The failure to place a motorized cover over a swimming pool is not a “physical defect” for purposes of one of the political subdivision immunity exceptions.
The case of Kinderdine v. Mahoning Cty. Bd. of Dev. Disabilities, 2016-Ohio-4815, involves the tragic drowning of a student. The student, who was autistic and allegedly had a tendency to wander, allegedly exited a school gym and managed to walk through a door leading to a pool area due to a problem with the door and/or latch mechanism. The student was then allegedly able to get into the swimming pool allegedly because the motorized pool cover had not been placed over the pool after the last swimming session. A custodian found the student in the pool following a search. Resuscitation efforts were unsuccessful and the student was pronounced dead.
Plaintiffs alleged that two physical defects existed on the grounds of the political subdivision, which would have been an exception to the political subdivision’s immunity: (1) the motorized cover was not placed over the pool and (2) the faulty latch on the locker room door leading into the pool area.
With respect to the pool cover, the state appellate court held that the failure to use an available safety device does not constitute a physical defect.
With respect to the faulty latch, the state appellate court held that the door did not cause the student’s death; he was not hit or trapped by the door. Accordingly, the court found that the “physical defects” exception did not lift the political subdivision’s grant of immunity.
McGown & Markling represented one of the defendants in this case. And, while this case provides good language for political subdivision and political subdivision employee immunity, it is anticipated that plaintiffs will appeal the decision. Please check with our blog posts for future updates regarding this case.
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.