “District is entitled to statutory
immunity with regard to the Plaintiffs’ claims, the lower court erred by failing to grant
Defendant’s Motion for Summary Judgment on the issue of statutory immunity, [and]
Plaintiff’s claims are barred because the Defendant was not negligent * * *.” As set forth
in reciting the law supra, “negligent operation of a motor vehicle by an employee in the
scope of employment and authority” is a statutory exception to the general grant of
political subdivision immunity. R.C. 2744.02(B)(1). The District does not dispute that this
claim is based on the operation of a motor vehicle by an employee in the scope of
employment and authority but sets forth arguments on duty and breach to show the
operation of the bus was not negligent.
       {¶43} The District relies on the law stating a driver proceeding lawfully in the right-
of-way has no duty to look for pedestrians who may suddenly enter the street, noting the
driver was attentive to the rolling peril and the bus was traveling below the speed limit in
the proper lane. The District states the bus driver was proceeding lawfully in her right-of-
way, which is defined as: “The right of a vehicle, streetcar, trackless trolley, or pedestrian
to proceed uninterruptedly in a lawful manner in the direction in which it or the individual
is moving in preference to another vehicle, streetcar, trackless trolley, or pedestrian
approaching from a different direction into its or the individual's path.”               R.C.
4511.01(UU)(1). In support of its argument that the bus had the right-of-way, the District
cites various statutes violated by the student.
       {¶44} For instance, “No pedestrian shall suddenly leave a curb or other place of
safety and walk or run into the path of a vehicle, trackless trolley, or streetcar which is so
close as to constitute an immediate hazard.” R.C 4511.46(B). “Where a sidewalk is
provided and its use is practicable, it shall be unlawful for any pedestrian to walk along



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and upon an adjacent roadway,” and except as provided in certain statutes, “any
pedestrian upon a roadway shall yield the right-of-way to all vehicles, trackless trolleys,
or streetcars upon the roadway.”        R.C. 4511.50(A),(D).     Finally, “Every pedestrian
crossing a roadway at any point other than within a marked crosswalk or within an
unmarked crosswalk at an intersection shall yield the right of way to all vehicles, trackless
trolleys, or streetcars upon the roadway.” R.C. 4511.48(A). But, “This section does not
relieve the operator of a vehicle, streetcar, or trackless trolley from exercising due care to
avoid colliding with any pedestrian upon any roadway.” R.C. 4511.48(E).
       {¶45} “The existence of a duty depends on the foreseeability of the injury.”
Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984).
Although there is no specific formula for determining whether a duty arose, “[t]he
existence of a duty in a negligence action is a question of law for the court to determine.”
Mussivand v. David, 45 Ohio St.3d 314, 318, 544 N.E.2d 265 (1989). See also Wallace
v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22.
Furthermore, the mere fact a driver hits a pedestrian does not establish a genuine issue
as to a breach of duty. See Meyer v. Rapacz, 8th Dist. Cuyahoga No. 95571, 2011-Ohio-
2537, ¶ 24.
       {¶46} Generally, a driver does not have a duty to continually scan for approaching
objects which may threaten to violate her right-of-way. See Lydic v. Earnest, 7th Dist.
Mahoning No. 02CA125, 2004-Ohio-3194, ¶ 30, 34, citing Deming v. Osinski, 24 Ohio
St.2d 179, 181, 265 N.E.2d 554 (1970). See also Rapp v. Sullivan, 7th Dist. Mahoning
No. 12 MA 227, 2013-Ohio-5378, ¶ 19, 28. The Supreme Court rejected the premise that
a driver with the right-of-way was required to “look, look effectively and continue to look
and otherwise remain alert” in a case where the motorcyclist looked at his friend just prior
to a car pulling in front of him. Deming, 24 Ohio St.2d at 180-181. The driver of a vehicle
lawfully proceeding in his right-of-way has the right to assume another driver or a
pedestrian will obey any law requiring him to yield the right-of-way. See Deming, 24 Ohio
St.2d at 182, citing Morris v. Bloomgren, 127 Ohio St. 147, 187 N.E. 2 (1933). The
general rule is: “Only after it has been found that the vehicle is not proceeding in a lawful
manner, by violating a law or ordinance, does the consideration of the driver's common-
law duty to use ordinary care come into play.” Lydic, 7th Dist. No. 02CA125 at ¶ 32.



