[Cite as Wilson v. Stark Cty. Dept. of Job & Family Servs., 2015-Ohio-5326.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JOSEPH WILSON, ET AL. JUDGES: Hon. W. Scott Gwin, P.J. Plaintiffs-Appellants Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 2015CA00114 STARK COUNTY DEPARTMENT OF JOB & FAMILY SERVICES, ET AL. OPINION Defendants-Appellees
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2014CV01308
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 14, 2015
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
DREW LEGANDO JOHN D. FERRERO JACK LANDSKRONER Stark County Prosecutor Landskroner Greico Merriman, LLC VIVIANNE WHALEN DUFFRIN 1360 West 9th Street, Suite 200 STEPHAN P. BABIK Cleveland, Ohio 44113 Assistant Proseucuting Attorneys, Civil 110 Central Plaza South, Suite 510 Canton, Ohio 44702
RYAN J. MELEWSKI MICHAEL J. HUDAK Melewski Dodez LLC BRAD A. RIMMEL 105 North Broad Street Roetzel & Andress, LPA Canfield, Ohio 44406 222 South Main Street Akron, Ohio 44308 Stark County, Case No. 2015CA00114 2
Hoffman, J.
{¶1} Plaintiffs-appellants Joseph Wilson, et al. (“Wilsons”) appeal the May 29,
2015 Judgment Entry – Nunc Pro Tunc entered by the Stark County Court of Common
Pleas, which granted defendants-appellees Stark County Department of Job & Family
Services (“SCDJFS”) and the Stark County Board of Commissioners’ motion for summary
judgment.
INTRODUCTION
{¶2} Stark County operates a Public Children Service Agency, which is
responsible for placing dependent children in foster homes. Stark County’s placement
responsibilities are carried out by its employees, who work “out in the field” and who
ultimately approve foster placements. This case arises from the approval and placement
of “John Doe” by county employees Vandeborne, Bell, and Montgomery in the Wilsons’
home on a foster-to-adopt basis.
STATEMENT OF FACTS AND CASE
{¶3} John Doe came into SCDJFS care at birth and county employees were very
familiar with him.
{¶4} John Doe was sexually abused during his first placement in a foster home
by the grandson of his foster parents. During subsequent foster placements, he repeated
the sexually abusive behaviors he had suffered against other children in the foster homes.
{¶5} After several failed placements, John Doe was placed in the home of P.V.
and V.V. (“Vs”). The Vs were not advised of John Doe’s history of sexual abuse or his
history of sexually abusing others. The Vs eventually discovered John Doe was engaging Stark County, Case No. 2015CA00114 3
in sexual activity and reported same to a case worker for SCDJFS. It was then the Vs
were informed of John Doe’s past history.
{¶6} The Vs sought counseling for John Doe regarding his ongoing sexualized
activity. A clinical psychologist opined John Doe’s history of sexual abuse was related to
his sexual behaviors toward other children and reported this information to Stark County.
{¶7} Thereafter, John Doe sexually attacked and molested the Vs’ four-year-old-
daughter. The Vs reported the assault to the assigned SCDJFS’s worker and requested
John Doe be removed from their home. He was removed in February, 2004.
{¶8} In 2008, John Doe was placed in the home of the Wilsons by a SCDJFS
employee who did not disclose any of John Doe’s history of sexual abuse directed toward
other children. The Wilsons allege the employee affirmatively and falsely represented
John Doe had no history of sexually acting out and was friendly and plays well with other
children; only mentioning Joh Doe might have been abused in his first placement.
{¶9} John Doe lived with the Wilsons for nearly four years on a foster placement.
The Wilsons were scheduled to adopt him in August, 2012. On the eve of his adoption,
the Wilsons allege they discovered John Doe had been sexually molesting one of their
children. John Doe was immediately removed from the Wilsons’ home and the adoption
cancelled.
{¶10} As a result of the foregoing, the Wilsons filed a tort claim on behalf of their
minor children against Appellees. The claim against Appellees was premised upon the
Wilsons’ allegations the defendants were vicariously liable for the actions of the
employees of SCDJFS who were involved in the placement of John Doe. The complaint Stark County, Case No. 2015CA00114 4
specifically alleged the actions of the employees were reckless within the meaning of the
Political Subdivision Tort Liability Act (R.C. 2744.03(A)(6)(b)).1
{¶11} Appellees moved for summary judgment, asserting they were immune even
if the employees were not immune under R.C. 2744.03(A)(6). The trial court granted
Appellees’ motion via Judgment Entry – Nunc Pro Tunc filed May 29, 2015. It is from that
judgment entry the Wilsons prosecute this appeal, assigning as error.
