Evans v. Ohio State University

680 N.E.2d 161, 112 Ohio App. 3d 724

• Court: Ohio Court of Appeals
• Decided: July 23, 1996
• Docket: No. 95API08-965.
• Status: Published

Opinions

Deshler, Judge.

This is an appeal by plaintiffs, Carol Evans, individually, and as guardian and next friend of her daughter, Stephanie Foucher (“Stephanie”), from a judgment of the Ohio Court of Claims finding in favor of defendant, the Ohio State University, in a negligence action.

On April 25, 1994, plaintiffs filed a complaint against defendant, alleging that James Waites, a 4-H volunteer counsellor and judge, utilized his position as a 4-H advisor to lure Stephanie, a minor, to his residence, where he sexually assaulted her on May 30, 1992. It was averred that, notwithstanding the fact that defendant knew or should have known of Waites’s known propensities to utilize his position as a 4-H advisor to assault minor children, defendant continued to retain Waites without adequate supervision and to hold him out as a reliable and competent member of the 4-H staff. The matter came for trial before the Court of Claims beginning on February 13,1995.

Pursuant to R.C. 3335.36, defendant, through the College of Agriculture, conducts educational programs in conjunction with the Ohio Cooperative Extension Service (“extension service”). The extension service is an educational arm of various land grant universities in the United States, and it conducts educational activities related to agriculture, home economics, natural resources, family living and youth development. 4-H is the public name of the youth development effort within the extension service. There is an extension office in every Ohio county and defendant employs agents in these offices to coordinate and operate its programs, including 4-H. The central offices for the 4-H organization are at the Ohio State University in Columbus, Ohio.

At the county level, 4-H is organized, in part, through different committees. At the head of this committee structure is the 4-H committee, which is responsi ble for the final policy review of other committees. In addition to the 4-H committee, there are various advisory committees, including a saddle horse committee, dairy committee, market animal committee, small animal committee and home economics committee. There are also numerous 4-H clubs formed at the local county level. Each club has an organizational advisor, also known as a head advisor, as well as other volunteer assistant advisors. In order to become an advisor, an applicant must submit a written application with references. The county extension agent keeps a list of official 4-H volunteers.

In 1981, James Waites became a volunteer advisor for a 4-H club in Lake County, Ohio. Waites had two children in the 4-H program at the time. In 1984, he served on Lake County’s 4-H market livestock committee.

In November 1984, Waites pled no contest and was convicted of gross sexual imposition and corruption of a minor. Waites served approximately two years in prison and was released in 1987; thereafter, he returned to his Lake County residence in Perry, Ohio.

In 1988 or 1989, Waites again became involved in 4-H activities in Lake County. The testimony at trial indicated that individuals in Lake County at that time were familiar with Waites and knew of his prior convictions. Among these individuals were Lake County 4-H advisors Mary Ann Zoldak and Linda Hofer, both of whom believed Waites was innocent.

Waites continued his involvement in Lake County 4-H until 1990 when, in August of that year during the Lake County Fair, a dispute arose between Waites and other members of the 4-H organization. Specifically, Waites made accusations that 4-H advisor Linda Hofer and her husband were raising sick goats, resulting in the contamination of other goats. Waites attempted to have the Hofers’ goats removed from the fair. Waites also made accusations regarding the manner in which the goat judging was conducted at the fair that year.

In 1989, Thomas Hopkins was hired by defendant as the Ashtabula County extension agent to oversee the 4-H program in that county. One of the 4-H clubs in Ashtabula County at that time was the “All-County Kids.” Cynthia Maddox Cook and Chris Malnar were advisors to the All-County Kids in the early 1990s.

The Ashtabula County Fair Board, through a cooperative arrangement, delegates responsibility for organizing the junior fair show to the Ashtabula County 4-H. One of the components of the junior fair is the junior fair goat show. In the late 1980s and early 1990s, the 4-H small animal committee made recommendations regarding the selection of judges for the county fair. Catherine (“Kitty”) Butler, a 4-H advisor, worked on the small animal committee during those years and was the individual primarily responsible for selecting the goat judge at the fair during this time.

Butler was familiar with Waites, who had a reputation as a goat expert. They first met in 1983, at about the time Butler began raising goats as a business venture. Butler and Waites became friends through activities at goat shows and by working together on various goat-related projects. Butler invited Waites to be a judge at the Ashtabula County Fair in 1988 and 1989. Waites also was asked to speak at Ashtabula County 4-H sponsored prefair clinics in April 1991, May 1990, May 1989, and June 1988.

Waites received $25 for judging the goat show at the 1988 Ashtabula County Fair and $35 for judging the show at the 1989 Ashtabula County Fair. He received $15 for his work at the prefair clinic in 1989, and $20 for the clinic he conducted in 1990. Funding for judges at the fair is provided by the fair board.

In March 1990, Hopkins received a memo from Jodi Black, an employee of the Ohio State University (“OSU”) extension office, indicating that Waites had served two years in prison for gross sexual imposition and corruption of a minor. Black, a 4-H animal science extension associate, was prompted to write the letter by a phone call she had received in early 1990 from a woman who had been a judge at the Ross County goat show. The caller told Black that “ ‘James Waites is on your nonrecommended, nonapproved, noncertified judges list, and I believe he is a convicted child molester. I’m not for sure, but I’ve heard that.’ ” As a result of that conversation, Black contacted Dr. John Stitzlein, the head of personnel for the OSU extension service, as well as James Helt, the state 4-H leader. Stitzlein and Helt recommended that Black send out a letter to county agents to inform the county extension personnel responsible for selecting junior fair judges of the facts concerning Waites. Black sent the letter to all eighty-eight Ohio counties.

