Court of Appeals of Ohio, Fifth District, Delaware
RONALD L. JONES, II. Plaintiff-Appellee
DELAWARE CITY SCHOOL DISTRICT BOARD OF EDUCATION Defendant-Appellant
Civil appeal from the Delaware County Court of Common Pleas, Case No. 10 CVH 12 1850
KATHLEEN ST. JOHN ANDREW R. YOUNG Nurenberg, Paris, Heller & McCarthy For Plaintiff-Appellee
JOHN C. ALBERT CRABBE, BROWN & JAMES, LLP For Defendant-Appellant
Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
(¶1} Appellant Delaware City School District Board of Education appeals the December 31, 2012 opinion and order from the Delaware County Court of Common Pleas denying its motion for summary judgment.
Facts and Procedural History
(¶2} Delaware Hayes High School has an orchestra pit in its auditorium. When the stage expanders are in place, the orchestra pit is not visible and the surface of the stage is expanded. The expanders are in place most of the time, except when the school is having musicals or plays. It takes several employees between four to eight hours to open or close the pit.
(¶3} On April 26, 2007, a student was injured at Delaware Hayes High School when he went into the dark auditorium to retrieve something and fell into the open orchestra pit. Subsequent to this incident in the spring or summer of 2007, changes were made to the stage in response to legislation known as "Jarod's Law." Jarod's Law, which has since been repealed, was enacted to improve school building safety. The Delaware County Health Department notified the school that it had to define the edge of the stage so that anyone approaching the edge would be aware of that there was a drop-off into the orchestra pit. The school then used phosphorescent glow tape around the edge of the stage and placed LED night lights in the orchestra pit to define the outer edge of the stage and show that there was a height differential between the stage and the orchestra pit.
(¶4} There is no dispute that, on October 30, 2009, the LED lights were not present in the orchestra pit and the glow tape was not around the edge of the stage. On October 30, 2009, appellee Ronald L. Jones, II, a senior at the school, was making a movie about bullying for a contest sponsored by the Strand Theatre project. The project was not for a class or for a grade. Appellee received permission from the school's front office to use the auditorium that day and appellee filmed the first few scenes of his project in the school's main office. After filming the scenes in the main office, appellee and Officer Glazer, the school's Drug Abuse Resistance Education ("D.A.R.E") officer, proceeded to the auditorium to film additional scenes for the project. Appellee and Office Glazer went through the school hallway and went outside the school building to where the exterior doors to the auditorium were located. Officer Glazer went back inside the school to unlock the door for appellee while appellee waited outside a locked emergency exit with the remote control car he was using in the film.
(¶5} According to appellee, after Officer Glazer unlocked and opened the door, appellee held the door open so that Officer Glazer could drive the remote control car into the area. Appellee then followed Officer Glazer and the remote control car into the auditorium and onto the stage. After they entered the auditorium, the doors to the auditorium closed behind them, leaving the auditorium dark. Appellee followed behind the remote control car at a distance of less than a foot and Officer Glazer was approximately three feet in front of the remote control car. Once the doors to the auditorium shut, appellee was not able to see the car because it was too dark.
(¶6} Appellee then heard Office Glazer state he was going to turn on the lights so appellee could film. While Officer Glazer went to turn on the lights, appellee turned to his left and walked forward with a camera in his hand. Appellee took approximately three steps before falling into the orchestra pit. Appellee stated he was a member of the school orchestra. However, he was unaware there was an orchestra pit in the auditorium because, when he was previously on stage, the orchestra pit was covered with the stage expanders.
(¶7} On December 29, 2010, appellee filed a complaint against appellant, alleging that appellant was negligent in allowing and maintaining the configuration of the orchestra pit as a physical defect as provided in R.C. 2744.02 and in failing to warn of the existence of the physical defect. Appellant filed a motion for summary judgment on April 2, 2012, arguing appellee was precluded from recovery under the open and obvious doctrine and that appellee was guilty of comparative negligence pursuant to the step-in-the-dark rule and precluded from recovery. Appellant also contended it was a political subdivision and was immune from liability and that it was immune from insurance subrogation claims, noting that UnitedHealth Care was pursuing recovery for medical bills paid on behalf of appellee. Appellee filed a memorandum in opposition to appellant's motion for summary judgment on April 26, 2012, and also filed appellee's affidavit on April 26, 2012. Appellant filed a motion to strike appellee's affidavit, arguing it contradicted his deposition testimony and was self-serving. Appellee filed a response to appellant's motion to strike on May 18, 2012.
(¶8} On December 31, 2012, the trial court denied appellant's motion for summary judgment and motion to strike. The court found appellee's affidavit did not contradict his prior deposition testimony and simply supplemented his deposition testimony. The trial court also found, with or without appellee's affidavit, there was sufficient evidence to create a genuine issue of material fact as to whether appellant was liable under R.C. 2744.02(B)(4) and whether the open and obvious doctrine barred appellee from recovery. Finally, the trial court found that, with or without appellee's affidavit, there was a genuine issue of material fact regarding the parties' relative fault for the injury. Appellant filed an appeal of the trial court's December 31, 2012 decision and raises the following assignments of error on appeal:
(¶9} "I. THE TRIAL COURT ERRED IN DENYING DELAWARE CITY SCHOOL'S POLITICAL SUBDIVISION ...