[Cite as Kinderdine v. Mahoning Cty. Bd. of Dev. Disabilities, 2016-Ohio-4815.]

                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

TRACY KINDERDINE,                                       )
ADMINISTRATRIX OF ESTATE OF                             )
NATHAN KINDERDINE                                       )
                                                        )           CASE NOS. 14 MA 0174
        PLAINTIFFS-APPELLEES/                           )                     14 MA 0177
        PLAINTIFFS-APPELLANTS                           )                     14 MA 0180
                                                        )                     14 MA 0181
VS.                                                     )
                                                        )                         OPINION
MAHONING COUNTY BOARD OF                                )
DEVELOPMENTAL DISABILITIES, et. al.                     )
                                                        )
        and                                             )
                                                        )
MAHONING COUNTY EDUCATIONAL                             )
SERVICE CENTER, et. al.                                 )
                                                        )
        DEFENDANTS-APPELLANTS                           )
                                                        )
        and                                             )
                                                        )
CALLOS STAFFING COMPANY, LLC,                           )
et. al.                                                 )
                                                        )
        and                                             )
                                                        )
BREANNA ALLEMAN                                         )
                                                        )
        DEFENDANTS-APPELLEES                            )

CHARACTER OF PROCEEDINGS:                               Civil Appeals from
                                                        Court of Common Pleas,
                                                        Mahoning County, Ohio
                                                        Case Nos. 2011 CV 2865 and
                                                        2014 CV 404

JUDGMENT:                                               Appeal Nos. 2014 MA 0174 and 0180,
                                                        Reversed and Modified.
                                                        Appeal Nos. 2014 MA 0177 and 0181,
                                                                         -2-


                                         Affirmed.
APPEARANCES:

For Plaintiffs-Appellees/                Attorney W. Bashein
Plaintiffs-Appellants                    Attorney Anthony Palombo
                                         Attorney Paul Flowers
                                         Terminal Tower, 35th Floor
                                         50 Public Square
                                         Cleveland, Ohio 44113

For Defendant-Appellee, Callos, et al.   Attorney Audrey Bentz
                                         9200 South Hills Blvd., Suite 300
                                         Cleveland, Ohio 44147

For Defendant-Appellant, Mahoning        Attorney Todd Raskin
County Board of Developmental            Attorney Carl Cormany
Disabilities, et. al.                    Attorney Frank Scialdone
                                         100 Franklin's Row
                                         34305 Solon Road
                                         Cleveland, Ohio 44139

For Defendant-Appellant,                 Attorney Todd Gray
Mahoning County Educational Service      1375 East Ninth Street
Center, et. al.                          Suite 1600
                                         Cleveland, Ohio 44114

For Defendant-Appellee,                  Attorney Matthew Markling
Breanna Alleman                          1894 North Cleveland-Massillon Road
                                         Akron, Ohio 44333

JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                         Dated: June 30, 2016
[Cite as Kinderdine v. Mahoning Cty. Bd. of Dev. Disabilities, 2016-Ohio-4815.]
DeGENARO, J.

        {¶1}     These four appeals share the same tragic factual basis, the drowning of
a child. Tracy Kinderdine, mother of Nathan Kinderdine (deceased) is the plaintiff,
along with her husband, children and estate of the deceased, in this action instituted
in the Mahoning County Court of Common Pleas against several defendants as the
result of Nathan's death. The procedural disposition is varied and will be outlined by
appeal case number after the substantive facts are detailed below.
                                       Factual Background
        {¶2}     Nathan was a seven year old autistic student who attended the
Mahoning County Summer Enrichment Program at the Leonard Kirtz School (Kirtz)
for students with developmental disabilities. The Mahoning County Board of
Developmental Disabilities (BDD) owns, maintains, and controls Kirtz, and awarded a
contract to the Mahoning County Educational Service Center (ESC) to operate this
program at Kirtz. ESC contracted with Callos Staffing Company, LLC, et. al. to
perform payroll and other administrative functions for Kirtz employees after they were
hired by ESC.
        {¶3}     Nathan was diagnosed with autism, and because of his tendency to
wander off, he was assigned an aide employed by ESC to assist him while he
attended the summer program at Kirtz. The aide's responsibilities generally included
assisting students in the classroom, gym, lunchroom, and pool. On the date Nathan
drowned, his aide arrived to work at approximately 11:30 a.m. and joined the
students in the cafeteria, at which point she took several students, including Nathan,
to the gym. On this day, Nathan's class had ten students and was staffed by five
adults, two of which were assigned to specific students. Nathan's aide held his hand
until he was approximately 1/3 of the distance into the gym before letting go. She
then turned her attention to assisting other students in a wagon that were attempting
to get through the gym doorway; thereafter she was unable to locate Nathan.
        {¶4}     The Kinderdines allege that Nathan exited the gym through the door
separating the gym and the boy's locker room and proceeded through a second door
connecting the locker room with the pool area. They assert that Nathan was able to
                                                                            -2-


