Court of Appeals of Ohio, Fourth District, Pickaway
CASE FROM COMMON PLEAS COURT
M. Enders and Acacia B. Perko, Columbus, Ohio, for appellant.
Harris, Columbus, Ohio, for appellees.
DECISION AND JUDGMENT ENTRY
1} This is an appeal from a Pickaway County Common
Pleas Court judgment that denied summary judgment to the
Village of Williamsport, defendant below and appellant
herein. The trial court determined that appellant
is not immune from liability under R.C. Chapter 2744 for the
negligence and loss-of-consortium claims asserted by Gary and
Peggy Wright, plaintiffs below and appellees herein.
Appellant assigns the following error for review:
"THE TRIAL COURT ERRED BY DENYING POLITICAL SUBDIVISION
IMMUNITY TO THE VILLAGE OF WILLIAMSPORT BECAUSE IT IS
ENTITLED TO A GENERAL GRANT OF IMMUNITY, NONE OF THE
EXCEPTIONS UNDER R.C. 2744.02(B) APPLY TO BAR IMMUNITY, AND,
EVEN IF AN EXCEPTION APPLIES, AT LEAST ONE DEFENSE APPLIES TO
2} In July 2017, Williamsport Village Council member
Pennie McCain spoke to Gary Wright about submitting a bid for
repairing or replacing the roof of the village's
maintenance barn. Wright subsequently visited the maintenance
barn to examine the roof. As he examined the roof, Wright
fell through a painted-over skylight and sustained serious
3} Appellees filed a complaint against
appellant and alleged that appellant negligently
and/or recklessly allowed a dangerous condition to exist at
its maintenance barn. In particular, appellees claimed that
the roof contained a fiberglass skylight painted the same
color as the roof and looked identical to the roof s surface.
Appellant denied liability and asserted it is statutorily
immune from liability for appellees' claims.
4} Appellant later requested summary judgment and
asserted that because it is entitled to statutory immunity,
it cannot be liable for appellees' claims. Appellant
contended that it is entitled to the presumption of immunity
and that none of the exceptions to immunity apply. Appellant
asserted that R.C. 2744.02(B)(4) does not apply because
appellees cannot establish that the injuries arose from a
village employee's negligence. Appellant argued that
Wright went onto the roof without informing any of the
village's employees and that the village did not have any
chance to discuss the roofs condition before Wright walked on
the roof. Appellant further claimed that even if one of its
employees was negligent, the discretionary defense reinstates
5} In their memorandum contra, appellees argued that
the appellant breached its duty of reasonable care owed to
business invitees. Appellees claimed that the village
employees breached their duty to warn him of the hidden
danger associated with the roofs painted-over skylights.
Appellees disputed any argument that the dangers associated
with the roof were open and obvious and alleged that the
skylights were painted the same color as the roof and that it
was impossible for Wright to have known that the roof
contained skylights through which he might fall.
6} In reply, appellant contended that the dangers
associated with the roof were open and obvious and that it
did not, therefore, have a duty to warn Wright of the open
and obvious nature of the hazard. Appellant asserted that
Wright knew that the roof needed to be "removed and
replaced," and this knowledge shows that he was aware of
the roofs dangerous condition. Appellant thus alleged that it
did not have a duty to warn Wright of the roofs dangerous
7} To support their arguments, the parties referred
to the depositions filed in the case. Wright stated in his
deposition that village council member McCain informed him
that the council was interested in obtaining bids to replace
the maintenance barn's metal roof. Wright asked McCain if
he needed to meet with, or speak to, anyone before looking at
the roof, and she told him that he did not.
8} Wright explained that when he examined the roof,
he walked across the roof and paid attention to where the
nails were located. He related that he normally tries to walk
where the nails are located because that is "where the
support of the structure is of the roof." Wright stated
that as he walked across the roof, he suddenly fell through
the roof. Wright also reported that he did not see any
indications that the roof contained a skylight or other
9} After reviewing the evidentiary materials, the
trial court denied appellant's request for summary
judgment. This appeal followed.
10} In its sole assignment of error, appellant
asserts that the trial court incorrectly concluded that it is
not entitled to immunity for appellees' claims. Appellant
argues that the evidence fails to suggest that any of its
employees were negligent. Specifically, appellant alleges
that the evidence does not indicate that any of its employees
had a duty to warn Wright about the dangers associated with
examining a roof that needed to be repaired or replaced.
Instead, appellant claims, Wright's knowledge that the
roof needed to be repaired or replaced placed him on notice
that the roof might be in a dangerous condition. Appellant
thus argues that it did not have a duty to warn Wright of any
further dangers associated with examining a roof in need of
repair or replacement.
11} Appellees, however, contend that the trial court
correctly denied appellant's summary judgment request and
that questions of fact remain as to whether any of
appellant's employees were negligent. Appellees thus
claim that because genuine issues of material fact remain
regarding appellant's employees' negligence,
appellant is not entitled to a finding that it is statutorily
immune from liability for appellees' injuries.
12} Initially, we note that appellate courts conduct
a de novo review of trial court summary judgment decisions.
E.g., State ex rel. Novak, L.L.P. v. Ambrose, - Ohio
St.3d -, 2019-Ohio-1329, - N.E.3d -, ¶ 8; Pelletier
v. Campbell, 153 Ohio St.3d 611, 2018-Ohio-2121, 109
N.E.3d 1210, ¶ 13; Grafton v. Ohio Edison Co.,
77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Accordingly, an appellate court must independently review the
record to determine if summary judgment is appropriate and
need not defer to the trial court's decision.
Grafton, 77 Ohio St.3d at 105.
13} Civ.R. 56(C) provides, in relevant part, as
* * * * Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law. No evidence or stipulation may be considered except
as stated in this rule. A summary judgment shall not be
rendered unless it appears from the evidence or stipulation,
and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary
judgment is made, that party being entitled to have the
evidence or stipulation construed most strongly in the
14} Accordingly, pursuant to Civ.R. 56, a trial
court may not award summary judgment unless the evidence
demonstrates that: (1) no genuine issue as to any material
fact remains to be litigated; (2) the moving party is
entitled to judgment as a matter of law; and (3) after
viewing the evidence most strongly in favor of the nonmoving
party, reasonable minds can come to but one conclusion, and
that conclusion is adverse to the nonmoving party.
Pelletier at ¶ 13; M.H. v. Cuyahoga
Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d
1261, ¶ 12; Temple v. Wean United, Inc., 50
Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
15} "Whether a party is entitled to immunity is
a question of law properly determined by the court prior to
trial pursuant to a motion for summary judgment."
Pelletier at ¶ 12, citing Conley v.
Shearer,64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992);
see also Riscatti v. Prime Properties Ltd.
Partnership,137 Ohio St.3d 123, 2013-Ohio-4530, 998
N.E.2d 437, ¶ 17 (noting the importance of deciding a
political subdivision's entitlement to immunity before
trial). Hence, appellate courts conduct a de novo review of a
trial court's determination regarding
political-subdivision immunity. Pelletier at ¶
13, citing Comer v. Risko,106 Ohio St.3d 185,
2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. De novo review
means that we afford no deference to the trial court's
decision and independently review ...