In the case of Doe v. Greenville City Schools, 2022-Ohio-4618, the Ohio Supreme Court held — in a nonbinding plurality opinion — that the absence of a fire extinguisher or other safety equipment within a building of a political subdivision could be a physical defect such that an exception to immunity exists under R.C. 2744.02(B)(4).
In this case, students argued that they were injured because the science teacher negligently failed to include a fire extinguisher in the science class and this lack of a fire extinguisher amounted to a physical defect. The students further argue that “’[t]he physical defect in this case does not lie within the defectiveness of safety equipment, but instead within the defectiveness of a classroom without proper safety equipment and protocol[,] * * * especially when in a lab-style setting with chemicals present.” 2022-Ohio-4618 at ¶ 19 (plurality opinion per Steward, C.J.). In response, the school district argued that the absence of safety features and/or measures do not amount to a physical defect. The appellate court agreed with the students.
In support of the nonbinding plurality opinion, Justice Melody J. Steward explained that “the lack of safety equipment or other safety features could amount to a physical defect” and “that the absence of a fire extinguisher or other safety equipment within a science classroom could be a physical defect such that an exception to immunity could exist under R.C. 2744.02(B)(4).” 2022-Ohio-4618 at ¶ 28 (plurality opinion per Steward, C.J.). Chief Justice O’Connor and Justice Jennifer Brunner concurred with this nonbinding plurality opinion. Justice Patrick F. Fischer did not concur with the plurality opinion but, instead, concurred with the judgment only.
In the dissenting opinion, Justice Sharon L. Kennedy explained that “the negligent-supervision claim is plainly not based on a physical defect — supervision is not a material or tangible thing.” 2022-Ohio-4618 at ¶ 37 (Kennedy, J., dissenting). Justice Kennedy went on to explain that:
The lack of a fire extinguisher or other safety device did not render the science classroom defective, because the classroom functioned as intended and as it was designed — the classroom did not have some irregularity that caused it to fail in its expected use. The complaint does not allege that a safety device such as a fire extinguisher was required to be in the classroom as part of the classroom’s design or by law. Further, the absence of a safety device such as a fire extinguisher is not a physical defect within a governmental building or on its grounds. This is not a case, for example, in which a fire extinguisher or other safety device was present but defective. And whether a fire extinguisher or other safety device should have been kept in the classroom as a matter of judgment or policy is outside the scope of the exception to immunity provided in R.C. 2744.02(B)(4).” 2022-Ohio-4618 at ¶ 38 (Kennedy, J., dissenting).
Justice Kennedy concluded by explaining that “R.C. 2744.02(B)(4) creates an exception to political-subdivision immunity for a physical defect. It does not create an exception for a school district’s failure to have a fire extinguisher in a science classroom.” 2022-Ohio-4618 at ¶ 42 (Kennedy, J., dissenting). Justices R. Patrick DeWine and Michael P. Donnelly concurred with this dissenting opinion.
WARNING: As three justices concurred with the lead decision, three justices concurred with the dissenting decision, and one justice concurred with the judgment only, there is no majority opinion in this case — there was only a nonbinding plurality decision. As explained by the Ohio Supreme Court, “a plurality opinion, is not binding authority.” Nascar Holdings, Inc. v. Testa, 2017-Ohio-9118, 152 Ohio St.3d 405, 97 N.E.3d 414, ¶ 18. “But when a court or administrative agency finds a plurality opinion to be persuasive, it is not barred from relying on that opinion.” Id.
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Authors: Matthew John Markling and the McGown & Markling Team.
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