get through this second door due to a faulty door and/or latch mechanism on that
door. They further contend that Nathan was then able to get into the swimming pool
because the motorized pool cover had not been placed over the pool after the last
swimming session that morning.
      {¶5}   A custodian was in the hallway near the gym when he heard that
people were looking for a little boy. He went into the boys' locker room next to the
gym and checked the door to the swimming pool that was closed and locked. He
unlocked and opened the door, seeing that the pool cover was not closed, and
located Nathan underwater in the pool. He jumped into the pool and lifted Nathan out
of the water and gave him to another staff member who rushed Nathan to the nurses'
office. Resuscitation efforts were attempted unsuccessfully and Nathan was
pronounced dead shortly thereafter.
                                 Procedural History
      {¶6}   These appeals arise from separate complaints in which the Kinderdines
filed claims for wrongful death and survivorship against two political subdivisions,
related private entities and multiple individuals. The legal capacity in which the
Kinderdines sought to impose liability is noted below.
                        Political Subdivision and Employees
      {¶7}   Appeal No. 2014 MA 0174 involves the following Defendants-
Appellants, collectively referred to as BDD:    Mahoning      County   Board      of
Developmental Disabilities; Larry Duck, Frank Dietz, Robert Wilson, Peter Packard
III, Robert Stewart, Elizabeth Wollitz, Patricia Persohn, Warren Chapella, and Kevin
Reardon in their capacities as employees of BDD acting in the scope and
performance of their employment. BDD filed answers that, inter alia, denied the
allegations in the complaints and asserted affirmative defenses.
      {¶8}   Appeal No. 2014 MA 0180 involves the following Defendants-
Appellants, collectively referred to as ESC: Mahoning County Educational Service
Center; Jennifer Whittemore, Jennifer Hartman, Richard Denamen, Cynthia Cairns,
Ronald Iarussi, Marlene Shippoli, Megan Bowser, Betsy Sheldon, John Bole, and
                                                                             -3-


Autumn James in their capacities as employees of ESC acting in the scope and
performance of their employment. ESC filed answers that, inter alia, denied the
allegations in the complaints and asserted affirmative defenses.
      {¶9}   BDD and ESC filed motions for summary judgment asserting
governmental immunity on behalf of each political subdivision and their respective
employees. The trial court denied both motions, finding a statutory exception
regarding physical defects on or within the grounds of buildings used in connection
with the performance of a governmental function reinstated liability. Both entities
appealed on their behalf and their employees.
                                   Callos Entities
      {¶10} Appeal No. 2014 MA 0181 involves the following Defendants-Appellees
collectively referred to as Callos: Callos Staffing Company, LLC, The Callos
Companies Inc., Callos Professional Employment, Inc., Callos Contract Services,
LLC, Callos Management Succession Team, Inc., Callos Management Co. Inc., and
Callos Medical Staffing. Callos filed a motion for summary judgment invoking the
loaned servant doctrine, contending Callos was not vicariously liable for any
personnel it placed at Kirtz pursuant to a contract with ESC as Callos did not
supervise and control the daily activities of the employees. The trial court granted
summary judgment on that basis and the Kinderdines appealed.
                                      Alleman
      {¶11} Appeal No. 2014 MA 0177 involves Defendant-Appellee, Breanna
Alleman, a lifeguard at Kirtz, whom all parties concede was not present the date of
the drowning. However, the Kinderdines contend that she had been charged with
supervising the pool, ensuring that special needs children were unable to access the
water, and was responsible for training the replacement lifeguard on duty the date of
the drowning. They assert that her failure to do so was reckless, willful and wanton.
Without naming them as defendants in this complaint, the Kinderdines alleged that
Callos and ESC were also liable for her conduct, actions, and inaction. In addition to
an answer, Alleman filed a motion for judgment on the pleadings which the trial court
                                                                                     -4-


granted, and the Kinderdines appealed.
                                  Sovereign Immunity
       {¶12} In its sole assignment of error, BDD asserts:

              Because all of the MCBDD Defendants are entitled to statutory
       immunity with regard to the Plaintiff's claims, the lower court erred by failing
       to grant the MCBDD Defendants' Motion for Summary Judgment.

