[Cite as Clark v. Campbell, 2020-Ohio-3333.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
CHRISTOPHER A. CLARK, : : Plaintiff-Appellee, : Case No. 19CA3673 : vs. : : DECISION AND JUDGMENT TERRI D. CAMPBELL, ET AL., : ENTRY : Defendants-Appellants. : : _____________________________________________________________ APPEARANCES:
Josh L. Schoenberger, Williams & Schoenberger Co. LLC, Columbus, Ohio, for Appellants.
Michael D. O’Neill, Gary F. Franke, Gary F. Franke Co. L.P.A., Cincinnati, Ohio, for Appellee.
Timothy McKay, Cincinnati, Ohio, for Defendant The Standard Fire Insurance Company.1 _____________________________________________________________
Smith, P.J.
{¶1} Terri D. Campbell (“Appellant Campbell”) and the Ross County
Board of Developmental Disabilities (“Appellant Ross County”) appeal the
trial court’s February 4, 2019 judgment which overruled their joint motion
for summary judgment. Both Appellants sought summary judgment on the
1 The Standard Fire Insurance Company has not participated in this appeal. Ross App. No. 19CA3673 2
basis of their entitlement to sovereign immunity pursuant to Chapter 2744
and, in the alternative, immunity pursuant to the Workers’ Compensation
Chapter 4123. As will be discussed below, we conclude that the trial court
erred in denying summary judgment to Appellants. Accordingly, we sustain
the third assignment of error and need not consider the first and second
assignments of error as those have become moot. We hereby reverse the
judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On October 20, 2015, Christopher Clark (“Appellee”) and
Appellant Campbell were involved in a motor vehicle collision in Ross
County, Ohio. Appellee was operating an all-terrain vehicle (ATV).
Appellant Campbell was operating a Dodge caravan owned by Appellant
Ross County. Appellant Ross County provides services to individuals with
developmental disabilities.
{¶3} Appellant Campbell is the transportation coordinator for
Appellant Ross County. On the date of the accident, Appellant Campbell
had been assisting in searching for a child missing from the Pioneer Center.
The Pioneer Center is a school for special needs individuals ages 5-21.
{¶4} On January 17, 2017, Appellee filed suit alleging personal
injuries and medical expenses against both appellants and The Standard Fire Ross App. No. 19CA3673 3
Insurance Company, alleging that Appellant Clark was negligent. Further,
Appellee alleged that Appellant Campbell was in the course and scope with
her employment with Appellant Ross County. Appellee also asserted a
claim for respondeat superior/wrongful entrustment against Appellant Ross
County. Appellee’s claim against the insurance company was for
uninsured/underinsured motorist coverage.
{¶5} The defendants filed answers denying liability. Particularly,
Appellant Ross County asserted that it is not sui juris and is not a proper
party defendant. Appellant Ross County further asserted that both appellants
are statutorily immune from tort liability for negligence under R.C. 2744.
Appellant Ross County also asserted that Appellee’s claims against
Appellant Campbell are barred by the exclusivity of the workers’
compensation remedy under R.C. 4123.741, and Appellee’s claims against
Appellant Ross County are barred by the exclusivity of the workers’
compensation remedy available under R.C. 4123.74.
{¶6} The parties engaged in written discovery. The record indicates
the parties deposed Appellee. The parties also deposed Leia Snyder and
Appellant Campbell. Leia Snyder is superintendent of Ross DD. At the time
of the accident, Snyder was employed as assistant superintendent. Ross App. No. 19CA3673 4
{¶7} Snyder testified that she assists in drafting policies and
procedures and oversees implementation of the policies and procedures. The
situation involving the missing child was considered an MUI (Major
Unusual Incident.) On the date of the accident general policies and
procedures were established; however, Snyder is not sure if there was
anything specific as to missing children.
{¶8} On October 20, 2017, Snyder received a phone call in the
afternoon and learned that a child was missing. Snyder immediately
instructed the administrative secretary with regard to requests for
information. She also notified other management team members and left the
building to assist in the search. Snyder testified Appellant Campbell’s job
duties involved handling the logistics of transportation and scheduling and
overseeing transportation employees. Snyder testified Appellant Campbell’s
job duties did not involve searching for missing children.
