Hoskins v. Cleveland: “Physical Defect” Under R.C. 2744.02(B)(4) Requires a Tangible Imperfection, Not a Lifeguard’s Seating Choice

1. Introduction

In Hoskins v. Cleveland, Slip Opinion No. 2026-Ohio-1225 (Apr. 8, 2026), the Supreme Court of Ohio addressed the scope of political-subdivision immunity for governmental functions under R.C. Chapter 2744. The case arose from the drowning death of William Johnson at the Thurgood Marshall Recreation Center pool, owned and operated by the City of Cleveland.

Contessa Hoskins, as executor of Johnson’s estate, sued Cleveland and the on-duty lifeguard, alleging wrongful death and survivorship claims. Cleveland asserted statutory immunity. Hoskins invoked the statutory exception in R.C. 2744.02(B)(4), arguing that Johnson’s death was “due to physical defects” on the pool grounds—specifically, that the lifeguard’s use of a folding chair rather than an available elevated lifeguard chair created a “physical defect” by producing a blind spot.

The trial court denied summary judgment; the Eighth District affirmed, relying heavily on its prior decision Kerber v. Cuyahoga Hts., 2015-Ohio-2766. The Supreme Court reversed, holding that the seating choice did not constitute a “physical defect” for purposes of the R.C. 2744.02(B)(4) exception.

2. Summary of the Opinion

The Supreme Court of Ohio held that the R.C. 2744.02(B)(4) exception did not apply because the record contained no evidence of a physical defect in the lifeguard chair or pool area. The Court adopted a plain-meaning approach: a “physical defect” is a tangible imperfection that impairs the function of an object. An employee’s decision to use one chair rather than another, and any resulting blind spot, is not itself a “physical defect” on the grounds of a building used for a governmental function.

Accordingly, Cleveland retained immunity under R.C. 2744.02(A)(1), and the case was remanded for entry of summary judgment for the city.

3. Analysis

3.1. Precedents Cited

• McConnell v. Dudley, 2019-Ohio-4740: Cited for the analytic framework for political-subdivision immunity: general immunity under R.C. 2744.02(A)(1), exceptions under R.C. 2744.02(B), and possible reinstatement under defenses in R.C. 2744.03(A). The Court used McConnell to situate the dispute as an exceptions case—specifically, whether R.C. 2744.02(B)(4) was triggered at all.
• Bliss v. Johns Manville, 2022-Ohio-4366: Cited for de novo review of the denial of summary judgment. This mattered because the Court treated “physical defect” as a legal question applied to the undisputed nature of the evidence, not as a jury question whenever an expert labels something a defect.
• Bonacorsi v. Wheeling & Lake Erie Ry. Co., 2002-Ohio-2220: Cited for the summary-judgment standard (no genuine issue of material fact; entitlement as a matter of law), reinforcing that disputes must be material to the immunity exception’s elements.
• Sharp v. Union Carbide Corp., 38 Ohio St.3d 69: Cited for statutory interpretation: undefined terms receive their “plain, everyday meaning.” This case underpinned the Court’s dictionary-based construction of “physical defect.”
• Kerber v. Cuyahoga Hts., 2015-Ohio-2766 (8th Dist.): The Eighth District relied on Kerber as a near-analog suggesting a fact issue about a low-deck lifeguard chair constituting a “physical defect.” The Supreme Court’s reversal implicitly limits Kerber’s reasoning by insisting on a tangible imperfection rather than a configuration/usage choice.
• Doe v. Greenville City Schools, 2022-Ohio-4618: The Court engaged Greenville in two ways. First, it distinguished Hoskins’s reliance on the lead opinion (plurality) suggesting that absence of a fire extinguisher or safety equipment could be a “physical defect.” Second, it held that the plurality’s reasoning “should not be relied upon,” noting it did not reflect controlling law. The Court also cited Greenville’s dissent—Doe v. Greenville City Schools, 2022-Ohio-4618, ¶ 38 (Kennedy, J., dissenting)—as consistent with the view that missing safety equipment does not necessarily render a room “defective” if it functions as designed.
• Kraly v. Vannewkirk, 69 Ohio St.3d 627: Used to underscore the “questionable precedential value” of plurality opinions that fail to command four votes, supporting the majority’s refusal to treat the Greenville lead opinion as controlling.
• Fed. Home Loan Mtge. Corp. v. Schwartzwald, 2012-Ohio-5017: Cited by the Chief Justice’s concurrence for the constitutional requirement that Supreme Court holdings require agreement of four justices (Ohio Const., art. IV, § 2(A)), reinforcing the limited status of Greenville’s lead opinion.
• State ex rel. Ware v. Fankhauser, 2024-Ohio-5037: Cited in concurrence as recognizing the “limited precedential authority” of plurality decisions—important for anticipating how lower courts might treat Greenville going forward.
• Lewis v. Ayersville Local School Dist., 2023-Ohio-3685: Cited in concurrence to show lower courts have treated Greenville as “highly persuasive, if not binding,” illustrating real-world doctrinal instability that the concurrence sought to resolve by urging overruling Greenville.
• NASCAR Holdings, Inc. v. Testa, 2017-Ohio-9118: Cited in concurrence for the proposition that the Court has discretion regarding the weight given to plurality opinions—supporting the concurrence’s invitation to explicitly overrule Greenville.
• Smathers v. Glass, 2022-Ohio-4595: Cited in the dissent for summary-judgment posture: evidence must be viewed in the light most favorable to the nonmoving party. The dissent used Smathers to argue that a jury could find a “physical defect” based on the chairs’ characteristics and placement.

