physical defect exception in Ohio

2025R.C. 2744.02(B)(4) states that immunity may be abrogated if an injury is “caused by the negligence of [a political subdivision’s] employees and that occurs 7 OHIO FIRST DISTRICT COURT OF APPEALS within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function.” {¶13} For the physical defect exception to apply, this court has stated that the “the injury, death, or loss [must have] (1) resulted from employee negligence, (2) occurred within or on the grounds of buildings used in connectio

2022Johnson’s negligence claim alleged that the premises was owned and maintained by CMHA, CMHA negligently maintained the “non-slip step mat” on the interior staircase of her home, and the “non-slip step mat” detached from a step while she was descending, causing her to fall down the staircase and sustain injuries. {¶14} “To establish the physical-defect exception [under R.C. 2744.02(B)(4)], a plaintiff must allege that the injury, death, or loss (1) resulted from employee negligence, (2) occurred within or on the grounds of buildings used in connection with a governmental function, and (3) resul

2022Johnson’s negligence claim alleged that the premises was owned and maintained by CMHA, CMHA negligently maintained the “non-slip step mat” on the interior staircase of her home, and the “non-slip step mat” detached from a step while she was descending, causing her to fall down the staircase and sustain injuries. {¶14} “To establish the physical-defect exception [under R.C. 2744.02(B)(4)], a plaintiff must allege that the injury, death, or loss (1) resulted from employee negligence, (2) occurred within or on the grounds of buildings used in connection with a governmental function, and (3) resul

2022Ross No. 11CA3249, 2012-Ohio-3071, ¶ 15 . {¶37} We address the third prong of the physical-defect exception first, which requires that the injury result from a physical defect. “[B]ecause the term ‘physical defect’ is not defined in Chapter 2744, ‘courts have applied the common meaning of the phrase.’” Moss v. Lorain Cty.

2026Bd. of Edn., 2022-Ohio-2915, ¶ 44 (3d Dist.); Nicholas v. Lake Cty., 2013-Ohio-4294, ¶ 23 (11th Dist.) (“[a]lthough the term ‘physical defect’ is not defined in the statute, prevailing authority holds that a ‘physical defect’ is a ‘perceivable imperfection that diminishes the worth or utility of the object at issue’”) (citation omitted); O’Brien v. Great Parks of Hamilton Cty., 2020-Ohio-6949, ¶ 25 (1st Dist.) (negligent use of a riding lawnmower does not constitute a physical defect “absent some evidence that the lawnmower was broken PAGE 25 OF 41 Case No. 2025-L-038 or improperly assembled s

2026Bd. of Edn., 2022-Ohio-2915, ¶ 44 (3d Dist.); Nicholas v. Lake Cty., 2013-Ohio-4294, ¶ 23 (11th Dist.) (“[a]lthough the term ‘physical defect’ is not defined in the statute, prevailing authority holds that a ‘physical defect’ is a ‘perceivable imperfection that diminishes the worth or utility of the object at issue’”) (citation omitted); O’Brien v. Great Parks of Hamilton Cty., 2020-Ohio-6949, ¶ 25 (1st Dist.) (negligent use of a riding lawnmower does not constitute a physical defect “absent some evidence that the lawnmower was broken PAGE 25 OF 41 Case No. 2025-L-038 or improperly assembled s

2026Johnson, 2022-Ohio-26, at ¶ 14 (1st Dist.), quoting R.K. v. Little Miami Golf Ctr., 2013-Ohio-4939, ¶ 15 (1st Dist.), citing Leasure v. Adena Local School Dist., 2012- Ohio-3071, ¶ 15 (4th Dist.).

2026Bd. of Edn., 2022-Ohio-2915, ¶ 44 (3d Dist.); Nicholas v. Lake Cty., 2013-Ohio-4294, ¶ 23 (11th Dist.) (“[a]lthough the term ‘physical defect’ is not defined in the statute, prevailing authority holds that a ‘physical defect’ is a ‘perceivable imperfection that diminishes the worth or utility of the object at issue’”) (citation omitted); O’Brien v. Great Parks of Hamilton Cty., 2020-Ohio-6949, ¶ 25 (1st Dist.) (negligent use of a riding lawnmower does not constitute a physical defect “absent some evidence that the lawnmower was broken PAGE 25 OF 41 Case No. 2025-L-038 or improperly assembled s

2025Korengel v. Little Miami Golf Ctr., 2019-Ohio-3681, ¶ 51 (1st Dist.). {¶14} CMHA contends that Middlebrooks presented no evidence to establish the physical defect exception.

2022See Plush 3 OHIO FIRST DISTRICT COURT OF APPEALS v. Cincinnati, 2020-Ohio-6713 , 164 N.E.3d 1056, ¶ 29 (1st Dist.); O’Brien v. Great Parks of Hamilton Cty., 1st Dist.

2022See Plush 3 OHIO FIRST DISTRICT COURT OF APPEALS v. Cincinnati, 2020-Ohio-6713 , 164 N.E.3d 1056, ¶ 29 (1st Dist.); O’Brien v. Great Parks of Hamilton Cty., 1st Dist.

2019See Bennett, 92 Ohio St.3d at 39 , 748 N.E.2d 41 , citing Di Gildo, 18 Ohio St.2d at 127 , 247 N.E.2d 732 . {¶62} Thus, we conclude that Appellants were not entitled to summary judgment based on the open-and-obvious doctrine, which, if established, would eliminate any duty to protect Ryan from the allegedly hazardous tree and prevent the Korengels from establishing the negligence requirement of the physical-defect exception to immunity. {¶63} Negligence in connection with the failure to manually activate the storm siren.

2019See Bennett, 92 Ohio St.3d at 39 , 748 N.E.2d 41 , citing Di Gildo, 18 Ohio St.2d at 127 , 247 N.E.2d 732 . {¶62} Thus, we conclude that Appellants were not entitled to summary judgment based on the open-and-obvious doctrine, which, if established, would eliminate any duty to protect Ryan from the allegedly hazardous tree and prevent the Korengels from establishing the negligence requirement of the physical-defect exception to immunity. {¶63} Negligence in connection with the failure to manually activate the storm siren.

2019See Bennett, 92 Ohio St.3d at 39 , 748 N.E.2d 41 , citing Di Gildo, 18 Ohio St.2d at 127 , 247 N.E.2d 732 . {¶62} Thus, we conclude that Appellants were not entitled to summary judgment based on the open-and-obvious doctrine, which, if established, would eliminate any duty to protect Ryan from the allegedly hazardous tree and prevent the Korengels from establishing the negligence requirement of the physical-defect exception to immunity. {¶63} Negligence in connection with the failure to manually activate the storm siren.

2019See Bennett, 92 Ohio St.3d at 39 , 748 N.E.2d 41 , citing Di Gildo, 18 Ohio St.2d at 127 , 247 N.E.2d 732 . {¶62} Thus, we conclude that Appellants were not entitled to summary judgment based on the open-and-obvious doctrine, which, if established, would eliminate any duty to protect Ryan from the allegedly hazardous tree and prevent the Korengels from establishing the negligence requirement of the physical-defect exception to immunity. {¶63} Negligence in connection with the failure to manually activate the storm siren.

2019As we agree the hillside was not a physical defect, we need not address the District’s alternative arguments. 2 See Argabrite v. Neer, 149 Ohio St.3d 349 , 2016-Ohio-8374 , 75 N.E.3d 161, ¶ 13 (where the lower courts applied a common law rule instead of the immunity statute, the Court noted it would ordinarily remand for application of the proper immunity standard but then opined, “this case calls out for a different course”).

2019As we agree the hillside was not a physical defect, we need not address the District’s alternative arguments. 2 See Argabrite v. Neer, 149 Ohio St.3d 349 , 2016-Ohio-8374 , 75 N.E.3d 161, ¶ 13 (where the lower courts applied a common law rule instead of the immunity statute, the Court noted it would ordinarily remand for application of the proper immunity standard but then opined, “this case calls out for a different course”).

2017See Hawsman at ¶ 23 (defining “physical defect”). 12 {¶28} Upon review, we must conclude that genuine issues of material fact remain as to the applicability of the physical defect exception to sovereign immunity.