{¶12} “I. THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT IN
FAVOR OF THE DEFENDANTS-APPELLEES.”
Summary Judgment
{¶13} Civ. R. 56 states in pertinent part:
{¶14} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that there
is no genuine issue of material fact and that the moving party is entitled to judgment as a
matter of law. No evidence or stipulation may be considered except as stated in this rule.
A summary judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds can come to
but one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, that party being entitled to have the evidence or
stipulation construed mostly strongly in the party's favor. A summary judgment,
1The Wilsons filed a separate civil action against a number of individual employees of SCDJFS. Stark County, Case No. 2015CA00114 5
interlocutory in character, may be rendered on the issue of liability alone although there
is a genuine issue as to the amount of damages.”
{¶15} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311
(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d
271 (1984). A fact is material if it affects the outcome of the case under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d
1186 (6th Dist.1999).
{¶16} When reviewing a trial court's decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d 1243.
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[Cite as Wilson v. Stark Cty. Dept. of Job & Family Servs., 2015-Ohio-5326.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JOSEPH WILSON, ET AL. JUDGES: Hon. W. Scott Gwin, P.J. Plaintiffs-Appellants Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 2015CA00114 STARK COUNTY DEPARTMENT OF JOB & FAMILY SERVICES, ET AL. OPINION Defendants-Appellees
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2014CV01308
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 14, 2015
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
DREW LEGANDO JOHN D. FERRERO JACK LANDSKRONER Stark County Prosecutor Landskroner Greico Merriman, LLC VIVIANNE WHALEN DUFFRIN 1360 West 9th Street, Suite 200 STEPHAN P. BABIK Cleveland, Ohio 44113 Assistant Proseucuting Attorneys, Civil 110 Central Plaza South, Suite 510 Canton, Ohio 44702
RYAN J. MELEWSKI MICHAEL J. HUDAK Melewski Dodez LLC BRAD A. RIMMEL 105 North Broad Street Roetzel & Andress, LPA Canfield, Ohio 44406 222 South Main Street Akron, Ohio 44308 Stark County, Case No. 2015CA00114 2
Hoffman, J.
{¶1} Plaintiffs-appellants Joseph Wilson, et al. (“Wilsons”) appeal the May 29,
2015 Judgment Entry – Nunc Pro Tunc entered by the Stark County Court of Common
Pleas, which granted defendants-appellees Stark County Department of Job & Family
Services (“SCDJFS”) and the Stark County Board of Commissioners’ motion for summary
judgment.
INTRODUCTION
{¶2} Stark County operates a Public Children Service Agency, which is
responsible for placing dependent children in foster homes. Stark County’s placement
responsibilities are carried out by its employees, who work “out in the field” and who
ultimately approve foster placements. This case arises from the approval and placement
of “John Doe” by county employees Vandeborne, Bell, and Montgomery in the Wilsons’
home on a foster-to-adopt basis.
STATEMENT OF FACTS AND CASE
{¶3} John Doe came into SCDJFS care at birth and county employees were very
familiar with him.
{¶4} John Doe was sexually abused during his first placement in a foster home
by the grandson of his foster parents. During subsequent foster placements, he repeated
the sexually abusive behaviors he had suffered against other children in the foster homes.
{¶5} After several failed placements, John Doe was placed in the home of P.V.
and V.V. (“Vs”). The Vs were not advised of John Doe’s history of sexual abuse or his
history of sexually abusing others. The Vs eventually discovered John Doe was engaging Stark County, Case No. 2015CA00114 3
in sexual activity and reported same to a case worker for SCDJFS. It was then the Vs
were informed of John Doe’s past history.
{¶6} The Vs sought counseling for John Doe regarding his ongoing sexualized
activity. A clinical psychologist opined John Doe’s history of sexual abuse was related to
his sexual behaviors toward other children and reported this information to Stark County.
{¶7} Thereafter, John Doe sexually attacked and molested the Vs’ four-year-old-
daughter. The Vs reported the assault to the assigned SCDJFS’s worker and requested
John Doe be removed from their home. He was removed in February, 2004.
