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A Machine That Operates A Gymnasium Curtain Divider Is Not A “Physical Defect” For Purposes Of Political Subdivision Immunity Exception

In the case of O.G. v. Middleburg Hts., 2017-Ohio-7604, an Ohio appellate court did not find an exception to a city’s immunity from liability where a child’s hand and arm were drawn into a machine that operates a roll-up gym divider curtain.

At the time of the accident the child and his parents were attending a basketball game at the city’s recreation center. The child “was standing by a large cylindrical bar that was part of the machine that operated the roll-up gym divider curtain. The curtain is used to separate the gymnasium into two basketball courts, allowing multiple games to be played at one time. One of the city’s employees activated the machine to roll up the curtain after the game.” O.G. at ¶ 2.

For some reason, the child “reached out and touched the machine. [His] hand and arm were drawn into the machine, and [the child] was slowly lifted from the floor while [his] Father attempted to help by holding [the child’s] feet. The employee operating the machine was notified, and the machine was deactivated, lowering [the child] to the ground.” O.G. at ¶ 3. The child suffered a broken arm “resulting in a degree of permanent residual damage.” O.G. at ¶ 3.

The family sued the city alleging that the machine met an exception to the city’s immunity from liability for injuries (1) caused by employee negligence, (2) on the grounds or in buildings used in connection with a governmental activity, and (3) due to physical defects. The Ohio appellate court rejected this argument, noting that physical defects only occur when an object or instrumentality does not operate as intended due to a perceivable condition. According to the court, “[t]he record [did] not demonstrate that the machine failed to operate properly or that a defect existed [* * *] there [was] no indication in the maintenance and repair records for the machine of any issues, defects, or malfunctions, though the curtain is raised and lowered several times a day.” O.G. at ¶ 14.

The moral of the story is to inspect your premises. It is always a good practice for public entities to inspect the objects and instrumentalities on their premises in order to ensure that they are in good working order and operate as intended in order to protect against liability under this immunity exception.

To read this case, please click here.

Authors: Matthew John Markling and Patrick Vrobel

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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