A political subdivision employee’s decision not to utilize available safety equipment does not constitute a physical defect under Ohio law for purposes of political subdivision immunity. That’s according to a recent Ohio Supreme Court decision, which held that a city employee’s decision to use a folding chair instead of a lifeguard chair could not be a physical defect where there was no evidence that either chair had a “tangible imperfection.” Hoskins v. City of Cleveland, Slip Opinion No. 2026-Ohio-1225.
The facts of Hoskins are as follows: After someone drowned in a pool owned by the City of Cleveland, the executor of his estate sued the City and lifeguard, claiming that because the lifeguard was using a folding chair instead of an elevated lifeguard chair, a “physical defect” existed which stripped the City of political subdivision immunity pursuant to R.C. 2744.02(B)(4). The Eighth District found that genuine issues of fact existed as to whether the non-use of the elevated chair created a physical defect, and the City appealed.
The Ohio Supreme Court accepted the City’s appeal on the following proposition of law:
“The use of a low deck lifeguard chair and non-use of an available elevated chair cannot constitute a physical defect within or on the grounds of buildings used in connection with governmental functions to establish an exception to political subdivision immunity under R.C. 2744.02(B)(4).”
In accepting the City’s proposition of law, the Supreme Court held that a “physical defect” is a “material imperfection that impairs the quality, function, or utility of something.” Thus, the decision not to use the lifeguard chair was not a physical defect because “a decision is not a tangible imperfection.” The Court relied on the fact that the plaintiff’s expert did not opine that either the lifeguard chair or the folding chair was physically defective, but instead, focused on the lifeguard’s decision not to use the lifeguard chair because it was uncomfortable.
The Court also held that even if objects hanging from the lifeguard chair blocked the lifeguard’s view, the diminished view was not a tangible flaw in the chair itself. Because the lifeguard chair and pool “could still function as intended,” the decision to use a different chair did not constitute a physical defect under Ohio law sufficient to strip immunity. This was true even though the lifeguard chair was “firm” and “uncomfortable” to sit in. Because Hoskins presented no evidence of a “tangible imperfection with respect to the lifeguard chair or pool area,” the exception to political subdivision immunity did not apply.
The Court also clarified the limited value of its prior decision in Doe v. Greenville City Schs., 2022-Ohio-4618 (2022), in which it found that the absence of a fire extinguisher or other safety equipment could constitute a physical defect under Ohio law. The Hoskins Court noted that the Doe opinion “should not be relied upon” because it received only three votes.
The Court’s decision clarifies the often-litigated question of what constitutes a “physical defect” under Ohio law. Moving forward, plaintiffs can no longer prove that a physical defect exists merely because of the lack of safety equipment. Instead, there must be evidence of a tangible imperfection for the political subdivision to be stripped of its immunity.
If you have any questions about this decision or have issues related to political subdivision immunity, please reach out to one of our Governmental/Public Entity Liability attorneys.
Attorneys
Cleveland
Cleveland
Columbus
Columbus
Toledo