[Cite as Abdou v. Ohio Dept. of Agriculture, 2020-Ohio-6937.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Amgad William Abdou, M.D. et al., : 

 Plaintiffs-Appellants, : 

 No. 19AP-633 

v. : (Ct. of Cl. No. 2018-00520JD)

Ohio Department of Agriculture, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on December 29, 2020 

 

On brief: Reminger Co., L.P.A., Brian C. Lee, and Marianne 

Barsoum Stockett, for appellants. Argued: Brian C. Lee. 

On brief: Dave Yost, Attorney General, William C. Becker, 

and Stacy Hannon, for appellee. Argued: William C. Becker. 

 

APPEAL from the Court of Claims of Ohio 

DORRIAN, J. 

{¶ 1} Plaintiffs-appellants, Amgad William Abdou, M.D. ("Dr. Abdou"), and Albair 

Guirguis (collectively, "appellants"), appeal the August 19, 2019 decision and judgment 

entry of the Court of Claims of Ohio granting summary judgment in favor of defendantappellee, Ohio Department of Agriculture ("ODA"). For the following reasons, we affirm. 

I. Facts and Procedural History 

{¶ 2} This matter arises out of a 2011 incident in which Dr. Abdou suffered severe 

injuries resulting is his being rendered quadriplegic. On May 29, 2011, Dr. Abdou attended 

a friend's birthday party at the Pump-It-Up Party Center in Avon, Ohio ("Pump-It-Up"). 

Dr. Abdou ran through one of Pump-It-Up's rides called the "Chaos," which was an 

inflatable obstacle course, the objective of which was for two participants to compete 

against one another in a race to make it through the obstacle course. Employees of Pump-
No. 19AP-633 2 

It-Up did not provide Dr. Abdou with any instructions or warnings before he entered the 

obstacle course. Dr. Abdou did not view a mandatory safety video and instead went directly 

into the ride, successfully completing the obstacle course twice. On his third time through 

the obstacle course, Dr. Abdou went headfirst down a slide while racing another 

participant. As a result of this, Dr. Abdou hit his head and suffered severe injuries which 

rendered him quadriplegic. 

{¶ 3} On March 23, 2018, Dr. Abdou and Guirguis, Dr. Abdou's brother who was 

acting in his capacity as Dr. Abdou's power of attorney, filed a complaint against ODA in 

the Court of Claims alleging ODA was negligent in its inspection, licensing, and regulation 

of Pump-It-Up.1 In their complaint, appellants alleged ODA performed inspections at least 

annually on Pump-It-Up's inflatable rides, including the Chaos, from 2004 through 2011. 

In 2004, the manufacturer of Chaos issued a safety information notice requiring the Chaos 

only be operated when a mandatory safety wedge was added to the base of the slide where 

Dr. Abdou was injured. Appellants alleged ODA was aware of this safety information 

notice. 

{¶ 4} Appellants alleged that the former owners of Pump-It-Up had installed the 

safety wedge. However, in 2010, prior to the sale of Pump-It-Up, the former owners 

discarded the safety wedge, along with all safety notices, bulletins, recalls, and 

manufacturer requirements. On the date of Dr. Abdou's injury, the new owners of PumpIt-Up did not have the safety wedge installed in the Chaos. Appellants alleged Dr. Abdou's 

injuries would have been prevented if the safety wedge had been installed. 

{¶ 5} Appellants alleged that ODA was aware the safety wedge was not installed; 

yet, knowingly approved, certified, licensed, authorized, and sanctioned the operation and 

use of the Chaos without the safety wedge. Appellants alleged ODA also represented that 

critical safety documentation, including the safety information notice requiring use of the 

mandatory safety wedge, could be discarded after two years. Furthermore, appellants 

alleged ODA failed to create and/or implement certain policies related to inspections, 

including records retention policies, inspection criteria policies, document tracking 

policies, and policy standards to minimize known risks. As a result, appellants asserted a 

 

1 The complaint indicates this was a refiled complaint. According to ODA, appellants voluntarily dismissed the 

earlier case in March 2017. 
No. 19AP-633 3 

claim of negligence against ODA and alleged that ODA and/or its employees acted 

recklessly and maliciously. 

{¶ 6} On April 23, 2018, ODA filed an answer. On February 27, 2019, ODA filed a 

motion for summary judgment. On April 15, 2019, appellants filed their brief in opposition 

to summary judgment. On August 19, 2019, the Court of Claims filed a decision and 

judgment entry granting ODA's motion for summary judgment. 

II. Assignments of Error 

{¶ 7} Appellants appeal and assign the following three errors for our review: 

[I.] The Court of Claims incorrectly granted ODA summary 

judgment finding that Dr. Abdou's claims were barred by a 

public duty immunity. 

[II.] The Court of Claims incorrectly granted ODA summary 

judgment finding that Dr. Abdou's claims were barred by 

discretionary immunity. 

[III.] The ODA's construction of R.C. 2743.02 is 

unconstitutional as applied to the facts of this case. 

III. Applicable Law 

{¶ 8} R.C. 2743.02, enacted as part of the Court of Claims Act, operates to limit the 

sovereign immunity of the state Ohio. Reynolds v. State Div. of Parole & Community 

Servs., 14 Ohio St.3d 68, 70 (1984). Under R.C. 2743.02, individuals can, subject to certain 

exceptions, sue the state and have liability determined with the same rules applicable to 

suits between private parties. Id. 

A. Public Duty Immunity 

{¶ 9} R.C. 2743.02(A)(3)(a) provides that "the state is immune from liability in any 

civil action or proceeding involving the performance or nonperformance of a public duty." 

Thus, R.C. 2743.02(A)(3)(a) provides " 'an exception to the state's waiver of sovereign 

immunity, as set forth in R.C. 2743.02(A)(1),' " for those activities which are statutorily 

classified as a public duty. Banks v. Ohio Bur. of Workers' Comp., 10th Dist. No. 17AP-748, 

2018-Ohio-5246, ¶ 12, quoting Burr v. Ohio State Hwy. Patrol, 10th Dist. No. 12AP-26, 

2012-Ohio-4906, ¶ 19. As relevant here, " '[p]ublic duty' includes, but is not limited to, any 

statutory, regulatory, or assumed duty concerning any action or omission of the state 

involving any of the following: * * * [p]ermitting, certifying, licensing, inspecting, 
No. 19AP-633 4 

investigating, supervising, regulating, auditing, monitoring, law enforcement, or 

emergency response activity." R.C. 2743.01(E)(1)(a). See Vos v. Ohio Environmental 

Protection Agency, 10th Dist. No. 17AP-749, 2018-Ohio-2956, ¶ 12. 

{¶ 10} However, the public duty immunity provided in R.C. 2743.02(A)(3)(a) does 

not apply "to any action of the state under circumstances in which a special relationship 

can be established between the state and an injured party." R.C. 2743.02(A)(3)(b). A party 

establishes a "special relationship" with the state pursuant to R.C. 2743.02(A)(3)(b) by 

demonstrating that "all of the following elements" are met: 

(i) An assumption by the state, by means of promises or 

actions, of an affirmative duty to act on behalf of the party who 

was allegedly injured; 

(ii) Knowledge on the part of the state's agents that inaction of 

the state could lead to harm; 

(iii) Some form of direct contact between the state's agents and 

the injured party; 

(iv) The injured party's justifiable reliance on the state's 

affirmative undertaking. 

B. Discretionary Immunity 

{¶ 11} In addition to the public immunity doctrine, the state's limitation on its 

sovereign immunity provided under R.C. 2743.02 is also constrained by discretionary 

immunity. Under the discretionary immunity doctrine, "the state cannot be sued for its 

legislative or judicial functions or the exercise of an executive or planning function 

involving the making of a basic policy decision which is characterized by the exercise of a 

high degree of official judgment or discretion." Reynolds at paragraph one of the syllabus. 

"However, once the decision has been made to engage in a certain activity or function, the 

state may be held liable, in the same manner as private parties, for the negligence of the 

actions of its employees and agents in the performance of such activities." Id.

IV. Standard of Review 

{¶ 12} We review a grant of summary judgment under a de novo standard. Capella 

III, LLC v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing Andersen 

v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "[D]e novo appellate review means 

that the court of appeals independently reviews the record and affords no deference to the 

trial court's decision." (Internal quotations and citations omitted.) Holt v. State, 10th Dist. 
No. 19AP-633 5 

No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary judgment is appropriate only when the 

moving party demonstrates: (1) no genuine issue of material fact exists, (2) the moving 

party is entitled to judgment as a matter of law, and (3) reasonable minds could come to 

but one conclusion and that conclusion is adverse to the party against whom the motion for 

summary judgment is made. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 

78 Ohio St.3d 181, 183 (1997). In ruling on a motion for summary judgment, the court must 

resolve all doubts and construe the evidence in favor of the non-moving party. Premiere 

Radio Networks, Inc. v. Sandblast, L.P., 10th Dist. No. 18AP-736, 2019-Ohio-4015, ¶ 6. 

{¶ 13} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of 

informing the trial court of the basis for the motion and of identifying those portions of the 

record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 

75 Ohio St.3d 280, 293 (1996). If the moving party fails to satisfy its initial burden, the 

court must deny the motion for summary judgment; however, if the moving party satisfies 

its initial burden, summary judgment is appropriate unless the non-moving party 

responds, by affidavit or otherwise as provided under Civ.R. 56, with specific facts 

demonstrating a genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of 

Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 

Ohio App.3d 732, 735 (12th Dist.1991). 