Shortly thereafter, at an April meeting of the Ashtabula County 4-H small animal committee, Hopkins raised the issue of the Black memo. During that meeting, Kitty Butler stood up and spoke on behalf of Waites, stating that she had known Waites for a long time, that she was aware of his prior criminal record, and that she did not believe that he was guilty. Hopkins testified that several people then spoke up and indicated that, since Kitty Butler was familiar with the situation, having known Waites for a period of time, and based upon the fact that this was a “one-time situation, * * * we were only asking him to come and do a clinic, in a public setting, where he would be under our control, and then he would be back across the county lines, that it was a reasonable thing to * * * go ahead and ask him to come and allow him to do that clinic.” Thus, following the meeting at which the memo was discussed, Waites spoke at a clinic in the spring of 1990 and he was a speaker at another clinic in the spring of 1991. Both of these clinics were open to the public. None of the advisors of the All-County Kids attended the April 1990 meeting, and the evidence indicated that neither of those advisors, nor any other advisors in Ashtabula County, were notified at the time of Waites’s prior criminal record.

Stephanie Foucher joined 4-H in November 1991, and was a member until September 1992. Soon after joining 4-H, she became involved in a goat project. Stephanie asked Chris Malnar if she knew someone who could assist her with goats and Malnar suggested Waites. Stephanie and her stepfather subsequently went with Waites to Chesterland, Ohio to purchase a goat for Stephanie’s project.

Stephanie recalled seeing Waites at the home of Chris Malnar during a meeting of the All-County Kids club in January 1992. Specifically, Stephanie testified as follows:

“Q. What was he [Waites] doing there at the meeting?

“A. Um, he was out back. All of us were in her house, and I think he was out back with her husband, and then he came in later and just stood around and watched us and butted in whatever he wanted to say.

“Q. When you say ‘butted in,’ was he talking—

“A. Well, he just put his two cents in.

“Q. And the subject, I take it, was goats?

“A. Yes.”

Stephanie also indicated that she saw Waites at a club meeting at the home of Cynthia Cook. Stephanie stated that Waites once drove her home from an activity at a farm where other members of the club were in attendance. Stephanie did not recall seeing Waites at any club meetings held at the fairgrounds. Waites and Cook once came over to Stephanie’s house to help dehorn Stephanie’s goat. Waites came over to Stephanie’s house on two occasions by himself to assist with Stephanie’s goat. Stephanie indicated that she did not ask him to come to her house; rather, she stated, “usually he invited himself over.” Waites made phone calls to Stephanie at her home and Stephanie recalled phoning Waites two or three times regarding questions about her goat.

Stephanie’s mother, Carol Evans, testified that in the spring of 1992, Waites would come over to the house “every so often” to talk with Stephanie about the goat. More specifically, Evans recalled that he came to the house on six occasions. According to Evans, it was her impression that Waites was spoken about and treated as though he were a 4-H leader. Evans stated that Waites “was allowed to be very involved with these children * * * and I assumed he was a leader.” Evans sometimes drove her daughter to club meetings; on those occasions, she never saw Waites at any meetings.

Waites told Evans that he was an orthopedic doctor and that he worked at Mount Sinái Hospital; Evans thought that Waites sounded very credible. During the month of May 1992, Waites began making frequent telephone calls to the Evans’s residence to talk with Stephanie. Waites told Evans that “he thought Steph had potential and that she could do real well and that he wanted to work with her, and I just believed him.” Waites spoke about a possible 4-H scholarship for college.

Waites subsequently offered to give Stephanie a French Alpine goat. On Sunday morning, May 30, 1992, Waites picked up Stephanie at the home of Cynthia Cook, where Stephanie had spent the previous evening attending an all-night sleep-over with other girls. Stephanie had her mother’s permission to go with Waites to pick up the goat that day. Stephanie was molested by Waites at his residence on that date, under the pretext that he was going to give her a physical examination. Stephanie did not tell her mother of the assault when it occurred.

At the time of the molestation, Stephanie believed that Waites was a physician. Specifically, Waites told her that he was a bone doctor and that he worked at Mt. Sinai in Cleveland, Ohio. Waites often carried a black medical bag and he told Stephanie that entertainer Michael Jackson was one of his patients. Stephanie testified that Waites was not an advisor to the All-County Kids but she believed he was part of 4-H. Waites molested other children, including Kitty Butler’s daughter, under the pretext, in most instances, that he was a physician.

Waites was subsequently indicted in Lake County on various counts of kidnapping, corruption of a minor, rape and felonious sexual assault involving four minors, including Stephanie. Following a jury trial, Waites was convicted on all counts. 1

In the instant case, part of plaintiffs’ theory of the case was that Waites, in addition to performing duties as a fair judge and clinic speaker, also served on behalf of 4-H as a volunteer project advisor, and that he was actively involved at the local club level. Defendant, on the other hand, claimed that Waites was never an advisor in Ashtabula County and that he merely acted out of his own interest, without the knowledge of the Ashtabula County extension office, to become personally involved in the Ashtabula County goat community and gain the trust of parents and children. There was varying testimony regarding Waites’s degree of involvement within the Ashtabula 4-H organization at the local club level.

Sandra Koch, a mother of one of the members of the All-County Kids, testified that she had first met Waites in 1989 and that she saw Waites at five or six club meetings over a three-year period. She thought that he may have attended three or four meetings in 1990. Koch could not recall if he attended meetings in 1991. She stated that Waites participated in carpools. She also indicated that Waites would visit their house, either in the company of Chris Malnar, Cynthia Cook, or by himself, regarding goat matters.

Sandra Koch’s daughter, Terra, who was a member of the All-County Kids and was one of Waites’s victims, testified that Waites attended nine or ten club meetings in 1990. Terra stated that Waites drove her home from 4-H meetings. Terra stated that in 1991, Waites attended eight or nine meetings and that Waites’s attendance at the club declined in 1992 when he only attended a couple of meetings early in the year. Terra testified that, after Waites no longer was a judge at fairs, he continued to attend the fairs in 1991 and 1992. According to Terra, Waites “would basically hang around the goat barn * * * [a]nd he just helped everybody out.” Terra stated that Waites was never an advisor to her club.

Cynthia Cook, a 4-H advisor in Ashtabula County during 1991 and 1992 for the All-County Kids, testified that she could not recall if Waites had ever been to a meeting of the club. Cook stated that Waites did transport children to and from goat activities in his vehicle, and Cook had gone with Waites to the homes of children to help assist with the care of their goats. Waites would also go to the county fair and help children prepare animals for the show. Cook stated that Waites was never an advisor with the All-County Kids club.