3.2. Legal Reasoning

A. The statutory framework: immunity, exceptions, and the element in dispute

The Court began with the uncontested premises: Cleveland is a political subdivision (R.C. 2744.01(F)), operating a swimming pool is a governmental function (R.C. 2744.01(C)(2)(u)(iv)), and thus Cleveland enjoys general immunity under R.C. 2744.02(A)(1) unless an exception applies. The only potentially applicable exception argued on appeal was R.C. 2744.02(B)(4).

The Court emphasized the three components of R.C. 2744.02(B)(4): (1) negligence of employees; (2) occurrence within/on the grounds of a building used in connection with a governmental function; and (3) injury/death “due to physical defects” within/on those grounds. The parties’ dispute centered on the third component: whether the circumstances described could qualify as a “physical defect.”

B. Plain meaning of “physical defect” and the Court’s limiting construction

Because “physical defect” is not defined in R.C. Chapter 2744, the Court applied a plain-meaning approach and consulted dictionaries. From this, it derived a functional definition: a “physical defect” is a tangible imperfection that impairs the function of an object.

Applying that definition, the Court rejected two theories:

1. “Uncomfortable” does not equal “defective.” Evidence that an elevated lifeguard chair was “smaller,” “firmer,” or uncomfortable did not show a tangible flaw that prevented it from functioning as a chair.
2. A blind spot caused by a lifeguard’s seating choice is not a “physical defect.” The alleged obstructed view was attributed to how the lifeguard positioned herself (folding chair) in relation to the elevated chair and items hanging on it. The Court characterized this as a matter of decision-making and arrangement, not a tangible imperfection in the premises or equipment.

In short, the Court treated “physical defect” as premises-focused and object-flaw-focused, not as a catch-all for unsafe operational choices or staffing practices.

C. Treatment of Greenville as noncontrolling and the Court’s stance on plurality opinions

Hoskins leaned on the lead opinion in Doe v. Greenville City Schools, 2022-Ohio-4618 to argue that missing or inadequate safety equipment could be a “physical defect.” The Court responded that the lead opinion did not command four votes and therefore “should not be relied upon,” citing Kraly v. Vannewkirk, 69 Ohio St.3d 627.

The concurrence agreed on nonbinding status but warned that lower courts continue to cite Greenville as persuasive or quasi-binding, pointing to State ex rel. Ware v. Fankhauser, 2024-Ohio-5037 and Lewis v. Ayersville Local School Dist., 2023-Ohio-3685. The concurrence went further, stating Greenville was wrongly decided and advocating overruling it to prevent confusion—though the Court did not take that step here.

3.3. Impact

1) Narrowing R.C. 2744.02(B)(4) toward tangible premises defects.
The decision concretely limits “physical defect” claims against political subdivisions to scenarios involving a demonstrable, tangible imperfection of the premises or equipment—rather than alleged inadequacy arising from employee choices, positioning, supervision, or other operational conduct. Plaintiffs may face a higher threshold to show something was physically flawed (broken, missing essential component, structurally unsound) rather than merely used poorly.

2) Reframing litigation strategy: negligence alone is insufficient without a qualifying defect.
Even if employee conduct is arguably negligent (or worse), plaintiffs must still connect injury/death to a “physical defect” as defined. The Court made clear that disputes about attentiveness, training, response time, and prior discipline may be immaterial if the defect element fails.

3) Significant implications for municipal recreational facilities.
Claims arising from drownings, athletic supervision, recreation-center incidents, and similar contexts may increasingly turn on whether the hazard is a true premises defect (e.g., broken drain cover, defective gate, missing required barrier) versus an operational lapse (e.g., guard seated poorly, inadequate monitoring).

4) Doctrinal signaling on plurality opinions.
While the Court did not overrule Greenville, both the majority and concurrence signaled skepticism of relying on the Greenville lead opinion as a substantive guide. This may encourage litigants to argue that lower courts should not expand “physical defect” based on plurality reasoning, and it may invite a future case squarely addressing whether Greenville should be repudiated.

4. Complex Concepts Simplified

4.1. Political-subdivision immunity (R.C. Chapter 2744)

Ohio law generally shields cities and similar governmental entities from civil liability when performing “governmental functions” (such as operating a public pool). That shield is not absolute: it can be removed if one of the statutory exceptions applies.

4.2. The R.C. 2744.02(B)(4) exception

This exception allows lawsuits for injury/death caused by employee negligence occurring on the grounds of public buildings used for governmental functions, but only when the injury/death is “due to physical defects” on the grounds. The key is that the statute adds a premises-defect requirement—not merely negligence.

4.3. Summary judgment and “genuine issue of material fact”

Summary judgment ends a case without trial when there is no real dispute over facts that matter to the legal outcome. Here, the Supreme Court held that disputes about lifeguard vigilance and response were not “material” because the defect element failed as a matter of law under the Court’s definition.

4.4. Plurality (lead) opinions

A “lead opinion” with fewer than four justices joining does not establish a binding rule of law for Ohio courts in the same way a majority opinion does. It may be cited as persuasive, but it is not controlling precedent. The Court relied on this principle to discount reliance on the lead opinion in Doe v. Greenville City Schools, 2022-Ohio-4618.

5. Conclusion

Hoskins v. Cleveland establishes a clear limitation on the “physical defect” exception in R.C. 2744.02(B)(4): a “physical defect” requires evidence of a tangible imperfection impairing function, not an injury scenario created by an employee’s choice of equipment or vantage point. By rejecting the Eighth District’s approach (and distinguishing its reliance on Kerber v. Cuyahoga Hts., 2015-Ohio-2766), the Court strengthens political-subdivision immunity against claims reframed as “premises defects” when the alleged wrong is fundamentally operational negligence.