[Cite as J.H. v. Hamilton City School Dist., 2013-Ohio-2967.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

J.H. (A Minor) By and Through his Parents : 

and Next Friend Katherine and Dexter 

Harris, : CASE NO. CA2012-11-236 

 

 Plaintiffs-Appellants, : O P I N I O N

 7/8/2013 

 : 

 - vs - 

 : 

HAMILTON CITY SCHOOL DISTRICT, : 

et al., 

 : 

 Defendants-Appellees. 

 : 

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CV2012-02-0727 

Eric C. Deters, 5247 Madison Pike, Independence, KY 41051-7941, for plaintiffs-appellants 

Brian L. Wildermuth, The Green Town Center, 50 Chestnut Street, Suite 230, Dayton, Ohio 

45440, for defendants-appellees 

 HENDRICKSON, P.J.

{¶ 1} Plaintiffs-appellants, Katherine and Dexter Harris, along with their minor son 

J.H., appeal a decision of the Butler County Court of Common Pleas awarding judgment on 

the pleadings to the defendants-appellees, Hamilton City School District Board of Education 
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("the Board") and its employee, Brenda Asher.1 For the reasons discussed below, we affirm 

the judgment of the trial court. 

{¶ 2} On February 17, 2012, appellants filed a complaint for personal injury. In their 

complaint, appellants stated that J.H. is a severely handicapped 14-year-old boy who 

attended Garfield Middle School during the 2010-2011 school year. On October 10, 2010, 

Asher was "pushing and pulling" J.H.'s wheelchair when J.H.'s leg became caught in the 

wheelchair. The complaint alleged that Asher "continued to push and pull the wheel chair 

[sic] even though the wheel chair [sic] was met with resistance until she heard a 'pop' and 

Plaintiff J.H. started crying." Appellants asserted that J.H. suffered several injuries, including 

a broken tibia, as a result of Asher's negligence in failing to operate the wheelchair with 

reasonable care and safety. Appellants also asserted that the Board was responsible for 

Asher's negligent acts under the doctrine of respondeat superior, as Asher was acting within 

the scope of her employment at the time she caused the injury to J.H. Further, appellants 

alleged that the Board had a "duty to operate the Garfield Middle School with reasonable 

care and safety" and the Board breached this duty by "failing to have policies and procedures 

in place to prevent the type of injury which [J.H.] received, for failing to give proper training to 

* * * Asher, and by failing to hire the proper personnel." 

{¶ 3} On March 29, 2012, the Board and Asher simultaneously filed an answer and a 

motion for judgment on the pleadings. In their answer, the Board and Asher admitted J.H. 

was enrolled as a student at Garfield Middle School on October 10, 2010, and Asher was an 

employee of the Board who was acting within the scope of her employment at the time the 

incident occurred. In their motion for judgment on the pleadings, the Board and Asher 

 

1. Appellants' complaint named the "Hamilton City School District" as a defendant to the suit. Before the trial 

court, all parties agreed that the Hamilton City School District is not a legal entity subject to suit and that the 

Hamilton City School District Board of Education is the proper party to the lawsuit. We will reference the proper 

entity for purposes of this appeal. 
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asserted that they were immune from liability under R.C. 2744.02 and R.C. 2744.03. 

Specifically, the Board asserted that it was a political subdivision and therefore immune from 

liability as appellants had not set forth allegations in their complaint that would "strip it" of 

immunity under any of the five exceptions set forth in R.C. 2744.02(B)(1)-(5). Moreover, 

Asher asserted that as an employee of a political subdivision, she was immune from liability 

because appellants had not alleged facts in their complaint that she acted outside the scope 

of her employment, that she acted maliciously or in a wanton or reckless manner, or that civil 

liability was expressly imposed in this case by Ohio law, as contemplated by R.C. 

2744.03(A)(6). 

{¶ 4} Appellants filed a memorandum in opposition to the motion for judgment on the 

pleadings, arguing the merits of Asher and the Board's motion were "mistaken and 

premature." Appellants asserted judgment on the pleadings was not appropriate as 

discovery had not been conducted to determine whether appellants' damages were caused 

during the course of a governmental or proprietary function, the latter of which does not 

invoke immunity. The trial court disagreed with appellants' position and, on October 22, 

2012, granted judgment on the pleadings to Asher and the Board. 

{¶ 5} Appellants appealed the trial court's decision, raising as their sole assignment 

of error the following: 

{¶ 6} THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR 

BY GRANTING [APPELLEES'] MOTION FOR JUDGMENT ON THE PLEADINGS. 

{¶ 7} Appellants contend that the trial court erred in granting judgment on the 

pleadings to the Board and Asher on the basis of immunity. Specifically, appellants assert 

that the Board and its employee, Asher, were not immune from suit in this case. Although 

appellants acknowledge that their "complaint alleged negligence on its face," they contend 

that they were "not required to make allegations such as wanton or reckless conduct on 
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behalf of the Board or Asher in order to survive a motion for judgment on the pleadings." 

{¶ 8} An appellate court reviews a trial court's decision on a Civ.R. 12(C) motion for 

judgment on the pleadings de novo. Golden v. Milford Exempted Village School Bd. of Edn., 

12th District No. CA2008-10-097, 2009-Ohio-3418, ¶ 6. Civ.R. 12(C) motions are specifically 

reserved for resolving questions of law and may be filed "[a]fter the pleadings are closed but 

within such time as not to delay the trial." Id.; Peterson v. Teodosio, 34 Ohio St.2d 161, 166 

(1973). Judgment on the pleadings is appropriate under Civ.R. 12(C) "where a court (1) 

construes the material allegations in the complaint, with all reasonable inferences to be 

drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the 

plaintiff could prove no set of facts in support of his claim that would entitle him to relief." 

State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570 (1996). Furthermore, 

in ruling on a Civ.R. 12(C) motion, a court is "limited solely to the allegations in the pleadings 

and any writings attached to the pleadings." Golden at ¶ 6, citing Vinicky v. Pristas, 163 Ohio 

App.3d 508, 2005-Ohio-5196, ¶ 3 (8th Dist.). 

A. Immunity of the Board 

{¶ 9} The Ohio Supreme Court has set forth a three-tiered analysis for determining 

whether a political subdivision is immune from civil liability. Carter v. Cleveland, 83 Ohio 

St.3d 24, 28 (1998). Under the first tier, a political subdivision is granted broad immunity for 

any injury arising out of its governmental or proprietary functions. R.C. 2744.02(A)(1). "The 

immunity afforded to the political subdivision, however, is not absolute but instead is subject 

to five exceptions under R.C. 2744.02(B)." Golden at ¶ 10. Thus, the second tier of the 

analysis focuses on the exceptions to immunity set forth in R.C. 2744.02(B)(1)-(5). Id. 

"Finally, in the third tier of the analysis, if an exception exists, immunity can be reinstated if 

the political subdivision can successfully argue that one of the defenses set forth in R.C. 

2744.03(A) applies." Id., citing Carter at 28. However, the defenses found in R.C. 2744.03 
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"do not come into play until after it is proven that a specific exception to general immunity 

applies under R.C. 2744.02(B)." Id. at ¶ 12. 

{¶ 10} R.C. 2744.01(F) includes school districts within the definition of "political 

subdivisions." R.C. 2744.01(C)(2)(c) specifies that a system of public education is a 

"governmental function." As such, the school board is a political subdivision serving a 

governmental function, and it is therefore immune from liability under R.C. 2744.02(A)(1) 

unless one of the five exceptions under R.C. 2744.02(B) applies. 

{¶ 11} Under R.C. 2744.02(B), a political subdivision may be liable for injuries caused 

by "(1) the negligent operation of a motor vehicle by a school employee; (2) the negligence of 

a school employee with respect to 'proprietary functions'; (3) the political subdivision's 

negligent failure to keep the public roads in repair and free from obstruction; (4) the 

negligence of a school employee with respect to physical defects occurring within or on the 

grounds of school buildings; and (5) civil liability that is expressly imposed by statute on the 

political subdivision." Bucey v. Carlisle, 1st Dist. No. C-090252, 2010-Ohio-2262, ¶ 8, citing 

R.C. 2744.02(B)(1)-(5). Appellants contend that the exceptions to political subdivision 

immunity set forth in R.C. 2744.02(B)(2) and (B)(5) apply. 

{¶ 12} Pursuant to R.C. 2744.02(B)(2), "political subdivisions are liable for injury, 

death, or loss to person or property caused by the negligent performance of acts by their 

employees with respect to proprietary functions of the political subdivision." (Emphasis 

added.) A "proprietary function" is defined, in relevant part, as a function that "promotes or 

preserves the public peace, health, safety, or welfare and that involves activities that are 

customarily engaged in by nongovernmental persons." R.C. 2744.01(G)(1)(b). Conversely, a 

"governmental function" is defined, in relevant part, as a function that "promotes or preserves 

the public peace, health, safety or welfare [and] that involves activities that are not engaged 

in or not customarily engaged in by nongovernmental employees." R.C. 2744.01(C)(1)(c). A 
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governmental function is one that is for the common good of all citizens, is imposed upon the 

state as an obligation of sovereignty and is performed by a political subdivision voluntarily or 

pursuant to a legislative requirement. R.C. 2744.01(C)(1)(a) and (b). 