Ashtabula County extension agent Thomas Hopkins testified that James Waites was never a 4-H advisor in Ashtabula County. Hopkins had no knowledge that Waites attended any club meetings or had any involvement with 4-H clubs in Ashtabula County in 1990 and 1991 apart from conducting two prefair clinics. Hopkins testified that, under the 4-H organizational structure, local club advisors have a great deal of discretion regarding club activities. He further stated that it would be up to a club advisor to inform the county extension office about somebody who wanted to be an advisor at a club level.

Kitty Butler, a member of the 4-H small animal committee, testified that she was not aware that Waites had attended any meetings of the All-County Kids club nor did she have any knowledge that he was involved in carpools with the club. Butler had no knowledge that Waites was a 4-H advisor in Ashtabula County.

Defendant also introduced into evidence the deposition testimony of Chris Malnar. Malnar, who served as an advisor with the All-County Kids, stated that Waites was never at a meeting.

On June 30,1995, the Court of Claims rendered its decision, finding in favor of defendant. In its decision, the court held that:

“The child molesting activities of Waites in this case were the direct and proximate result of Waites securing the confidence and trust of Stephanie and her parents. The county extension agent had no reason to anticipate or believe that Waites would develop such personal relationships, and he was never aware of any such activities;

“Hopkins had neither the power nor the duty to control Waites’ personal activities. * * *

« * * *

“The criminal acts that Waites committed against Stephanie did not occur at a 4-H event, function or activity and did not occur on property owned or under the control of 4-H. Waites was only paid to judge goats and do pre-fair clinics in Ashtabula County. He properly performed those responsibilities. 4-H is not responsible for the personal actions of Waites or of the actions of the thousands of young people who participate in volunteer 4-H activities when they are not attending a 4-H function. * * * In this case, plaintiffs have failed to prove by a preponderance of the evidence that the defendant was negligent and such negligence was a proximate cause of the assault on Stephanie. It was not reasonable or foreseeable that a person hired to be a judge from a foreign county would then become personally involved with children and their families who attended the fair and clinics. * * * ”

On appeal, plaintiffs set forth the following eight assignments of error for review:

“Assignment of Error No. 1

“The court erred in holding that the decision of Thomas Hopkins not to inform the club advisors and members of the 4-H small animal committee of James Waites’ history of child molesting is entitled to statutory immunity.

“Assignment of Error No. 2

“The court erred in not holding that the state of Ohio was liable for the negligent hiring of James Waites.

“Assignment of Error No. 3

“The court erred in holding that it was not reasonably foreseeable that an individual such as James Waites would sexually molest young girls involved in 4-H.

“Assignment of Error No. 4

“The court erred in holding that the Ohio State University could not be held liable as the criminal conduct of James Waites was an intervening event.

“Assignment of Error No. 5

“The court erred in holding that the conduct of 4-H employees Owen, Maruschak and Hopkins, were not guilty [sic ] of wanton misconduct relative to the retention of James Waites and the failure to warn others relative to their actual knowledge of Waites criminal history.

“Assignment of Error No. 6

“The court erred and [sic ] finding that there was no evidence that Waites ever committed any criminal acts at any 4-H clinic, fair or club meetings.

“Assignment of Error No. 7

“The court erred in holding that 4-H was not a person in loco parentis based upon State v. Noggle.

“Assignment of Error No. 8

“The court erred when it did not find that the plaintiffs-appellants must prevail upon the theory of agency by estoppel or apparent agency.”

While the issue of duty will be discussed more fully below, we will initially address plaintiffs' assertion, raised under the seventh assignment of error, that the Court of Claims erred in not finding that an in loco parentis relationship existed between Stephanie and the 4-H organization which imposed a duty on 4-H, arising from that relationship, to protect Stephanie from the sexual attack of Waites. Plaintiffs argue that the Court of Claims improperly relied upon State v. Noggle (1993), 67 Ohio St.3d 31, 615 N.E.2d 1040, in finding that an in loco parentis relationship did not exist.

The term “in loco parentis” has been defined as “the relationship which a person assumes toward a child not his own, holding him out to the world as a member of his family toward whom he owes the discharge of parental duties”; further, “a person standing in loco parentis to a child is one who had put himself in the situation of a lawful parent assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption.” In re Estate of George (App.1959), 82 Ohio Law Abs. 452, 455. This court has previously held that “[w]hen a person accepts custody of a child, that person stands in loco parentis to the child, accepting all the rights and responsibilities that go with that status.” Slagle v. White Castle Systems, Inc. (1992), 79 Ohio App.3d 210, 217, 607 N.E.2d 45, 49. The key factors of an in loco parentis relationship have been delineated as “the intentional assumption of obligations incidental to the parental relationship, especially support and maintenance.” Nova Univ., Inc. v. Wagner (Fla.1986), 491 So.2d 1116, 1118, fn. 2.

In Noggle, supra, the Ohio Supreme Court had the occasion to discuss the phrase “in loco parentis” in the context of its relationship to R.C. 2907.03(A)(5), Ohio’s sexual battery statute. The defendant in Noggle, a high school teacher and coach, was charged under the statute with alleged sexual conduct involving a student. An amended bill of particulars filed by the prosecution alleged that an in loco parentis relationship existed between defendant and the student by virtue of defendant’s position as a teacher and school coach. The trial court dismissed the indictment, holding that a teacher and coach is not, as a matter of law, a person in loco parentis for purposes of the criminal statute. On appeal, the court of appeals upheld the trial court’s decision.

On further appeal, the Ohio Supreme Court affirmed the decision of the court of appeals, relying in part upon the following definition of in loco parentis:

“The term ‘in loco parentis’ means ‘charged, factitiously, with a parent’s rights, duties, and responsibilities.’ Black’s Law Dictionary (6 Ed.1990) 787. A person in loco parentis has assumed the same duties as a guardian or custodian, only not through a legal proceeding.” Noggle, 67 Ohio St.3d at 33, 615 N.E.2d at 1042.

