[Cite as Contreraz v. Bettsville, 2011-Ohio-4178.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

SENECA COUNTY 

 

ROSALINDA CONTRERAZ, 

INDIVIDUALLY AND AS 

ADMINISTRATRIX OF THE 

ESTATE OF SANTOS LEON CASE NO. 13-10-48 

GARCIA, DECEASED, 

 PLAINTIFF-APPELLANT, 

 v. 

 O P I N I O N 

VILLAGE OF BETTSVILLE, ET AL., 

 DEFENDANTS-APPELLEES. 

 

Appeal from Seneca County Common Pleas Court 

Trial Court No. 08CV0594 

Judgment Affirmed 

Date of Decision: August 22, 2011 

 

APPEARANCES: 

R. Ethan Davis for appellant. 

John T. McLandrich and Frank H. Scialdone, for appellees. 
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PRESTON, J. 

{¶1} Plaintiff-appellant, Rosalinda Contreraz, Individually and as 

Administratrix of the Estate of Santos Leon Garcia, deceased, appeals from the 

judgment of the Seneca County Court of Common Pleas, which granted 

defendants-appellees’, Village of Bettsville, Bettsville Recreation Board, and 

Andrea Bender, motion for summary judgment. For the reasons that follow, we 

affirm. 

{¶2} This case involves the tragic death of Santos Garcia (hereinafter 

“Garcia”), who drowned at the Village of Bettsville’s public swimming area. The 

case arises out of the following set of facts. 

{¶3} The Village of Bettsville owns the Eells Park Quarry, a public 

recreational swimming area, which is operated by the Bettsville Recreation Board. 

At the time of the incident, the general layout of the quarry, which is not in 

dispute, was as follows. Located near the quarry beach there was a small single 

story building, which was used as a concession stand, park pool director’s office, 

the lifeguard locker/break room, and an equipment storage area. Inside the 

concession building there was a land line telephone to be used for emergencies. 

With regards to the beach, there were two elevated lifeguard stands located on the 

beach, while an additional elevated lifeguard stand was positioned by the diving 
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board and slide platform. There were two floating rafts located in the deeper end 

of the quarry, and between the two floating rafts was an aquatic toy called an 

“aqua bobber.” 

{¶4} Additionally, there was a floating buoy line that traversed across the 

quarry for purposes of separating the shallow end from the deep end. The buoy 

line was positioned at a water depth between four feet (4’) to five feet (5’). In 

addition, there was another buoy line, made up of old railroad ties, located just 

beyond the two floating rafts and used for purposes of separating the swim area 

from the non-swim area. 

{¶5} In 2006, the Bettsville Recreation Board hired Andrea Bender 

(hereinafter “Bender”) as a lifeguard. (A. Bender Depo. at 7-8). Bender worked 

at the park during the summers of 2006, 2007, and 2008, and had been the on-duty 

lifeguard on the beach when Garcia drowned. (Id.). 

{¶6} The incident occurred on August 3, 2007. Garcia and his sisters, 

Rosalinda and Eva, along with several of Garcia’s friends and Garcia’s aunt and 

uncle, decided to go swimming at the quarry. (A. Alonso Depo. at 21-22); (R. 

Garcia Depo. at 18-19). At the time of the incident, Garcia was fifteen-years-old 

and five feet three inches (5’3”) in height. (Coroner’s Report, Ex. K). In addition, 

Garcia had taken a YMCA swim course and was described as an average swimmer 

who either could not or did not like to swim underwater. (R. Garcia Depo. at 15); 
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(E. Garcia Depo. at 18-20). The group arrived at the quarry sometime in the late 

afternoon. 

{¶7} Before entering the water, Garcia’s friend, Lamont, said that he 

provided Garcia with shoelaces so that Garcia could tie his long pants up around 

his knees to swim. (L. Garcia Depo. at 28-29). Rosalinda and Eva were the first 

ones to enter the water. (E. Garcia Depo. at 35). Eva said she swam out to the 

aqua bobber, while Rosalinda swam out to the deep-end and was treading water 

near the diving boards and slide platform. (E. Garcia Depo. at 35); (R. Garcia 

Depo at 35-36). Eva said that she saw Garcia and several of his friends enter the 

water from the shallow end and walk out towards the outer raft closest to the 

diving boards, where Rosalinda was located. (E. Garcia Depo. at 36). Lamont 

said that he and Garcia then swam under the buoy line into the deeper portion of 

the swimming area. (L. Garcia Depo. at 36). At this point, Rosalinda said that she 

had still been treading water near the diving board and slide platform when Garcia 

proceeded to swim underwater and tickle her feet. (R. Garcia Depo. at 37). 

Rosalinda said that after this occurred, she and Garcia decided to race out to the 

closest raft. (R. Garcia Depo. at 37). Rosalinda said that she made it to the raft in 

what she believed was a few seconds but when she turned around, she did not see 

Garcia. (Id. at 39). Eva, who was still on the aqua bobber, said that she had had 

her back to the swimming area, but that when she turned around she also did not 
Case No. 13-10-48 

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see Garcia in the water. (E. Garcia Depo. at 37-38). It was at this point in time 

when Rosalinda said that she began to yell for help, stating that her brother was 

missing. (R. Garcia Depo. at 43). Overall, Rosalinda said that it was 

approximately thirty to forty seconds from the time she got to the raft until a 

swimmer surfaced with Garcia. (Id. at 47). 

{¶8} Another swimmer at the quarry, Alex Fox, who had been swimming 

near the buoy line with his girlfriend, testified that he heard Rosalinda yelling that 

she could not find her brother. (Fox Depo. at 32-33). Alex said that his girlfriend 

was asking the lifeguard to take action; however, Alex admitted that at no point 

was it apparent whether the missing individual was missing in the water or 

missing out of the water. (Id. at 27, 32-33). In fact, Alex was under the belief that 

the missing individual was out of the water near the concession building. (Id.). 

{¶9} Nevertheless, Alex said that he decided to swim under water and swim 

towards the diving board and slide platform in the deep end of the quarry. (Id. at 

43-44, 56, 94). After approximately ten to fifteen feet, Alex said he saw Garcia 

some distance in front of the diving board at the bottom of the quarry. (Id. at 32-

33, 43-44, 94). Alex said that he picked Garcia off the bottom of the quarry and 

brought him to the surface. (Id.). When he got to the surface, Alex said that he 

saw the lifeguard jump down from the lifeguard stand and run towards the 

concession building. (Id.). At that point, Alex said that he, with the help of two 
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other male swimmers, brought Garcia to shore. (Id.). One of the two other male 

swimmers, Jacob Pfotenhauer, corroborated Alex’s version of events. 

(Pfotenhauer Depo. at 31, 39-40, 45-46). 

{¶10} Overall, none of the witnesses saw Garcia in any type of distress nor 

did they see Garcia submerged below the surface of the water. 

{¶11} Michael Abernathy testified that he had been the on-duty lifeguard 

prior to the incident and that he remembered Garcia and his friends enter the 

shallow area of the quarry. (Abernathy Depo. at 18). However, he said that he 

never saw Garcia go beyond the buoy line and into the deep end of the quarry. 

(Id.). 

{¶12} Andrea Bender testified that she took over for Michael at 7:00 p.m. 

and became the on-duty lifeguard. (A. Bender Depo. at 46). She said that she did 

an initial head count of swimmers and determined that there were 15 to 20 

swimmers in the water. (Id. at 48). Bender testified that approximately thirty 

seconds to one minute after she had taken the lifeguard stand, a woman 

approached her and told her that a boy was missing. (Id. 49-50). Bender said that 

she attempted to get more information from the woman and asked her where the 

boy was missing. (Id. at 52). After about one minute and thirty seconds of 

discussion, Bender stated that the woman told her that she believed the missing 

boy had been in the water and that she did not think that the boy knew how to 
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swim. (Id.). Bender said that because she was unaware of the missing boy’s 

location, she blew her whistle to get assistance from her pool director, Rachel 

Banks, who was located in the concession building. (Id.). 

{¶13} Bender went on to state that approximately ten to fifteen seconds 

after she blew her whistle, she heard a rise in voices and saw a swimmer surface 

with Garcia. (Id. at 56). Bender said that she then jumped down from the 

lifeguard stand, blew her whistle to clear everyone from the water, and sprinted to 

the concession building, yelling for Rachel Banks to call 911. (Id. at 56, 64). 

Bender explained that as she approached the concession building, lifeguard 

Michael Abernathy ran down the beach towards the water. (Id. at 66). Bender 

testified that she told Rachel Banks of the emergency and to call 911. (Id. at 69). 

{¶14} Michael Abernathy and another swimmer began C.P.R. on Garcia 

after he was brought on to the beach. (Abernathy Depo. at 30). They continued to 

provide C.P.R. until paramedics arrived, at which time a paramedic assisted 

Michael Abernathy with C.P.R. (Id. at 35). Garcia was eventually transported to 

a nearby hospital; however, all efforts to save Garcia were unsuccessful. 

{¶15} On November 19, 2008, Rosalinda Contreraz, Individually and as 

Administratrix of the Estate of Garcia (hereinafter “the Estate” or “Mother”), filed 

a complaint against the Village of Bettsville, Bettsville Recreation Board, and 
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Lifeguard Andrea Bender.1

 In her complaint, Mother alleged that Garcia’s death 

was proximately caused by the Village and Bender’s negligence. In particular, 

Mother alleged the following six causes of action: wrongful death, premises 

liability, physical defect, survival claim, loss of consortium, and vicarious liability. 

{¶16} On June 28, 2010, the defendants filed a motion for summary 

judgment, and on October 12, 2010, they were granted leave to file a supplemental 

motion for summary judgment instanter with exhibits attached. On October 18, 

2010, Mother filed a memorandum in opposition to the defendants’ motion for 

summary judgment. The defendants filed a response memorandum on October 28, 

2010. 

{¶17} Thereafter, on December 6, 2010, the trial court issued its order and 

decision granting the defendants’ motion for summary judgment. 

{¶18} Mother now appeals and raises the following four assignments of 

error. For ease of our discussion, we elect to address Mother’s first and second 

assignments of error together. 

ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

GRANTING THE DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT AND FINDING THAT THE 

REVISED CODE §2744.02(B)(4) EXCEPTION TO 

IMMUNITY DID NOT APPLY IN THIS CASE. 

 

1

 The Village of Bettsville and the Recreation Board will be referred to collectively as “the Village.” 
Case No. 13-10-48 

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ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

GRANTING DEFENDANTS’ MOTION FOR SUMMARY 

JUDGMENT AND FINDING THAT THERE WAS NO 

EVIDENCE OF NEGLIGENCE OR A DEFECT IN THE 

PREMISES. 

{¶19} In her first and second assignments of error, Mother argues that the 

trial court erred in finding that the Village was immune from liability under R.C. 

2744.02(A)(1). In particular, Mother argues that the exception for immunity 

pursuant to R.C. 2744.02(B)(4) was applicable, but that the trial court erred in 

finding that, because there was no evidence of negligence and that there was no 

evidence of any physical defects on the premises, the exception to immunity did 

not apply. 

Standard of Review 

{¶20} We review a decision to grant summary judgment de novo. Doe v. 

Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. Under this standard of 

review, we review the appeal independently, without any deference to the trial 

court. Conley-Slowinski v. Superior Spinning & Stamping Co. (1998), 128 Ohio 

App.3d 360, 363, 714 N.E.2d 991. A motion for summary judgment will be 

granted only when the requirements of Civ.R. 56(C) are met. Thus, the moving 

party must show: (1) that there is no genuine issue of material fact, (2) that the 
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moving party is entitled to judgment as a matter of law, and (3) that reasonable 

minds can reach but one conclusion when viewing the evidence in favor of the 

non-moving party, and the conclusion is adverse to the non-moving party. Civ.R. 

56(C); State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 

Ohio St.3d 217, 219, 631 N.E.2d 150. 

{¶21} The party asking for summary judgment bears the initial burden of 

identifying the basis for its motion in order to allow the opposing party a 

“meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 

112, 116, 526 N.E.2d 798. The moving party must also demonstrate the absence 

of a genuine issue of material fact as to an essential element of the case. Dresher 

v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. Then the moving party 

must demonstrate that they are entitled to summary judgment as a matter of law, at 

which time, the burden then shifts to the non-moving party to produce evidence on 

any issue which that party bears the burden of production at trial. Deutsche Bank 

Trust Co. v. McCafferty, 3d Dist. No. 1-07-26, 2008-Ohio-520, ¶9, citing Civ.R. 

56(E). 

Ohio’s Political Subdivision Tort Liability Act

{¶22} Under Ohio’s Political Subdivision Tort Liability Act, codified under 

R.C. Chapter 2744, it is well-established that a reviewing court must engage in a 

three-tiered analysis to determine whether a political subdivision is entitled to 
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immunity from civil liability. Hubbard v. Canton Cty. Sch. Bd. of Edn., 97 Ohio 

St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543, ¶10, citing Cater v. Cleveland

(1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610. See, also, Elston v. Howland Local 

Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶10. The first tier 

of the analysis is to determine whether the entity claiming immunity is a political 

subdivision and whether the harm occurred in connection with a governmental or 

proprietary function. R.C. 2744.02(A)(1); Hubbard at ¶10. Generally, political 

subdivisions are not liable for damages in civil actions for the “injury, death, or 

loss to a person or property allegedly caused by any act or omission of the political 

subdivision or an employee of the political subdivision in connection with a 

governmental or proprietary function.” R.C. 2744.02(A)(1). 

{¶23} However, the immunity established under R.C. 2744.02(A)(1) is not 

absolute; and the subdivision’s immunity is subject to a list of exceptions under 

R.C. 2744.02(B)(1)-(5). Once general immunity has been established by the 

political subdivision, the burden lies with the plaintiff to show that one of the five 

exceptions under R.C. 2744.02(B) apply. Brady v. Bucyrus Police Dept., 3d Dist. 

No. 3-10-21, 2011-Ohio-2460, ¶47, citing Maggio v. Warren, 11th Dist. No. 2006-

T-0028, 2006-Ohio-6880, ¶38. Thus, if the entity is a political subdivision entitled 

to immunity under the first tier of the analysis, then the court must go to the 

second tier of the analysis and determine whether any of the exceptions to liability 
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enumerated in R.C. 2744.02(B) apply. Hubbard at ¶12, citing Cater, 83 Ohio 

St.3d at 28. If any of the exceptions to immunity are found to be applicable, then 

the political subdivision will lose its immunity. If this occurs, then the court must 

move on to the third tier of the analysis, where it must determine whether the 

political subdivision’s immunity can be reinstated as long as the political 

subdivision proves one of the defenses to liability under R.C. 2744.03. 

{¶24} Here, no one disputes the fact that the Village of Bettsville and 

Bettsville Recreation Board are political subdivisions and were engaged in the 

governmental function of maintenance and operation of a recreational swimming 

area. See R.C. 2744.01(C)(2)(u)(iv). As such, they are, presumptively immune 

from liability under R.C. 2744.02(A)(1) and are entitled to immunity unless one of 

the exceptions in R.C. 2744.02(B) applies. 

