[Cite as Smiley v. Cleveland, 2016-Ohio-7711.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103987 

SHER SMILEY

PLAINTIFF-APPELLANT 

vs. 

CITY OF CLEVELAND

 DEFENDANT-APPELLEE 

JUDGMENT: 

REVERSED AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-14-832319 

BEFORE: Stewart, P.J., S. Gallagher, J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: November 10, 2016 
ATTORNEY FOR APPELLANT

Alan I. Goodman 

Alan I. Goodman Co., L.P.A. 

55 Public Square, Suite 1300 

Cleveland, OH 44113 

 

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry 

Director of Law 

Connor P. Nathanson 

Assistant City Prosecutor 

City of Cleveland Law Department 

601 Lakeside Avenue, Suite 106 

Cleveland, OH 44114 
MELODY J. STEWART, P.J.: 

{¶1} Plaintiff-appellant Sher Smiley appeals a judgment of the trial court 

dismissing her complaint against the city of Cleveland, pursuant to Civ.R. 12(B)(6) for 

failure to state a claim upon which relief can be granted. Smiley argues that the trial 

court erred in dismissing her complaint against the city because the complaint alleges 

facts that invoke an exception to the political subdivision immunity statute. For the 

reasons that follow, we reverse the decision of the trial court. 

{¶2} Smiley’s complaint arises from events that took place on the evening of July 

6, 2013, when Smiley was at the Cuddell Recreation Center, which is owned and 

managed by the city of Cleveland. Smiley slipped on a stainless steel strip, located on 

the floor between the pool area and a water park area, and fell. According to the 

complaint, Smiley was wearing water shoes while exiting the pool area, but took them 

off when a city employee, who was controlling the entrance to the water park area, 

instructed her to remove her shoes before entering. The complaint alleges that Smiley 

was wearing water shoes to prevent her from slipping in wet areas. The complaint 

further alleges that Smiley sustained injuries from the fall and that those injuries resulted 

in financial damages. 
{¶3} The city answered the complaint and asserted numerous defenses including 

that it was immune from suit pursuant to Ohio’s political subdivision immunity statute. 

A month later, the city filed a motion to dismiss the complaint for failure to state a claim 

upon which relief can be granted pursuant to Civ.R. 12(B)(6). Smiley missed the 

deadline for opposing the motion and the trial court granted the motion to dismiss, noting 

that the motion went unopposed. Smiley filed a motion for relief from judgment along 

with a brief in support of the motion explaining why she missed the deadline for opposing 

the city’s motion to dismiss. On the same day she filed her motion for relief from 

judgment, Smiley also filed a motion for leave to amend her complaint and attached the 

amended complaint. The amended complaint was substantially similar to the original 

complaint with the exception of a single added paragraph that clarified the negligence 

claim by stating that the employee was negligent in making Smiley remove her shoes 

when the employee knew that the water park area was dangerous when wet, and that it 

happened to be wet in that particular instance. The paragraph further stated that the 

employee’s negligence caused or allowed a dangerous condition to be present. 

{¶4} The court granted the motion from relief for judgment and gave Smiley an 

opportunity to oppose the motion to dismiss. However, the court did not grant the 

motion to amend the complaint, but rather dismissed the motion as moot. Following 

briefing and a hearing on the motion, the court once again granted the city’s motion.1

 1

 Typically, motions to dismiss under Civ.R. 12(B), must be asserted prior to filing a 

responsive pleading. See Civ.R. 12(B). Nevertheless, courts have discretion to review a belated 

Civ.R. 12(B)(6) as a Civ.R. 12(C) motion for judgment on the pleadings. State ex rel. Midwest Pride 
{¶5} A Civ.R. 12(B)(6) motion to dismiss a complaint for failure to state a claim 

upon which relief can be granted tests the sufficiency of a complaint. In order for a trial 

court to dismiss a complaint under Civ.R. 12(B)(6), it “‘must appear beyond a doubt that 

the plaintiff can prove no set of facts in support of [her] claim that would entitle [her] to 

relief.’” (Emphasis added.) O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio 

St.2d 242, 245, 327 N.E.2d 753 (1975), quoting Conley v. Gibson, 355 U.S. 41, 45, 78 

S.Ct. 99, 2 L.Ed.2d 80 (1957); LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 

2007-Ohio-3608, 872 N.E.2d 254, ¶ 14. It is important to note that Ohio has not adopted 

the heightened federal pleading standard outlined in Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 

129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), which requires a plaintiff to plead sufficient 

facts that state a “plausible” claim for relief. See Tuleta v. Med. Mut. of Ohio, 

2014-Ohio-396, 6 N.E.3d 106, ¶ 23-31 (8th Dist.). Instead, Ohio remains a notice 

pleading jurisdiction. See id. at ¶ 31. As such, the standard requires that a plaintiff can 

show “no set of facts” that entitle her to relief before a complaint is dismissed for failure 

to state a claim. See id. at ¶ 31. 