The court went on to hold that the criminal statute at issue “was not designed for teachers, coaches, scout leaders, or any other persons who might temporarily have some disciplinary control over a child. Simply put, the statute applies to the people the child goes home to.” Id. The court further rejected a contention by the state that there may be certain scenarios where a teacher might be considered as a person in loco parentis, holding that “[t]he only time a teacher could be found to be so would be if the student lived with the teacher and relied on the teacher for support.” Id. at 34, 615 N.E.2d at 1042.

Thus, under the case law, the relationship of in loco parentis is established when a person assumes the responsibilities incident to parental status, including custody and support of the child; stated otherwise, the rights, duties and responsibilities are the same as those of the lawful parent. Based upon case authority, and a review of the evidence regarding the nature of the 4-H organization, we are unable to accept plaintiffs’ contention that 4-H assumes the type of parental rights, duties or responsibilities over its members, including matters of custody, support and maintenance, that the term in loco parentis contemplates, and we hold that the Court of Claims did not err in failing to find that defendant stood in the relation of in loco parentis with the injured plaintiff.

Plaintiffs’ seventh assignment of error is overruled.

Plaintiffs’ second, third, fourth, sixth and eighth assignments of error are interrelated and will be jointly considered next.

Under the second and eighth assignments of error, plaintiffs contend that the Court of Claims erred in failing to address the theories of negligent hiring or negligent retention and in failing to find that an apparent agency relationship existed between 4-H, Waites and the children and parents of the Ashtabula County 4-H organization. Under the third and fourth assignments of error, plaintiffs argue that the court erred in holding that it was not reasonably foreseeable that Waites would engage in sexual activity with 4-H members he came in contact with. Plaintiffs assert under the sixth assignment of error that the Court of Claims made certain erroneous findings regarding whether Waites ever engaged in criminal acts at a 4-H activity.

It is fundamental that the elements necessary to establish actionable negligence consist of the existence of a duty, a breach of that duty and an injury proximately resulting therefrom. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710. In the instant case, it was not disputed that the Ashtabula County extension office had knowledge of Waites’s prior criminal record by virtue of the memo prepared and circulated in March 1990 to all county extension offices by Jodi Black, an employee in the OSU extension office. While the decision of the Court of Claims discusses the import of defendant’s knowledge of Waites’s criminal record in the context of both duty and proximate cause in its determination that there was no liability on the part of defendant, the threshold (and in this particular case, determinative) inquiry goes to the question of duty.

One commentator has observed that:

“Once it is established that the defendant’s conduct has in fact been one of the causes of the plaintiffs injury, there remains the question of whether the defendant should be legally responsible for the injury. Unlike the fact of causation, with which it is often hopelessly confused, this is primarily a problem of law. It is sometimes said to depend on whether the conduct has been so significant and important a cause that the defendant should be legally responsible. But both significance and importance turn upon conclusions in terms of legal policy, so that they depend essentially on whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred. Quite often this has been stated, and properly so, as an issue of whether the defendant is under any duty to the plaintiff, or whether the duty includes protection against such consequences. This is not a question of causation, or even a question of fact, but quite far removed from both; and the attempt to deal with it in such terms has led and can lead only to utter confusion.” Prosser & Keeton, Law of Torts (5 Ed.1984) 272-273, Section 42.

In considering the issue of intervening intentional or criminal acts in cases where “the defendant has created the situation acted upon by another force to bring about the result,” the above commentator has noted that an attempt to deal with such cases in terms of proximate cause “is only to avoid the real issue;” rather, the problem is best stated as “the scope of the legal obligation to protect the plaintiff against such an intervening cause.” Id. at 313, Section 44.

The existence of a duty in a negligence case is a question of law for a court to determine and there is no formula for ascertaining whether such a duty arises. Mussivand v. David (1989), 45 Ohio St.3d 314, 318, 544 N.E.2d 265, 269-270. Rather, it has been stated that duty “ ‘is the court’s “expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” ’ ” Id., quoting Prosser, Law of Torts (4 Ed.1971) 325-326.

We will first address plaintiffs’ contention that the Court of Claims failed to address the theories of negligent hiring or negligent retention in its findings of fact even though, it is asserted, those theories were properly pled and proven at trial. The tort of negligent hiring is recognized in Ohio. See Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584. The tort is set forth in the Restatement of the Law 2d, Agency (1958), Section 213, which provides:

“A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:

U * * *

“(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others * * *.”

The elements necessary for a plaintiff to prove an action for negligent hiring or retention are:

“ ‘ * * * (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 plaintiffs injuries; and (5) the employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiffs injuries.’ ” Ruta v. Breckenridge-Remy Co. (Dec. 12, 1980), Erie App. No. E-80-39, unreported.

Initially, we note that, while plaintiffs contend that the Court of Claims failed to consider both negligent hiring and negligent retention as theories of recovery, plaintiffs’ negligent retention claim appears to be based upon the assertion that, subsequent to the time the Ashtabula County extension office last hired Waites to participate in a clinic in the spring of 1991, the extension office negligently retained Waites’s services as a “project advisor volunteer” and allowed him to serve as a chaperone and carpool driver for a local 4-H club in Ashtabula County. There was no evidence presented at trial, however, indicating that any official in the Ashtabula County extension office had knowledge that Waites attended or participated in any local club meetings after he spoke at the last clinic for which he was compensated in May 1991. Thus, under the facts developed at trial, plaintiffs’ claim appears to be more properly based upon a theory of negligent hiring as opposed to negligent retention or supervision of an employee.

We further note that, in addition to plaintiffs’ contention that a duty of care was breached by defendant under a negligent hiring theory, plaintiffs also assert that a duty was owed to protect against the criminal acts of a third person based upon the existence of a special relationship. Whether considering a claim based upon negligent hiring or one for failure to control the conduct of a third person (and even assuming, arguendo, the existence of a special relationship), the issue of whether a duty is owed is based upon the foreseeability of the injury.

