Heyl v. Madison Cty.

[Cite as Heyl v. Madison Cty., 2026-Ohio-3911.] IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO MADISON COUNTY LYNDA HEYL, et al., : CASE NO. CA2026-04-017 Appellants, : OPINION AND vs. : JUDGMENT ENTRY 10/5/2026 MADISON COUNTY, OHIO, : Appellee. : : CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CVC 20240140 Teetor | Westfall, and Andrew N. Yosowitz and Sarah A. Lodge, for appellee. Schiff & Associates, Co., LPA, and Terry V. Hummel, for appellants, Lynda Heyl and Lester Barnhart. ____________ OPINION SIEBERT, J. {¶ 1} Lynda Heyl and her husband, Lester Barnhart (collectively, "Heyl"), appeal the Madison County Court of Common Pleas' grant of summary judgment in favor of  Madison CA2026-04-017 Madison County.1 In her first assignment of error, Heyl contends the trial court improperly granted summary judgment to the County in this "trip and fall" negligence case by finding the County immune from suit under relevant statutes and premises liability standards. In her second assignment of error, Heyl argues Madison County violated its statutory duty to maintain the sidewalk where she injured herself and should be held liable as a matter of law. Heyl additionally argues the portion of the sidewalk she tripped on was not an "open and obvious danger." {¶ 2} We overrule Heyl's first assignment of error. The trial court properly determined the County was immune from suit after applying premises liability principles to Heyl's negligence claim. Assuming the County owed Heyl a duty of care, its only duty to her was to not willfully or wantonly allow the sidewalk to cause her injury. There is no evidence that County officials heedlessly disregarded a known, probable risk of great harm posed by the sidewalks before Heyl tripped on them. Moreover, Heyl's arguments on appeal misinterpret the term "negligence" as used in the relevant statute to refer the type of conduct at issue when it instead refers to the type of negligence claim at issue— specifically, premises liability negligence. Because we conclude the County is immune from suit, Heyl's second and third assignments of error are moot. Background {¶ 3} For approximately one year before sustaining her injuries, Heyl walked three to four miles a day, several times a week. Her walks often took her to the Madison County Courthouse, where she used the steps and surrounding area for more exercise. However, during one of her walks, Heyl tripped and fell while traversing an uneven portion of sidewalk between the street and courthouse. Heyl sustained injuries as a result of her 1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar for purposes of issuing this opinion. -2-  Madison CA2026-04-017 fall. {¶ 4} Robert Slane, Administrator of the County, stated via affidavit and by deposition that (1) "the courthouse sidewalks were regularly inspected by various county personnel" including Slane; (2) County officials "knew that the limestone sidewalks could be an issue just because of the way they were constructed;" (3) County officials had generally discussed replacing the sidewalks "for a few years" before Heyl's injuries; (4) "there had been no incidents or claims of falls from the portion of the sidewalk" Heyl fell upon; and, (5) after Heyl's fall, the County "specifically assigned" a maintenance supervisor to further inspect the sidewalks. Emails from County officials showed that the County solicited bids and entered into several contracts for sidewalk or concrete work on County buildings, including the courthouse, in the months preceding and after Heyl's fall. The record is unclear as to when exactly the sidewalk where Heyl fell was replaced. {¶ 5} Heyl and Barnhart filed a complaint against the County alleging a negligence claim. The complaint also contained a loss of consortium claim for Heyl's husband, Lester Barnhart. Within the complaint, Heyl alleged the County "negligently, unlawfully, wantonly, and in violation of [the Ohio Revised Code]: (a) failed to inspect the sidewalk; (b) failed to warn of unsafe and defective condition[s] of the sidewalk; [and] (c) failed to repair the sidewalk." However, the trial court granted the County summary judgment on both claims after determining the County was immune from suit. {¶ 6} In doing so, the trial court cited Ohio statutes governing political subdivision immunity, as well as common law premises liability standards (both discussed more fully below). The trial court determined Heyl was a licensee on the public sidewalk, meaning the County would be liable to her only if willful or wanton conduct by the County caused her injuries. The trial court found that while Heyl's complaint alleged willful and wanton conduct, "the conduct alleged by [Heyl] does not rise to the level of willful or wanton -3-  Madison CA2026-04-017 misconduct as defined by the Ohio Supreme Court." The trial court therefore concluded that no exception to the County's immunity existed and that Heyl's claims failed as a matter of law. {¶ 7} Heyl now appeals. Standard of Review and Applicable Law Summary Judgment {¶ 8} "An appellate court reviews a trial court's decision on a motion for summary judgment de novo, independently and without deference to the decision of the trial court." Total Quality Logistics, L.L.C. v. JK & R Express, L.L.C., 2022-Ohio-3969, ¶ 17 (12th Dist.). {¶ 9} A trial court may grant summary judgment when, "there is no genuine issue of material fact remaining for trial, the moving party is entitled to judgment as a matter of law, and reasonable minds can only come to a conclusion adverse to the nonmoving party, construing the evidence most strongly in that party's favor." Id.; see also Civ.R. 56. "Trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party." Welco Indus., Inc. v. Applied Cos., 67 Ohio St.3d 344, 346 (1993). The unsupported assertion by the moving party that the nonmoving party has no evidence to prove their case is not sufficient ground for the trial court to grant summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). However, if the moving party fulfills their burden and the nonmoving party presents no evidence to support the merits of their case, summary judgment is proper. Welco Indus. at 346. Political Subdivision Immunity {¶ 10} "In analyzing whether a political subdivision is immune from liability, courts conduct a three-tiered analysis." Estate of Enzweiler v. Clermont Cty. Bd. of Commrs., -4-  Madison CA2026-04-017 2011-Ohio-896, ¶ 11 (12th Dist.); see also Shaw v. Washington Court House City Schools Bd. of Edn., 2022-Ohio-4226, ¶ 17 (12th Dist.). The first tier is the general recognition that "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function." R.C. 2744.02(A)(1); Enzweiler. "Governmental functions" include, as applicable here, "the maintenance and repair of . . . sidewalks . . . and public grounds" as well as the "repair, renovation, maintenance, and operation of buildings that are used in connection with the performance of a governmental function, including . . . courthouses." R.C. 2744.01(C)(2)(e), (g). {¶ 11} However, the second tier involves assessing whether the at issue act or omission which caused an injury falls into five statutorily identified exceptions to the political subdivision's general immunity. Enzweiler, citing R.C. 2744.02(B)(1)-(5). Political subdivisions can be liable for injuries caused by: (1) the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority . . . [Unless the operation of the motor vehicle by a member of police, fire, or emergency medical services] constitute[d] willful or wanton misconduct; (2) the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions; (3) their negligent failure to keep public roads in repair . . . [or] to remove obstructions from public roads . . .; (4) the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including . . . courthouses . . ., and; (5) when civil liability is expressly imposed on the political -5-  Madison CA2026-04-017 subdivision by a Section of the Revised Code . . . . (Emphasis added). R.C. 2744.02(B)(1)-(5). {¶ 12} In this case, the parties argue over whether the fourth exception applies. R.C. 2744.02(B)(4) (the "Physical Defects Provision"). "Physical defects" is not defined within the Ohio Revised Code, but Ohio courts have held the term means "a perceivable imperfection that diminishes the worth or utility of the object at issue." Hamrick v. Bryan City School Dist., 2011-Ohio-2572, ¶ 28 (6th Dist.); see also Shaw, 2022-Ohio-4226, at ¶ 19 (12th Dist.), quoting Nicholas v. Lake Cty., 2013-Ohio-4294, ¶ 23 (11th Dist.). {¶ 13} If one of these five exceptions to a political subdivision's general immunity from liability applies, it is nonetheless still entitled to immunity if one of various defenses to liability apply, including (1) the act or omission which caused the injury "was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee;" (2) "the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources;" and, (3) "any defense or immunity available at common law or established by the Revised Code" the political subdivision is entitled to assert. R.C. 2744.03(A)(3), (5), (7). Premises Liability, Generally {¶ 14} It is axiomatic that "[i]n order to establish a negligence claim, [a plaintiff] must show the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach." Enzweiler, 2011-Ohio-896, at ¶ 13 (12th Dist.). In a premises liability case, the duty owed by the property owner to a visitor depends upon the classification of the visitor as an invitee, licensee, or trespasser. Id. at ¶ 14. "Visitors on state or local government property are generally classified as licensees" when such individuals "enter[ ] property with the permission or acquiescence of the owner or occupier -6-  Madison CA2026-04-017 and for the benefit of the individual instead of the owner or occupier." Id. at ¶ 15-16; see also Rosenbrook v. Lucas Cty. Bd. of Commrs., 2015-Ohio-1793, ¶ 26 (6th Dist.). "The duty of care owed to a licensee is a duty to avoid wanton or willful misconduct" which we defined as conduct "demonstrat[ing] heedless indifference to or disregard for others in circumstances where the probability of harm is great and is known