{¶9} Appellant Campbell testified she began working for the Ross
County Board of Developmental Disabilities in 2009 as a substitute bus
driver. In 2015, she became transportation coordinator. Appellant Campbell
has a CDL-Class B. She drives on all the field trips, approves trips, and
coordinates routes with other school districts. Appellant Campbell is also a
certified OBI (On-board Instructor.) She schedules trainings and actually Ross App. No. 19CA3673 5
trains others to drive a school bus and school van. Appellant Campbell has a
driving restriction for her vision. She has never received EMT or search and
rescue training relating to her job with Appellant Ross County. Her daily
work day begins at 8:00 a.m. and ends at 3:00 p.m.
{¶10} Appellant Campbell testified that around 2:30 p.m. she learned
a child was missing from the Pioneer Center. Appellant Campbell
immediately got into the van owned by the board of developmental
disabilities and went to assist in the search. Her testimony was there was no
formal search policy on that date: “they just really said like all-hands—you
know, everyone to look.”
{¶11} Appellant Campbell first searched near the Pioneer Center.
Then she went to a nearby golf course. Other staff were at the golf course
searching. Appellant Campbell thereafter received information that the child
was near Veterans Parkway.
{¶12} The Veterans Parkway has two lanes of travel going opposite
directions. There is no turn lane. The speed limit is 55-miles per hour. The
Triangle Bike Path runs parallel to the Veterans Parkway. The Triangle
Bike Path is for bicycles and pedestrians and is approximately five feet wide,
with no lane markings and no speed limit markers. Ross App. No. 19CA3673 6
{¶13} Appellant Campbell immediately drove to the parkway. She
was stopped at a red light. Shortly after arrival at the Veterans Parkway
area, Appellant Campbell received a phone call advising her that the missing
child had been located.
{¶14} At this point, Appellant Campbell testified that she turned onto
Veterans Parkway and pulled into a turnaround spot in a private drive. She
talked with a couple of other Appellant Ross County employees and advised
them that the child was found. The other employees left. Appellant
Campbell proceeded to turn the van to leave. She testified that in order to
exit the Veterans Parkway one has to cross the bike path, and that the
turnaround area is approximately five feet wide and paved.
{¶15} Appellant Campbell testified she looked both ways. The nose
of her vehicle was heading back onto the bike path when she incurred a hard
impact on the passenger side of the van from Appellee’s ATV. At the time
of impact, Appellant Campbell was talking on her cell phone to a secretary
at Pioneer Center, confirming that the child was found. Appellant Campbell
denied seeing Appellee prior to the impact. The collision happened around
3:30 p.m.
{¶16} Appellant Campbell testified she exited the van and went to
Appellee. She held his head. She learned he was also looking for the child. Ross App. No. 19CA3673 7
{¶17} Both deponents testified there was a cell phone policy in place.
Generally, one was not to use the cell phone while operating a work motor
vehicle.
{¶18} On August 1, 2018, Appellants jointly filed a motion for
summary judgment. The Ross County Common Pleas Court docket sheet
also reveals that on that date the depositions of Terri Campbell and Leia
Snyder were filed with the court. The docket does not reflect that the
deposition of Christopher Clark has ever been filed in this matter. 2
{¶19} Appellee filed a Memorandum in Opposition to Defendants’
Motion for Summary Judgment. Appellants jointly filed a reply. On
February 4, 2019, the trial court entered its order finding that there exist
genuine issues of material fact and overruling the motion for summary
judgment. This timely appeal followed. Additional pertinent facts will be set
forth below.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING ROSS COUNTY DD IMMUNITY FROM LIABILITY TO CLARK AS R.C.4123.74 REQUIRES MAKING THE FEBRUARY 4, 2019 ORDER IMMEDIATELY APPEALABLE UNDER R.C. 2744.02(C).”
“II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING CAMPBELL IMMUNITY FROM LIABILITY AS TO CLARK
2 A telephone call from the appellate court to the Ross County Clerk of Court’s confirmed that only the depositions of Campbell and Snyder were filed. Ross App. No. 19CA3673 8
AS R.C. 4123.741 REQUIRES MAKING THE FEBRUARY 4, 2019 ORDER IMMEDIATELY APPEALABLE UNDER R.C.2744.02(C)”
“III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING CAMPBELL IMMUNITY FROM LIABILITY TO CLARK AS R.C.2744.03(A)(6).”
STANDARD OF REVIEW
{¶20} Appellate review of summary judgment decisions is de novo,
governed by the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio
St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19; Citibank v. Hine, 130
N.E.3d 924, 2019-Ohio-464 (4th Dist.) at ¶27. Summary judgment is
appropriate if the party moving for summary judgment establishes that (1)
there is no genuine issue of material fact, (2) reasonable minds can come to
but one conclusion, which is adverse to the party against whom the motion is
made and (3) the moving party is entitled to judgment as a matter of law.
Capital One Bank (USA) N.A. v. Rose, 4th Dist. Ross No. 18CA3628, 2018-
Ohio-2209, at ¶ 23; Civ.R. 56; New Destiny Treatment Ctr., Inc. v. Wheeler,
129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24; Chase Home
Finance, LLC v. Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484,
¶ 26.
{¶21} The moving party has the initial burden of informing the trial
court of the basis for the motion by pointing to summary judgment evidence
and identifying parts of the record that demonstrate the absence of a genuine Ross App. No. 19CA3673 9
issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St.3d
280, 293, 662 N.E.2d 264 (1996); Chase Home Finance at ¶ 27; Hine at
¶ 28. Once the moving party meets this initial burden, the non-moving party
has the reciprocal burden under Civ.R. 56(E) to set forth specific facts
showing that there is a genuine issue remaining for trial. Dresher at 293, 75
Ohio St.3d 280, 662 N.E.2d 264. See also Rose, supra, at ¶ 24. In ruling on
a motion for summary judgment, the court must construe the record and all
inferences therefrom in the nonmoving party's favor. Civ.R. 56(C). State ex
rel Deem v. Pomeroy, 2018-Ohio-1120, 109 N.E.3d 30 (4th Dist.), at ¶ 19.
LEGAL ANALYSIS
1. Is this a final appealable order?
In this case, the trial court overruled Appellants’ joint motion for
summary judgment. The record indicates that the claims against The
Standard Fire Insurance Company remain pending. The trial court’s order
does not contain a Civ.R. 54(B) certification.
{¶22} R.C. 2744.02(C) provides:
“An order that denies a political subdivision or an employee of a
political subdivision the benefit of an alleged immunity from liability as
provided in this chapter or any other provision of the law is a final order.”
“When a trial court denies a motion in which a political Ross App. No. 19CA3673 10
subdivision or its employee seeks immunity under R.C. Chapter 2744, that
order denies the benefit of an alleged immunity and thus is a final,
appealable order pursuant to R.C. 2744.02(C).” Wright v. Village of
Williamsport, 4th Dist. Pickaway No. 18CA14, 2019-Ohio-2682, at fn.1,
quoting Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d
878, ¶ 27. In Sullivan v. Anderson Twp., 122 Ohio S.3d 83, 2009-Ohio-
1971, 909 N.E.2d 88, the Supreme Court of Ohio considered the
appealability of the trial court's order which denied the township the benefit
of an alleged immunity in a multiparty, multiclaim lawsuit, but did not
include the language required by Civ.R. 54(B), that “there is no just reason
for delay.” The Court concluded that such an order is a final, appealable
order. The Court observed at ¶ 10:
In this case, we need not apply the general rules for determining
whether an order is final, and appealable. The general rules
regarding final appealable orders in multiparty and/or
multiclaim cases involve the tandem of R.C. 2505.02(B) for
substance and Civ.R. 54(B) for procedure.
Noble v. Colwell, 44 Ohio St.3d 92, 97, 540 N.E.2d 1381(1989).
Under the general rules, a court first applies R.C. 2505.02(B) to determine
whether the order “affects a substantial right and whether it in effect Ross App. No. 19CA3673 11
determines an action and prevents a judgment.” Wisintainer v. Elcen Power
Strut Co., 67 Ohio St.3d 352, 354, 617 N.E.2d 1136 (1993). If the court of
appeals determines that the trial court order is final under R.C. 2505.02, the
next step is to determine whether the trial court certified the order with the
language of Civ.R. 54(B)—“there is no just reason for delay.” Wisintainer,
67 Ohio St.3d at 354-355, 617 N.E.2d 1136; Noble, 44 Ohio St.3d at 97, 540
N.E.2d 1381. The use of Civ.R. 54(B) certification by a trial court is
discretionary. Id. at 96-97, 540 N.E.2d 1381, and fn. 7.
{¶23} The Supreme Court also noted that in the ordinary case, Civ.R.
54(B) certification demonstrates that the trial court has determined that an
order, albeit interlocutory, should be immediately appealable, in order to
further the efficient administration of justice and to avoid piecemeal
litigation or injustice attributable to delayed appeals. Anderson, supra, at
¶ 11; Wisintainer, 67 Ohio St.3d at 356-357, 617 N.E.2d 1136; Noble, 44
Ohio St.3d at 96, 540 N.E.2d 1381. However, the Anderson court reasoned
at ¶ 12:
No such determination [Civ.R. 54(B) by the trial court is
necessary; the General Assembly has expressly made that
determination with the enactment of R.C. 2744.02(C), which
makes final an order denying a political subdivision the benefit Ross App. No. 19CA3673 12
of an alleged immunity from liability. Hubbell, 115 Ohio St.3d
77, 2007-Ohio-4839, 873 N.E.2d 878, at ¶ 27. Therefore, there
is no reason for a trial court to certify under Civ.R. 54(B) that
“there is no just cause for delay.” When the denial of political-
subdivision immunity is concerned, the trial court has no
discretion to determine whether to separate claims or parties
and permit an interlocutory appeal. See generally, Mynes v.
Brooks, 124 Ohio St. 3d 13, 2009-Ohio-5946, 918 N.E.2d 511,
at ¶ 10.
{¶24} In this case, the claim against The Standard Fire Insurance
Company is still pending. There is no Civ.R. 54(B) certification. However,
based upon the above authority, we proceed to consideration of Appellants’
arguments.
2. Is Campbell entitled to immunity pursuant to R.C. 2744.03(A)(6)?
{¶25} For ease of analysis, we begin with Appellants’ third
assignment of error. Whether a political subdivision or its employee may
invoke statutory immunity under R.C. Chapter 2744 generally presents a
question of law. Hoffman v. Gallia County Sheriff’s Department, 2017-
Ohio-9192, 103 N.E.3d 1, (4th Dist.), at ¶ 38. E.g., Nease v. Med. College
Hosp., 64 Ohio St.3d 396, 400, 596 N.E.2d 432 (1992), quoting Roe v. Ross App. No. 19CA3673 13
Hamilton Cty. Dept. Of Human Servs., 53 Ohio App.3d 120, 126, 560
N.E.2d 238 (1st Dist. 1988) (citations omitted) (“ ‘Whether immunity may
be invoked is a purely legal issue, properly determined by the court prior to
trial, and preferably on a motion for summary judgment’ ”); Conley v.
Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992) (same); accord
Williams v. Glouster, 4th Dist. No. 10CA58, 2012-Ohio-1283, 2012 WL
1029470, ¶ 15; Long v. Hanging Rock, 4th Dist. Lawrence No. 09CA30,
2011-Ohio-5137, 2011 WL 4584930, ¶ 17.
{¶26} Here, it is argued that the trial court erred by denying Appellant
Campbell immunity from liability to Appellee, pursuant to R.C.
2744.03(A)(6). R.C. 2744.03(A)(6) provides in pertinent part:
(A) In a civil action brought against a political subdivision or an
employee of a political subdivision to recover damages for
injury, death, or loss to person or property allegedly caused by
any act or omission in connection with a governmental or
proprietary function, the following defenses or immunities may
be asserted to establish nonliability:
***
(6) In addition to any immunity or defense referred to in
division (A)(7) of this section and in circumstances not covered Ross App. No. 19CA3673 14
by that division or sections 3314.07 and 3746.24 of the Revised
Code, the employee is immune from liability unless one of the
following applies:
(a) The employee's acts or omissions were manifestly
outside the scope of the employee's employment or official
responsibilities;
(b) The employee's acts or omissions were with
malicious purpose, in bad faith, or in a wanton or reckless
manner;
(c) Civil liability is expressly imposed upon the
employee by a section of the Revised Code. Civil liability shall
not be construed to exist under another section of the Revised
Code merely because that section imposes a responsibility or
mandatory duty upon an employee, because that section
provides for a criminal penalty, because of a general
authorization in that section that an employee may sue and be
sued, or because the section uses the term “shall” in a provision
pertaining to an employee.
{¶27} As indicated, R.C. 2744.03(A)(6) grants employees of political
subdivisions immunity from liability, unless any of three exceptions to that Ross App. No. 19CA3673 15
immunity apply. Strayer v. Barnett, 2017-Ohio-5617, 94 N.3d 156
(2dDist.), at ¶ 37; Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-
5711, 983 N.E.2d 266, ¶ 21.
{¶28} Appellee’s complaint alleges that at the time of the accident,
Appellant Campbell negligently operated her vehicle while in the course and
scope of her employment with Appellant Ross County. Both appellants
admitted those allegations and have emphasized this admission in their brief.
In Strayer, supra, the appellate court observed that of the three exceptions to
immunity, only the second one, where the employee’s acts or omissions
were with malicious purpose, in bad faith, or in a wanton or reckless
manner, were at issue. Upon review of the record, the Strayer court
observed:
[T]here is no allegation, or any facts to support, that the CCDD employees'
actions were manifestly outside the scope of their employment or official
responsibilities or that they acted with a malicious purpose or in bad faith.
there is no allegation, or any facts to support, that her actions were
manifestly outside the scope of her employment or official responsibilities or
that she acted with a malicious purpose or in bad faith.
The Strayer court, therefore, confined its discussion as to whether the CCDD
employees’ conduct was wanton or reckless. Similarly, in this case, we Ross App. No. 19CA3673 16
confine our discussion to whether Appellant Ross County’s employee
Appellant Campbell was wanton or reckless;
{¶29} In Strayer, the appellate court discussed the legal definition of
the terms “wanton” and “reckless.” The terms “wanton” and “reckless”
describe different and distinct degrees of care and are not interchangeable.
Strayer, supra, at ¶ 38; Anderson v. Massillon, 134 Ohio St.3d 380, 2012-
Ohio-5711, 983 N.E.2d 266, paragraph one of the syllabus. They are
sometimes described “as being on a continuum, i.e., willful conduct is more
culpable than wanton, and wanton conduct is more culpable than reckless.”
Id. at ¶ 42 (Lanzinger, J., concurring in judgment in part and dissenting in
part).
{¶30} Both “wanton” and “reckless” represent “rigorous standards
that will in most circumstances be difficult to establish.” Strayer, supra, at
¶ 39, quoting, Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75
N.E.3d 161, ¶ 8. “Wanton conduct” has been defined as “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.”
(Emphasis added.) Anderson at paragraph three of the syllabus; Argabrite at
¶ 8. “Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is Ross App. No. 19CA3673 17
unreasonable under the circumstances and is substantially greater than
negligent conduct.” Anderson at ¶ 34, adopting 2 Restatement of the Law
2d, Torts, Section 500 (1965); Argabrite at ¶ 8.
{¶31} The Strayer court observed at ¶40:
Mere negligence in the performance of an employee's duties is insufficient
to meet this high standard. See O'Toole v. Denihan, 118 Ohio St.3d 374,
2008-Ohio-2574, 889 N.E.2d 505, ¶ 74. As stated by the Ohio Supreme
Court, an individual's conduct “ ‘is in reckless disregard of the safety of
others if * * * such risk is substantially greater than that which is necessary
to make his conduct negligent.’ ” Fabrey v. McDonald Village Police Dept.,
70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994), quoting 2 Restatement of the
Law 2d, Torts, Section 500, at 587 (1965).
{¶32} We have previously observed that:
[W]hether an individual acted manifestly outside the scope of
employment, and whether the employee acted with malicious purpose, in
bad faith, or in a wanton or reckless manner generally are questions of fact.