{¶25} Under the second tier of the immunity analysis, we note that a 

political subdivision’s immunity is typically subject to the five exceptions listed in 

R.C. 2744.02(B)(1)-(5). On appeal, the parties’ arguments center around only one 

of the five exceptions, R.C. 2744.02(B)(4), thus, our discussion will be limited to 

R.C. 2744.02(B)(4)’s application. However, before we can analyze the merits of 

the R.C. 2744.02(B)(4) exception, we must address two initial arguments 

presented by the parties. 

 
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Cater v. Cleveland

{¶26} The first initial argument raised on appeal concerns whether R.C. 

2744.02(B)(4) should even apply given the Ohio Supreme Court’s decision in 

Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610. 

{¶27} The Village claims that, pursuant to the Supreme Court’s decision in 

Cater, R.C. 2744.02(B)(4) is inapplicable to recreational swimming areas. As 

such, the Village argues that, because R.C. 2744.02(B)(4) does not apply to 

recreational swimming areas, they are presumptively entitled to immunity under 

R.C. 2774.02(A)(1). In response, Mother claims that, in light of the Ohio 

Supreme Court’s recent decisions, it’s holding in Cater is no longer binding. 

Mother also points to a recent decision by this Court where she claims that we 

declined to follow the Ohio Supreme Court’s rationale in Cater. See Thomas v. 

Bagley, 3d Dist. No. 11-04-12, 2005-Ohio-1921. 

{¶28} In Cater, the Ohio Supreme Court was asked to consider whether 

R.C. 2744.02(B)(4) applied to an indoor municipal swimming pool. Cater, 83 

Ohio St.3d at 27-28. Ultimately, the Court concluded that the exception did not 

apply to indoor municipal swimming pools, and reasoned as follows: 

Although former R.C. 2744.02(B)(4) may be applicable to other 

governmental functions, not specifically listed in the statute, we 

believe that it does not apply to an indoor swimming pool. (See, 

also, Mattox v. Bradner [Mar. 21, 1997], Wood App. No. WD96-038, unreported, 1997 WL 133330, which held that the 
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exception enumerated in R.C. 2744.02[B][4] is inapplicable to 

injuries sustained in a municipal swimming pool.) Unlike a 

courthouse or office building where government business is 

conducted, a city recreation center houses recreational activities. 

Furthermore, if we applied former R.C. 2744.02(B)(4) to an 

indoor swimming pool, liability could be imposed upon the 

political subdivision. However, there would be no liability if the 

injury occurred at an outdoor municipal swimming pool, since 

the injury did not occur in a building. We do not believe that the 

General Assembly intended to insulate political subdivisions 

from liability based on this distinction. Therefore, we reject 

appellants’ contention that former R.C. 2744.02(B)(4) applies to 

an indoor municipal swimming pool. 

Cater, 83 Ohio St.3d at 31-32. 

{¶29} There has been at least one other appellate district that has recently 

applied Cater to outdoor swimming facilities and has held that the physical-defect 

exception does not apply, even if the injury was proximately caused by the 

negligence of an employee and due to a physical defect.2

 O’Connor v. City of 

Fremont, 6th Dist. No. S-10-008, 2010-Ohio-4159. However, we acknowledge 

that this Court has also recently addressed the Supreme Court’s decision in Cater, 

but unlike the other appellate district, we questioned the validity of Cater, 

especially in light of the Supreme Court’s more recent ruling in Hubbard. See 

Thomas, 2005-Ohio-1921. In Thomas, this Court noted: 

 

2

 We note that the Court of Appeals for the Ninth District recently released an opinion on August 3, 2011, 

which overruled one of its prior decisions that had applied Cater to outdoor swimming facilities. 

Hawsman v. Cuyahoga Falls, 9th Dist. No. 25582, 2011-Ohio-3795, overruling Hopper v. Elyria, 182 Ohio 

App.3d 521, 2009-Ohio-2517, 913 N.E.2d 997, not accepted for review, Hopper v. Elyria, 123 Ohio St.3d 

1424, 2009-Ohio-5340, 914 N.E.2d 1064. 
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Initially, we note that this Court has serious doubts regarding 

the continuing validity of Cater in light of the Supreme Court’s 

more recent ruling in Hubbard. In Cater the Supreme Court 

found that municipal swimming pools were not subject to the 

R.C. 2744.02(B)(4) exception based on the fact that the 

governmental function being performed by municipal pools was 

recreational in nature and not the kind of “government 

business” being conducted in a courthouse or government office 

building. Id. at 31-32, 697 N.E.2d 610. The Court made this 

finding despite having recognized earlier in the same opinion 

that “the General Assembly has already classified the operation 

of a municipal swimming pool as a governmental function under 

R.C. 2744.01(C)(2)(u).” Id at 28, 697 N.E.2d 610. No such 

distinction has been made by the Court since Cater. In fact, in 

Hubbard the Court stressed that the only relevant inquiry in 

such a case is whether “the injuries claimed by plaintiffs were 

caused by negligence occurring on the grounds of a building 

used in connection with a government function * * *.” Hubbard

at ¶ 18. There was no discussion regarding whether the 

governmental function in the building involved was recreational 

in nature. 

Additionally, as noted by Justice Moyer in a concurring opinion 

in Cater, outdoor pools are located on the grounds of buildings 

such as shelters, restrooms and storage areas that are being used 

in the performance of a governmental function. Cater, 83 Ohio 

St.3d at 35, 697 N.E.2d 610. Therefore, both outdoor and indoor 

municipal pools would be subject to the R.C. 2744.02(B)(4) 

exception, and the distinction relied on by the majority in Cater

involving outdoor and indoor municipal pools would appear to 

be invalid. 

Thomas, 2005-Ohio-1921, ¶¶34-35. 

{¶30} While we acknowledge this Court’s prior decision in Thomas, we 

ultimately find that the trial court did not err in granting the Village’s motion for 

summary judgment because Mother failed to present sufficient evidence that a 
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physical defect on the premise caused Garcia’s death. We will discuss this in 

further detail below; however, before we can discuss the merits of the physical 

defect arguments raised on appeal, we must next address Mother’s argument that 

R.C. 2744.02(B)(4) is unconstitutional and that the physical-defect requirement 

should not apply. 

Constitutionality of R.C. 2744.02(B)(4) 

{¶31} Mother briefly argues in her appellate brief that she was not required 

to present evidence of a physical defect in the premises pursuant to the Ohio 

Supreme Court’s ruling in Hubbard v. Canton City School Bd. of Edn. (2002), 97 

Ohio St.3d 451, 2002-Ohio-6718, 780 N.E.2d 543. She also claims that she did 

not have to prove the physical-defect requirement because the legislation that 

amended that particular statutory provision was declared unconstitutional. 

{¶32} In Hubbard, in interpreting the previous version of R.C. 

2744.02(B)(4), the Ohio Supreme Court held that: 

R.C. 2744.02(B)(4) applies to all cases where an injury resulting 

from the negligence of an employee of a political subdivision 

occurs within or on the grounds of buildings that are used in 

connection with the performance of a governmental function. 

The exception is not confined to injury resulting from physical 

defects or negligent use of grounds or buildings. 
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Hubbard, at the syllabus. It is this holding that Mother relies on in support of her 

position that there was no need to prove that there was a physical defect in the 

premises. 

{¶33} However, we find that Mother’s reliance on Hubbard is misplaced. 

In Hubbard, the Ohio Supreme Court interpreted the prior version of R.C. 

2744.02(B)(4), effective July 6, 2001. See Hubbard, 2002-Ohio-6718, at ¶¶15-18. 

Because the statute in effect at the time did not contain any explicit language 

concerning a “physical defect,” the Supreme Court refused to interpret the statute 

as having such a requirement, even though it acknowledged the legislature’s prior, 

consistent, but ultimately failed attempts to change the statutory language in R.C. 

2744.02(B)(4) to include such a requirement. Id. at ¶¶16-18. Nevertheless, in 

2003, the Ohio General Assembly amended R.C. 2744.02(B)(4) and explicitly 

added the language “and is due to physical defects within or on the grounds.” This 

is the current version of the statute. Because the current version of the statute 

clearly contains the additional “physical defect” language, it has essentially 

invalidated the analysis rendered in Hubbard. Moreover, the amendment to the 

statute became effective on April 9, 2003, and contrary to Mother’s argument, has 

not been declared unconstitutional by the Ohio Supreme Court. Since that time, 

appellate courts have generally limited the R.C. 2744.02(B)(4) exception to 

injuries that were “due to physical defects.” DeMartino v. Poland Local School 
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Dist., 7th Dist. No. 10 MA 19, 2011-Ohio-1466, ¶40; Troutman v. Jonathon Alder 

Local School Dist. Bd. of Edn., 12th Dist. No. CA2009-08-016, 2010-Ohio-855, 

¶24; Yeater v. LaBrae School Dist. Bd. of Edn., 11th Dist. No. 2009-T-0107, 2010-

Ohio-3684, ¶14, citing Dunfee v. Oberlin School Dist., 9th Dist. No. 08CA009497, 

2009-Ohio-3406, ¶13; Dynowski v. Solon, 8th Dist. No. 92264, 2009-Ohio-3297, 

¶19; Hopkins v. Columbus Bd. of Educ., 10th Dist. No. 07AP-700, 2008-Ohio1515, ¶18. But see, Grine v. Sylvania Schools Bd. of Edn., 6th Dist. No. L-06-

1314, 2008-Ohio-1562, ¶56 (finding that the Ohio Supreme Court had interpreted 

the prior version of R.C. 2744.02(B)(4), effective July 6, 2001, but concluding that 

the Ohio Supreme Court has declared new amendment unconstitutional). 

{¶34} Furthermore, with respect to Mother’s argument that the legislation 

that amended the R.C. 2744.02(B)(4) exception has been declared 

unconstitutional, as we mentioned above, the Ohio Supreme Court has not 

declared the current version of R.C. 2744.02(B)(4), effective on April 9, 2003, to 

be unconstitutional. In fact, the Court has recently analyzed the physical defect 

requirement with respect to the absence of a required smoke detector. See Moore 

v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio-1250, 905 N.E.2d 

606, ¶¶22-25 (reversing and remanding the case to the trial court because the trial 

court had failed to consider whether the absence of a required smoke detector on 

property owned by a political subdivision constituted a physical defect pursuant to 
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R.C. 2744.02(B)(4)). See, also, Hamrick v. Bryan City School Dist., 6th Dist. No. 

WM-10-014, 2011-Ohio-2572, ¶22 (rejecting the appellant’s argument that R.C. 

2744.02(B)(4) has been declared unconstitutional by the Ohio Supreme Court). 

{¶35} More significantly, we note that Mother failed to raise this issue 

below at the trial court. “In order for a party to challenge the constitutionality of a 

state statute, ‘the issue must be raised in the complaint or the initial pleading and 

the Ohio Attorney General must be properly served.’” Troutman, 2010-Ohio-855, 

at ¶12, quoting M.B. v. Elyria City Bd. of Edn., 9th Dist. No. 05CA008831, 2006-

Ohio-4533, ¶6. As such, we find that Mother has waived the issue for purposes of 

appeal. See State v. Heft, 3d Dist. No. 8-09-08, 2009-Ohio-5908, ¶29, quoting 

State v. Rice, 3d Dist. Nos. 1-02-15, 1-02-29, 1-02-30, 2002-Ohio-3951, ¶7, 

quoting State v. Awan (1986), 22 Ohio St.3d 120, 489 N.E.2d 277, syllabus, 

limited by In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, syllabus. 

{¶36} Now that we have addressed all of the parties’ initial arguments, we 

will discuss the applicability of the R.C. 2744.02(B)(4) exception as it relates to 

the facts and circumstances of this particular case. 

R.C. 2744.02(B)(4) 

{¶37} As we stated above, once general immunity has been established by 

the political subdivision, the burden lies with the plaintiff to show that one of the 

five exceptions under R.C. 2744.02(B) apply. Brady, 2011-Ohio-2460, at ¶47, 
Case No. 13-10-48 

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citing Maggio, 2006-Ohio-6880, at ¶38. Here, the only exception that is being 

argued before us concerns the application of R.C. 2744.02(B)(4). R.C. 

2744.02(B)(4) provides: 

[s]ubdivisions are liable for injury, death, or loss to person or 

property that is caused by the negligence of their employees and 

that occurs within or on the grounds of, and is due to physical 

defects within or on the grounds of, buildings that are used in 

connection with the performance of a governmental function, 

including, but not limited to, office buildings and courthouses * * 

*. 

Under the terms of R.C. 2744.02(B)(4), the Village’s presumptive immunity 

should have been abrogated only if Mother demonstrated that the injury was: (1) 

caused by employee negligence, (2) on the grounds or in buildings used in 

connection with the performance of a governmental function, and (3) due to 

physical defects on or within those grounds or buildings. 

{¶38} Here, after considering all of the evidence, the trial court found as 

follows: 

In addition, the R.C. 2744.02(B)(4) exception is inapplicable 

because the injury was not due to a “physical defect.” Although 

the Complaint alleges that Garcia became submerged below the 

water due to a sudden drop-off, absent is any evidence 

supporting this allegation. There is no evidence that a sudden 

drop-off existed and there is no evidence that the drowning 

could have been caused by an increase in water depth. In short, 

the evidence establishes that Garcia was swimming just prior to 

the incident and the relevant areas of the park quarry had only a 

very gradual water depth increase. For this additional reason, 

the R.C. 2744.02(B)(4) exception does not apply. 
Case No. 13-10-48 

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There is also no evidence of any underwater obstruction present 

at the time of the incident, which could represent a “physical 

defect” that caused the drowning. The testimony of Alex Fox 

establishes that Garcia was not entangled or trapped by an 

underwater obstruction. There was also no evidence of trauma 

to Garcia’s body. 

Because none of the immunity exceptions under R.C. 

2744.02(B)(1)-(5) apply, the Village of Bettsville and Bettsville 

Recreation Board are entitled to immunity under R.C. 

2744.02(A)(1). 

(Dec. 6, 2010 JE at 15-16). 

{¶39} On appeal, in attempting to establish the exception under R.C. 

2744.02(B)(4), Mother claims that the trial court erred in failing to consider 

evidence of the following seven violations committed by the Village: (1) that the 

Village was negligent per se and/or reckless by failing to have the required 

number of lifeguards; (2) that the Village failed to appropriately train and evaluate 

their lifeguard staff; (3) that the Village was negligent and/or reckless in their 

hiring and training of lifeguard Andrea Bender; (4) that Andrea Bender fell below 

the accepted standard of care for a lifeguard in her response to Garcia’s drowning; 

(5) that the Village failed to separately identify and warn of the presence of “deep 

water” within the designated swimming area; (6) that the Village’s facility was 

defective and dangerous in its failure to warn of the drastic change in bottom slope 

and/or sudden drop off within the designated swimming area; and (7) that the 
Case No. 13-10-48 

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Village’s facility deviated from the accepted standards of care by allowing 

copious amounts of underwater vegetation to exist within the designated 

swimming area. 

{¶40} However, as found by the trial court, most of Mother’s allegations 

have nothing to do with a physical defect on the property. For example, the 

Village’s alleged failure to provide sufficient lifeguards, failure to appropriately 

train and evaluate its lifeguards, and negligent and/or reckless hiring and training 

of its lifeguards clearly do not concern any physical defect regarding the premise. 

{¶41} The only three allegations this Court can find may amount to a 

physical defect would be the allegation that the Village failed to post signs 

warning of deep water, the allegation that there was copious amounts of vegetation 

in the designated swim area, and the allegation that there was drastic change in the 

slope or a sudden drop-off in the designated swim area. Nevertheless, for the 

following reasons, under the facts and circumstances of this particular case, we 

find that none of the allegations rise to the level of a physical defect for purposes 

of R.C. 2744.02(B)(4). 

{¶42} With respect to the Village’s failure to post signs warning of the 

presence of deep water, we find that Mother has failed to present any evidence 

demonstrating how this amounted to a physical defect in the property. As both 

parties’ experts stated, deep water in public swimming areas is a common and 
Case No. 13-10-48 

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expected feature, especially if the facility has diving boards and slides. There is 

nothing in the record to suggest that this feature did not perform as intended or 

was less useful than designed. See Hamrick v. Bryan City School Dist., 6th Dist. 

No. WM-10-014, 2011-Ohio-2572, ¶¶27-29 (analyzing the plain meaning of the 

phrase “physical defect” and concluding that the appellant failed to present 

evidence that there was any discernible imperfection that diminished the utility of 

either the bus garage or the service pit). 

{¶43} Next, with respect to the copious amount of vegetation allegation, we 

find that, even if this amounted to a physical defect, Mother failed to present 

sufficient evidence that this alleged defect existed at the time of the incident. The 

only evidence presented by Mother in regards to the copious amount of vegetation 

was from the plaintiff’s expert witness, who found that the designated swim area 

had copious amounts of vegetation. However, the plaintiff’s expert made her 

inspection of the premises on July 6, 2010, almost three years after the incident, 

which again occurred back on August 3, 2007. There is no evidence in the record 

that this vegetation existed at the time of the incident. 

{¶44} Finally, with respect to the sudden drop-off or drastic change in slope 

allegation, again we find that Mother failed to present sufficient evidence that this 

amounted to a physical defect. The only evidence introduced that indicates that 

there was such a physical defect was the affidavit from the plaintiff’s expert 
Case No. 13-10-48 

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witness. At one point in her affidavit, the plaintiff’s expert concluded that in the 

area where Garcia had drowned, “[s]uddenly and without warning, * * * the 

bottom slope suddenly and drastically changes.” (Bella Aff. at 4). However, 

during her deposition, which had taken place prior to her affidavit, the plaintiff’s 

expert was specifically asked whether she believed that there was a significant 

drop-off in the area where Garcia drowned. (Bella Depo. at 113). The plaintiff’s 

expert replied, “I wouldn’t define that area as having a significant drop-off based 

upon my definition.” (Id.). 

{¶45} ‘“[W]hen an affidavit is inconsistent with affiant’s prior deposition 

testimony as to material facts and the affidavit neither suggests affiant was 

confused at the deposition nor offers a reason for the contradiction in her prior 

testimony, the affidavit does not create a genuine issue of fact which would 

preclude summary judgment.’” Swiger v. Kohl’s Dept. Store, Inc., 2nd Dist. No. 

23713, 2010-Ohio-6230, ¶5, quoting Byrd v. Smith, 110 Ohio St.3d 24, 2006-

Ohio-3455, 850 N.E.2d 47, ¶29, quoting Lemaster v. Circleville Long Term Care, 

Inc. (Feb. 22, 1988), 4th Dist. No. 87 CA 2, at *3. Based on the above, we find 

the plaintiff’s expert’s prior deposition testimony is inconsistent with her affidavit 

testimony – she testified first that there were no significant drop-offs in the area 

where Garcia drowned, but later averred that this area did have a sudden and 

drastic change, such that it made that particular area defective and dangerous. 
Case No. 13-10-48 

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Because there is no explanation as to the contradiction in her testimony, we find 

that her affidavit alone did not create a genuine issue of material fact which would 

have precluded summary judgment. 

{¶46} Mother also tries to utilize the defense expert witness’s testimony in 

support of her position that there was a physical defect in the property by the 

presence of a drastic change in slope and/or sudden drop-off. However, upon a 

review of the defense expert’s testimony, we find that Mother has 

mischaracterized his testimony and has taken his conclusions out of context by 

only selecting certain portions of his deposition testimony to highlight on appeal. 

A review of the defense expert’s testimony reveals that he did not find a drastic 

change in slope or a sudden drop-off in the area Garcia drowned. (Griffiths Depo. 

at 91-108). 

{¶47} Nevertheless, even if there was sufficient evidence that these 

allegations involved physical defects on the premise, the fact of the matter remains 

that Mother failed to show how Garcia’s drowning was due to these alleged 

physical defects. There was no evidence linking Garcia’s drowning to any sort of 

vegetation in the quarry. In fact, the patron who discovered Garcia’s body under 

water and pulled him to shore, specifically testified that Garcia had not been 

entangled by any obstructions when he found him at the bottom of the deep end of 
Case No. 13-10-48 

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the quarry. There was also evidence that there had been no noticeable trauma to 

Garcia’s body. 

