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Laticia Hubbard v. Cleveland Metropolitan School District Board of Education

October 20, 2011

LATICIA HUBBARD PLAINTIFF-APPELLEE
v.
CLEVELAND METROPOLITAN SCHOOL DISTRICT BOARD OF EDUCATION DEFENDANT-APPELLANT



REVERSED AND REMANDED Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-706435

The opinion of the court was delivered by: Colleen Conway Cooney, J.:

Cite as Hubbard v. Cleveland Metro. School Dist. Bd. of Edn.,

JOURNAL ENTRY AND OPINION

JUDGMENT:

BEFORE: Cooney, J., Stewart, P.J., and S. Gallagher, J.

{¶1} Defendant-appellant, the Cleveland Metropolitan School District Board of Education ("the Board"), appeals the trial court's denial of its motion for summary judgment. Finding merit to the appeal, we reverse and remand.

{¶2} This appeal arises from a lawsuit filed in 2009 by plaintiff-appellee, Laticia Hubbard ("Hubbard"), against the Board, alleging numerous causes of action including a claim for defamation. The Board moved for summary judgment, arguing that it is immune from intentional tort claims under R.C. 2744.02. Hubbard opposed the motion, claiming the tort involved negligence as opposed to an intentional tort, and therefore the Board is not immune. The trial court denied the Board's motion for summary judgment in March 2011, finding that genuine issues of material fact exist.

{¶3} It is from this order that the Board now appeals, raising one assignment of error in which it argues that the trial court erred by denying its motion for summary judgment because it is immune from intentional tort claims under R.C. 2744.02.*fn1

Standard of Review

{¶4} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. The Ohio Supreme Court stated the appropriate test in Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201, as follows:

"Pursuant to Civ.R. 56, summary judgment is appropriate when (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 and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274."

{¶5} Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E); Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385, 667 N.E.2d 1197. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138.

Political Subdivision Immunity

{ΒΆ6} The Political Subdivision Tort Liability Act, codified in R.C. Chapter 2744, sets forth a three-tiered analysis for determining whether a political subdivision is immune from liability. First, R.C. 2744.02(A) states the general rule of immunity that a political subdivision is immune from liability incurred in performing ...


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