immunity defense in Ohio

2011Justice Sweeney, writing only for himself in the lead opinion, said that operation of an indoor municipal swimming pool was subject to the immunity exception found in former R.C. 2744.02(B)(3), which addressed nuisance conditions, but was not subject to the exception found in former R.C. 2744.02(B)(4).1 Cater, 83 Ohio St.3d at 30-32 .

2006Cater , 83 Ohio St.3d at 28 . {¶ 16} Herein, neither party disputes that both the first and second tiers of the immunity analysis are satisfied because under the first tier, R.C. 2744.02 (A)(1), The Gables is a political subdivision and the alleged harm occurred in connection with a proprietary function, and under the second tier it is liable for the allegedly negligent acts of its employees in carrying out the proprietary function.

2000Id., 69 Ohio St.3d at 348 , 632 N.E.2d at 505 . {¶ 41} Thus, Manufacturer’s and Franks were both cases that defined “nuisance” under the immunity exception as an existing obstruction or condition that actually impeded the safe flow of traffic before the accident in question occurred.

2000Id., 69 Ohio St.3d at 348 , 632 N.E.2d at 505 . {¶ 41} Thus, Manufacturer’s and Franks were both cases that defined “nuisance” under the immunity exception as an existing obstruction or condition that actually impeded the safe flow of traffic before the accident in question occurred.

2023“In cases involving the alleged negligent operation of a motor vehicle by an -8- Case No. 1-22-34 employee of a political subdivision, the second tier of the analysis includes consideration of whether the specific defenses of R.C. 2744.02(B)(1)(a) through (c) apply to negate the immunity exception of R.C. 2744.02(B)(1).” Smith v. McBride, 130 Ohio St.3d 51 , 2011-Ohio-4674, ¶ 14 .

2023“In cases involving the alleged negligent operation of a motor vehicle by an -8- Case No. 1-22-34 employee of a political subdivision, the second tier of the analysis includes consideration of whether the specific defenses of R.C. 2744.02(B)(1)(a) through (c) apply to negate the immunity exception of R.C. 2744.02(B)(1).” Smith v. McBride, 130 Ohio St.3d 51 , 2011-Ohio-4674, ¶ 14 .

2021Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 , 671 N.E.2d 241 (1996).

2011We agree. {¶ 9} In its answer, the village included the statement that “[p]laintiff’s claims are precluded by virtue of the immunity provided by O.R.C. §§ 2744.01 et seq, and all 2 Civ.R. 56(C); Dupler v. Mansfield Journal Co., Inc. (1980), 64 Ohio St.2d 116, 120 , 413 N.E.2d 1187 . 3 Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105 , 671 N.E.2d 241 . 4 OHIO FIRST DISTRICT COURT OF APPEALS other applicable statutory immunity.”4 The village argues that this statement was sufficient to raise and preserve the affirmative defense of recreational-user immunity. {¶ 10} Case law on the immun

2021R.C. 4112.01(A)(2) defines “employer” as “the state, any political subdivision of the state, or a person employing four or more persons within the state, and any agent of the state, political subdivision, or person.” In a plurality decision in Hauser v. Dayton Police Dept., 140 Ohio St.3d 268 , 2014-Ohio-3636 , 17 N.E.3d 554 , the Supreme Court of Ohio held that R.C. 4112.01(A)(2) and 4112.02(A) do not impose civil liability on political subdivision employees so as to trigger the immunity exception in R.C. 2744.03(A)(6)(c).

2021R.C. 4112.01(A)(2) defines “employer” as “the state, any political subdivision of the state, or a person employing four or more persons within the state, and any agent of the state, political subdivision, or person.” In a plurality decision in Hauser v. Dayton Police Dept., 140 Ohio St.3d 268 , 2014-Ohio-3636 , 17 N.E.3d 554 , the Supreme Court of Ohio held that R.C. 4112.01(A)(2) and 4112.02(A) do not impose civil liability on political subdivision employees so as to trigger the immunity exception in R.C. 2744.03(A)(6)(c).

2016As it turns out, it certainly was not the safest way. {¶ 76} Both the trial and the appellate courts in this case applied a proximate-cause standard espoused in Whitfield v. Dayton, 167 Ohio App.3d 172 , 2006-Ohio-2917 , 854 N.E.2d 532 (2d Dist.), overruled in part on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 , 983 N.E.2d 266 , that this court rightly repudiates because it subverts the immunity standard set forth in R.C. 2744.03(A)(6)(b).

2016As it turns out, it certainly was not the safest way. {¶ 76} Both the trial and the appellate courts in this case applied a proximate-cause standard espoused in Whitfield v. Dayton, 167 Ohio App.3d 172 , 2006-Ohio-2917 , 854 N.E.2d 532 (2d Dist.), overruled in part on other grounds, Anderson v. Massillon, 134 Ohio St.3d 380 , 2012-Ohio-5711 , 983 N.E.2d 266 , that this court rightly repudiates because it subverts the immunity standard set forth in R.C. 2744.03(A)(6)(b).