       {¶13} In its two assignments of error, ESC asserts:

              The trial court erred in holding that the exception to immunity in R.C.
       2744.02(B)(4) applied to the Mahoning County Educational Service Center.

              In the alternative, even assuming arguendo that the trial court was
       correct, it erred in finding that immunity was not restored under R.C. 2744.03.

       {¶14} Review of a trial court's summary judgment decision is de novo. Ohio
Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d 241, 2007-Ohio-4948, 874 N.E.2d
1155, ¶ 5. Summary judgment is proper if, construing the evidence in favor of the
non-moving party there are no genuine issues of material facts; the movant is entitled
to judgment as a matter of law; and the evidence is such that reasonable minds can
come to but one conclusion which is adverse to the opposing party. Civ.R. 56(C);
Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10. "[T]he
moving party bears the initial responsibility of informing the trial court of the basis for
the motion, and identifying those portions of the record which demonstrate the
absence of a genuine issue of fact on a material element of the nonmoving party's
claim." Dresher v. Burt, 75 Ohio St.3d 280, 296, 1996-Ohio-107, 662 N.E.2d 264.
The nonmoving party has the reciprocal burden of specificity and cannot rest on the
mere allegations or denials in the pleadings. Id. at 293.
       {¶15} BDD and ESC filed motions for summary judgment asserting that
pursuant to the Political Subdivision Tort Liability Act, both entities and their
                                                                                       -5-


employees are immune from liability. Specifically, that they are immune because they
were performing a governmental function. R.C. 2744.02(A)(1).
        {¶16} The trial court found that both political subdivisions were performing a
governmental function, but that the following exception applied: "[P]olitical
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).
The trial court finally concluded that R.C. 2744.03(A)(5) did not restore immunity.

        Whether a political subdivision is entitled to immunity is analyzed using a
        three-tiered process. Green Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d
        551, 556, 733 N.E.2d 1141 (2000). Under the first tier, R.C. 2744.02(A)(1)
        sets out the general rule that political subdivisions are not liable in damages.
        Id. at 556–557, 733 N.E.2d 1141. Under the second tier, the court must
        determine whether any of the exceptions to immunity set out in R.C.
        2744.02(B) apply. Id. at 557, 733 N.E.2d 1141. Finally, under the third tier, if
        the court finds that any of R.C. 2744.02(B)'s exceptions apply, it must
        consider R.C. 2744.03, which provides defenses and immunities to liability.
        Id.

Roberts v. Switzerland of Ohio Local School Dist. 2014-Ohio-78, 7 N.E.3d 526, ¶17
(7th Dist.).
        {¶17} "Immunity is a doctrine that provides a complete defense to a tort
action. By asserting an immunity defense, the defendant does not allege that there was
no negligence. The defendant is asserting that it is protected from liability for negligence by
reason of R.C. Chapter 2744." Rondy v. Richland Newhope Industries, Inc., 5th Dist. No.
15CA45, 2016-Ohio-118, ¶ 27. BDD, ESC and the Kinderdines agree the first tier is met.
        {¶18} Turning to the second tier in the analysis this Court must determine
whether any of the exceptions to immunity apply:
                                                                                        -6-


                R.C. 2744.02(B) was amended on April 9, 2003. The 2003
       amendment to R.C. 2744.02(B)(4) added the language "and is due to
       physical defects within or on the grounds of" after "that is caused by the
       negligence of their employees and that occurs within or on the grounds of."
       Other than this addition, the statute remained the same. The statute was
       changed to limit liability for negligence that is due to physical defects within or
       on the grounds that are used in connection with a governmental function.
       Aratari v. Leetonia Exempt Village School Dist., 7th Dist. No. 06–CO–11,
       2007-Ohio-1567, 2007 WL 969402, ¶ 30.

Roberts, ¶ 20
       {¶19} R.C. 2744.02(B)(4) requires two elements for the exception to apply; a
negligent act and a physical defect within or on the grounds of the political subdivision.
DeMartino v. Poland Loc. School Dist., 7th Dist. No. 10 MA 19, 2011-Ohio-1466, ¶ 34.
"R.C. 2744.02(B)(4) requires the injuries at issue to be caused both by a political-
subdivision employee's negligence and a physical defect on the grounds." Parmertor v.
Chardon Local Schools, 11th Dist. No. 2014-L-129, 2014-L-133, 2016-Ohio-761, ¶ 16
(emphasis in original).
       {¶20} The phrase physical defect is not statutorily defined. The Sixth District
defined physical defect as "a perceivable imperfection that diminishes the worth or
utility of the object at issue." Hamrick v. Bryan City School Dist. 6th Dist. No. WM-10-
014, 2011-Ohio-2572, ¶ 28. Here the Kinderdines allege two physical defects which
caused or contributed to the death of their son: the motorized cover was not placed
over the pool and the faulty latch on the locker room door leading into the pool area.
       {¶21} The Eight District held that the failure to use an available safety device
does not constitute a physical defect. Duncan v. Cuyahoga Community College, 8th
Dist. No. 100121, 2014-Ohio-835. The same applies here as there was no testimony
by any party that the cover was in any defective condition.
       {¶22} The remaining alleged physical defect is the faulty door latch leading
from the locker room into the pool area. ESC provides little argument, briefly
                                                                                         -7-