to the actor." Id. at ¶ 15; see also Anderson v. Massillon, 2012-Ohio-5711, ¶ 33 ("Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result."). Heyl's Missing Assignments of Error {¶ 15} We note that Heyl's appellate brief failed to state assignments of error as required by App.R. 16(A)(3) and Loc.R. 11(2)(a). Upon review, however, Heyl's arguments on appeal are split into three parts. She asserts (1) the trial court improperly applied premises liability principles to the Physical Defects Provision to determine the County was immune to Heyl's claims; (2) the "open and obvious" doctrine (a premises liability principle discussed briefly below) did not apply in determining the County's immunity; and (3) even if the doctrine did apply, the sidewalk was not an open and obvious danger. "[I]n the interests of justice, [we] will construe [Heyl's] arguments as assignments of error and consider the appeal." Eagle's View Professional Park Condominium Unit Owners Assn., Inc. v. EVPP, L.L.C., 2015-Ohio-1929, ¶ 10 (12th Dist.). First Assignment of Error – The Intersection of Subdivision Immunity and Premises Liability Principles The Meaning of "Negligence" in the Physical Defects Provision {¶ 16} At a fundamental level, Heyl's arguments misinterpret the meaning of "negligence" as used in the Physical Defects Provision. "Negligence" can be used to describe a type of claim, or it can be used to describe conduct. Negligence as a claim -7-  Madison CA2026-04-017 involves, as discussed above, establishing a duty of care, breach of that duty, harm, and damages. Enzweiler, 2011-Ohio-896, at ¶ 13 (12th Dist.). However, "negligence" can also describe "conduct that falls below the legal standard established to protect others against unreasonable risk of harm . . . the doing of what a reasonable and prudent person would not do under the particular circumstances, or the failure to do what such a person would do under the circumstances." Black's Law Dictionary (12th Ed. 2024). But negligence as conduct does not include "conduct that is intentionally, wantonly, or willfully disregardful of others' rights." Id. {¶ 17} Heyl argues the Physical Defect Provision creates a "statutory duty [for the County] to refrain from negligence in removing defects from government grounds and buildings including, specifically, courthouses." As a result, Heyl contends the trial court erred by applying legal standards related to a premises liability negligence claim, which only attach liability to a political subdivision's willful or wanton misconduct. Upon review, Heyl's arguments more closely relate to an analysis of the County's conduct, not the claim. While Heyl argues this is a "simple comparative negligence case," she also asserts the County had no "reasonable" excuse for its "procrastination of the sidewalk repairs" or its "failure to provide the simplest of warnings." Those assertions relate to the County's alleged misconduct. {¶ 18} The text within and surrounding the Physical Defect's Provision supports the trial court's application of the law. As laid out above, there are five exceptions to a political subdivision's general immunity. R.C. 2744.02(B)(1)-(5). The first three exceptions use the term "negligent" and specifically relate to conduct—how an employee operates a motor vehicle, how an employee performs a proprietary function, and how the political subdivision fails to maintain public roads or clear obstructions. R.C. 2744.02(1)-(3). And within the first exception, a full defense to that "negligent" conduct is if the operation of the -8-  Madison CA2026-04-017 motor vehicle that caused an injury "did not constitute willful or wanton misconduct." R.C. 2744.02(B)(1)(a). {¶ 19} But the fourth exception—the Physical Defects Provision—is different and uses the term "negligence." In doing so, the provision does not directly modify conduct. Instead, it describes what occurs ("negligence") followed by who does it ("employees"), where it happens ("within or on the grounds" of buildings), and what it relates to ("in connection with the performance of a governmental function," including repairing and maintaining sidewalks). Therefore, the Physical Defects Provision's use of the word "negligence" is properly read as a claim, not conduct, and the type of negligence claim (as well as the duty of care owed in such a claim) is the lens through which Heyl's lawsuit is viewed. Contrary to Heyl's arguments, the appropriate lens in this case is premises liability law. Applying Premises Liability Principles to the Physical Defects Provision {¶ 20} Even if this court did not apply the distinction between "negligent" and "negligence" analyzed above, we are unconvinced the trial court improperly looked to premises liability principles in rendering its decision. Ohio courts—including this one— have regularly and expressly applied premises liability principles to the Physical Defects Provision to determine the duty of care owed by political subdivisions to an individual, depending upon the individual's classification as an invitee, licensee, or trespasser. See, e.g., Enzweiler, 