 

IV, Inc. v. Pontious, 75 Ohio St.3d 565, 569, 664 N.E.2d 931 (1996); see also Civ.R. 12(H). The 

standard of review on Civ.R. 12(B)(6) and Civ.R. 12(C) motions is the same at both the trial and 

appellate levels. See Mangelluzzi v. Morley, 2015-Ohio-3143, 40 N.E.3d 588, ¶ 6-8 (8th Dist.). 
{¶6} When discussing Ohio’s pleading standard, this court has stated in the past 

that “‘few complaints fail to meet the liberal [pleading] standards of Rule 8 and become 

subject to dismissal,’” and that “‘the motion to dismiss is viewed with disfavor and 

should rarely be granted.’” Id. at ¶ 15, quoting Slife v. Kundtz Properties, Inc., 40 Ohio 

App.2d 179, 182, 318 N.E.2d 557 (8th Dist.1974). When reviewing a complaint for 

failure to state a claim under 12(B)(6), “[t]he allegations of the complaint must be taken 

as true, and those allegations and any reasonable inferences drawn from them must be 

construed in the nonmoving party’s favor.” (Emphasis added.) Antoon v. Cleveland 

Clinic Found., 8th Dist. Cuyahoga No. 101373, 2015-Ohio-421, ¶ 7. Appellate courts 

review the grant of a motion to dismiss de novo.2 Id. at ¶ 7. 

{¶7} In Ohio, political subdivision immunity is governed by R.C. Chapter 2744. 

This chapter sets forth a three-tiered analysis for determining whether a political 

subdivision is immune from liability for injury or loss to property. See Rankin v. 

Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 

889 N.E.2d 521, ¶ 8. The first tier of the analysis R.C. sets forth the general rule that 

political subdivisions are not liable in damages for causing personal injuries. R.C. 

2744.02(A)(1) states: 

 2

 We review Smiley’s original complaint only because the trial court did not grant her motion 

to amend the complaint, nor does she challenge the trial court’s denial in this appeal. 
For the purposes of this chapter, the functions of political subdivisions are 

hereby classified as governmental functions and proprietary functions. 

Except as provided in division (B) of this section, a political subdivision is 

not liable in damages in a civil action for injury, death or loss to person or 

property allegedly caused by an act or omission of the political subdivision 

or an employee of the political subdivision in connection with a 

governmental or proprietary function. 

The second tier of the analysis considers whether any exceptions to immunity apply. 

Rankin at ¶ 18. R.C. 2744.02(B), lays out these general exceptions. If an exception 

applies, then, under the third tier in the analysis, immunity may be reinstated if the 

political subdivision can demonstrate the applicability of any of the defenses set forth in 

R.C. 2744.03. Id. at ¶ 27. 

{¶8} Both Smiley and the city agree that the city is generally immune from liability 

under the first tier of the immunity analysis. The parties disagree however on whether 

Smiley pled sufficient facts, that when viewed in the light most favorable to Smiley, 

could support an argument that one of the exceptions to immunity under R.C. 2744.02(B) 

applies. Specifically, Smiley argues that the facts as pled in her complaint support the 

exception to immunity under subsection (B)(4), which states: 
Except as otherwise provided in section 3746.24 of the Revised Code, 

political subdivisions 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, but not including jails, places of juvenile detention, 

workhouses, or any other detention facility, as defined in section 2921.01 of 

the Revised Code. 

Although the city does not dispute that Smiley has alleged facts sufficient to support a 

finding that her injury occurred as a result of employee negligence, the city argues that 

Smiley’s complaint fails to establish that there was a physical defect within or on the 

grounds of the water park that caused her injuries, thereby precluding application of the 

R.C. 2744.02(B)(4) exception to immunity. In support of its argument, the city points to 

this court’s decision in Duncan v. Cuyahoga Community College, 2012-Ohio-1949, 970 

N.E.2d 1092 (8th Dist.). 
{¶9} In Duncan, the plaintiff-appellee, who was employed by the Bedford Heights 