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        {¶47} As the Plaintiff points out, there is an exception to the general rule where
the driver noticed the peril. The Supreme Court has explained the exception as follows:
“If however the [driver with the right-of-way], just as he is approaching or entering the
intersection, discovers that the latter is not yielding the right of way and has thereby
placed himself in a perilous situation, it becomes the duty of the former to use ordinary
care not to injure the latter after becoming aware of his perilous situation.” Deming, 24
Ohio St.2d at 182, quoting Morris, 127 Ohio St. 147 at paragraph five of syllabus. This
exception has been applied to pedestrians entering the right-of-way as well as cars. The
exception asks not whether a reasonable driver should have noticed the peril but whether
the driver in fact noticed the peril and, if so, whether she then used ordinary care under
the circumstances.
        {¶48} The Plaintiff argues there is a genuine issue of material fact as to whether
the driver was proceeding lawfully. Plaintiff cites R.C. 4511.38(A), which provides: “No
person shall start a vehicle, streetcar, or trackless trolley which is stopped, standing, or
parked until such movement can be made with reasonable safety.”3 It is undisputed that
the bus driver saw the student rolling, worried the student would roll into the street, and
maintained the stopped position of the bus because of the appreciated danger. The
Plaintiff claims the driver violated this statute by moving the bus after the student stopped
rolling, suggesting a driver who notices a person engaging in a dangerous behavior, stops
for it, and believes it is over must anticipate a side effect of the dangerous behavior in the
form of dizziness so strong that the student would stumble across a sidewalk and a grass
trip and fall into the roadway (and anticipate that the student would try to walk near a
street if she felt that dizzy). However, R.C. 4511.38(A) does not conflict with or abrogate
the law stating there is no duty to look for objects outside of the right-of-way to ensure
one of these objects is not about to violate the right-of-way. That is, ascertaining if
movement can be made with reasonable safety under the statute does not entail a

3The  Plaintiff also claims the driver may have violated R.C. 4511.21(A) by driving at a greater speed than
would permit the person to stop within the assured clear distance ahead. However, this statute was not
cited below, and the pedestrian did not enter the roadway ahead of the driver’s path of travel but suddenly
entered as the bus passed. The case cited by Plaintiff states the driver must have “collided with an object
which (1) was ahead of him in his path of travel, (2) was stationary or moving in the same direction as the
driver, (3) did not suddenly appear in the driver's path, and (4) was reasonably discernible.” McQueen v.
Perry, 10th Dist. No. 12AP-237, 2012-Ohio-5522, ¶ 14, citing Blair v. Goff-Kirby Co., 49 Ohio St.2d 5, 7,
358 N.E.2d 634 (1976).


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continual scan for objects outside of the road which could threaten (or re-threaten) to
improperly enter the right-of-way. The statute involves the safety of movement on the
public street as such movement first occurs from a stop. For purposes of the general rule
on the right-of-way, we conclude the bus did not violate R.C. 4511.38(A) and was not
operating unlawfully by starting forward after it had waited for the student to discontinue
rolling.
           {¶49} According to the affidavit of the Plaintiff’s expert, the bus was located at
least 40 feet from the student, when the bus began accelerating from its stopped position
and the student was beginning to stand at the bottom of the hill with her back to the road.
The student’s brother was holding her arm at this time, and she was not near the road.
This is not a case where a pedestrian entered the roadway in reliance on the fact that a
driver was stopped and the driver started the vehicle without ascertaining if the roadway
was clear.
           {¶50} The Plaintiff applies the noticed peril exception to the general rule,
contending the bus driver failed to exercise reasonable care in the face of a known peril.
However, at the point the bus started moving, the observed dangerous act of rolling down
a hill toward traffic was over. The danger appreciated at that dispositive moment in time
was the danger of rolling over the sidewalk and grass strip and into the street. When the
bus started its movement, the student was not in close proximity to the road, she was
facing her brother with her back to the bus (and the road), and there was no indication of
stumbling.
           {¶51} On the question of whether there was a duty to continue watching the
student as the bus drew nearer to her position, the Plaintiff asks this court to impose a
special duty since the pedestrian was a child. The Plaintiff emphasizes the driver’s
training where she was instructed on the unpredictability of children, to stop and watch if
she was concerned, and to use the horn if she believed one was about to enter the street.
The Plaintiff complains the driver did not sound the horn or stop (again) for the student
and relies on law explaining why “children have a special status in tort law”:
           [T]he amount of care required to discharge a duty owed to a child of tender
           years is necessarily greater than that required to discharge a duty owed to
           an adult under the same circumstances. This is the approach long followed



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       by this court and we see no reason to abandon it. “Children of tender years,
       and youthful persons generally, are entitled to a degree of care proportioned
       to their inability to foresee and avoid the perils that they may encounter. * *
       * The same discernment and foresight in discovering defects and dangers
       cannot be reasonably expected of them, that older and experienced
       persons habitually employ; and therefore the greater precaution should be
       taken, where children are exposed to them.”

