Brunner
COLUMBUS, Ohio – A city lifeguard choosing to sit in a folding chair rather than an elevated stand doesn’t open Cleveland to liability for a drowning death, the Ohio Supreme Court has ruled.
At issue was whether there was a “physical defect” at the Thurgood Marshall Recreation Center that would have waived an immunity defense for Cleveland, which owns and operates the center. The court decided no, in an opinion written by Justice Joseph Dieters and released Wednesday.
Lower courts had decided a jury could consider the lifeguard’s uncomfortable chair as a physical defect, but the Supreme Court disagreed.
“The decision to use one chair rather than another plainly does not amount to a physical defect on the pool grounds…” Dieter wrote.
The incident occurred in December 2019, when William Johnson, who had epilepsy, was doing his regular workout routine. He’d swim 10-15 laps, then jog across the pool for 20 minutes, then bob up-and-down in the water.
Lifeguard Nieemah Hameed was sitting in a folding chair because the lifeguard chair was “a little smaller” and less comfortable. Johnson went to the sauna after his routine but afterward returned to “doing the bobs and treading water,” she testified. He would sit on the bottom and blow bubbles.
He surfaced once but not a second time. Resuscitation efforts failed, and his cause of death was drowning due to a seizure. The ensuing wrongful-death lawsuit said the uncomfortable lifeguard chair was a physical defect that would prevent Cleveland from asserting political-subdivision immunity.
A Cleveland judge and the state Eighth Circuit Court of Appeals agreed, with the appellate court relying on a ruling it had made in a similar case. The immunity law did not define physical defect, the Supreme Court said, so it used “its plain, everyday meaning.”
A 2022 ruling in a lawsuit against Greenville City Schools had said the lack of a fire extinguisher could be considered a physical defect. But the majority disregarded it, partly because there was only a three-judge majority.
“The commonly understood meaning of ‘physical defect’ is a material imperfection that impairs the quality, function, or utility of something,” Dieter wrote. “No evidence of a tangible imperfection with respect to the lifeguard chair or pool area was presented.”
Justice Jennifer Brunner was the lone dissenter on the court. She believes there still is a genuine issue of material fact that would have to be sorted out by a jury, which should have been allowed to decide whether the absence of a properly functional lifeguard chair could be considered a physical defect.
“The record contains evidence indicating that the lifeguard on duty routinely used the low folding chair, which lacked appropriate sight lines, and that she did so because the elevated chair was too small for her,” Brunner wrote.
“Notably, at least one other lifeguard at times also used the low folding chair that lacked adequate sight lines of the pool. So, on the day of Johnson’s drowning, one chair was too small for the lifeguard on duty and the other chair lacked adequate sight lines to the deep end of the pool.
‘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.”