2011-Ohio-896, at ¶ 14 (12th Dist.); Wright v. Williamsport, 2019-Ohio- 2682, ¶ 23 (4th Dist.); Buttari v. Norwalk, 2023-Ohio-4163, ¶ 43 (6th Dist.); Rosenbrook, 2015-Ohio-1793, at ¶ 21 (6th Dist.); and Trutza v. Cleveland, 102 Ohio App.3d 371, 374- 375 (8th Dist. 1995). Heyl's briefing on appeal does not acknowledge this precedent and does not make a compelling argument as to why it should not be applied to the facts of this case. -9-  Madison CA2026-04-017 {¶ 21} If we assume the uneven courthouse sidewalk represented a "physical defect within or on the grounds of" the courthouse (the trial court did not expressly decide this issue), the County's only duty to Heyl was to not "willfully or wantonly" allow the sidewalk to cause Heyl's injury. The evidence presented at summary judgment showed the sidewalks were regularly inspected by the County, and after Heyl's injury, the County "specifically assigned" a maintenance supervisor to further inspect the sidewalks. Although County officials were generally aware for years that the sidewalks "could be an issue" and needed to be replaced, no one previously reported injuring themselves at the section of the sidewalk where Heyl fell. Stated differently, until Heyl's fall, there is no evidence the sidewalk posed a "great probability of harm" to the licensee's traveling the courthouse grounds. Anderson, 2012-Ohio-5711 at ¶ 33. Moreover, in the months before and after Heyl's fall, the County solicited bids and entered into contracts for sidewalk and concrete work on or near several County buildings, including the courthouse. {¶ 22} Ohio law has consistently recognized that "municipalities are not insurers of the safety of pedestrians that use local walkways." Cash v. Cincinnati, 66 Ohio St.2d 319, 323 (1981). While it is undoubtedly of little comfort to Heyl, the County's actions in this case demonstrate the opposite of "heedless indifference to or disregard for others" once it became known the at-issue portion of the sidewalk posed a potential—if not a "great probability"—of harm to other licensees on the sidewalk. Id. We therefore conclude no willful or wanton conduct by the County led to Heyl's injuries. {¶ 23} In summary, the trial court correctly interpreted and applied the relevant law in this case. Under the first tier of the political subdivision immunity analysis—the County had general liability immunity from Heyl's claim in connection with its governmental function of maintaining the sidewalks surrounding the courthouse. Proceeding to the second tier of the political subdivision immunity analysis—Heyl failed to satisfy the - 10 -  Madison CA2026-04-017 Physical Defects Provision exception to the County's general liability immunity after premises liability standards were applied to her negligence claim. Because the County's immunity remained in place after conducting the first and second tier analysis, there was no need to complete the third tier (determining if the County had valid defenses to liability). {¶ 24} We overrule Heyl's first assignment of error. Second and Third Assignments of Error – The "Open and Obvious" Doctrine {¶ 25} Heyl's second and third assignments of error deal with the "open and obvious" doctrine. Heyl contends that the portion of sidewalk where she fell was not an "open and obvious" danger and that, even if it were, "this defense" is inapplicable here because it is not enumerated in the third step of assessing a political subdivision's immunity. R.C. 2744.03(A)(1)-(5). {¶ 26} We start by noting "[t]he question of open-and-obvious dangers does not concern an affirmative defense, but rather concerns the threshold issue of whether a duty of care exists." (Emphasis added.) Hissong v. Miller, 2010-Ohio-961, ¶ 8 (2nd Dist.). Stated differently, "[t]he open and obvious doctrine concerns the first prong of a negligence claim—the existence of a duty." Souther v. Preble Cty. Dist. Library, West Elkton Branch, 2006-Ohio-1893, ¶ 36 (12th Dist.). {¶ 27} Here, the trial court had two independent bases for analyzing the County's duty of care: (1) the "willful and wanton" misconduct standards relevant to premises liability negligence; or (2) whether the sidewalk represented an open and obvious risk. The trial court reached a dispositive conclusion after analyzing only the first basis— whether the County's alleged misconduct was willful and wanton. As a result, the trial court did not need to address questions related to the open and obvious doctrine. Because we agree with the trial court's dispositive conclusion on immunity, we also do not need to address these questions. - 11 -  Madison CA2026-04-017 {¶ 28} Heyl's second and third assignments of error are moot. {¶ 29} Judgment affirmed. PIPER, P.J., and M. POWELL, J., concur. JUDGMENT ENTRY The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed. It is further ordered that a mandate be sent to the Madison County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27. Costs to be taxed in compliance with App.R. 24. /s/ Robin N. Piper, Presiding Judge /s/ Mike Powell, Judge /s/ Melena S. Siebert, Judge - 12 -