V. Assignments of Error 

 A. First Assignment of Error—Public Duty Immunity 

{¶ 14} In their first assignment of error, appellants assert the Court of Claims erred 

by finding public duty immunity barred their claims against ODA. 

{¶ 15} In its decision, the Court of Claims noted that appellants pointed to "evidence 

that [ODA] knew of the mandatory safety bulletin and the need for the safety wedge but 

nonetheless licensed the Chaos for operation in 2011 despite the missing wedge." (Decision 

at 5.) Further, the court noted appellants' evidence that ODA "failed to document certain 

aspects of its inspection" and ODA's inspector's instruction "to Pump It Up employees to 

discard documentation more than 2 years old as well as its failure to inform Pump It Up's 

new management of the need for the safety wedge." Although the court found that such 

evidence "might establish several ways in which [ODA] and/or its inspectors were 

negligent," it also found that "this same evidence establishes that all of these acts/or 
No. 19AP-633 6 

omissions were related to [ODA's] conduct in inspecting, licensing and/or regulating the 

Chaos." (Decision at 6.) Thus, in the absence of any special relationship between appellants 

and ODA, the court found public duty immunity under R.C. 2743.02(A)(3)(a) applied to 

bar appellants' claims as a matter of law. 

{¶ 16} On appeal, appellants do not contest the actions of ODA employees related to 

inspecting and licensing are covered by public duty immunity. Nor do they assert a special 

relationship existed between appellants and ODA such that public duty immunity would 

not apply. Instead, appellants assert the Court of Claims erred in applying public duty 

immunity to bar their claims because public duty immunity does not encompass "policy 

and protocol that may impact how the act of inspecting or licensing should be performed." 

(Appellants' Brief at 35.) Appellants argue that such policies and protocols should not be 

analyzed under the public duty provisions of R.C. 2743.02(A)(3) but, rather, the common 

law doctrine of discretionary immunity. Appellants argue that "[a]s legislative and judicial 

functions have nothing to do with decisions that may be made by an ODA inspector in 

inspecting or licensing a ride, the trial court's interpretation that protocol and public 

decisions constitute 'public duty' is without merit." (Appellants' Brief at 42.) 

{¶ 17} In support of their arguments, appellants first point to a case from the Court 

of Claims, Edwards v. Ohio Dept. of Transp., Court of Claims No. 2014-00553, 2016-Ohio5221. In that case, the court examined claims relating to the failure of the Ohio Department 

of Transportation ("ODOT") to maintain a ditch abutting the plaintiff's property. The court 

found that "maintenance of the ditch at issue does not fall within the definition of public 

duty contained in R.C. 2743.01(E)(1)—i.e., it does not concern permitting, certifying, 

licensing, inspecting, investigating, supervising, regulating, auditing, monitoring, law 

enforcement, or emergency response activity." Id. at ¶ 35. Therefore, the court concluded 

public duty immunity did not apply. 

{¶ 18} Next, appellants point to Risner v. Ohio Dept. of Transp., 145 Ohio St.3d 55, 

2015-Ohio-4443, ¶ 11. In Risner, the Supreme Court of Ohio examined whether ODOT 

could be subject to liability arising from its decisions on improving public highways. The 

Supreme Court concluded that ODOT's decisions to improve a particular portion of an 

intersection, its decision not to improve other portions of the intersection, and its decision 

regarding what type of improvement to make were all protected by discretionary immunity. 
No. 19AP-633 7 

{¶ 19} Appellants' citation to Edwards and Risner are inapposite. Those cases dealt 

with decisions related to maintenance and/or improvement of roadways, matters outside 

the scope of public duty activities listed in R.C. 2743.01(E)(1). Unlike those cases, 

appellants' claims in the matter at hand specifically involve the state's activities in licensing 

and inspecting, conduct squarely within the meaning of public duty under R.C. 

2743.01(E)(1). Neither case cited by appellants stands for the principle that the law 

governing public duty immunity does not apply when considering policies and procedures 

related to conduct within the meaning of public duty. Appellants' attempts to circumvent 

public duty immunity by separating the state's creation of policies and protocols about 

licensing and inspecting from individual actions involved with licensing and inspecting are 

unavailing. 

{¶ 20} The statutory definition of what is encompassed by "public duty" is broad. 

Public duty "includes, but is not limited to, any statutory, regulatory, or assumed duty 

concerning any action or omission of the state involving any of the following: [p]ermitting, 

certifying, licensing, inspecting, investigating, supervising, regulating, auditing, 

monitoring, law enforcement, or emergency response activity." (Emphasis added.) R.C. 

2743.01(E)(1)(a). Here, all of the policies and protocols appellants assert ODA failed to 

create or implement relate to ODA's duties in inspecting and licensing rides, such as the 

Chaos. Thus, ODA's actions in this case are explicitly defined as public duties, regardless 

of whether one examines the actions of individual ODA employees in licensing and 

inspecting the ride at issue, or the acts or omissions in creating or implementing policies 

and protocols governing licensing and inspecting. See Vos at ¶ 13 (finding public duty 

immunity applied to claims that state agency failed to abide by its own rules when granting 

permits where no evidence of special relationship existed); Estate of Tokes v. Dept. of 

Rehab. & Corr., 10th Dist. No. 18AP-723, 2019-Ohio-1794, ¶ 46 (finding that even if 

common law duty existed, public duty immunity still applied to insulate state agency from 

liability where no evidence of special relationship existed). 

{¶ 21} Furthermore, there is no evidence of a special relationship between ODA and 

appellants, nor do appellants contend such a relationship exists. As a result, we find the 

Court of Claims did not err in finding public duty immunity applied pursuant to R.C. 

2743.02(A)(3) to bar appellants' claims. 
No. 19AP-633 8 

{¶ 22} Dr. Abdou's injury is profoundly tragic. The circumstances in the record 

surrounding the inspection and licensing of the ride on which he was injured are deeply 

troubling. Nevertheless, we are constrained by the statutory limitation on the state's 

liability provided by public duty immunity as established by the general assembly. As we 

have found public duty immunity applies to ODA's actions in inspecting and licensing the 

ride on which Dr. Abdou was injured, including their actions or inactions related to policies 

governing licensing and inspecting, and because appellants alleged no evidence 

demonstrating a special relationship existed between the parties, we conclude the Court of 

Claims did not err in granting summary judgment in favor of ODA. Accordingly, we 

overrule appellants' first assignment of error. 

 B. Second Assignment of Error—Discretionary Immunity 

{¶ 23} In their second assignment of error, appellants assert the Court of Claims 

erred by finding their claims were barred by discretionary immunity. Specifically, 

appellants assert the determination that ODA's "failure to implement a proper inspection 

protocol constitutes a 'high degree of official judgment,' is not supported by the record of 

this case." (Appellants' Brief at 43.) In its decision, the court found that with regard to 

appellants' arguments about ODA's failure to implement certain policies, "there is no 

genuine issue of material fact that these are basic policy decisions characterized by the 

exercise of a high degree of official judgment or discretion" such that "to the extent 

[appellants] seek[] recovery based on these policy decisions, discretionary immunity 

applies and entitles [ODA] to judgment as a matter of law." (Decision at 8.) 

{¶ 24} In our resolution of appellants' first assignment of error, we concluded that 

public duty immunity applies to ODA's policies governing inspections. As a result, we need 

not consider whether the Court of Claims erred in its application of discretionary immunity. 

Accordingly, appellants' second assignment of error is rendered moot. 

 C. Third Assignment of Error—Constitutionality of R.C. 2743.02 

{¶ 25} In their third assignment of error, appellants assert R.C. 2743.02 is 

unconstitutional as applied to the facts of this case. Appellants, however, did not advance 

this argument in the Court of Claims in response to ODA's motion for summary judgment. 

Issues raised for the first time on appeal are deemed to have been forfeited by failing to 

assert them before the trial court. Premiere Radio at ¶ 7; J&H Reinforcing & Structural 
No. 19AP-633 9 

Erectors, Inc. v. Ohio School Facilities Comm., 10th Dist. No. 13AP-732, 2014-Ohio-1963, 

¶ 19 ("Issues that could have been raised and resolved in the trial court cannot be raised for 

the first time on appeal. * * * Thus, issues not raised in the trial court are forfeited on 

appeal."). "[W]hile this court's standard on review on a motion for summary judgment is 

de novo, that standard 'does not supersede [an appellate court's] settled practice of not 

addressing issues raised for the first time on appeal.' " Tucker v. Leadership Academy for 

Math & Science of Columbus, 10th Dist. No. 14AP-100, 2014-Ohio-3307, ¶ 20, quoting 

Henson v. Cleveland Steel Container Corp., 11th Dist. No. 2008-P-0053, 2009-Ohio-180, 

¶ 77. As appellants failed to assert their argument regarding the constitutionality of R.C. 

2743.02 before the Court of Claims, we decline to consider it for the first time on appeal. 

Accordingly, we overrule appellants' third assignment of error. 

VI. Conclusion 

{¶ 26} Appellants' first and third assignments of error are overruled, the second 

assignment of error is rendered moot, and we affirm the judgment of the Court of Claims 

of Ohio. 

Judgment affirmed. 

BROWN and KLATT, JJ., concur.