second tier analysis in Ohio

2025This immunity applies whether the actions or omissions by the Clerk were connected with "proprietary functions" or "governmental functions." R.C. 2744.02(A)(1). {¶ 27} "The second tier of the analysis focuses on the five exceptions to immunity listed in R.C. 2744.02(B), which can expose the political subdivision to liability." Smith v. McBride, 2011-Ohio-4674, ¶ 14 .

2024"The second tier of the analysis focuses on the five exceptions to immunity listed in R.C. 2744.02(B), which can expose the political subdivision to liability." Smith v. McBride, 130 Ohio St.3d 51 , 2011-Ohio-4674, ¶ 14 .

2014Cater v. Cleveland, 83 Ohio St.3d 24, 28 , 1998-Ohio-421 , 697 N.E.2d 610 . {¶12} “The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability.” Id. at 28.

2013R.C. 2744.02(B); Cater v. Cleveland, 83 Ohio St.3d 24, 28 , 1998-Ohio-421 , 697 N.E.2d 610 . {¶22} “The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability.” Id. at 28.

2014“Only in the second tier of the analysis do the facts of a particular case become relevant.” Deanda at ¶ 6 . {¶19} In determining whether an offense is a lesser included offense of another, a court shall consider whether (1) “one offense carries a greater penalty than the other,” (2) “some element of the greater offense is not required to prove commission of the lesser offense,” and (3) “the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed.” Evans at paragraph two of the syllabus, clarifying State v. Deem, 40 Ohio

2014“Only in the second tier of the analysis do the facts of a particular case become relevant.” Deanda at ¶ 6 . {¶19} In determining whether an offense is a lesser included offense of another, a court shall consider whether (1) “one offense carries a greater penalty than the other,” (2) “some element of the greater offense is not required to prove commission of the lesser offense,” and (3) “the greater offense as statutorily defined cannot be committed without the lesser offense as statutorily defined also being committed.” Evans at paragraph two of the syllabus, clarifying State v. Deem, 40 Ohio

2017(Other -24- citation omitted.) “Only in the second tier of the analysis do the facts of a particular case become relevant.” Id.

2015“Only in the second tier of the analysis do the facts of a particular case become relevant.” Id. {¶14} The Ohio Supreme Court has held that gross sexual imposition under Section 2907.05(A)(4) is a lesser included offense of rape under Section 2907.02(A)(1)(b).

2025“The second tier of the analysis places the burden on the plaintiff to overcome this statutory immunity by showing that one of the five exceptions contained in R.C. 2744.02(B) applies.” Id., citing Powell v. Cleveland, 2022-Ohio-4286, ¶ 10 (8th Dist.). “‘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.’” McConnell v. Dudley, 2019-Ohio-4740, ¶ 17 , quoting Pelletier v. Campbell, 2018- Ohio-2121, ¶ 12, citing Conley v. Shearer, 1992-Ohio-133 .

2024“That immunity, however, is not absolute.” McConnell v. Dudley, 158 Ohio St.3d 388 , 2019-Ohio-4740, ¶ 21 . {¶11} “Under the second tier of the analysis, a political subdivision’s ‘comprehensive immunity can be abrogated pursuant to any of the five exceptions set forth at R.C. 2744.02(B).’” Bevelacqua at ¶ 11 , quoting Shalkhauser v. Medina, 148 Ohio App.3d 41, 46 (9th Dist.2002).

2024Doe v. Greenville City School, 171 Ohio St.3d 763 , 2022-Ohio-4618, ¶ 10 , citing Hill v. Urbana, 79 Ohio St.3d 130 (1997). {¶ 25} The second tier of analysis requires a court to determine if any of the five exceptions to immunity set forth in R.C. 2744.02(B) are applicable to reinstate liability to the political subdivision.

2023As previously mentioned, the exception to immunity contained in R.C. 2744.02(B)(2) provides that “a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property caused by an act or omission of the political subdivision or any of its employees in connection with the performance of a proprietary function.” Hill v. Urbana, 79 Ohio St.3d 130 , 679 N.E.2d 1109 (1997), paragraph one of the syllabus.

2019If any of the exceptions to immunity are applicable, thereby exposing the political subdivision to liability, the third tier of the 9 analysis assesses whether any of the defenses to liability contained in R.C. 2744.03 apply to reinstate immunity.” Id. at ¶9, citing Elston, supra, at ¶11-12 . {¶37} “Immunity is also extended to individual employees of political subdivisions.” Id. at ¶10, citing R.C. 2744.03(A)(6), O’Toole v. Denihan, 118 Ohio St.3d 374 , 2008-Ohio-2574 , ¶47, Cramer v. Auglaize Acres, 113 Ohio St.3d 266 , 2007-Ohio- 1946, ¶17, and Fabrey v. McDonald Village Police Dept., 70 Oh

2012Id. at ¶ 23-25, quoting Cramer v. Auglaize Acres, 113 Ohio St. 266 , 2007-Ohio-1946 , 865 N.E.2d 9 . {¶24} Beginning with the first tier, the City is generally immune from liability.