Bennett v. Stanley, 92 Ohio St.3d 35, 748 N.E.2d 41 (2001) (five-year-old drowning in
neighbor’s unfenced pool), quoting DiGildo v. Caponi, 18 Ohio St.2d 125, 127, 247 N.E.2d
732 (1969) (four-year-old guest put unlocked car in gear).
       {¶52} More specifically on pedestrians, the Plaintiff quotes: “the duty owed by a
driver to an adult on a sidewalk is certainly much less than the duty owed by a driver to a
child of tender years and youthful persons playing on a sidewalk because the same
discernment and foresight in comprehending dangers cannot be reasonably expected of
children that adult persons habitually employ and, therefore, greater precautions must be
taken where children are exposed to danger from passing traffic.” Sargent v. United
Transp. Co., 56 Ohio App.2d 159, 163, 381 N.E.2d 1331 (10th Dist.1978) (four-year-old
on bicycle). We note that case was tried to the court and was remanded for application
of the above law; after the remand, the court agreed the failure to notice the child of tender
years was not a breach of duty owed by the defendant. Sargent v. United Trans. Co.,
10th Dist. Franklin No. 78AP-461 (Feb. 13, 1979).
       {¶53} Even where greater care is required (than would be required for an adult
pedestrian), the care is still proportional to age. The care to satisfy a duty to watch a
teenager on a sidewalk is not the same as may be required in a case involving the
observation of a four-year-old bicycling in the street.       And, even where there is a
heightened duty of care to young children, “negligence cannot be found on the part of a
driver when a child darts in the path of that driver rendering it impossible for the driver to
avoid striking the child.” Williams v. Putnam Transfer & Storage Co., 8th Dist. Cuyahoga
No. 64659 (Feb. 3, 1994).
       {¶54} The student was not a child of tender years. She was a high school student
leaving the high school grounds just after the students were released for the day. The


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student was over 14.75 years of age (ten weeks from her 15th birthday). The driver
exercised care by waiting for her to stop rolling down a hill toward the road before moving
the bus. There was no indication the bus driver’s training instructions, on using the horn,
were legal requirements or caused the care to become less than that required for the
circumstances. See Davis, 7th Dist. No. 17 CO 0026 at ¶ 55-56, 60-67 (refusing to
impose a heightened standard of care for the alleged failure to follow CDL standards,
including those for professional bus drivers, where they are not legal requirements, after
considering the totality of the circumstances pertinent to imposing a duty).
       {¶55} Furthermore, the student’s decision to roll down the hill and the possibility
of rolling into the street was the peril noticed by the bus driver. As the bus resumed its
movement, the student’s brother was helping her to her feet; no stumbling had started
yet. The noticed peril was over. She was near the hill on the sidewalk with her back to
the bus. She was not waiting for a bus or attempting to cross a road. There was no
clearly dangerous condition at that moment. See Lydic, 7th Dist. No. 02CA125 at ¶ 34
(the driver with the right of way must realize there is a clearly dangerous condition).
       {¶56} The Plaintiff’s expert said the driver could have stopped if she had been
alert to the initial stumbling. However, the driver had no duty to continue watching the
student after the rolling incident ended and the bus started moving, and a driver could not
continually monitor one person on a sidewalk while driving. After she stood, it took
seconds for her to stumble. The driver could not anticipate the student would fall into the
side of the bus as it passed. See Davis, 7th Dist. No. 17 CO 0026 at ¶ 66-68 (concluding
the entry into the bus driver’s right of way was not reasonably foreseeable, there was no
evidence the bus driver should have realized there was a clearly dangerous condition, or
that she failed to use ordinary care after noticing the condition).
       {¶57} Finally, there was no indication that the bus could have been stopped in
time once the driver saw the student in the side view mirror (as the student was entering
the roadway). The affidavit of the District’s expert stated the bus driver did not have an
opportunity to avoid the accident after she became aware the student had entered the
roadway; the affidavit of the Plaintiff’s expert only opined the bus could have been stopped
if the bus driver saw the stumbling after the student stood, when she did not.            In




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conclusion, this court concludes the District is entitled to summary judgment on the
negligent operation of a motor vehicle claim.
        {¶58} As we have ruled against the Plaintiff on the issue of negligent operation of
a motor vehicle, we need not address the District’s alternative argument that the action
would also be barred by the student’s contributory negligence.4 Likewise, we need not
address the court’s denial of summary judgment on the father’s claim. As we conclude
the District is entitled to summary judgment on the hillside claim and the negligent
operation of a motor vehicle claim, the negligent infliction of emotional distress claims fail
as they were predicated on the allegations of negligence resulting in injury to the
deceased student. The Plaintiff does not argue otherwise.
        {¶59} For the following reasons, the trial court’s judgment is reversed, and
summary judgment is granted to the District on the Plaintiff’s claims.


Waite, P.J., concurs.

Singer. J., concurs.




4 This argument was not specified in the District’s motion for summary judgment, and the District’s reply in
support said “contributory negligence is not relevant to the analysis of whether Defendant is entitled to
summary judgment.” We also note the failure to grant summary judgment on the issue of comparative
negligence would not be appealable as it does not deny the political subdivision the benefit of immunity as
required by R.C. 2744.02(C). See fn. 1, supra.



Case No. 18 MA 0075
[Cite as McCullough v. Youngstown School Dist., 2019-Ohio-3965.]




         For the reasons stated in the Opinion rendered herein, the assignments of
 error are sustained and it is the final judgment and order of this Court that the
 judgment of the Court of Common Pleas of Mahoning County, Ohio, is reversed and
 summary judgment is granted to the District. Costs to be taxed against the Appellee.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.



                                     NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
