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Bilfield v. Orange Board Of Education12/11/1997
JUDGMENT Affirmed.
Plaintiffs-appellants Judy Bilfield and her minor son Brandon Bilfield appeal from the trial court order which granted defendant- appellee Orange Board of Education's motion for summary judgment, thus terminating their personal injury action. Appellants argue material issues of fact remain concerning appellee's liability for the injury suffered by Brandon on appellee's property. This court has reviewed the record, finds the trial court did not err in granting appellee's motion, and therefore affirms the trial court's judgment.
On the evening of May 13, 1992 Brandon, who was eight years old, attended a baseball game sponsored by his Little League, the Orange County Athletic Administration. The game was held at Brady Middle School, which is owned and operated by appellee.
Brandon's team used the school's baseball field Number 8. Behind the batting area was a metal chain-link fence approximately six feet in height which served as a backstop. The fence also continued for a short distance along the first and third base lines. Players awaiting their turn to bat sat on a bench along the first base line behind the fence.
At some point during the game, Brandon, whose team was at bat, noticed that some of his teammates were climbing the fence and then jumping down from it. Brandon chose to follow their example. The first time Brandon climbed the fence and jumped from it he did so without mishap. The second time, however, as Brandon leaped from near the top of the fence, his hand became caught on a piece of metal sticking out. As a result, Brandon cut his wrist and hand.
Brandon and his mother subsequently filed an action against appellee in the Cuyahoga County Court of Common Pleas. Appellants alleged in count one that appellee's negligent failure to maintain the fence in a safe condition and it's failure to warn Brandon of the hazardous condition was the proximate cause of Brandon's injury . Count two alleged a loss of consortium claim on behalf of Brandon's mother.
Appellee's answer denied the allegations of negligence contained in the complaint and set up several affirmative defenses including failure to state a claim upon which relief may be granted and immunity pursuant to R.C. 2744 et seq. Thereafter, discovery was pursued in the action.
Prior to the date set for trial, appellee filed a motion for summary judgment. In its brief in support of the motion, appellee argued it was entitled to judgment because liability was precluded by virtue of R.C. 2744.01(C)(2)(u) and R.C. 2744.03(A)(5).
Appellee attached to its brief a copy of Brandon's deposition testimony.
Appellants responded with a brief in opposition to appellee's motion. Appellants first argued that an exception to the immunity provided in Chapter 2744 applied, viz., R.C. 2744.02(B)(2) through (4). Appellants also argued that the maintenance of the fence did not require an exercise of discretion within the meaning of R.C. 2744.03(A)(5). Finally, appellants argued the evidence demonstrated a question of fact concerning whether appellee acted in a malicious or reckless manner with regard to the fence.
Appellants attached to their brief a copy of what purported to be an accident report dated 5-14-92 to the Orange Community Education and Recreation department from a Supervisor about Brandon's mishap. In the portion requesting the author's opinion as to the cause of the accident, the author had noted the following: defective fence.
Subsequently, the trial court issued an opinion and order granting appellee's motion for summary judgment. In so ruling, the trial court stated the following, whic
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