In Fed. Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171, 173-174, 543 N.E.2d 769, 772-773, the court held that:

“ * * * Ordinarily, there is no duty to control the conduct of a third person by preventing him or her from causing harm to another, except in cases where there exists a special relationship between the actor and the third person which gives rise to a duty to control, or between the actor and another which gives the other the right to protection. * * * Thus, liability in negligence will not lie in the absence of a special duty owed by a particular defendant. * * *

‘We have found that ‘[t]he existence of a duty depends on the foreseeability of the injury. * * * ’ * * * The court in Menifee, supra, set forth the following test to be used in order to determine foreseeability: ‘[Wjhether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act.’ * * * We recognize that there is no common-law duty to anticipate or foresee criminal activity. * * * Thus, the law usually does not require the prudent person to expect the criminal activity of others. As a result, the duty to protect against injury caused by third parties, which may be imposed where a special relationship exists, is expressed as an exception to the general rule of no liability. * * * ”

Concerning criminal acts of a third party which the defendant might reasonably anticipate, “the mere fact that misconduct on the part of another might be foreseen is not of itself sufficient to place the responsibility upon the defendant.” Prosser & Keeton, supra, at 305. Rather, “[i]t is only where misconduct was to be anticipated, and taking the risk of it was unreasonable, that liability will be imposed for consequences to which such intervening acts contributed.” Id. at 313.

The issue before this court, therefore, is whether defendant, through its county extension office, owed a duty of care extending to Stephanie in its decision to hire Waites as a fair judge or clinic speaker on the basis that such employment might create a reasonably foreseeable risk of harm. More specifically, the issue is whether defendant, knowing of Waites’s prior criminal record, should have reasonably foreseen the likelihood that, as a result of Waites’s employment as a clinic speaker, he would later become personally involved within the Ashtabula County 4-H community, come in contact with Stephanie (not herself a member of 4-H during Waites’s employment), and engage in wrongful misconduct.

Plaintiffs focus primarily upon the fact that defendant was made aware of Waites’s prior criminal record, such knowledge presumably giving rise to a duty (either to warn others or to control a third person) extending to all 4-H members Waites came in contact with subsequent to his employment as a clinic speaker. Assuming that defendant’s knowledge of Waites’s prior criminal record, in and of itself, defined the scope of the duty, the requisite inquiry would end. The scope of the duty, however, is “limited to cover only those intervening causes which lie within the scope of the foreseeable risk, or have at least some reasonable connection with it * * Prosser & Keeton, swpra, at 312.

Under the facts of this case, we find that the attack on Stephanie was not a reasonably foreseeable consequence of defendant’s decision to engage Waites as a goat judge or clinic speaker. The record indicates that Waites was hired by Ashtabula County 4-H to conduct four separate clinics and to judge two county fair shows. The two fair events (in 1988 and 1989) as well as two of the clinics (in 1988 and 1989) took place before the Black memo was circulated. After learning of Waites’s prior record, the county extension office, through the small animal committee, met and discussed the memo. Thereafter, a decision was made to allow Waites to speak at a clinic in 1990 and a subsequent clinic in 1991 based upon the view that the nature of his employment, including the fact that Waites would have limited contact with 4-H members, would not result in any harm. The duties Waites was hired to perform required him to speak at clinics in a controlled setting under the supervision of the county extension office. The clinics were open to the public and there was no evidence that any incidents occurred at the clinics (or fairs) in which he was asked to participate. The injured plaintiff was not a member of Ashtabula County 4-H at any time during which Waites judged a fair show or conducted a clinic; she became a 4-H member approximately six months after Waites last spoke at a clinic and the molestation took place, not at a 4-H activity, but at Waites’s residence, over one year after the employment relationship between 4-H and Waites had ended.

The Court of Claims found that Waites had never applied to be an adult volunteer advisor in Ashtabula County and there was evidence supporting a finding that he was not recognized as an advisor there. 2 County extension agent Thomas Hopkins testified that local club advisors are responsible for informing the county extension office of any individuals who wish to participate at the local level in an official capacity. Club advisors Malnar and Cook both stated that Waites never served as an advisor for their club. While there was evidence indicating that Waites may have shown up on his own volition at 4-H club meetings (as well as other goat-related activities) and that he made himself available to provide transportation, the evidence supports the Court of Claims’ finding that the county extension office had no knowledge that Waites was involved in local 4-H club meetings. The evidence indicated that Waites gained the trust and friendship of parents and members of the 4-H community in Ashtabula County; he was adept at developing personal relationships and he convinced these individuals that he was a physician and that he could be influential in obtaining “scholarships” for the children. The evidence further indicated that Waites would appear unannounced at the home of Stephanie and that he pursued a continuing relationship with the family through numerous telephone calls to Stephanie’s home.

As found by the Court of Claims, the molestation of Stephanie by Waites was a self-serving act, unrelated to Waites’s employment as a 4-H goat judge or clinic speaker. On the date of the incident, Waites made arrangements with Stephanie’s mother to pick up Stephanie and drive her to his home. As noted above, the molestation occurred at Waites’s home, over a year after he was last hired to conduct a clinic in Ashtabula County, and the events giving rise to the incident occurred without the sanction, knowledge or control of the county 4-H extension office.

The foreseeability of a criminal act depends on the knowledge of the defendant, which must be determined by the totality of the circumstances, and it is only when the totality of the circumstances are “somewhat overwhelming” that the defendant will be held liable. Feichtner v. Cleveland (1994), 95 Ohio App.3d 388, 396, 642 N.E.2d 657, 662. In considering the totality of the circumstances, we are unable to conclude that the probability of harm to the plaintiff should have been reasonably anticipated by defendant at the time Waites was engaged to be a clinic speaker. As previously noted, the duties for which Waites was hired involved limited contact with those in attendance and took place in a controlled setting under the supervision of the county extension office. The scope of an employer’s duty in exercising reasonable care in making a hiring decision “is largely dependent on the type of responsibilities associated with the particular job.” Yunker v. Honeywell, Inc. (Minn.App.1993), 496 N.W.2d 419, 422. See, also, Connes v. Molalla Transport System, Inc. (Colo.1992), 831 P.2d 1316, 1321 (scope of duty “will depend largely on the anticipated degree of contact which the employee will have with other persons in performing his or her employment duties”). In addition to the limited nature of the duties for which Waites was hired as well as the limited degree of contact he had with other individuals in performing those duties, the circumstances of this case indicate that no incidents occurred at any clinic in which Waites participated, Waites was never a 4-H advisor in Ashtabula County, defendant had no knowledge of Waites’s personal activities in that county, the assault at issue did not occur at a 4-H event, the injured plaintiff was not a member of 4-H at the time Waites was employed by defendant, and there was no employment relationship between defendant and Waites at the time of the molestation, Waites’s last clinic event taking place over one year prior to the incident. While a duty of care was owed by defendant to children attending the fair and clinic events for which Waites was hired, and may have encompassed members whom the county extension office had knowledge that Waites was involved with through 4-H club meetings or activities (a factual scenario not at issue in this case), we are unable to conclude that a duty of care extended to every member of 4-H who Waites may have come in contact with following his fair and clinic employment; more particularly, under the circumstances of this case, defendant’s duty of care did not extend to the risk of foreseeing the misconduct that occurred.

Accordingly, the Court of Claims did not err in failing to find defendant liable under a negligent hiring theory, nor did the court err in finding that the harm was not a reasonably foreseeable consequence of defendant’s conduct.

We note that, under the fourth assignment of error, plaintiffs discuss the issue of foreseeability as an element of proximate cause, relying in part upon Sections 448 and 449 of the Restatement of Law 2d, Torts (1965). Having found, however, that the injured party was not a foreseeable plaintiff under a duty analysis, we need not reach the issue of proximate cause. See, e.g., Giant Food, Inc. v. Mitchell (1994), 334 Md. 633, 641-642, 640 A.2d 1134, 1138 (Section 448 of the Restatement concerns itself with whether the criminal act of a third person is a superseding cause of the actor’s negligence; for purposes of Section 448, the actor’s negligence is a given); Casey v. Geiger (1985), 346 Pa.Super. 279, 293, 499 A.2d 606, 614 (Section 448 of the Restatement “is only relevant to the question of causation in a negligence action and does not determine whether appellees owed a duty of care to the appellant * * * ”).

We note, however, to the extent that plaintiffs contend that the hiring of Waites placed 4-H’s imprimatur or approval on his activities (i.e., gave stature or credibility to Waites, thus allowing him to become actively involved in Ashtabula County), we find no error in the trial court’s determination that plaintiffs failed to establish a causal connection between defendant’s hiring decision and Waites’s subsequent criminal actions. While plaintiffs argue that defendant “selected Waites as a Judge and clinic instructor thereby creating an aura of respectability” with the parents and children of Ashtabula County, plaintiffs make no distinction between Waites’s activities prior to the disclosure to defendant of his convictions and his activities subsequent thereto; rather, plaintiffs discuss Waites’s involvement with 4-H in the aggregate and assert a causal connection based upon such activity in general. The evidence, however, fails to link Waites’s attendance at two clinics (following the disclosure of his convictions) with his ability to ingratiate himself within the Ashtabula 4-H community and assault the victim in this case; thus, the trial court did not err in finding that plaintiffs failed to prove by a preponderance of the evidence that defendant’s actions proximately caused the plaintiffs injuries.

We further find no merit to plaintiffs’ contention that the trial court erred in failing to find defendant liable under a theory of agency by estoppel or apparent authority. An “agency relationship” is defined as “a consensual fiduciary relationship between two persons where the agent has the power to bind the principal by his actions, and the principal has the right to control the actions of the agent.” Funk v. Hancock (1985), 26 Ohio App.3d 107, 110, 26 OBR 317, 320, 498 N.E.2d 490, 494, citing Haluka v. Baker (1941), 66 Ohio App. 308, 312, 20 O.O. 136, 138, 34 N.E.2d 68, 70. The doctrines of agency by estoppel and apparent authority are equivalent and are based upon the same elements. Whitlow v. Good Samaritan Hosp. (1987), 42 Ohio App.3d 74, 76, 536 N.E.2d 659, 661-662. In order to show such an agency, a plaintiff must establish:

“(1) That the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority, and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority.” Logsdon v. ABCO Constr. Co. (1956), 103 Ohio App. 233, 241-242, 3 O.O.2d 289, 293, 141 N.E.2d 216, 223.

In the context of an unpaid volunteer, courts have noted that the volunteer “may be a servant of one accepting such services.” Doe v. Roman Catholic Church (La.App.1992), 602 So.2d 129, citing the Restatement 2d of Agency, Section 225. The determination of whether an unpaid volunteer is a servant “generally depends on the charitable organization’s right to control the activities of the volunteer.” Id.

Plaintiffs’ claim of apparent agency is based upon the contention that the Ashtabula County 4-H knowingly permitted Waites to attend 4-H meetings, to teach at these meetings, to go on field trips with advisors and children, and to act with authority on behalf of the Ashtabula County 4-H. As previously noted, however, there was evidence presented, including the testimony of the Ashtabula County extension agent which, if believed, indicated that the county extension office was unaware of any alleged activity by Waites in connection with local 4-H clubs in Ashtabula County.

Plaintiffs assert that the evidence shows that the county extension agent “had full control over the volunteers” in 4-H at the local level. However, the testimony of Lake County extension agent William Owen and Ashtabula County extension agent Thomas Hopkins indicated that, under the 4-H organizational structure, local clubs possess a great deal of autonomy and advisors are vested with a high degree of discretion regarding club activities. William Owen, who stated that there are between two hundred and two hundred fifty local clubs in Lake County, provided the following testimony during direct examination regarding the amount of control exerted by the county extension office in club matters:

“Q. And who determines when and where these clubs will meet?

“A. That’s up to the adviser and the club members.

“Q. And who determines what they are going to discuss at those meetings?

“A. That’s also up to the adviser and the officers of the club.

“Q. Do these clubs report to you, as the county extension agent, in any form or fashion, about their activities?

