In the case of Smith v. Ohio State Univ. 2022-Ohio-4101, the appellate court held that the trial court erred in granting a class certification because the student failed to show that class certification was warranted, and the trial court did not conduct the rigorous analysis required under Civ.R. 23.
Here, the student brought a class action against the university, arguing that the university should have refunded a percentage of the tuition and fees paid for the Spring 2020 semester after the university shut down due to the Covid-19 pandemic because there was a lost benefit of the education and services for which the tuition and fees paid. The university argued that the trial court abused its discretion in certifying the class because the university had discretionary immunity and the student had not produced evidence showing that the class members had suffered an injury to warrant class certification under Civ.R. 23. The appellate court agreed with the university.
In support of its decision, the appellate court first explained that the discretionary immunity doctrine provides that “”state cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.” Smith, ¶ 28, quoting Reynolds v. State Div. of Parole & Community Servs., 14 Ohio St.3d 68, 70 (1984). The appellate court reasoned that the defense of discretionary immunity is an affirmative defense, and thus must be brought before the trial court in order to be eligible for appeal, and since the university did not raise the defense at the trial court level, it waived its right to the defense. The appellate court next explained that Civ.R. 23 requires a trial court to conduct a rigorous analysis prior to certifying a class for litigation and it is not sufficient that the plaintiff’s allegations merely raise a “colorable claim.” Id. at ¶ 38, citing Madyda v. Ohio Dept. of Pub. Safety, 10th Dist. No. 20AP-217, 2021-Ohio-956, ¶ 15. The appellate court found that the trial court failed to conduct this analysis and either accepted the student’s allegations as true, as would occur under a pleading standard, or believed that the closure of campus served as evidence of a common injury and determined that either scenario constituted an abuse of discretion.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
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.