Doe v. Cuyahoga Cty. Community College

2022 Ohio 527

• Court: Ohio Court of Appeals
• Decided: February 24, 2022
• Docket: 110590
• Status: Published

Opinion

[Cite as Doe v. Cuyahoga Cty. Community College, 2022-Ohio-527.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOHN DOE 1, :

Plaintiff-Appellee, : No. 110590 v. :

CUYAHOGA COUNTY COMMUNITY COLLEGE, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 24, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-20-936872

Appearances:

Lowe Scott Fisher Co., L.P.A., Ryan H. Fisher, and Kyle B. Melling, for appellee.

Taft Stettinius & Hollister LLP, Ronald D. Holman, II, Brandon Summers, and Philip D. Williamson, for appellants.

EILEEN T. GALLAGHER, J.:

Defendants-appellants, Emanuela Friscioni (“Friscioni”), Paul Cox

(“Cox”), and Amber Smith (“Smith”) (collectively “Appellants” or “Tri-C

Administrators”) appeal a judgment of the Cuyahoga County Court of Common Pleas denying, in part, their motion to dismiss the complaint of plaintiff-appellee,

John Doe. Appellants claim the following error:

The trial court should have granted Friscioni, Smith, and Cox’s motion to dismiss.

After careful review of the complaint, the parties’ briefs, and applicable

law, we affirm the trial court’s judgment.

I. Facts and Procedural History

In September 2015, defendant Terence Greene (“Greene”) applied to

work as a dance instructor in the Creative Arts Academy at Cuyahoga Community

College (“Tri-C”). He had previously worked as a dance instructor at the Cleveland

School of the Arts (“CSA”) in the Cleveland Metropolitan School District for 15 years.

Greene indicated on the Tri-C application that he left his prior employment at CSA

because he “started [his] own company and pursued other job opportunities.”

(Complaint ¶ 23.)

As part of the application process, Smith, a human resources

representative at Tri-C, ordered a background check from a screening company

known as “Truescreen.” Truescreen conducted the investigation and produced a

report. The report stated that Greene was fired from CSA due to “allegations with

students” and that he was ineligible for rehire. (Complaint ¶ 25.) The explanation

was highlighted with a red “X.” (Complaint ¶ 25.) Despite the warning contained in

the background report, Smith offered Greene a part-time position as a dance instructor in October 2015. Greene accepted the offer and later accepted a full-time

position in February 2017.

In October 2019, John Doe, who was then 17 years old, was enrolled in

Tri-C’s Creative Arts Academy as a dance student when Greene sexually assaulted

him. (Complaint ¶ 38-43.) John Doe reported the sexual assault to a former high

school advisor, who reported it to the Garfield Heights Police Department. Shortly

thereafter, Tri-C terminated Greene’s employment due to John Doe’s allegations

and because of the results of the background check conducted in 2015. (Complaint

¶ 49.)

John Doe requested public records from Tri-C regarding Greene’s

termination. Tri-C produced the requested documents, including a document

entitled “Conversation with Terence Green & Paul Cox 1-21-20, 2 p.m.” (Complaint

¶ 69.) The document revealed that “nobody from Tri-C, including defendants

Friscioni, Smith, or Cox ever reviewed Terence Greene’s background check prior to

hiring him.” (Complaint ¶ 69.) Friscioni was the director of Tri-C’s Creative Arts

Academy, and Cox was the Dean of Tri-C’s Creative Arts Department. As previously

stated, Smith worked at Tri-C as a human resources representative.

In September 2020, John Doe filed a complaint against Tri-C and

Appellants, in their individual and official capacities, asserting claims of breach of

contract, wanton and reckless conduct, and negligent and reckless hiring,

supervision, and retention of Greene. John Doe alleged that because the Tri-C

Administrators failed to review the background check on Greene, they negligently, recklessly, and wantonly disregarded John Doe’s safety, which resulted in harm to

John Doe. John Doe alleged that Appellants had “actual or constructive knowledge”

of Greene’s history and that they either ignored or wantonly and recklessly

disregarded it when they hired him. John Doe also alleged that Appellants breached

an express or implied contract, set forth in certain provisions of the Tri-C Student

Handbook, wherein Appellants promised to provide an environment free of sexual

misconduct in exchange for tuition and fees. (Complaint ¶ 54-63.)

Appellants filed a motion to dismiss the complaint, arguing they are

immune from liability pursuant to R.C. 2744.01 et seq., Ohio’s Political Subdivision

Tort Liability Act. The trial court granted the motion, in part, and dismissed the tort

claims against Tri-C. The trial court denied the motion as to the breach-of-contract

claim against all the defendants and denied the tort claims against the Tri-C

Administrators. Appellants now appeal the trial court’s judgment pursuant to R.C.

2744.02(C), which provides that an order denying immunity to a political

subdivision or an employee of a political subdivision is a final, appealable order.