{¶48} Furthermore, there was no evidence connecting Garcia’s drowning to 

any drastic slope change or drop-off nor the failure to post signs warning patrons 

of the presence of deep water. Mother proposes a theory that Garcia drowned 

when he had been walking from the shallow end to the deep end when he either 

encountered a drop-off, a drastic change in slope, or had not been properly warned 

of the presence of deep water. However, the evidence indicates that Garcia had 

actually been swimming in the deep-end of the quarry by the diving board and 

slide platform before he disappeared and was found subsequently laying at the 

bottom of the quarry. (R. Garcia Depo. at 37-39); (L. Garcia Depo at 36). The 

evidence also indicates that, right before he disappeared, Garcia had decided to 

race his sister out to the raft, which was further away in the deep-end. (R. Garcia 

at 37-39). Even though Garcia’s body was discovered in the deep-end of the 

quarry, none of the witnesses actually saw Garcia drown – no one saw him under 

the surface of the water, no one saw him struggling in the water, and no one saw 

any signs that Garcia had been in distress prior to his disappearance. 

{¶49} Moreover, we note that, regardless of whether or not Mother 

presented evidence that raised questions regarding Bender’s response to the 

incident, Mother still had to show that Garcia’s drowning was also due to a 
Case No. 13-10-48 

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physical defect on the grounds of the quarry. As we illustrated above, Mother has 

failed to satisfy her burden, thus we need not discuss any questions of fact 

pertaining to Bender’s purported negligence since Mother cannot demonstrate all 

of the requirements under the R.C. 2744.02(B)(4) exception. 

{¶50} Therefore, we find that the trial court correctly determined that the 

exception to immunity pursuant to R.C. 2744.02(B)(4) was inapplicable, because 

Mother failed to demonstrate that there was a physical defect on the premises. 

Consequently, the trial court also properly concluded that the Village was entitled 

to immunity pursuant to R.C. 2744.02(A)(1) and did not err in granting the 

Village’s motion for summary judgment. 

{¶51} Mother’s first and second assignments of error are, therefore, 

overruled. 

ASSIGNMENT OF ERROR NO. III 

THE TRIAL COURT ERRED IN FINDING THAT 

DEFENDANTS’ IMMUNITY IS REINSTATED PURSUANT 

TO R.C. §2744.03(A)(5) AND (6). 

{¶52} In her third assignment of error, Mother argues that the trial court 

erred in finding that even if the Village was excepted out of immunity, the 

Village’s immunity could nonetheless be reinstated pursuant to the defenses in 

R.C. 2744.03(A)(5) and (6). 
Case No. 13-10-48 

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{¶53} However, because we found that the exception under R.C. 

2744.02(B)(4) was not applicable and that, as a result, the Village was entitled to 

immunity under R.C. 2744.02(A), we find that this assignment of error has been 

rendered moot. Thus, we decline to address the applicability of any of the 

defenses pursuant to R.C. 2744.03(A). App.R. 12(A)(1)(c). 

{¶54} Mother’s third assignment of error is, therefore, overruled as moot. 

ASSIGNMENT OF ERROR NO. IV 

THE TRIAL COURT ERRED AS A MATTER OF LAW BY 

FAILING TO CONSTRUE THE EVIDENCE IN A LIGHT 

MOST FAVORABLE TO APPELLANT. 

{¶55} Finally, in her last assignment of error, Mother argues that the trial 

court overall erred in failing to consider all of the evidence in a light most 

favorable to her, the non-moving party. 

{¶56} Again, given our discussion above, we find that as it relates to the 

Village of Bettsville and the Bettsville Board of Recreation, the trial court did not 

err in granting summary judgment in their favor. 

{¶57} As it relates to Bender, it appears that Mother has not raised any 

specific claim regarding Bender’s liability on appeal. Nevertheless, to the extent 

Mother may have raised any issues regarding Bender’s liability on this appeal, we 

note that, pursuant to R.C. 2744.03(A)(6), Bender was entitled to immunity unless 

Mother showed that one of the exceptions in R.C. 2744.03(A)(6) applied. Hawk v. 
Case No. 13-10-48 

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Am. Elec. Power Co., 3d Dist. No. 1-04-65, 2004-Ohio-7042, ¶10, quoting Wooton 

v. Vogele (2001), 147 Ohio App.3d 216, 221, 796 N.E.2d 889. Based on Mother’s 

arguments, the only exception that could apply would be R.C. 2744.03(A)(6)(b), 

thus Bender would be entitled to immunity unless her “acts or omissions were 

with malicious purpose, in bad faith, or [done] in a wanton or reckless manner.” 

However, when reviewing Mother’s complaint, we find that she only alleged that 

Bender acted negligently and did not assert any other culpability higher than 

negligence in the proceedings below. Therefore, because there were never any 

allegations that Bender acted “with malicious purpose, in bad faith, or in a wanton 

or reckless manner,” we find that Bender was immune from liability and that the 

trial court also did not err in granting summary judgment in Bender’s favor. 

{¶58} Mother’s fourth assignment of error is, therefore, overruled. 

{¶59} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

ROGERS, P.J. and WILLAMOWSKI, J., concur. 

/jlr