“A. I’m not sure ‘report’ is the word I would use. Some keep us pretty well informed of what they are doing, and others are basically on their own, doing their own activities.

“We don’t have a reporting system where they have to fill out a form, ‘This is what the club did this month or this year.’ From time to time we ask them for things like, “What community service projects did you do?’ But there’s no official reporting mechanism, no.

“Q. And there’s no requirement that they do that, then?

“A. Absolutely not.”

Thomas Hopkins testified that clubs in Ashtabula County were operated in a similar manner. Hopkins stated that “I tell new advisers that one of our strengths is the freedom that they have in their club, to organize their club, to create their own meeting schedules, so we don’t dictate many of those things.” Hopkins added that “there is a lot of * * * independence that the advisers assume. They assume a lot of responsibility.” Hopkins further stated that it was up to the local advisors “to let us know * * * if they have somebody that they want to have help them in their club, in an official way.”

The issue of apparent authority and its relationship to the degree of control an organization exercises over its local leaders was raised in Wilson v. United States (C.A.8, 1993), 989 F.2d 953. In that case, the plaintiffs, parents of boy scouts involved in an accident while visiting Fort Leonard Wood, Missouri, brought an action against the Boy Scouts of America (“BSA”) for alleged negligence on the part of the adult leaders of a scout troop, raising claims that a principal-agency relationship existed between BSA and its local council under a theory of implied agency or apparent authority. On the particular activity giving rise to the negligence action, members of a local troop had gone on a boy scout trip at an army base, when, on the second night of their weekend stay, one of the youths was fatally electrocuted while playing with an aluminum pipe which came into contact with a high voltage power line.

The facts in Wilson indicated that, under the organizational structure of BSA, local volunteers formed a patrol leaders’ council to plan troop activities, local troops did not need permission from BSA before participating in activities, and BSA had no advance notice of the troop’s trip to Fort Leonard Wood. The court in Wilson, in rejecting plaintiffs’ claim of apparent authority, held that:

“Appellants fail * * * to produce any evidence that BSA manifested that it had direct control over the specific activities of individual troops or that it had a duty to control, supervise or train volunteer leaders for the Fort Leonard Wood activity. On the contrary, the Boy Scout Handbook clearly provides, ‘[w]hat the troop does is planned by the patrol leaders’ council.’ The organizational structure of the BSA leaves the control of the specific activities at the level closest to the individual troop. Appellants have produced no direct or circumstantial evidence to suggest that in this case BSA manifested control.” Wilson, supra, 989 F.2d at 959.

The court in Wilson noted that other jurisdictions had rejected liability on the part of BSA or local councils under similar circumstances, noting the lack of control these entities exercise over individual troops. See, e.g., Mauch v. Kissling (1989), 56 Wash.App. 312, 783 P.2d 601 (scoutmaster not acting as ostensible agent of scouting organization while flying private plane with scout as passenger where organization had no duty or right to control scoutmaster’s actions as private pilot, nor did they have a duty to prevent scout from accompanying him where there was no evidence scoutmaster would be carrying a scout passenger); Anderson v. Boy Scouts of Am., Inc. (1992), 226 Ill.App.3d 440, 168 Ill.Dec. 492, 589 N.E.2d 892 (local scout leader not agent of BSA at time he negligently ran over infant while backing out of driveway after delivering craft materials to be used for scouting project; there were no provisions in BSA charter, bylaws, rules or regulations which grant BSA or its district councils’ direct supervisory powers over the method or manner in which adult volunteer scout leaders accomplish their tasks, and there was no evidence BSA exercised any control over scout leader on the date in question); Wilson v. St. Louis Area Council (Mo.App.1992), 845 S.W.2d 568 (mere assertion by plaintiff that BSA and Council constituted one organization, with scout leaders as its representatives, not sufficient to create apparent authority in absence of evidence of representations by Council which would give rise to such reliance; further, plaintiff presented no evidence that scouting organizations consented to or had control over scoutmaster’s activities).

In the instant case, apart from the occasions in which the county extension office hired Waites to judge two fair goat shows and to conduct four prefair clinics, the evidence does not indicate that the extension office had the right to control, nor that it manifested a right to control or supervise, Waites’s actions. Waites was not a 4-H advisor and, while he may have attempted to clothe himself with authority from the 4-H organization, his self-serving pursuits were not in service to Ashtabula County 4-H. In an action alleging apparent authority, “a principal is responsible for the acts of an agent within his apparent authority only where the principal himself by his acts or conduct clothes the agent with the appearance of the authority, and not where the agent’s own conduct creates the apparent authority.” Logsdon, 103 Ohio App. 233, 3 O.O.2d 289, 141 N.E.2d 216, at paragraph one of the syllabus.

The facts surrounding the injury to the plaintiff in the instant case are even more attenuated than those in Wilson, 989 F.2d 953, whereas the fatality in Wilson occurred on a troop outing under the supervision of scout leaders, the assault in the instant case was not connected with a 4-H sponsored activity and did not involve 4-H personnel. As previously noted, the evidence regarding the events leading to the molestation of Stephanie indicates that Waites made arrangements with Stephanie’s mother to pick Stephanie up and drive her to his house, the alleged purpose of the trip being Waites’s offer to provide Stephanie with an Alpine goat. The Ashtabula County extension office did not direct, nor did they have knowledge of, this activity, and the Court of Claims did not err in failing to find defendant liable under a theory of apparent authority.

Finally, we address plaintiffs’ argument under the sixth assignment of error, that the Court of Claims erred in finding that there was no evidence that James Waites ever committed any criminal acts at any 4-H clinics, fair events or club meetings. Plaintiffs maintain that there is evidence that Waites, on at least three occasions, committed gross sexual imposition with a minor “at 4-H sponsored events.” Upon review, we find that the record does not support plaintiffs’ contentions.

Plaintiffs first assert that the testimony of Kitty Butler indicates that Waites raped her sixteen-year-old daughter “at the 4-H Geauga County Fair in 1991.” However, the record indicates that, while Kitty Butler testified that her daughter informed her that she was raped by Waites in September 1991, at the Burton Fair, there was no evidence indicating that her daughter was at the fair as a 4-H member or that Waites was at the fair as a representative of 4-H. Specifically, Butler testified that her daughter “was not involved with the goats” at the Burton Fair and she further indicated that Waites was not a judge; rather, Butler stated, “[h]e was a contestant, just like everybody else was.”