Long v. Hanging Rock, 4th Dist. Lawrence No. 09CA30, 2011-Ohio-5137, at
¶17. See Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006–Ohio–
6208, 857 N.E.2d 573, ¶ 14; Fabrey v. McDonald Police Dept., 70 Ohio
St.3d 351, 356, 639 N.E.2d 31 (1994); (citation deleted.) Thus, a trial court Ross App. No. 19CA3673 18
may not grant summary judgment on the basis of R.C. 2744.03(A)(6)(a) or
(b) immunity unless reasonable minds can only conclude that (1) the
employee did not act outside the scope of his employment, or (2) the
employee did not act with malicious purpose, in bad faith, or in a wanton or
reckless manner. If reasonable minds could disagree on these issues, then a
court may not grant the employee summary judgment based upon statutory
immunity. Summary judgment in favor of a political subdivision's employee
is proper if the employee's actions “showed that he did not intend to cause
harm, * * * did not breach a known duty through an ulterior motive or ill
will, [and] did not have a dishonest purpose.” Hackathorn v. Preisse, 104
Ohio App.3d 768, 772, 663 N.E.2d 384 (9th Dist. 1995).
{¶33} As the above case authority makes clear, whether a political
subdivision employee is entitled to immunity under R.C. 2744.03(A)(6)(b)
will ordinarily be a question of fact. Hanging Rock, supra, at ¶ 18.
Summary judgment is appropriate only when the facts are clear and fail to
rise to the level of conduct that could be construed as malicious, in bad faith,
or wanton and reckless.
{¶34} Upon review of the evidence in this matter, and viewing the
evidence in the light most favorable to Appellee Clark, we find there are no
genuine issues of material fact. We find, upon the record before us and as a Ross App. No. 19CA3673 19
matter of law, Appellant Campbell’s conduct did not constitute reckless
disregard for the safety of others that is unreasonable under the
circumstances and substantially greater than negligent conduct.
{¶35} The evidence in this matter demonstrates that Appellant
Campbell’s work schedule was from 8:00 a.m. to 3:00 p.m. She learned that
the child was missing around 2:30 p.m., while still within the course of her
usual work day. When she received this information, she got in her van to
assist in the search. While she testified there was no formal search policy,
her testimony indicates she was instructed to look for the missing child. She
testified: “They just really said like all-hands—you know, everyone to
look.”
{¶36} Based on our review, we cannot find evidence that Appellant
Campbell was manifestly outside the scope of her employment. She had
been working for Appellant Ross County on the accident date. She learned
the child was missing during her regular working hours. Her testimony
indicates that, with no formal policy in place, her understanding was that
“everyone” was expected or encouraged to assist in the search.
{¶37} Furthermore, Appellant Campbell’s testimony regarding the
motor vehicle collision itself, and the lack of evidence to the contrary,
suggest that Appellant Campbell did not act with reckless disregard for the Ross App. No. 19CA3673 20
safety of others. We emphasize the lack of evidence to the contrary due to
the fact that Appellee’s deposition was never filed with the trial court.
Because Appellee’s deposition was not properly part of the record below, it
is therefore, not in the record on appeal. Thus we cannot consider it. See
Civ.R. 56; App.R. 9(A). See also, Minix v. Collier, 4th Dist. Scioto No.
99CA2690, 2000 WL 1154055 (Aug. 4, 200), at *5. It is well-settled that
“[a]ppellate review is limited to the record as it existed at the time the trial
court rendered its judgment.” Bank of Am., N.A. v. Robledo, 10th Dist.
Franklin NO. 13AP278, 2014-Ohio-1185, at ¶ 33; Franks v. Rankin, 10th
Dist. No. 11AP-962, 2012-Ohio-1920, ¶ 73, citing Wiltz v. Clark Schaefer
Hackett & Co., 10th Dist. No. 11AP–64, 2011-Ohio-5616, ¶ 13. Nor can “
‘[a] reviewing court * * * add matter to the record before it, which was not a
part of the trial court's proceedings, and then decide the appeal on the basis
of the new matter.’ ” Id., quoting State v. Ishmail, 54 Ohio St.2d 402
(1978), paragraph one of the syllabus; see also, State v. Lowery, 4th Dist.
Ross No. 2016-Ohio-7701, at fn.
{¶38} Regarding the collision, Appellant Campbell testified she was
in the Veterans Parkway area when she received a phone call that the
missing child had been located. When she turned her vehicle to leave the
area, she had moved only the nose of her van onto the bike path when she Ross App. No. 19CA3673 21
was struck by Appellee’s ATV. Appellant Campbell testified she looked
both ways prior to pulling out and sustaining the impact. There is no
evidence Appellant Campbell’s driving licensures were not in good
standing; no evidence that she was not wearing her glasses as required; no
evidence that Appellant Campbell was traveling at a high rate of speed at the
time of the impact; and no evidence of other negligence.
{¶39} Appellant Campbell acknowledged in her testimony that she
was using her cell phone at the time of the accident for the purpose of
confirming with a secretary at the Pioneer Center that the missing child had
been located. Common sense dictates that this was a necessary call and
nothing of a frivolous or personal nature. Appellant Campbell testified that
a missing child was an unusual occurrence and to her knowledge, there was
no policy in place in dealing with the situation. However, the allegations
against both appellants do not concern the handling of the missing child or
the search itself. It would appear that Appellant Campbell used common
sense in responding to an unfolding situation which arose in the course of
her work day. Considering the entirety of the evidence, we do not find
anything in the record creating a genuine issue of material fact about
Appellant Campbell’s operation of Appellant Ross County’s van or
suggesting that her operation of the van was characterized by conscious Ross App. No. 19CA3673 22
disregard or indifference to a known or obvious risk of harm to another that
is unreasonable under the circumstances and would be substantially greater
than negligent conduct.
{¶40} For the foregoing reasons, we find no genuine issues of
material fact and Appellant Campbell is entitled to immunity pursuant to
R.C. 2744.03(A)(6) as a matter of law. There is no evidence in this record to
suggest that Appellant Campbell intended to cause harm, breached a known
duty through an ulterior motive or ill will, or that she had a dishonest
purpose. Therefore, we find Appellants’ third assignment of error has merit
and is hereby sustained. The judgment of the trial court denying Appellant
Campbell the benefit of immunity is reversed.
{¶41} Furthermore, in light of our finding that Appellant Campbell is
entitled to immunity pursuant to R.C. 2744.03(A)(6), we need not consider
the third assignment of error. There, Appellants argued that the trial court
erred by denying Appellant Campbell immunity pursuant to the Workers’
Compensation chapter, particularly R.C. 4123.741. However, based on our
conclusion herein, the third assignment of error has become moot and we
need not consider it.
3. Did the trial court err by denying immunity to Ross County DD pursuant to
R.C. 4123.74? Ross App. No. 19CA3673 23
{¶42} In general, political subdivisions are immune from liability for
personal injuries caused by any act of the political subdivision or its
employees. R.C. 2744.02(A)(1). See Strayer v. Barnett, supra, at ¶ 19. See
also Burchard v. Ashland County Board of Developmental Disabilities,
2018-Ohio-4408, 122 N.E.3d 266 (5th Dist.), at ¶ 23.
{¶43} We first address the board of developmental disabilities
contention that it is sui juris, i.e., it does not have full capacity and rights,
including the capacity to be sued, and therefore is not capable of being
sued.3 While a developmental disabilities board is not explicitly contained
in the Revised Code’s definition, R.C.2744.01(F) defines “political
subdivision” or “subdivision” as: “ a municipal corporation, township,
county, school district, or other body corporate and politic responsible for
governmental activities in a geographic area smaller than that of the state.”
Citing R.C. 2744.01(F), the second appellate district in Strayer found it to be
undisputed that the Clark County Board of Developmental Disabilities is a
political subdivision. Id. at ¶ 19. Citing Strayer, the fifth appellate district
court in Burchard, supra, also found that the Ashland County Board of
Developmental Disabilities is undisputedly a political subdivision. Id. at
¶ 23. Given that a board of developmental disabilities is not explicitly listed,
3 See Mollette v. Portsmouth City Council, 169 Ohio App. 3d, 2006-Ohio-6289, 863 N.E. 2d 1092, at ¶14. Ross App. No. 19CA3673 24
the second and fifth appellate courts must have reasoned that a board of
developmental disabilities is a “body corporate and politic responsible for
governmental activities in a geographic area smaller than that of a state.” We
would agree therefore, that Appellant Ross County, is a political subdivision,
as defined by R.C. 2744.01(F), and is capable of being sued.
In this case, the trial court overruled the motion for summary
judgment in a conclusory fashion. In the underlying complaint, Appellee
claimed Appellant Ross County was liable under a theory of respondeat
superior/wrongful entrustment, for Appellant Campbell’s actions. The
doctrine of respondeat superior is premised on agency principles which
impose liability upon an employer for the acts done by an employee in the
course and scope of employment. Friga v. E. Cleveland, 8th Dist. Cuyahoga
No. 88262, 2007-Ohio-1716, at ¶ 25. The theory behind liability is that the
employee's acts are imputed to the employer because the employee acting
within the course and scope of employment, is assumed to do only those acts
which benefit the employer. Id.
{¶44} In Friga, plaintiffs-appellants Scott and Ann Friga, son and
mother, appealed from summary judgments entered against them on their
claims of malicious prosecution, emotional neglect, negligence and
consortium claims made against defendants-appellees the City of East Ross App. No. 19CA3673 25
Cleveland, the mayor and law director of the city of East Cleveland, and
officers of the city of East Cleveland Police Department. In Friga, the
appellate court observed the basis for holding the mayor of East Cleveland
liable appeared to be respondeat superior. In the brief in opposition to
summary judgment, appellant stated that he was:
“ * * * arrested and charged by an employee of the City of East Cleveland,
Officer Hicks. He was prosecuted by the City of East Cleveland Prosecutor.
All of the above-named individuals are supervised and reported to the safety
director/mayor of the City of East Cleveland.”
{¶45} After setting forth the doctrine of respondeat superior, the Friga
court also observed that “when an employee commits an intentional tort, it is
assumed that the employee did not act within the course and scope of
employment, for intentional torts generally encompass bad acts which have
no place in the employment relation.” Id. at ¶ 25, quoting, Byrd v. Faber, 57
Ohio St.3d 56, 58, 565 N.E.2d 584 (1991). The Friga court further observed
at ¶ 26:
In City of Greenfield v. Schluep, 4th Dist. Highland No. 95CA8,
2006-Ohio-531, the Fourth District Court of Appeals stated at
¶ 20: “Traditional principles of agency are not applicable in
considering a political subdivision's claim for immunity. Ross App. No. 19CA3673 26
Woods v. Wellston, (Jun. 15, 2005), S.D. Ohio, Eastern
Division, No. 2:02 CV 762. In Woods, the court held that the
City of Wellston was entitled to summary judgment on the
plaintiff's tort claims, including a claim of malicious
prosecution, against the city for the actions of its alleged agents,
various police officers and city officials. The court held:
‘Common law agency principles, however, are clearly trumped
by the Political Subdivision Tort Liability Act. See Reno v.
City of Centerville, 2nd Dist. No. 20078, 2004 Ohio 781, at ¶ 53
(“[a] political subdivision may not be held liable under a theory
of respondeat superior unless one of the exceptions to the
sovereign immunity listed in R.C. 2744.02(B) applies”).”
{¶46} The Friga court held at ¶ 28:
The same rationale applies in this case: the application of
common law agency principles of respondeat superior cannot
waive the city's immunity, and by direct implication, the
mayor's immunity. The court did not err by granting the mayor
summary judgment on grounds that she was immune from suit
for actions undertaken by a city employee. Of course, this
conclusion presupposes that there was liability in the first Ross App. No. 19CA3673 27
instance. Our affirmation of the court's summary judgment in
favor of [the officer] necessarily means that reasonable minds
could not conclude [the officer] acted in a manner that would
revoke his immunity for performing a governmental function.
Since he did not lose immunity, there is no basis for applying
respondeat superior [to the city of E. Cleveland.]
{¶47} The same rationale as set forth in Friga is equally applicable
herein. As set forth above, we have concluded that Appellant Campbell is
entitled to immunity as a matter of law pursuant to R.C. 2744.03(A)(6).
Since we found that none of the three exceptions applied to remove
Appellant Campbell from the benefit of immunity, there is no basis for
applying respondeat superior to Appellant Ross County. Therefore,
Appellant Ross County is also entitled to judgment as a matter of law. Thus,
we need not consider Appellant Ross County’s arguments under the first
assignment of error as it has become moot.
JUDGMENT REVERSED. Ross App. No. 19CA3673 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED. Costs shall be divided equally between the parties.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J. concur in Judgment and Opinion.
For the Court,
__________________________________ Jason P. Smith Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.