COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69461 CHAD AHREN : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION LAKEWOOD BOARD OF EDUCATION : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 30, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 281,371 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: CHARLES P. ROYER CHARLENE R. MILETI Attorneys at Law 1800 Midland Building 101 Prospect Avenue, W. Cleveland, Ohio 44115 For defendant-appellee: RICHARD B. GEMPERLINE Attorney at Law 323 Lakeside Avenue, W., #410 Cleveland, Ohio 44113 TIMOTHY E. McMONAGLE, J.: Plaintiff Chad Ahren appeals from the order of the trial court which granted summary judgment to defendant Lakewood Board of Education in plaintiff's negligence action. For the reasons set forth below, we affirm. On April 22, 1994, plaintiff struck an unprotected gymnasium wall and was injured while participating in Lakewood High School's 19th annual "Anything Goes" athletic event. On December 7, 1994, he filed this action against the Lakewood School Board (hereafter referred to as the "Board"), alleging that his injuries were the result of the Board's negligent failure to properly set up the obstacle course which the participants were required to complete. The Board denied liability. Thereafter, on April 27, 1995, the Board moved for summary judgment and asserted that it was not liable since the gymnasium wall was open and obvious, plaintiff was familiar with the gymna- sium and the layout of the obstacle course, and plaintiff assumed the risk of his injuries. In addition, the Board maintained that it was immune from liability pursuant to R.C. Chapter 2744. The trial court initially denied the Board's motion, then granted it upon reconsideration. Plaintiff now appeals. - 3 - I. Plaintiff-appellant's assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT. A. LAKEWOOD'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED BECAUSE ITS NEG- LIGENCE CREATED A DANGEROUS CONDI- TION/NUISANCE DURING THE "ANYTHING GOES" ATHLETIC EVENT. B. LAKEWOOD CANNOT ASSERT THE DEFENSE OF [R.C.] 2744.03(A)(5) BECAUSE MURPHEY DID NOT EXERCISE ANY DISCRETION DURING THE SETTING UP OF THE SUPER JOCK EVENT. C. THE TRIAL COURT ERRED IN GRANTING LAKE- WOOD'S MOTION FOR SUMMARY JUDGMENT BE- CAUSE AHREN DID NOT ASSUME THE RISK OF HIS PARTICIPATION IN THE SUPER JOCK EVENT. For the sake of convenience, we shall address these claims out of their predesignated order and consider the immunity issue first. With regard to procedure, we note that summary judgment is appropriate when the following factors have been established: *** (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. With regard to the substantive law, we note that in Carbone v. Overfield (1983), 6 Ohio St.3d 212, syllabus, the supreme court - 4 - held that the defense of sovereign immunity was not available to a board of education in an action seeking damages for injuries allegedly caused by the negligence of its employees. In response, the General Assembly enacted Am.Sub.H.B. No. 176, which outlines political subdivision immunity. See Sargeant v. City of Galli- polis Board (Oct. 14, 1993), Gallia App. No. 92 CA 43, unreported. R.C. 2744.02(A)(1) provides for a general rule of immunity. R.C. 2744.02(B) establishes certain exceptions to this general rule of immunity, and R.C. 2744.03 delineates defenses to the liability imposed in R.C. 2722.02(A)(1). Id.; Franks v. Lopez (1994), 69 Ohio St.3d 345, 347. Thus, pursuant to R.C. 2744.02: (A)(1) *** 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 persons 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. * * * (B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows: * * * (4) 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 buildings that are - 5 - used in connection with the performance of a governmental function *** R.C. 2744.03 provides certain defenses or immunities to sub- divisions and employees and reads in pertinent part as follows: (A) In a civil action brought against a political subdivision or an employee of a political subdivision 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 defense or immunities may be asserted to establish nonliability: * * * (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 judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner. In this instance, the undisputed evidence established that Assistant Athletic Director Norman Murphey was vested with dis- cretion to design the obstacle course and to determine the mate- rials, equipment and supplies which were to be used. The undis- puted evidence further established that in the exercise of that discretion, he determined that no mat was needed for the