Plaintiffs further argue that there was evidence that Waites assaulted Butler’s daughter that summer “when he took her to a medical examination required for the youngster to obtain a 4-H college scholarship.” Butler testified that her daughter told her that Waites was “supposed to have taken her for a doctor’s appointment at a clinic — I don’t even know for sure where it was — that he took her to his house and examined her and, I believe, raped her there.” While plaintiffs maintain that this event was done under the ruse that the examination was for a “4-H college scholarship,” Butler testified that “it had nothing to do with 4-H.” Rather, Butler testified that Waites had told Butler and her daughter that “there was a program through his work where she could go to college while she was still in high school and take college courses,” and that “in order to be enrolled in the program, she had to have a medical exam, so he arranged for the medical exam and took her.”

The final incident pointed to by plaintiffs concerns evidence that Waites molested Terra Koch “while going to” a 4-H meeting. The evidence regarding this event indicates that the incident occurred at Waites’s home and did not, by plaintiffs’ own admission, occur at a 4-H activity. Further, there was no evidence that the county extension office had knowledge of this activity and the evidence simply does not support a finding that Waites was acting as an agent on behalf of defendant in offering transportation to Terra Koch. Upon review, the Court of Claims did not err in finding that no criminal acts were committed at a 4-H event.

Based upon the foregoing, plaintiffs’ second, third, fourth, sixth and eighth assignments of error are overruled.

We will address plaintiffs’ first and fifth assignments of error together. Under the first assignment of error, plaintiffs contend that the Court of Claims erred in holding that defendant’s decision not to disseminate information regarding Waites’s prior criminal record was entitled to statutory immunity under R.C. 2743.02. 3 Under the fifth assignment of error, plaintiffs contend that the Court of Claims erred in failing to find that certain 4-H employees engaged in wanton misconduct. More specifically, plaintiffs argue that William Owen, Donna Maruschak and Thomas Hopkins all engaged in wanton misconduct in failing to warn others of Waites’s prior criminal record.

Even assuming that the Court of Claims erred in finding that OSU was entitled to statutory immunity on the grounds that the decision not to disseminate information about Waites’s criminal record constituted a basic policy decision involving a high degree of discretion, in light of our disposition of the previous assignments of error, finding that a duty did not extend to the injured plaintiff under the theories advanced, any alleged error is non-prejudicial and this assignment of error is overruled as moot.

Nor does the evidence support a finding that individual 4-H employees Owen, Marusehak and Hopkins engaged in wanton misconduct. “Wanton” misconduct is defined as “a failure to use any care and an indifference to the consequences, when the probability of harm is great and the probability of harm is known or should be known.” Downing v. Columbus Bd. of Edn. (Feb. 13, 1992), Franklin App. No. 91AP-981, unreported, 1992 WL 30802. In order to constitute wanton misconduct, the conduct of a tortfeasor “must be more than negligent: it must be such conduct with knowledge of a dangerous situation liable to cause injury to others, as manifests a heedless disregard for or indifference to the rights of others or for the consequences, i.e., such conduct as manifests a disposition to perversity.” Roszman v. Sammett (1971), 26 Ohio St.2d 94, 55 O.O.2d 165, 269 N.E.2d 420, paragraph two of the syllabus.

Defendant argues that the knowledge and conduct of Owen and Maruschak, both employees in Lake County, were irrelevant to the issue of liability in this case inasmuch as they never served in Ashtabula County and, in any event, the information regarding Waites’s criminal record came to the attention of Ashtabula County officials in 1990, prior to the time Stephanie joined 4-H. We agree.

Regarding the actions of Ashtabula County extension officer Thomas Hopkins, the evidence fails to support plaintiffs’ contention that he acted in a wanton manner when, once he became aware of Waites’s criminal record, he failed to disclose that information to 4-H advisors or members. As previously noted, after the Black memo was sent out, Hopkins brought up the issue at the small animal committee meeting and sought the advice of those members. At the meeting, Kitty Butler gave her opinion that Waites had not been guilty of the charges and other members of the committee were asked for their input on the matter. Hopkins testified that his decisionmaking process in this matter was based upon the views expressed at the meeting and the fact that Waites’s duties in speaking at a clinic would be limited and under the control of the county extension office. Upon review, the record indicates that the Court of Claims did not err in failing to find that Hopkins’s actions in dealing with the issue of the Black memo constituted wanton misconduct.

Plaintiffs’ first and fifth assignments of error are without merit and are overruled.

Based upon the foregoing, plaintiffs’ first, second, third, fourth, fifth, sixth, seventh and eighth assignments of error are overruled and the judgment of the Court of Claims is hereby affirmed.

Judgment affirmed.

Peggy Bryant, J., concurs. Lazarus, J., concurs in part and dissents in part.

1 . On appeal, the Court of Appeals for Lake County affirmed in part and reversed in part the judgment of the trial court. See State v. Waites (Aug. 19, 1994), Lake App. No. 93-L-009, unreported, 1994 WL 590289.

2 . Plaintiffs assert that Waites was a “volunteer project advisor,” a title appearing in an "Ohio 4-H BLAST Program” manual. However, Ashtabula County extension agent Thomas Hopkins testified that the "BLAST Program” curriculum was not in place prior to the fall of 1992. Hopkins further testified that, during the time of Waites’s alleged involvement in local 4-H club activities, there was nobody who served solely in the capacity of what might be considered a volunteer project advisor in Ashtabula County.

3 . In its decision, the Court of Claims relied upon Reynolds v. State (1984), 14 Ohio St.3d 68, 70, 14 OBR 506, 507-508, 471 N.E.2d 776, 778-779, in which the Ohio Supreme Court held that language in R.C. 2743.02 providing that the state shall have its liability determined in accordance with the same rules of law applicable to suits between private parties means that "the state cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.”