When suing any government agency or official in Ohio, plaintiffs must overcome the political subdivision immunity conferred by the legislature in R.C. Chapter 2744. Typically, plaintiffs lose at the pleading stages or upon summary judgment as the grant of political subdivision immunity is broad and subject to limited exceptions. The Third and Eighth Districts recently faced political subdivision immunity issues, but both districts reached different conclusions.
In the Third District, Hughes v. Lenhart, the plaintiff filed a lawsuit against the Shelby County Sheriff and Deputy Sheriff for defamation, false light, and intentional infliction of emotional distress. As the plaintiff alleged, the Sheriff, in his capacity as the Sheriff of Shelby County, held a press conference toting the crackdown on welfare fraud. Unfortunately, as the press conference proceeded, a picture of the plaintiff was prominently displayed behind the Sheriff; the same picture was also distributed to media outlets implying that the plaintiff was connected to the criminal use of sex, drugs, and alcohol for the purpose of committing welfare fraud. Plaintiff, as it turned out, was a registered nurse and local business owner with no criminal history. Evidently, the plaintiff shared her name with the offender. Further causing issues, after being made aware of the mistake, the Sheriff retracted the photo, stating that the department "provided the wrong mug shot or otherwise photograph of a convicted felon or individual charged with a criminal act." Upon those facts, the appellate court had no trouble determining that an exception applied to the grant of political subdivision immunity; namely, that the defendants' acts were with malicious purpose, or were committed in bad faith or in a wanton or reckless manner. It wasn't a close call, the court took a single paragraph to explain its rationale.
The Eighth District case was a bit closer, eliciting a well-reasoned dissent that would have affirmed the trial court's denial of political subdivision immunity. In Canidate v. CMHA, the plaintiff, a tenant of a CMHA owned senior-living property, slipped on an accumulation of water while walking through a common area. A leak started and a CMHA officer on duty at the property stopped the leak, but failed to take any steps to mop up the water, or notify the maintenance personnel. The defendants, at the trial court level, unsuccessfully sought summary judgment claiming political subdivision immunity precluded liability. In order to avoid the implications of political subdivision immunity, the plaintiff needed to demonstrate the hazard was caused by a physical defect on the property. The majority determined that the leak was not a physical defect. The dissent, noting that there is no definition of physical defect within the political subdivision immunity statute, would have sided with the trial court in determining that an issue of material fact existed as to whether the hazard was caused by a physical defect on the property; for example a binder clip in a school lunch burrito, or a stone thrown from a lawn mower. The ambiguity in what constitutes a "physical defect," however, cuts both ways. In Canidate, the plaintiff focused on a missing ceiling tail from which the water leaked into the basement. There was no evidence, however, that the tile was designed to curtail water intrusion. This might be an area of law for which the legislature steps in to finally provide a definition of "physical defect" in order to avoid these cases in which the courts struggle to define a term that seems, for all practical purposes, undefinable.