gymnasium walls and that the wall which plaintiff struck was fourteen feet from the finish line of the obstacle course. Moreover, the evidence of record indicates that three teachers who actually set up the course were likewise vested with discretion to deviate from Murphey's "guideline diagram" for the event. - 6 - We therefore conclude, as a matter of law, that the act of the Board's employees in determining not to place a mat over the gymnasium wall resulted from the exercise of judgment or discre- tion regarding the use of equipment, facilities or other re- sources. Accord Alessi v. Buckeye Local Schools Board of Educa- tion (June 20, 1990), Ashtabula App. No. 89-A-1430, unreported (physical education teacher's decision to place inch-thick wres- tling mats beneath balance beam during curriculum involving bal- ance beam was discretionary); Sargeant v. Gallipolis Board, supra, (teacher's decision to permit students to assist him in moving cafeteria tables to make room for physical education instruction necessarily involved exercise of discretion or judgment in use of equipment, facilities or other resources). Moreover, plaintiff did not plead, and there is no evidence, that the Board's employees exercised their discretion with mali- cious purpose, in bad faith or in a wanton or reckless manner. Accordingly, we hold as a matter of law that the Board is immune from liability in this matter pursuant to R.C. 2744.03(5). Accord Mackulin v. Lakewood Board of Education (Mar. 11, 1993), Cuyahoga App. No. 61808, unreported; Harland v. West Clermont Local School District (Aug. 1, 1994), Clermont App. No. CA94-01-006, unreported. Argument "B" is therefore without merit, and the Board is immune in the circumstances presented herein. Plaintiff maintains, however, in argument "A" of his assign- ment of error, that the obstacle course was a nuisance. He - 7 - therefore claims that there is liability pursuant to R.C. 2744.02(B)(2)-(4). We do not agree. As noted previously, the causes of action listed within R.C 2744.02(B) as exceptions to the general rule of immunity are nonetheless precluded where the defenses or immunities of R.C. 2744.03 are established. See Franks v. Lopez, supra; Sargeant v. City of Gallipolis Board, supra. Therefore, since we have held that the defense and/or immunity set forth in R.C. 2744.03(A)(5) for certain discretionary acts is established in this instance, other claims pursuant to R.C. 2744.02(B) must fail as a matter of law. See Epperly v. Medina City Board of Education (1989), 64 Ohio App.3d 74, 76, wherein the court stated: [A political subdivision] is liable for *** injury if it is caused by the negligence of its employees which occurs within or on the grounds of buildings that are used in connection with a governmental function. R.C. 2744.02(A)(1). The repair of buildings that are used in connection with the performance of a governmental function, and providing a system of public education, are governmental functions. R.C. 2744.01(C)(2)(c) and (g). R.C. 2744.03 provides defenses or immunities for subdivisions and their employees that can be asserted to avoid liability [including the discretionary judgment provision of R.C. 2744.03(A)(5)]. In accordance with the foregoing, argument "A" is not well taken. Plaintiff claims, however, in reliance upon Hallett v. Stowe Board of Education (1993), 89 Ohio App.3d 309 and Howe v. Jackson Township Board of Trustees (1990), 67 Ohio App.3d 159, that there is no immunity under the discretionary judgment provision of - 8 - R.C. 2744.03(5) because the Board allowed a hazard to remain on the property and "the elimination of such hazards/nuisances involves no discretion whatsoever." We find this matter completely distinguishable from these cases, however. In Hallett, supra, the plaintiff was injured when she fell into a hole which defendant's maintenance workers failed to detect and repair, contrary to the duties which had been assigned to them. The court stated: This case does not involve a situation in which a plaintiff has alleged negligence in a decision about "how many firetrucks respond to an alarm, how many officers with how much training are assigned to a neighborhood, [or the] snowplowing equipment and personnel on the job during a snowstorm[.]" *** Nor are we faced with a situation in which the political subdivision made a policy decision not to maintain the area where the injury later occurred. Id. at 313-314. In Howe, supra, the plaintiff was injured in an automobile accident after defendant's employees repaired the roadway but failed to warn of loose stone, in violation of the requirements of the Ohio Manual of Uniform Traffic Control Devices for Streets and