contending that as BDD owns and maintains the property ESC should be awarded
summary judgment on this basis alone. BDD argues that the Kinderdines did not
demonstrate Nathan's death was caused by the negligence of a specific political
subdivision employee, nor due to a physical defect. The former argument aside, the
record is replete with evidence that the door latch stuck and/or did not work properly.
However the door did not cause Nathan's death; he was not hit or trapped by the
door. Therefore, this exception does not lift the grant of immunity set forth in R.C.
2744.02(A)(1).
       {¶23} Even if we were to conclude the exception found in R.C. 2744.02(B)(4)
is present, under the third tier of the analysis immunity would be restored. "The
political subdivision is immune from liability if the injury, death, or loss to persons 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." R.C. 2744.03(A)(5).

       Wanton, willful and/or reckless conduct is conduct that is a degree greater
       than negligence. Rankin v. Cuyahoga Cty. Dept. of Children and Family
       Servs., 118 Ohio St.3d 392, 2008–Ohio–2567, 889 N.E.2d 521, ¶ 37;
       Wagner v. Heavlin (2000), 136 Ohio App.3d 719, 730–731, 737 N.E.2d 989.
       Specifically, wanton misconduct is "the failure to exercise any care toward
       one to whom a duty of care is owed when the failure occurs under
       circumstances for which the probability of harm is great and when the
       probability of harm is known to the tortfeasor." Id. Willful conduct involves a
       more positive mental state than wanton misconduct and implies intent. Id. at
       731, 737 N.E.2d 989. That intention relates to the conduct, not the result. Id. It
       is an intentional deviation from a clear duty or purposely doing wrongful acts
       with knowledge or appreciation of the likelihood of resulting injury. Reckless
       conduct is conduct that was committed knowing the facts or having reason to
                                                                                     -8-


       know the facts and which leads a reasonable person to know that his conduct
       will in all probability result in injury. Rankin at ¶ 37.

       Typically, issues regarding recklessness, wantonness or willfulness are
       questions for the jury to decide. However, the standard of proof for such
       conduct is high. Adams v. Ward, 7th Dist. 09 MA 25, 2010–Ohio–4851, ¶ 27.
       When the facts presented show that reasonable minds could not conclude
       that the conduct at issue meets that high standard, a court may determine
       that such conduct is not willful, wanton or reckless as a matter of law. Id

DeMartino at ¶48-49.
       {¶24} The evidence presented by the Kinderdines does not meet their burden
of proof: that BDD, ESC, and their employees acted in a willful, wanton or reckless
manner. Given the high standard set by the statute as this court held in DeMartino,
as a matter of law the trial court erred by failing to find immunity was restored.
       {¶25} Construed in a light most favorable to the Kinderdines as the non-
moving party, the tragic facts of this case may meet a negligence standard of proof.
But they do not meet the significantly higher bar set by the General Assembly with
the use of the statutory terms willful, reckless and wanton. Thus, even if we were to
find that an exception to sovereign immunity was present, we would also be forced to
recognize that immunity would be restored.
       {¶26} Accordingly, BDD and ESC's assignments of error are meritorious. The
trial court erred by denying summary judgment. Sovereign immunity precludes the
Kinderdines' lawsuit against BDD, ESC and their employees as they were acting
within the scope of their employment.
                                       Loaned Servant Doctrine
       {¶27} In their sole assignment of error against Callos, the Kinderdines assert:
                                                                                -9-


                The trial judge erred, as a matter of law, by granting summary
       judgment in favor of Defendant-Appellees, Callos Staffing Company, L.L.C.,
       et al.

       {¶28} Callos counters the Kinderdines' assigned error by contending the trial
court's decision should be affirmed because the employees were loaned servants of
ESC.

