The city of Cleveland is not liable for the drowning death of a swimmer because a lifeguard chose not to sit in an uncomfortable lifeguard chair, the Supreme Court of Ohio ruled today.

A Supreme Court majority ruled that the city maintained its immunity from liability and that an exception to immunity cited by the family of William Johnson did not apply. The decision reversed the Eighth District Court of Appeals, which had declined to dismiss the case against Cleveland.

Johnson’s family claimed the city could be liable for his 2019 death at the Thurgood Marshall Recreation Center because the lifeguard’s failure to use the elevated chair and her inability to see all the swimmers when using a folding chair constituted a “physical defect.”

Writing for the Court majority, Justice Joseph T. Deters explained that R.C. 2744.02(B)(4), the exception allowing a government agency to be held liable for accidents attributed to a physical defect, does not define “physical defect.” Citing two dictionaries to determine the plain meaning of the words, he wrote that a “physical defect” is a “tangible imperfection that impairs the function of an object.”

The lifeguards at the pool stated they did not use the elevated chair at the rec center because it was uncomfortable and “a little firmer” than the folding chair.

“‘Firm’ and ‘uncomfortable’ are not, however, equivalent to being physically defective for the purpose of R.C. 2744.02(B)(4). No tangible imperfection prevented the lifeguard chair from functioning as a lifeguard chair,” he wrote.

Justices R. Patrick DeWine, Daniel R. Hawkins, and Megan E. Shanahan joined Justice Deters’ opinion. Justice Patrick F. Fischer concurred in judgment only without a written opinion.

Chief Justice Sharon L. Kennedy concurring with an opinion, expressing that lower courts may feel obligated to apply the lead opinion from the Court’s 2022 Doe v. Greeneville City Schools decision when determining whether a government property has a physical defect. She wrote that the Greeneville decision was wrongly decided and should be overruled to avoid any confusion regarding its precedential value.

In a dissenting opinion, Justice Jennifer Brunner wrote that the absence of a properly functioning lifeguard chair could constitute a physical defect, and that the trial court correctly found the city was not immune from liability without more evidence.

She wrote that the majority has chosen a narrow definition of “physical defect.” In addition to a “defect” being something that impairs the function of an object, an object could also be defective if it “fails to function for its intended purpose, due to its physical characteristics.” She wrote that a jury, not the Supreme Court, should decide whether the chairs made the pool area physically defective.

Swimmer Drowns Because of Seizure
Johnson, who had epilepsy, regularly swam at the pool. Lifeguard Nieemah Hameed was familiar with his routine. In a deposition, Hameed stated she chose to sit in a folding chair rather than the elevated lifeguard “ladder chair” because the chair was “a little smaller than what [she was]” and she found it uncomfortable.

Hameed detailed Johnson’s typical routine, which included sitting on the bottom of the deep end of the pool, blowing bubbles. In December 2019, Johnson was at the pool, and Hameed was monitoring him and another swimmer in the shallow end. She said she stood up, saw Johnson surface after blowing bubbles, then returned to her chair and scanned the pool. Moments later, she walked over to see Johnson at the bottom of the pool, not blowing bubbles.

Hameed and lifeguard Rod-Ed Hill, who just arrived for his shift, pulled Johnson to the pool deck and discovered he had no pulse. They attempted CPR until emergency crews arrived. Johnson could not be resuscitated, and later it was determined that he drowned because of a seizure.

Family Sued City and Lifeguard
Contessa Hoskins, the executor of Johnson’s estate, filed a wrongful death lawsuit against the city and Hameed. The city responded that it and Hameed were immune under state law, and that Johnson had signed a waiver releasing the city from any liability for injuries sustained while at the rec center. The city requested summary judgment from the Cuyahoga County Common Pleas Court.

Hoskins opposed summary judgment in favor of the city, arguing it was not immune under R.C. 2744.02(B)(4). The law states that a government body may be liable for a person’s death if caused by an employee's negligence, occurs on the grounds of government property, and is “due to physical defects within or on the grounds of” government buildings.  

The trial court ruled there was a genuine issue regarding whether a physical defect existed and denied the city’s request for summary judgment. The city appealed the decision to the Eighth District. Relying largely on its 2015 decision in Kerber v. Cuyahoga Hts., in which it found the use of a low-deck lifeguard chair could possibly constitute a physical defect, the Eighth District affirmed the trial court’s decision.  

The city appealed the Eighth District’s decision to the Supreme Court.

Supreme Court Analyzed Immunity Exception
Justice Deters noted that Hoskins supported her argument by providing the opinion of an expert witness. The expert found there was a physical defect in the pool area for two reasons. The lifeguard chair was not used because Hameed could not sit in it comfortably, and it was generally uncomfortable, according to Hameed and Hill, the other lifeguard. Also, the expert opined that the use of the folding chair created a blind spot in the area where the drowning occurred because the view from the lower folding chair was obstructed by the unused lifeguard chair.

Hoskins did not contend that the folding chair was physically defective, only that the lifeguard chair was physically defective because it was uncomfortable. The Court noted the expert did not state whether either chair was physically defective, but focused on Hameed’s decision not to use the lifeguard chair. Her decision not to use the chair was not a tangible imperfection, and her view of the deep end was not caused by a flaw with the lifeguard chair, but by her decision to use the folding chair, the opinion stated.

“No evidence of a tangible imperfection with respect to the lifeguard chair or the pool area was presented,” the Court concluded.

The Court ordered the trial court to grant summary judgment in favor of the city.

Concurrence Cautions Against Use of Prior Court Decision
Chief Justice Kennedy pointed out that Hoskins relied on the lead opinion in Greeneville, which concluded that the absence of a fire extinguisher or other safety equipment in a school’s science classroom could constitute a physical defect.  She explained that because four justices had not joined that opinion, nothing in it was a holding of the Court.

The concurrence noted that some Ohio courts have cited the lead opinion in Greeneville as precedent when determining what constitutes a physical defect. The chief justice wrote that Greeneville should be overruled and given no weight in deciding questions of governmental immunity.

Small Chair Could Be Defect, Dissent Maintained
While the lead opinion in Greenville only garnered three votes, its reasoning is sound, Justice Brunner wrote in her dissent. One could conclude that the absence of a properly functioning lifeguard chair or other safety equipment in a city recreation center could reasonably be found to be a physical defect.

She wrote the evidence indicated Hameed and at least one other lifeguard routinely used the low folding chair, which lacked the appropriate sight lines.

“Surely the absence of a properly functional lifeguard chair for use by the lifeguard on duty at a city pool could reasonably be found to be a physical defect in the building,” she wrote.

2023-1344. Hoskins v. Cleveland, Slip Opinion No. 2026-Ohio-1225.

View oral argument video of this case.

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