Highways. The court noted the exception to sovereign immunity, set forth in R.C. 2744.02(B)(3), for failure to keep public roads in repair and free from nuisance and determined that defendant was not entitled to immunity since "the decision to post a sign in this instance was not a decision that required a high degree of official discretion." - 9 - These cases clearly have no application herein. In the instant matter, plaintiff was not injured due to a defect which was difficult to detect. Rather, plaintiff sustained his injury after he ran into the open and obvious gymnasium wall after crossing a finish line which was fourteen feet away. Further, the record reflects that plaintiff was aware of the location of the wall while running the race, and that he hoped to stop himself on the wall. (Tr. 67). Moreover, in this matter, the undisputed evidence demonstrates that the Board's employees were given broad discretion to plan and prepare the obstacle course and to decide whether to place a mat over the gymnasium wall. Significantly, the Board's employees were not in violation of legal requirements or stated job duties, unlike the defendants in Hallett, supra, and Howe, supra. Finally, with regard to argument "C," the issue of assumption of the risk, the supreme court has stated that in the law of negligence, an open and obvious danger may place affirmative defenses at issue, including the defense of assumption of the risk. Simmers v. Bentley Constr. Co. (1992), 64 Ohio St. 3d 642, 646. This defense generally presents a jury question unless the evidence is so compelling that reasonable minds may reach but one conclusion. Id. Thus, "[t]he practicalities of proof require that the defense of assumption of the risk also be applicable where the risk is so obvious that the plaintiff must have known and appreciated it." Joyce-Couch v. DeSilva (1991), 77 Ohio App.3d 278, 290-291. - 10 - Ohio law recognizes express assumption of the risk which arises where the plaintiff has expressly contracted with another not to sue for future injuries caused by the defendant's negli- gence, see Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 114, as well as primary assumption of the risk and implied assumption of the risk. *** Primary assumption of the risk is an ab- solute bar to recovery in a negligence suit. Anderson v. Ceccardi(1983), 6 Ohio St.3d 110, 6 OBR 170, 451 N.E.2d 780. It is predicated upon a determination, as a matter of law, that the defendant owes no duty to the plaintiff. Cremeans v. Willmar Henderson Mfg. Co. (Aug. 22, 1989), Union App. No. 14-88-5, unreported, 1989 WL 98426, affirmed and remanded (1991), 57 Ohio St.3d 145, 566 N.E.2d 1203, because certain risks are so inherent in some activities that they cannot be eliminated. Collier v. Northland Swim Club (1987), 345 Ohio App.3d 35, 518 N.E.2d 1226. [2] Implied assumption of the risk is, on the other hand, defined as the plaintiff's consent to or acquiescence in an appreciated, known or obvious risk to the plaintiff's safety. Weaver v. Hicks (1967), 11 Ohio St.2d 230, 40 O.O.2d 203, 228 N.E.2d 315. This type of assumption of the risk recognizes the existence of a duty owed by the defendant to the plaintiff but holds that the plaintiff's acquiescence in or appreciation of a known risk may be invoked as a defense to the plaintiff's action. Unlike primary assumption of the risk, the pivotal question is ordinarily one of fact, not one of law. Id. at 234, 40 O.O.2d at 205, 228 N.E.2d at 318. Stanton v. Miller (1990), 66 Ohio App.3d 201, 203-204. In this instance, the record reflects that plaintiff implied- ly assumed the risk of running into the wall when he, after ob- serving the other contestants stopping themselves by running into - 11 - the wall (Tr. 59), likewise chose this manner of stopping. Under these circumstances, plaintiff voluntarily exposed himself to an open, obvious danger of which he had full knowledge. Further, with regard to this issue of express assumption of the risk, the record reflects that prior to the event, plaintiff's mother signed a document which provided as follows: I give my child permission to compete in the Athletic Department fund raiser Almost Any- thing Goes. I realize that this involves athletic competition and a certain degree of risk. My child is physically fit and capable of competing. In accordance with the foregoing, there is no genuine issue of material fact as to whether plaintiff assumed the risk of his injuries in this matter. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas 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. DAVID T. MATIA, P.J. and JOSEPH J. NAHRA, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 journalization, .