Police Department, was injured while taking part in a required employee self-defense 

seminar that was provided and sponsored by Cuyahoga Community College (Tri-C). The 

plaintiff’s injuries occurred when she was engaged in a self-defense simulation that 

involved her being knocked to the floor. The plaintiff alleged that her injuries were 

caused by a “defect” that appellants permitted to exist on the premises, thereby invoking 

the exception to immunity provided in R.C. 2744.02(B)(4). The only “defect” set forth in 

her complaint, however, was appellant’s failure to use mats on the floor while conducting 

the self-defense class. This court, looking to other cases defining the term “physical 

defect” as a “perceivable imperfection that diminishes the worth or utility of the object at 

issue,” concluded that a lack of mats on a floor did not constitute a defect within the 

meaning of R.C. 2477.02(B)(4). See id. at ¶ 26, quoting Hamrick v. Bryan City School 

Dist., 6th Dist. Williams No. WM-10-014, 2011-Ohio-2572, ¶ 28. Accordingly, this 

court found that Tri-C was entitled to immunity and reversed the trial court’s order 

denying the appellant’s Civ.R. 12(C) motion for judgment on the pleadings. 
{¶10} The city likens the facts of this case to the Duncan case and argues that like 

the plaintiff in Duncan, Smiley has failed to show a defect on the premises. We 

disagree. When viewing the complaint in the light most favorable to Smiley, we are 

satisfied that she has pled sufficient facts to suggest that the city is not entitled to 

immunity due to a defect on the premises. It should be remembered that Smiley is not 

required at the pleading stage to prove her allegations and disprove governmental 

immunity, rather she must only assert facts that if believed, would state a claim for relief. 

Diaz v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga No. 92907, 2010-Ohio-13, ¶ 

15. Additionally, all reasonable inferences should be made in favor of Smiley, the 

nonmoving party. 

{¶11} In her complaint, Smiley alleges that she was walking from the pool area to 

the splash area of the recreation facility when an employee controlling the threshold 

between the two areas instructed her to take off the water shoes she was wearing for 

safety reasons. Upon taking off her shoes and proceeding to the water park area, she 

slipped and fell on a metal strip located between those two areas. Although Smiley did 

not explicitly claim that the metal strip was wet, such fact is a reasonable inference that 

can be drawn from the other facts alleged, which were that 1) Smiley was wearing water 

shoes to prevent her from slipping in wet areas, and 2) that she slipped on the metal strip 

after an employee told her to take off her shoes prior to crossing the threshold where the 

metal strip was located. 
{¶12} Whether the wet metal strip constitutes a physical defect on the premises is a 

question of fact that cannot be resolved through a motion to dismiss. Sacksteder v. 

Senney, 2d Dist. Montgomery No. 24993, 2012-Ohio-4452, ¶ 88; see also Kincaid v. Erie 

Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 25-26 (explaining, 

“Civ.R. 12(C) requires a determination that no material factual issues exist and that the 

movant is entitled to judgment as a matter of law.”). Applying Ohio’s liberal pleading 

standard, we cannot say at this stage in proceedings that there exists no set of facts that 

could conceivably cause the metal strip to be defective. Under the facts as alleged, it is 

not inconceivable that the water could have interacted with the metal strip in some way 

that caused a “perceivable imperfection that diminished the utility or worth of the object,” 

see Duncan, 2012-Ohio-1949, 970 N.E.2d 1092 (8th Dist.) at ¶ 26-27. 

{¶13} Moreover, since deciding Duncan, this court has further adopted the 

position that a physical defect may include an object or instrumentality that does “not 

operate as intended due to a perceivable condition.” See Jacobs v. Oakwood, 8th Dist. 

Cuyahoga No. 103830, 2016-Ohio-5327, ¶ 16, citing Jones v. Delaware City School Dist. 

Bd. of Edn., 2013-Ohio-3907, 995 N.E.2d 1252, ¶ 22 (5th Dist.) (indicating that an unlit 

orchestra pit could be a physical defect where it did not operate safely). Although the 

city claims in its brief on appeal that the metal strip was part of the doorway and 

functioned to close the gap between the doors and the floor, this fact, if true, is outside of 

the pleadings and cannot be considered in a motion to dismiss. 
{¶14} Thus, unlike the plaintiff in Duncan who did not allege facts that would 

support the allegation of a perceivable imperfection on the floor of the Tri-C gymnasium, 

Smiley has alleged a perceivable imperfection in her complaint. She is not required to 

plead specific details in her complaint in order to survive a motion to dismiss. See 

Diaz, 8th Dist. Cuyahoga No. 92907, 2010-Ohio-13, at ¶ 15-16. Rather, the standard for 

dismissal under Civ.R. 12(B)(6) is that “it must appear beyond doubt from the complaint 

that the plaintiff can prove no set of facts entitling [her] to recovery.” O’Brien, 42 Ohio 

St.2d 242, 245, 327 N.E.2d 753 at syllabus. 

{¶15} Judgment reversed and remanded. 

It is ordered that appellant recover of appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________________ 

MELODY J. STEWART, PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR