Shelby defendants seek dismissal in child injury lawsuit
The city of Shelby, its parks superintendent, a staffing agency, and a worker are seeking dismissal of all claims against them in a civil lawsuit resulting from a severe hand injury to an innocent young child in the aftermath of an incident incident linked to Seltzer Park vandalism in 2022.
The Crestline family’s suit, originally filed Jan. 27, 2023, named the city of Shelby, Shelby Parks Superintendent Jerry Marshall, the contractor known as Staffing Partners that Shelby used to help carry out work in its parks, and William Bland, identified as park staffer employed by the contractor.
In new court documents filed in Richland County Common Pleas Court this month, the defense argues that they are entitled to immunity under Ohio law, specifically citing recreational user immunity and governmental immunity provisions.
The suit seeks compensatory damages exceeding $25,000 plus punitive damages against the contractor company, Marshall, and Bland in an amount to be shown at trial.
The suit was filed in Richland County Common Pleas Court by the boy’s parents, who are also individual plaintiffs.
“This case arises out of the severe and permanent injuries” the boy suffered “at the hands of the defendants” on May 10, 2022, the lawsuit alleges.
Age 6 at the time and in first grade, he was at Seltzer Park on a school field trip when he needed to use the restroom. He “entered the bathroom full of joy and left screaming in pain,” states the suit. “One of his fingers was missing and two others were badly injured.”
“As it turns out, a hand dryer that defendants improperly maintained and/or installed had impaled” his fingers, the suit alleges.
“The hand dryer – which was installed low to the ground and is intended for use by children – was missing a necessary guard whose purpose was to protect against children their hands sliced by a metal fan inside the dryer,” the suit states.
The hand dryer had been recently detached from the wall. Later it was reinstalled by the defendants but they allegedly neglected to check if the guard was attached to the unit, according to the suit.
“Since the dryer was recently reattached to the wall, defendants could not and should not have missed that the protective guard was absent,” the lawsuit alleges.
But as the owner of Seltzer Park, the city of Shelby is entitled to recreational immunity, the city’s newly filed filing in court states.
“The city of Shelby, as the owner of Seltzer Park, owed no duty to Plaintiffs. As shown below, plaintiffs were clearly recreational users” as defined “and therefore the city of Shelby is immune from liability,” state the Feb. 1 documents from attorneys representing the city and Marshall.
“The record is clear that the city of Shelby, and Jerry Marshall, were not on notice of any defects in the hand dryer at the time of the incident,” the court filing states. “It is further clear that the hand dryer functioned properly and was not diminished in any way.”
“It is clear that” the boy’s “injuries were caused by a condition of the premises and not the acts of Jerry Marshall,” court papers also state.
“Mr. Marshall was clearly acting within his authority and in the scope of employment during this time and therefore is entitled to immunity,” court papers state.
They later state that “Mr. Marshall clearly did not disregard a known or obvious risk as he had no knowledge of the missing guard. For this same reason, Mr. Marshall could not have perversely disregarded the risk.”
In addition, Mr. Marshall did not take part in re-attaching the hand dryer to the wall, court papers state.
And according to those documents, the hand dryer was reinstalled after the south restroom at Seltzer Park was vandalized.
“The hand dryer remained attached to the restroom wall and was simply reinstalled, keeping the same character from its original installation. The south restroom was vandalized again on May 9, 2022, but only as it relates to the sink .... There was no damage to the hand dryer.”
The defense’s argument hinges on the application of Ohio’s recreational user immunity, which absolves property owners from liability for injuries to individuals engaging in recreational activities without charge, and governmental immunity. This shields political subdivisions and their employees from liability in performing governmental or proprietary functions, except under specific conditions.
The motion outlines the circumstances surrounding the incident, the legal standards for summary judgment, and the applicability of immunity statutes to the case at hand.
In court papers, the defense argues that the plaintiffs cannot overcome the immunity defenses, thereby necessitating summary judgment in their favor and dismissal of the case with prejudice.
In the motion for summary judgment, Marshall and the city of Shelby argue that Marshall could not have known about the missing guard on the hand dryer, as he had entrusted the repair work to Bland, an employee of Shelby’s maintenance contractor, Staffing Partners.
Marshall also relied on recommendations for the hand dryer’s purchase, asserting that he did not knowingly disregard any risks associated with the dryer.
This claim is further supported by evidence that Marshall was informed of vandalism in the south restroom of Seltzer Park on April 23, 2022, leading to its closure until April 25, 2022, for necessary repairs and cleaning, including to the hand dryer, court papers show.
Upon completion of the repairs, Marshall personally inspected the restroom to ensure its safety before reopening, according to the filings.
His inspection found the hand dryer in working order, with no visible defects that could lead to injury. This narrative underpins the defense’s assertion that Marshall did not act wantonly or in disregard of park patrons’ safety, as alleged by the plaintiffs.
The motion concludes with a request for the court to grant summary judgment in favor of the city of Shelby and Marshall, dismissing the first amended complaint with prejudice based on the arguments presented, notably the defendants’
entitlement to immunity under Ohio law.
The defense’s position is that the legal and factual arguments laid out establish a clear basis for immunity, negating the need for a trial.
In a separate Feb. 7 filing in the same case involving Staffing Partners, Advantage Staffing LTD, PGF Limited Partnership, and Bland have filed a motion for summary judgment, requesting the Richland County Court of Common Pleas dismiss the negligence claims against them in a case involving the child’s injury at a public park.
The motion hinges on the “Loaned Servant” doctrine, arguing that the liability for the boy’s injuries sustained due to an unprotected hand dryer in Seltzer Park, falls squarely on the city of Shelby, not the staffing agencies or their employee, Bland.
“Under the loaned servant doctrine, Bland is
an employee of the city of Shelby, not Staffing Partners,” papers state. “Under the loaned servant doctrine, when one party lends his employee to another for a particular employment, the employee, for anything done in that employment, is treated as the employee of the party to whom he is loaned.”
While Bland was technically an employee of Staffing Partners at the time of the subject accident, Bland was at all relevant times under the complete direction and control of Mr. Marshall and the city of Shelby, state papers filed on behalf of Advantage Staffing, LTD and PGF Limited Partnership (“Staffing Partners”) and Bland.
“As such, given that Jerry Marshall and the city of Shelby directed Bland’s day-to-day workplace duties, Staffing Partners is not their employer, and thus cannot be held liable for any tort claims arising out of their conduct, the documents state.
The Feb. 7 court filing mentions vandalism prior
but states that “to this day, no one knows for sure as to how or when the protective guard went missing.”
“One of the theories that plaintiff has developed in this case is that a recent incident of vandalism knocked the protective guard off, and that the defendants were negligent in failing to ensure that it was properly fastened back onto the hand dryer,” the documents state.
The non-city defendants contend that at the time of the incident, Bland was acting under the direction of the city of Shelby, making him a “loaned servant” and thereby transferring any liability to the city.
The motion elaborates on the legal standards for summary judgment and the specifics of the loaned servant doctrine, asserting that the control and direction of Bland’s day-to-day activities were under the purview of the city of Shelby and its superintendent, not the staffing agencies.
This, according to the
defendants, absolves them of liability under Ohio law.
A response to the defense filing is pending, but the family’s Columbus attorney, Jonathan Bond, offered comments in a brief interview.
“We’re not surprised that all the defendants in this case are claiming immunity,” Mr. Bond said by phone. “This is something we anticipated would be a fight when we filed the case.”
“That said, we disagree with the position of the defendants, and we can’t really imagine how there could be immunity for a situation like this,” Mr. Bond also said. “And we look forward to putting our position before the court and having the court decide these important issues.”
The civil case is before Judge Brent Robinson.
Park worker Richard Chew was originally named in the civil complaint, but was dismissed and withheld from the plaintiff’s newly amended complaint, state newly filed court papers.
The amended lawsuit was filed Jan. 19, 2024. A jury trial is requested.
Mr. Bond was asked about how the youngster is doing.
“I think his condition hasn’t changed necessarily,” Mr. Bond. “He’s still a resilient kid and he’s trying to adjust to his new life without one of his fingers or two other fingers severely damaged, but
he’s a tough kid. And all things considered, we’re proud of how far he’s come.”
The city of Shelby and Marshall are being represented by outside legal counsel from Cleveland.
No arrests are reported involving the acts of vandalism in Shelby’s park system, and no suspects have been identified.