What Happened on Remand: Michael Hawsman v. Cuyahoga Falls, Part III. Plaintiff Finally Gets Day in Court for Diving Board Accident.

Case Background

When this accident happened Michael Hawsman was twelve years old; he is now an adult, which is why the case caption now lists his full name instead of his initials. Speedy justice this is not.

In May of 2006 Michael broke his knee in a diving board accident at the Cuyahoga Falls Natatorium and Wellness Center. The Center is owned by the City of Cuyahoga Falls (the City) and is controlled and maintained by the City’s Parks and Recreation Department.

Michael and his parents sued the City, claiming the diving board was negligently maintained, and that Michael was injured because of a physical defect on the premises. The City argued it was entitled to political subdivision immunity provided by R.C. 2744.02(A)(1).

The trial court granted summary judgment to the City, holding that the City was entitled to political subdivision immunity. The Ninth District Court of Appeals reversed, finding the exception to immunity provided in R.C. 2744.02(B)(4) for an injury caused by physical defects within or on the grounds of buildings that are used in connection with the performance of a governmental function, applied.

Ohio Supreme Court Merit Decision

On November 20, 2012, the Supreme Court handed down a merit decision in M.H. v. Cuyahoga Falls, 2012-Ohio-5336. In a unanimous opinion written by Justice Pfeifer, the court agreed with the court of appeals that the City was not entitled to immunity in this case.

What Happened on Remand

On remand, the City again filed for summary judgment, arguing there was no evidence that Michael’s injury was caused by any physical defect, but if there were, the City didn’t create it and had no knowledge of it. The City also argued the danger was open and obvious. The trial court found there were disputed issues of fact over the questions of employee negligence, whether there was a defect in the diving board, and whether the City created the hazardous condition, but accepted the City’s argument that slippery diving boards are an open and obvious hazard, and granted summary judgment to the City on that no-duty basis. Read more about this here.

Third Time’s a Charm?

On January 23, 2014, the plaintiffs filed another appeal to the Ninth District in this case. The City filed a cross appeal, in the event the appeals court sustained the Hawsmans’ assignment of error, on the two grounds on which the trial court denied it summary judgment: 2744.02(B)(4) immunity issues, and notice.

On September 30th, 2014, in an opinion written by Judge Eve Belfance, the Ninth District unanimously reversed the trial court’s decision. Judge Donna Carr concurred in judgment only. In its decision, the court of appeals held that the trial court erred in granting summary judgment to the City based on the open and obvious doctrine, noting that Michael’s claim was not that the accident was caused by the naturally slippery condition of the diving board, but by negligent maintenance by City employees in failing to perform proper inspection and maintenance of the diving board, which caused the board to become defective.

The appeals court also denied the City’s cross-appeal, holding that the trial court properly addressed the issues of sovereign immunity and notice. The court of appeals found that the trial court had correctly concluded that there were genuine issues of material fact on the issues of employee negligence in cleaning and maintaining the diving board and on the existence of a defect in the board, and this was enough to prevent summary judgment on the basis of sovereign immunity. Further, the court held that the trial court did not err in denying summary judgment on the issue of notice, finding that a reasonable trier of fact could conclude that the City created the hazardous condition by failing to comply with the daily maintenance recommended by the manufacturer.

Judge Carr agreed that the case needed to go back to the trial court, and agreed that the question of whether a hazard is open and obvious depends on whether a reasonable person, under the totality of the circumstances, would have discovered the danger. But she but would require the trial court to consider Michael’s then-status as a child before determining the applicability of the open and obvious doctrine, and would have the trial court determine whether the City owed Michael a heightened duty because of his age at the time of the accident.

 Student Contributor: Michael Elliott



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