II. Law and Analysis

A. Standard of Review

Appellants filed their motion to dismiss pursuant to Civ.R. 12(B)(6),

arguing the complaint fails to state a claim on which relief could be granted because

they are immune from liability. Indeed, the affirmative defense of immunity under

R.C. Chapter 2744 may be the basis of a dismissal under Civ.R. 12(B)(6). Riveredge Dentistry Partnership v. Cleveland, 8th Dist. Cuyahoga No. 110275, 2021-Ohio-

3817, ¶ 21, citing Para v. Jackson, 2021-Ohio-1188, 171 N.E.3d 452, ¶ 17 (8th Dist.).

A Civ.R. 12(B)(6) motion does not test the merits of a claim. Filo v.

Liberato, 2013-Ohio-1014, 987 N.E.2d 707, ¶ 15 (7th Dist.). A motion to dismiss

filed pursuant to Civ.R. 12(B)(6) “is procedural and tests the sufficiency of the

complaint.” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d

545, 548, 605 N.E.2d 378 (1992), citing Assn. for Defense of Washington Local

School Dist. v. Kiger, 42 Ohio St.3d 116, 117, 537 N.E.2d 1292 (1989).

A trial court’s review of a Civ.R. 12(B)(6) motion to dismiss is limited

to the four corners of the complaint along with any documents properly attached to,

or incorporated within, the complaint. Glazer v. Chase Home Fin. L.L.C., 8th Dist.

Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, ¶ 38. In reviewing a

Civ.R. 12(B)(6) motion to dismiss, we must presume all the material allegations are

true, resolve all doubt and inferences in the plaintiff’s favor, and view all allegations

in the complaint in the light most favorable to the plaintiff. Ohio Assn. of Pub.

School Emps. v. School Emps. Retirement Sys. Bd., 10th Dist. Franklin No. 04AP-

136, 2004-Ohio-7101, ¶ 43, citing State ex rel. Longacre v. Penton Publishing Co.,

77 Ohio St.3d 266, 267, 673 N.E.2d 1297 (1997); Fahnbulleh v. Strahan, 73 Ohio

St.3d 666, 667, 653 N.E.2d 1186 (1995). “[A]s long as there is a set of facts,

consistent with the plaintiff’s complaint, which would allow the plaintiff to recover,

the court may not grant a defendant’s motion to dismiss.” York v. Ohio State Hwy.

Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991). We review a trial court’s decision granting a Civ.R. 12 (B)(6) motion to

dismiss de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-

4362, 814 N.E.2d 44, ¶ 5. In a de novo review, we review the merits of the case

independently, without any deference to the trial court. Sosic v. Stephen Hovancsek

& Assocs., Inc., 8th Dist. Cuyahoga No. 109993, 2021-Ohio-2592, ¶ 21.

B. Sovereign Immunity

In the sole assignment of error, Appellants argue the trial court should

have dismissed John Doe’s complaint in its entirety because they are immune from

liability pursuant to R.C. 2744.01 et seq.

R.C. Chapter 2744 sets forth a three-tiered analysis for determining

whether governmental immunity applies to a political subdivision and their

employees. Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-557,

733 N.E.2d 1141 (2000). First, the court must determine whether the entity claiming

immunity is a political subdivision and whether the alleged harm occurred in

connection with either a governmental or proprietary function. Id.; R.C.

2744.02(A)(1). Under R.C. 2744.02(A)(1), a political subdivision is generally “not

liable for 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 * * * in connection

with a governmental or proprietary function.”

The second tier of the analysis requires the court to determine whether

any of the five exceptions to immunity enumerated in R.C. 2744.02(B) apply to

reinstate liability to the political subdivision. Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998). If the court finds any of the R.C. 2744.02(B) exceptions

applicable, and no defense in that section protects the political subdivision from

liability, then the third tier of the analysis requires the court to determine whether

any of the defenses set forth in R.C. 2744.03 apply, thereby providing the political

subdivision a defense against liability. Colbert v. Cleveland, 99 Ohio St.3d 215,

2003-Ohio-3319, 790 N.E.2d 781, ¶ 9.

John Doe alleged that the Tri-C Administrators negligently, recklessly

and wantonly hired, supervised, and retained Greene, who later sexually assaulted

him. To establish a claim of negligent hiring or retention, John Doe must establish

(1) the existence of an employment relationship; (2) the employee’s incompetence; (3) the employer’s actual or constructive knowledge of such incompetence; (4) the employee’s act or omission causing the plaintiff’s injuries; and (5) the employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries.

Sosic, 8th Dist. Cuyahoga No. 109993, 2021-Ohio-2592, at ¶ 26.

It is undisputed that the Tri-C Administrators are employees of a

political subdivision and that they were acting within the scope of their employment

when they hired Greene. It is also undisputed that they were engaged in a

governmental or proprietary function. They are, therefore, presumptively immune

under R.C. 2744.03, and we next turn to R.C. 2744.03(A), to determine whether any

of the defenses or immunities set forth therein apply to reinstate liability. R.C.

2744.03(A)(6)(b) provides that an employee of a political subdivision is immune

from liability unless the employee’s “acts or omissions were with malicious purpose,

in bad faith, or in a wanton or reckless manner.” In Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983

N.E.2d 266, the Ohio Supreme Court observed that the terms wanton and reckless

are not interchangeable. Id. at paragraph one of the syllabus. The court explained:

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. Hawkins, 50 Ohio St.2d at 117-118, 363 N.E.2d 367; see also Black’s Law Dictionary 1613-1614 (8th Ed.2004) (explaining that one acting in a wanton manner is aware of the risk of the conduct but is not trying to avoid it and is indifferent to whether harm results).

Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct. Thompson, 53 Ohio St.3d at 104-105, 559 N.E.2d 705, adopting 2 Restatement of the Law 2d, Torts, Section 500 at 587 (1965); see also Black’s Law Dictionary 1298-1299 (8th Ed.2004) (explaining that reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a conscious disregard of or indifference to the risk, but the actor does not desire harm).

Id. at ¶ 33-34.

John Doe alleged in the complaint that the Tri-C Administrators were

provided an obvious warning that Greene posed a potential threat to students in the

background check. The background check “highlighted” Greene’s departure from

CSA with a “red X” and stated that he was terminated from his prior employment

due to “allegations from students.” (Complaint ¶ 25.) The complaint further alleges

that the Tri-C Administrators recklessly disregarded this warning. (Complaint ¶ 70.)

Although it is not clear from the complaint how obvious the “red X” warning was to

the report’s intended recipients, we must view the allegations in a light most favorable to the plaintiff when reviewing a motion to dismiss. Ohio Assn. of Pub.

School Emps., 10th Dist. Franklin No. 04AP-136, 2004-Ohio-7101, ¶ 43.

The Tri-C Administrators nevertheless argue that their decision to

hire Greene was not reckless or wanton because they did not know what was in the

background check since they never read it. They assert that while their failure to

review the background check may constitute negligence, for which they are immune,

it does not constitute reckless or wanton behavior. They also argue that even if they

had read the background check, the report “did not actually contain any details

about Greene’s past” and they, therefore, would not have known the details of

Greene’s prior misconduct. (Appellant’s brief p. 7.)

However, the complaint alleges that the reported background check

on Greene contained a note, highlighted with a red “X,” warning the Tri-C

Administrators that Greene posed a risk of some kind and that he would not be

rehired by CSA. The complaint further alleges that Smith sent the letter to Greene,

offering him employment contingent upon the satisfactory completion of the

background check and a drug screen. (Complaint ¶ 26.) The letter advised that,

assuming he passed the background check and drug screen, Friscioni would contact

him prior to his start date regarding his schedule. (Complaint ¶ 26-27.)

Notes produced pursuant to John Doe’s public records request

indicate that when Greene was hired, Cox told Greene “to keep it professional.” The

complaint further claims “[t]his language reveals a pre-hiring concern and knowledge on the part of Paul Cox that Defendant Terence Greene had a history or

propensity to act unprofessionally with students * * * .” (Complaint ¶ 70.)

We have no way of knowing from the face of the complaint what Cox

knew about Greene’s past at the time Greene was hired or what Cox meant by the

instruction to “keep it professional.” We know, however, that the background check

included a warning that was disregarded by the Tri-C Administrators. It is not clear

whether the warning was visible on the face of the report or whether it was buried

inside. And we may not speculate as to exactly what Cox, Smith, or Friscioni knew

about Greene when they hired him; we have to accept the material allegations of the

complaint as true and make all reasonable inferences in favor of the plaintiff.

Jenkins v. Cleveland, 8th Dist. Cuyahoga No. 104768, 2017-Ohio-1054, ¶ 8. What

the Tri-C Administrators knew when Green was hired is a question of fact outside

the scope of motion to dismiss. See, e.g., Smiley v. Cleveland, 8th Dist. Cuyahoga

No. 103987, 2016-Ohio-7711, ¶ 12 (holding that whether a wet metal strip constitutes

a physical defect on the premises is a question of fact that cannot be resolved

through a motion to dismiss.). Therefore, the trial court properly denied the motion

to dismiss John Doe’s tort claims against the Tri-C Administrators.

Although the trial court denied Appellants’ motion to dismiss John

Doe’s breach-of-contract claim, Appellants make no argument as to why or how the

failure to dismiss the breach-of-contract claim was erroneous. They simply assert

that the trial court should have dismissed the complaint in its entirety, including the breach-of-contract claim. Appellants also make no argument as to why John Doe’s

claims against them in their personal capacities should have been dismissed.

App.R. 16(A)(7) requires that an appellant’s brief include “[a]n

argument containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on

which appellant relies.” App.R. 12(A)(2) provides that “[t]he court may disregard

an assignment of error presented for review if the party raising it fails to identify in

the record the error on which the assignment of error is based or fails to argue the

assignment separately in the brief, as required under App.R. 16(A).”

The burden is on the appellant, not the appellate court, to construct

the legal arguments necessary to support an appellant’s assignment of error.

Taylor-Stephens v. Rite Aid of Ohio, 8th Dist. Cuyahoga No. 106324, 2018-Ohio-

4714, ¶ 121. Appellate courts are not advocates. Id. We, therefore, decline to

address the merits of the Appellants’ motion to dismiss John Doe’s breach-of-

contract claim and whether the claims against Appellants in their personal

capacities should have been dismissed.

The sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to the 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.

EILEEN T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR