COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67263 ANDREW BALAZS, III, ET AL. : : : : JOURNAL ENTRY Plaintiff-Appellants: : AND vs. : : OPINION KIRTLAND BOARD OF EDUCATION : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 30, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-250730 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellants: LEON M. PLEVIN JOEL LEVIN Nurenberg, Plevin, Heller & McCarthy 1st Floor Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1792 For Defendant-Appellee: THOMAS J. DOWNS 323 Lakeside Place Suite 410 Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: On September 11, 1992, five year old Andrew Balazs, III, attended a high school football game with his parents and slipped and fell through the gap between the seat and the floorboard of the bleachers at the Kirtland High School football stadium, sustaining two fractures of his skull. The stadium is owned and operated by the Kirtland Board of Education (hereinafter "the Board"). The bleachers were donated to Kirtland High School by Byzantine High School in 1978, and were reconstructed at Kirtland High School by various volunteers. Plaintiff Andrew Balazs, III, by and through his parents, Andrew and Catherine Balazs, filed a complaint against the Board claiming that plaintiff was caused to fall through the bleacher seats to the ground, thereby sustaining injuries to his person. Plaintiffs sought damages for medical expenses and loss of services and consortium. On November 23, 1993, the Board moved for summary judgment, claiming immunity from liability under R.C. Chapter 2744, the sovereign immunity statute. On April 19, 1993, the trial court granted summary judgment in favor of the Board. On July 21, 1994, plaintiffs filed this appeal. - 3 - I. Plaintiff's sole assignment of error contends: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Pursuant to Civ.R. 56(C), summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come to but one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc., (1977), 50 Ohio St.2d 317. Summary judgment, Civ.R. 56, is a procedural device designed to terminate litigation and avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving all doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Appellants argue that summary judgment was not properly granted in favor of the Board because genuine issues of material fact exist regarding whether the Political Subdivision Tort - 4 - Liability Act (R.C. 2744 et seq.) relieved the Board of liability for Andrew's injuries. Appellee claims that summary judgment was proper because R.C. Chapter 2744 provides a broad, sweeping grant of immunity for political subdivisions and their employees and entitles the Board to the immunities and defenses granted under that section. The issue for our review is whether a question of fact existed regarding the Board's entitlement to immunity under R.C. 2744.03(A)(5). We begin our analysis with a review of the pertinent statutes. R.C. Chapter 2744 provides for the limitation of liability in tort for political subdivisions. Specifically, 2744.01(C)(2)(c) provides that a system of public education is governmental in nature and qualifies as a political subdivision. R.C. 2744.03(A)(5) provides: "(A) In a civil action brought against a political subdivision or an employee of a political sub- division to recover damages for injury, death, or loss to persons or property allegedly caused by an act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish non- liability: "* * * "(5) The political subdivision is immune from liability if the injury, death, or loss to persons or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources, unless the judgement or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner." (Emphasis added.) - 5 - Since the Board qualifies as a political subdivision, it is entitled to immunity from liability for plaintiff's injuries if it is determined that those injuries resulted from the Board's exercise of judgment or discretion. The facts of Myer v. Reynoldsburg High School (1991), Franklin App. No. 90AP-503, are directly on point with this case. In that case, a seven-year-old child fell from the bleachers while attending a football game. The Tenth District Court of Appeals upheld the grant of summary judgment for the school district, holding that the school district was "immune from liability *** based on their status as a school system, the status of the football field as a playfield and that the injury of the appellant *** was not a result of the acts or omissions of employees of the school system." Id. at 2. The court went on to state: "appellees cannot be found liable based on the exercise of judgment or discretion in determining whether to acquire and how to use equipment, supplies, and facilities; the judgment to build a football stadium which can be used by the school; the discretion as to how much money to spend on bleachers; and the discretion to allow the football league to use the stadium." Id. at 2. As such, we find Myer instructive and conclude that the Kirtland Board cannot be found liable based on its exercise of judgment and discretion regarding the stadium bleachers. - 6 - Accordingly, this assignment of error is not well-taken and is overruled. The judgment of the trial court granting summary judgment in favor of defendants is affirmed. Judgment affirmed. - 7 - It is ordered that appellee(s) recover of appellant(s) 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. HARPER, P.J., and NUGENT, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the .