{¶ 13} Appellants' complaint alleges that Asher negligently maneuvered J.H.'s 

wheelchair while he attended school, thereby causing injury. The provision of a system of 

public education is a governmental function pursuant to R.C. 2744.01(C)(2)(c). Moreover, 

"transporting students is part of providing a system of public education." Day v. MiddletownMonroe City School Dist. Bd. of Edn., 12th Dist. No. CA99-11-186, 2000 WL 979141, *3 (July 

17, 2000). Construing the allegations in the pleadings in appellants' favor, it is clear that at 

the time J.H. was injured, he was at school being transported by Asher, an employee of the 

Board who was acting within the scope of her employment. Accordingly, Asher was engaged 

in a governmental function, not a proprietary function, and the exception to immunity 

contained within 2744.02(B)(2) is inapplicable. 

{¶ 14} The exception to immunity listed in R.C. 2744.02(B)(5) provides that "a political 

subdivision is liable for injury, death, or loss to person or property when civil liability is 

expressly imposed upon the political subdivision by a section of the Revised Code, including, 

but limited to, sections 2743.02 and 5591.37 of the Revised Code." Appellants cite R.C. 

2744.03(A)(5) and R.C. 2743.02(A)(1) as the portions of the Revised Code that impose 

liability upon the Board. 

{¶ 15} We find no merit to appellants' contention regarding R.C. 2744.03(A)(5). R.C. 

2744.03(A)(5) sets forth a defense that a political subdivision and its employees may assert 

when facing liability, and it specifically provides: 

[t]he political subdivision is immune from liability if the injury, 

death, or loss to person or property resulted from the exercise of 

judgment or discretion in determining whether to acquire, or how 

to use, equipment, supplies, materials, personnel, facilities, and 

other resources unless the judgment or discretion was exercised 
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with malicious purpose, in bad faith, or in a wanton or reckless 

manner. 

It is well settled that this section of the Revised Code, 2744.03, "merely provides defenses to 

liability in the event that an exception to immunity under R.C. 2744.02(B) applies." (Internal 

quotations omitted.) Brown Cty Bd. of Health v. Raichyk, 12th Dist. CA2012-06-011, 2013-

Ohio-1727, ¶ 22, quoting Golden, 2009-Ohio-3418 at ¶ 12. "The defenses found in R.C. 

2744.03 do not come into play until after it is proven that a specific exception to general 

immunity applies under R.C. 2744.02(B)." (Emphasis sic.) Id. Before R.C. 2744.03 is ever 

reached, R.C. 2744.02(A) and (B), in that order, must be found to apply. Golden at ¶ 12, 

citing Davis v. Malvern, 7th Dist. No. 05 CA 829, 2006-Ohio-7061, ¶ 30. Accordingly, R.C. 

2744.03(A)(5) may not be used as an exception to immunity pursuant to R.C. 2744.02(B)(5). 

{¶ 16} Appellants also contend that R.C. 2743.02(A)(1) imposes liability upon the 

Board. This provision provides, in relevant part: 

The state hereby waives its immunity from liability * * * and 

consents to be sued, and have its liability determined, in the 

court of claims created in this chapter * * * except as provided in 

division (A)(2) or (3) of this section. * * * 

Except in the case of a civil action filed by the state, filing a civil 

action in the court of claims results in a complete waiver of any 

cause of action, based on the same act or omission, that the 

filing party has against any * * * employee * * *. The waiver shall 

be void if the court determines that the act or omission was 

manifestly outside the scope of the * * * employee's * * * 

employment or that the * * * employee acted with malicious 

purpose, in bad faith, or in a wanton or reckless manner. 

(Emphasis added.) R.C. 2743.02(A)(1). 

{¶ 17} We find R.C. 2743.02(A)(1) to be inapplicable to the present case. The 

exception in R.C. 2744.02(B)(5) requires a statute to expressly impose liability upon the 

political subdivision. R.C. 2743.02(A)(1), however, discusses the state's waiver of 
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immunity—not the political subdivision's waiver of immunity. The definition statute in Chapter 

2743 specifically distinguishes a political subdivision from the state as follows: 

(A) "State" means the state of Ohio, including, but not limited 

to, the general assembly, the supreme court, the offices of all 

elected state officers, and all departments, boards, offices, 

commissions, agencies, institutions, and other instrumentalities 

of the state. "State" does not include political subdivisions. 