2014“In cases involving the alleged negligent operation of a motor vehicle by an employee of a political subdivision, the second tier of the analysis includes consideration of whether the specific defenses of R.C. 2744.02(B)(1)(a) through (c) apply to negate the immunity exception of R.C. 2744.02(B)(1).” Smith v. McBride, 2011- Ohio-4674, ¶ 14 citing Colbert v. Cleveland, 99 Ohio St.3d 215 , 2003-Ohio-3319 , 790 N.E.2d 781, ¶ 8 .

2014“In cases involving the alleged negligent operation of a motor vehicle by an employee of a political subdivision, the second tier of the analysis includes consideration of whether the specific defenses of R.C. 2744.02(B)(1)(a) through (c) apply to negate the immunity exception of R.C. 2744.02(B)(1).” Smith v. McBride, 2011- Ohio-4674, ¶ 14 citing Colbert v. Cleveland, 99 Ohio St.3d 215 , 2003-Ohio-3319 , 790 N.E.2d 781, ¶ 8 .

2011Martynyszyn v. Budd, 7th Dist. 2004-Ohio-4824 . {¶4} Regarding qualified immunity this Court reasoned that " * * * denial of a summary judgment for qualified immunity merely postpones the final disposition of both the immunity claim and the merits of the case until trial.

2010No. 03-MA-250, 2004-Ohio-4824, ¶ 17 ; Ohio Civ.

1990“If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. * * *” Id. at 818-819 .

1985Qualified immunity was quantified by the United States Supreme Court in Harlow v. Fitzgerald (1982), 457 U.S. 800 , 818-819: “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.

2026“When a defendant fails to amend an answer as a matter of course within 28 days after it is served, Civ.R. 15(A) provides that courts ‘shall freely give leave’ to amend the answer ‘when justice so requires.’” Id. {¶ 41} The problem with KHBMC’s use of Campbell to support its late assertion of an immunity defense is that Campbell concluded that the injured patient must establish liability under R.C. 2305.51.

2025Bykova at id., citing Coventry Courts, LLC at id., citing Rankin v. Cuyahoga Cty.

2025Bykova at id., citing Coventry Courts, LLC at id., citing Rankin v. Cuyahoga Cty.

2025Moskalik v. Mill Creek Metroparks, 2015-Ohio-4826, ¶ 13 , quoting Moss v. Ohio Dept. of Natural Resources, 62 Ohio St.2d 138, 142 (1980).

2025“However, ‘“where no facts are alleged justifying any reasonable inference that the acts or failure of the defendant constitute the proximate cause of the injury, there is nothing for the jury [to decide], and, as a matter of law, judgment must be given for the defendant.”’” (Bracketed material in original.) Id., quoting Kemerer v. Antwerp Bd. of Edn., 105 Ohio App.3d 792, 796 (3d Dist. 1995), quoting Case v. Miami Chevrolet Co., 38 Ohio App. 41, 45-46 (1st Dist. 1930). {¶36} In finding the immunity exception in R.C. 2744.02(B)(2) applied, the trial court indicated there were genuine issues of

2025(Emphasis added.) Id. at ¶ 12.4 4 The dissenting judge, while disagreeing with the majority on its abuse-of- discretion analysis, concurred with the majority’s conclusion that GCRTA was entitled to an immediate appeal of the trial court’s order, characterizing the order as an “implicit denial” of the motion for an extension of the summary-judgment deadline, which While the present action does not require the careful parsing of procedural rulings necessary in Hopkins, 2024-Ohio-2265 (8th Dist.), the endpoint is the same: Both Hopkins and the present action involve a request for time to present

2025It was then concluded the immunity exception in R.C. 2744.02(B)(1) for the negligent operation of a motor vehicle applies “only to negligence in driving or otherwise causing the vehicle to be moved.” Id., quoting Doe at ¶ 26 . {¶81} Applying this definition, the McConnell Court held the (B)(1) exception did not apply to an alleged violation of a duty in hiring, training, or supervising a police officer who is subsequently involved in an accident during a high-speed pursuit.

2024Dayton v. State, 151 Ohio St.3d 168 , 2017-Ohio-6909, ¶ 12 . “ ‘[T]he question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court.’ ” State v. Buttery, 162 Ohio St.3d 10 , 2020-Ohio-2998, ¶ 7 , quoting State v. Awan, 22 Ohio St.3d 120, 122 (1986). {¶ 19} Several of Clark’s pretrial filings referred to the constitutional right to bear arms and relevant case law, including motions to dismiss in which Clark asserted he had an immunity or privilege to bear arms.

2024Dayton v. State, 151 Ohio St.3d 168 , 2017-Ohio-6909, ¶ 12 . “ ‘[T]he question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court.’ ” State v. Buttery, 162 Ohio St.3d 10 , 2020-Ohio-2998, ¶ 7 , quoting State v. Awan, 22 Ohio St.3d 120, 122 (1986). {¶ 19} Several of Clark’s pretrial filings referred to the constitutional right to bear arms and relevant case law, including motions to dismiss in which Clark asserted he had an immunity or privilege to bear arms.