       The loaned servant rule provides that where one person lends his
       servant to another for a particular employment, within the context of that
       employment, the servant is treated as if he were the servant of the one
       to whom he was lent. Halkias v. Wilkoff Co., 141 Ohio St. 139, 151, 47
       N.E.2d 199 (1942). Furthermore, the loaned servant relationship is not
       affected by the fact that the party who lent the servant continues to pay
       him as long as the "borrowing" party controls the servant while he
       accomplishes the task he was sent to perform. Id. at 153; see also
       Restatement of the Law 2d, Agency (1958) 501-503, § 227, illustration
       five.

Lawson v. May Dept. Store, 7th Dist. No. 00 CA 191, 2001-Ohio-3453, *2 (internal
citations omitted).
       {¶29} The Fifth District has articulated a test to evaluate this status: "whether
while performing the task, the employee continues to be liable to the direction and
control of the general employer, or becomes subject to that of the person to whom he
is lent." Carrico v. Drake Construction, 5th Dist. No. 2005 CA 00201, 2006-Ohio-
3138, ¶ 24. In addition to Carrico, four of our sister districts that have considered the
doctrine have focused on the daily control of tasks in the workplace rather than
administrative matters. See McNeal v. Bil-Mar Foods of Ohio, Inc., 66 Ohio App.3d
588, 589-592, 585 N.E.2d 892 (11th Dist.1990); Wolf v. Big Lots Stores, Inc., 10th
Dist. No. 07AP-511, 2008-Ohio-1837, ¶ 13; Carr v. Cent. Printing Co. 2d Dist. No.
                                                                              - 10 -


18281, 2000 WL 1513914 (Oct. 13, 2000); Waugh v. Tri-Star Packaging Products
Corp. 3d Dist. No. 2-97-22, 1997 WL 730261 (Nov. 24, 1997), Carrico, supra.
       {¶30} The Kinderdines argued at length to the trial court and now on appeal
that Callos retained a right of unfettered direction and control of its employees at
Kirtz, contending the contract between Callos and ESC specifically stated that Callos
retained this right. However, the Kinderdines fail to acknowledge that the party which
provides direction and control over the employees on a day-to-day basis is
dispositive of this analysis as a matter of Ohio law.
       {¶31} There is no genuine issue of material fact that day-to-day oversight of
the employees fell squarely upon the ESC. There were numerous references made
by several witnesses that Jennifer Whittemore, director of the summer program and
ESC employee, supervised the workers and staff at Kirtz, and they reported to her. In
her deposition Whittemore testified that as the director she was in charge of
organizing staff, scheduling, and meeting with staff.             Richard Denamen,
superintendent of ESC, testified in his deposition that ESC operated Kirtz and
retained the right to direct the activities of the employees.
       {¶32} Even taking into consideration any conflicting statements made by the
many deponents, none testified that Callos had any oversight of the locker room
door, the pool cover, the daily schedule, the actions of the employees, or any of the
day-to-day operations of the program. Callos' concession that contractually it
provided ESC with payroll services and paperwork processing does not change
which entity is vicariously liable for the staff working at Kirtz. Consistent with the
rationale in Carrico, McNeal, Wolf, Carr and Waugh, we hold that the employees
were loaned servants supervised and controlled by ESC.               Accordingly, the
Kinderdine's assignment of error is meritless. Summary judgment to Callos on the
basis of the loaned servant doctrine was correct, and the trial court's decision is
affirmed.
                              Alleman's Individual Liability
       {¶33} In their sole assignment of error, the Kinderdines assert:
                                                                               - 11 -


             The trial judge erred, as a matter of law, by granting a judgment on
      the pleadings in favor of Defendant-Appellee, Breanna Alleman.

      {¶34} In light of the disposition of our resolution of the Kinderdines' appeal of
the trial court's grant of summary judgment in favor of Callos, the merits of this
appeal are moot. App.R. 12(B). The Kinderdines asserted in their complaint against
Alleman that she was acting within the scope of her employment. As Alleman was an
employee of ESC, pursuant to the loan servant doctrine, she is immune from liability
pursuant to R.C. 2744.03(A)(5). Further, the Kinderdines have failed to meet their
burden of proof, making conclusory allegations rather than alleging operative facts
demonstrating that Alleman acted in a willful, wanton or reckless manner.           R.C.
2744.03(A)(6)(b).
      {¶35} In sum, for the reasons discussed herein, in Appeal Nos. 2014 MA
0174 and 0180, the judgments of the trial court are reversed, and summary judgment
is granted in favor of BDD and ESC and their employees. In Appeal Nos. 2014 MA
0177 and 0181, the judgments of the trial court are affirmed.

Waite, J., concurs.

Robb, J., concurs.
