Ohio Supreme Court Limits Physical Defect Exception to Municipal Immunity in Pool Drowning Case

On Wednesday April 8, 2026, the Supreme Court of Ohio revisited a key exception to statutory immunity afforded to municipalities for injuries and deaths that occur at their recreational facilities. See Hoskins v. City of Cleveland, 2026-Ohio-1225. A swimmer drowned while swimming at a city-owned pool. A lifeguard was overseeing activities in the pool but chose to sit in a lower folding chair on the pool deck rather than in an elevated ladder chair. The lifeguard watched the swimmer as he engaged in his normal exercise routine, including bobbing above and below the water line. When the lifeguard observed that the swimmer did not surface, she called another lifeguard for assistance, dove in, and pulled the swimmer to the pool deck. The lifeguards administered CPR until first responders arrived. Paramedics were unable to resuscitate the swimmer.

The executor of the swimmer’s estate filed a wrongful death action against the City of Cleveland, as the owner and operator of the pool. The City asserted its statutory immunity under the Ohio Political Subdivision Tort Liability Act, Ohio Rev. Code 2744.01, et seq. In response, the swimmer’s estate claimed that the failure to use the elevated lifeguard chair created a blind spot in the area where the patron drowned. According to the patron’s estate, this constituted a physical defect which overcame the city’s immunity.

The trial court denied the City’s motion for summary judgment, finding a question of fact as to the existence of a physical defect. The Ohio Eighth District Court of Appeals agreed. The City appealed further to the Supreme Court of Ohio.

The Supreme Court explained that the physical defect exception to statutory immunity applied in cases where injury or death is due to physical defects within or on the grounds of buildings used in connection with a governmental function. The swimmer’s estate argued that the lifeguard chair was physically defective because the lifeguard had found it too firm and uncomfortable to sit in, and because the higher ladder chair and objects hanging on it created an obstructed view of the pool. The Supreme Court disagreed, finding that “firm” and “uncomfortable” were not the equivalent of “physically defective.” As the Supreme Court wrote, “No tangible imperfection prevented the lifeguard chair from functioning as a chair.” Hoskins, 2026-Ohio-1225, ¶ 18. The lifeguard’s decision to use one chair rather than the other was also not a physical defect or tangible imperfection. Nor was the claimed existence of a blind spot in using the lower chair. This was not a physical defect because “the chair and pool grounds could still function as intended.” Id. at ¶ 19. The Supreme Court also ruled that issues such as the lifeguard’s disciplinary record and expert testimony as to whether the lifeguard’s response was adequate, were not germane to the issue of whether a physical defect occurred.

The Supreme Court also addressed its recent decision in Doe v. Greenville City Schools, 2022-Ohio-4618. In that case, the Supreme Court found that a failure to provide a fire extinguisher and other safety equipment in a school classroom constituted a physical defect which defeated a school district’s statutory immunity. In assessing the Greenville case, Justice Deters and a majority of the Hoskins Court recognized that only three justices had joined in the lead opinion in Greenville, making it of limited precedential value. Chief Justice Kennedy wrote a separate concurring opinion in Hoskins that would have overruled Greenville entirely.

Justice Jennifer Brunner dissented, reasoning that the opinions of the plaintiff’s aquatics safety expert and the testimony of the lifeguard regarding her normal routines and practices created a genuine issue of material fact as to the question of a physical defect. No other justices joined Justice Brunner’s opinion.

In the years since the Supreme Court decided Greenville, litigants have come to rely on it in an effort to expand the physical defect exception of political subdivision immunity. Although the Supreme Court in Hoskins did not overrule Greenville, it did recognize that it is of limited precedential value. It is also possible that a new Court, which is more conservative than the Court that decided Greenville, may overrule Greenville in its entirety under the right circumstances. At a minimum, though, the Hoskins opinions, taken together, should help limit the impact of the Greenville decision in political subdivision tort litigation.

Read the full decision of the Supreme Court.