2018Elston v. Howland Local Schools , 113 Ohio St.3d 314 , 2007-Ohio-2070 , 865 N.E.2d 845 , ¶ 10 ; see also Hortman v. Miamisburg , 110 Ohio St.3d 194 , 2006-Ohio-4251 , 852 N.E.2d 716 , ¶ 12. {¶ 18} Once immunity is generally established, "the second tier of analysis is whether any of the five exceptions to immunity in subsection (B) apply." Id. at ¶ 12.

2018Elston v. Howland Local Schools , 113 Ohio St.3d 314 , 2007-Ohio-2070 , 865 N.E.2d 845 , ¶ 10 ; see also Hortman v. Miamisburg , 110 Ohio St.3d 194 , 2006-Ohio-4251 , 852 N.E.2d 716 , ¶ 12. {¶ 18} Once immunity is generally established, "the second tier of analysis is whether any of the five exceptions to immunity in subsection (B) apply." Id. at ¶ 12.

2025Thus, we will proceed to the second tier of the analysis. {¶25} “[I]n a trial for felonious assault, a trial court must give the jury an aggravated assault instruction if the defendant presents sufficient evidence of serious provocation such that a jury could both reasonably acquit the defendant of felonious assault and convict the defendant of aggravated assault.” State v. Jones, 2018-Ohio-239, ¶ 12 (4th Dist.), citing State v. Mack, 82 Ohio St.3d 198, 200 (1998); Deem at 211 ; and Shane, 63 Ohio St.3d 630 .

2015“Rather, a court must find ‘sufficient evidence’ to ‘allow a jury to reasonably reject the greater offense and find the defendant guilty on a lesser included (or inferior degree) offense.’ (Emphasis sic.)” Id., quoting Shane at 632 . 11. {¶ 28} In this case, the state does not dispute the first tier of the analysis that vehicular homicide in violation of R.C. 2903.06(A)(3)(a) is a lesser included offense of aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a) or that vehicular homicide in violation of R.C. 2903.06(A)(3)(b) is a lesser included offense of aggravated vehicular hom

2025“The second tier of the analysis places the burden on the plaintiff to overcome this statutory immunity by showing that one of the five exceptions contained in R.C. 2744.02(B) applies.” Coventry Courts, LLC v. Cuyahoga Cty., 2023-Ohio-1037, ¶ 14 , citing Powell v. Cleveland, 2022-Ohio-4286, ¶ 10 .

2025First, a court applies the general rule provided in R.C. 2744.02(A)(1), which states that a political subdivision is “not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” “‘The second tier of the analysis places the burden on the plaintiff to overcome this statutory immunity by showing that one of the five exceptions contained in R.C. 2744.02(B) applies.’” Bykova at ¶ 13, quoting Coventry

2024"If any of the exceptions to immunity are applicable, thereby exposing the political subdivision to liability, the third tier of the analysis assesses whether any of the defenses to liability contained in R.C. 2744.03 apply to reinstate immunity." Lambert v. Clancy, 125 Ohio St.3d 231 , 2010-Ohio-1483, ¶ 9 . {¶ 16} With regard to the first tier of the analysis, R.C. 2744.02(A)(1) provides: For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions.

2024"If any of the exceptions to immunity are applicable, thereby exposing the political subdivision to liability, the third tier of the analysis assesses whether any of the defenses to liability contained in R.C. 2744.03 apply to reinstate immunity." Lambert v. Clancy, 125 Ohio St.3d 231 , 2010-Ohio-1483, ¶ 9 . {¶ 16} With regard to the first tier of the analysis, R.C. 2744.02(A)(1) provides: For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions.

2018Bd. of Edn., 2013-Ohio-3907 , 995 N.E.2d 1252 , ¶ 19 (5th Dist.).

2017Bd. of Edn., 2013-Ohio-3907 , 995 N.E.2d 1252 , ¶ 19 (5th Dist.).

2017“In determining whether lesser-included-offense instructions are appropriate, ‘the trial court must view the evidence in the light most favorable to the defendant.’ ” State v. Wine, 140 Ohio St.3d 409 , 2014-Ohio-3948 , 18 N.E.3d 1207, ¶ 21 , quoting State v. Monroe, 105 Ohio St.3d 384 , 2005-Ohio-2282 , 827 N.E.2d 285 , ¶ 37. {¶ 88} In this part of his brief, Landers contends that A.G. testified that Landers only “tried” to put his penis in her butt.

2016“Only in the second tier of the analysis do the facts of a particular case become relevant.” Henry at ¶ 13, quoting Deanda at ¶ 6 . {¶18} “The trial court must give an instruction on a lesser included offense if under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense.” State v. Wine, 140 Ohio St.3d 409 , 2014- Ohio-3948, ¶ 34; see also State v. Coker, 9th Dist.

2009Dept. of Human Services , 70 Ohio St. 3d 450 , 452 , 1994-Ohio-394 , 639 N.E.2d 105 (under second tier of analysis, defendant was entitled to immunity on claim of intentional infliction of emotional distress); Ramey v. Mudd , *Page 9 154 Ohio App.3d 582 , 587-88 , 2003-Ohio-5170 , 798 N.E.2d 57 (finding immunity for assault and battery); Lee v. City of Cleveland , 151 Ohio App.3d 581 , 587 , 2003-Ohio-742 , 784 N.E.2d 1218 (city immune on claims that officers used excessive force in making arrest); Ratcliff v. Darby , Scioto App. No. 02CA2832, 2002-Ohio-6626 (police department immune from liab

2009Maggio v. Warren, Trumbull App. No. 2006-T-0028, 2006-Ohio-6880, at ¶ 38 ; Ramey v. Mudd, 154 Ohio App.3d 582 , 2003-Ohio-5170 , 798 N.E.2d 57, at ¶ 16 .

2009Maggio v. Warren, Trumbull App. No. 2006-T-0028, 2006-Ohio-6880, at ¶ 38 ; Ramey v. Mudd, 154 Ohio App.3d 582 , 2003-Ohio-5170 , 798 N.E.2d 57, at ¶ 16 .

2009Maggio v. Warren, Trumbull App. No. 2006-T-0028, 2006-Ohio-6880, at ¶ 38 ; Ramey v. Mudd, 154 Ohio App.3d 582 , 2003-Ohio-5170 , 798 N.E.2d 57, at ¶ 16 .

2008Haynes, 95 Ohio St.3d 344 , 2002-Ohio-2334 , 767 N.E.2d 1146 , at ¶ 18 (which also involved redesign, reconstruction, and repaving).

2005They also agree that an exception to immunity generally exists under R.C. 2744.02 (B)(3), which makes political subdivisions liable: {¶ 14} "for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance * * *." {¶ 15} The Supenskys also rely on R.C. 723.01 , which requires municipalities to keep public highways, streets, sidewalks, and other public property "open, in repair, and free from nuisa

2008Haynes, 95 Ohio St.3d 344 , 2002-Ohio-2334 , 767 N.E.2d 1146 , at ¶ 18 (which also involved redesign, reconstruction, and repaving).

2005They also agree that an exception to immunity generally exists under R.C. 2744.02 (B)(3), which makes political subdivisions liable: {¶ 14} "for injury, death, or loss to persons or property caused by their failure to keep public roads, highways, streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within the political subdivisions open, in repair, and free from nuisance * * *." {¶ 15} The Supenskys also rely on R.C. 723.01 , which requires municipalities to keep public highways, streets, sidewalks, and other public property "open, in repair, and free from nuisa

2007Id.

2002Our analysis does not stop here, because under the third tier of the analysis, immunity may be ‘revived’ if the political subdivision can demonstrate the applicability of one of the defenses found in R.C. 2744.03(A)(1) through (5).” Summers v. Slivinsky (2001), 141 Ohio App.3d 82, 86-87 , 749 N.E.2d 854 . {¶ 25} Clearly, Allied’s claims for conversion and tortious interference with a contract fall within the general grant of immunity found in R.C. 2744.02(A)(1).

2007Cater , supra, at 28. {¶ 17} As noted by the court in Doe v. Dayton (1999), 137 Ohio App.3d 166 , 738 N.E.2d 390 : {¶ 18} "The General Assembly's enactment of R.C. 2744.02 (A)(1) reflects a policy choice on the part of the state of Ohio to extend to its political subdivisions the full benefits of sovereign immunity from tort claims.

2007Cater , supra, at 28. {¶ 17} As noted by the court in Doe v. Dayton (1999), 137 Ohio App.3d 166 , 738 N.E.2d 390 : {¶ 18} "The General Assembly's enactment of R.C. 2744.02 (A)(1) reflects a policy choice on the part of the state of Ohio to extend to its political subdivisions the full benefits of sovereign immunity from tort claims.

1999Because the first tier of Newark, 48 Ohio St.3d 81 , 549 N.E.2d 520 , is not satisfied, we need not address the second tier of the analysis.

1999Because the first tier of Newark, 48 Ohio St.3d 81 , 549 N.E.2d 520 , is not satisfied, we need not address the second tier of the analysis.

2025Id. {¶ 63} Under the second-tier of the analysis, the general immunity afforded by R.C. 2744.02(A)(1) to a political subdivision is not absolute, but is, by its express terms, subject to the five statutory exceptions set forth in R.C. 2744.02(B).