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Political Immunity Denied for City and Lifeguard in Wrongful Death Case

In the case of Hoskins v. Cleveland, 2023-Ohio-3149, an appellate court, in a plurality decision, held that the city was not immune from liability under R.C. 2744.02(B)(4) when an epileptic swimmer drowned at a city-owned pool and it was alleged that the lifeguard on duty was seated in folding chair in a location where the lifeguard’s view of the swimmer was obstructed by the elevated lifeguard’s chair, in violation of  city protocols and policies.

In this case, the swimmer’s estate argued that the lifeguard was seated in a folding chair at the shallow end of the pool, and that her view of the deep end of the pool was obstructed by items hanging off of the elevated lifeguard chair, where she was supposed to be stationed, and that such circumstances created a physical defect on the property. In response, the city and lifeguard argued that the lifeguard used the lifeguard’s discretion to sit at a lower-level seat and that discretion was not wanton or reckless, such that R.C. 2744.03(A)(5) and (6) reinstate immunity for both the City and employee.

The Court agreed with the swimmer’s estate, explaining that the lifeguard acknowledged that she had to stand to see the swimmer from where she was located, which supported the finding of a physical defect on the premises. The Court further found that the defenses under R.C. 2744.03(A) were unavailable to restore immunity at the summary judgment stage as genuine issues of material fact existed as to whether the City and employee’s discretion was exercised appropriately in determining placement of the lifeguard under the circumstances.   

To read this case, click here.

NOTE: This case was in regards to political immunity, not on the merits of the claim. The final result of the trial court may be different.

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.

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