(B) "Political subdivisions" means municipal corporations, 

townships, counties, school districts, and allother bodies 

corporate and politic responsible for governmental activities only 

in geographic areas smaller than that of the state to which the 

sovereign immunity of the state attaches. 

(Emphasis added.) R.C. 2743.01(A), (B). Thus, civil liability is not expressly imposed against 

a political subdivision by R.C. 2743.02(A)(1) as the statute does not apply to political 

subdivisions but, rather, is limited in application to those entities falling under the definition of 

"state." See Fediaczko v. Mahoning Cty. Children Servs., 7th Dist. No. 11 MA 199, 2012-

Ohio-6095, ¶ 22-25. A school district is unequivocally a "political subdivision." See R.C. 

2744.01(F); R.C. 2743.01(B). As such, R.C. 2743.02(A)(1) cannot be used to impose liability 

upon the Board.2

 

{¶ 18} As appellants failed to plead facts demonstrating that an exception to immunity 

exists under any of the five exceptions set forth in R.C. 2744.02(B), we find that the trial court 

did not err in granting judgment on the pleadings to the Board. 

B. Immunity of the Employee 

{¶ 19} We further find that the trial court did not err in entering judgment on the 

pleadings to Asher as the allegations set forth in appellants' complaint do not contain facts 

invoking any of the exceptions to the immunity granted to employees of political subdivisions. 

R.C. 2744.03(A)(6) provides that an employee of a political subdivision is immune from 

 

2. We further note that as Asher is an employee of a political subdivision, and not an employee of the "state," 

R.C. 2743.01(A) cannot be used to impose liability upon her. 
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liability unless "(a) [t]he employee's acts or omissions were manifestly outside the scope of 

the employee's employment or official responsibilities; (b) [t]he employee's acts or omissions 

were with malicious purpose, in bad faith, or in a wanton or reckless manner; [or] (c) [c]ivil 

liability is expressly imposed upon the employee by a section of the Revised Code." Here, 

the pleadings do not allege that Asher acted outside the scope of her employment, and 

appellants did not identify a section of the Revised Code that expressly imposes liability on 

Asher. Accordingly, the only issue remaining is whether appellants asserted allegations to 

sufficiently raise the exception set forth in R.C. 2744.03(A)(6)(b). 

{¶ 20} "Malice" is the willful and intentional design to do injury or the intention or desire 

to harm another, usually seriously, through conduct that is unlawful or unjustified. Frazier v. 

Clinton Cty. Sheriff's Office, 12th Dist. No. CA2008-04-015, 2008-Ohio-6064, ¶ 36. "Bad 

faith" involves a dishonest purpose, conscious wrongdoing, the intent to mislead or deceive, 

or the breach of a known duty through some ulterior motive or ill will. Id. An individual acts in 

a "wanton" manner when that person fails "to exercise any care toward those to whom a duty 

of care is owed in circumstances which there is a great probability that harm will result." 

Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶ 33. Finally, a person acts in 

a "reckless" manner when that individual "causes an unreasonable risk of harm" and 

engages in misconduct "substantially greater than that which is necessary to make the 

conduct negligent." Frazier at ¶ 36, citing Thompson v. McNeil, 53 Ohio St.3d 102, 104-105 

(1990). 

{¶ 21} As discussed above, appellants' complaint is couched in negligence. 

Specifically, appellants assert that Asher was "pushing and pulling" J.H.'s wheelchair when 

his leg became caught in chair, and she continued to push the wheelchair "even though the 

wheel chair [sic] was met with resistance until she heard a 'pop.'" Contrary to appellants' 

argument, such allegations do not indicate that Asher acted with malicious purpose, in bad 
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faith, or in a wanton or reckless manner. Accordingly, as appellants failed to set forth 

allegations from which a trier of fact might plausibly infer that Asher acted maliciously, in bad 

faith, wantonly, or recklessly in causing harm to J.H., we find that Asher is immune from 

liability in accordance with R.C. 2744.03(A)(6). The trial court properly granted judgment on 

the pleadings to Asher. 

{¶ 22} Appellants' sole assignment of error is overruled. 

{¶ 23} Judgment affirmed. 

S. POWELL and PIPER, JJ., concur.