{¶8} In 2008, John Doe was placed in the home of the Wilsons by a SCDJFS
employee who did not disclose any of John Doe’s history of sexual abuse directed toward
other children. The Wilsons allege the employee affirmatively and falsely represented
John Doe had no history of sexually acting out and was friendly and plays well with other
children; only mentioning Joh Doe might have been abused in his first placement.
{¶9} John Doe lived with the Wilsons for nearly four years on a foster placement.
The Wilsons were scheduled to adopt him in August, 2012. On the eve of his adoption,
the Wilsons allege they discovered John Doe had been sexually molesting one of their
children. John Doe was immediately removed from the Wilsons’ home and the adoption
cancelled.
{¶10} As a result of the foregoing, the Wilsons filed a tort claim on behalf of their
minor children against Appellees. The claim against Appellees was premised upon the
Wilsons’ allegations the defendants were vicariously liable for the actions of the
employees of SCDJFS who were involved in the placement of John Doe. The complaint Stark County, Case No. 2015CA00114 4
specifically alleged the actions of the employees were reckless within the meaning of the
Political Subdivision Tort Liability Act (R.C. 2744.03(A)(6)(b)).1
{¶11} Appellees moved for summary judgment, asserting they were immune even
if the employees were not immune under R.C. 2744.03(A)(6). The trial court granted
Appellees’ motion via Judgment Entry – Nunc Pro Tunc filed May 29, 2015. It is from that
judgment entry the Wilsons prosecute this appeal, assigning as error.
{¶12} “I. THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT IN
FAVOR OF THE DEFENDANTS-APPELLEES.”
Summary Judgment
{¶13} Civ. R. 56 states in pertinent part:
{¶14} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that there
is no genuine issue of material fact and that the moving party is entitled to judgment as a
matter of law. No evidence or stipulation may be considered except as stated in this rule.
A summary judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds can come to
but one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, that party being entitled to have the evidence or
stipulation construed mostly strongly in the party's favor. A summary judgment,
1The Wilsons filed a separate civil action against a number of individual employees of SCDJFS. Stark County, Case No. 2015CA00114 5
interlocutory in character, may be rendered on the issue of liability alone although there
is a genuine issue as to the amount of damages.”
{¶15} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311
(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d
271 (1984). A fact is material if it affects the outcome of the case under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d
1186 (6th Dist.1999).
{¶16} When reviewing a trial court's decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The Wedding
Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter
de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d 1243.
{¶17} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the record
which demonstrate the absence of a genuine issue of fact on a material element of the
non-moving party's claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).
Once the moving party meets its initial burden, the burden shifts to the nonmoving party
to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.
The non-moving party may not rest upon the allegations and denials in the pleadings, but Stark County, Case No. 2015CA00114 6
instead must submit some evidentiary materials showing a genuine dispute over material
facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist.1991).
{¶18} The Wilsons frame the issue presented to this Court as follows:
{¶19} When a plaintiff claims that an employee of a political subdivision was
reckless under R.C. 2744.03(A(6)(b), can the plaintiff file suit against “the employee, the
political subdivision, or both,” pursuant to the rule enunciated in Nat’l Union Fire Ins. Co.
v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, at ¶¶21-22; Comer v. Risko, 106 Ohio
St.3d 185, 2005-Ohio-4559, at ¶20; State ex rel. Flagg v. Bedford, 7 Ohio St.2d 45, 48
(1966); and Losito v. Kruse, 136 Ohio St. 183, 187 (1940)?
{¶20} We limit our answer to the issue presented by this case. We hold a plaintiff
cannot sue the political subdivision individually for the recklessness of its employee under
R.C. 2744.03(A)(6)(b). Our reasons follow.
{¶21} Of primary significance in our decision is that three of the four Ohio
Supreme Court cases cited by the Wilsons in support of their argument (Wuerth, Comer
and Losita) involved tort claims against private parties, not political subdivisions. The
fourth (Flagg) was decided before the enactment of the Political Subdivision Tort Liability
Act in 1985.
{¶22} In Greene County Agricultural Society v. Liming, 89 Ohio St.3d 551, 556-
557, 733 N.E.2d 1141, 2000–Ohio–486, the Supreme Court of Ohio explained the three
tier analysis required for determining if sovereign immunity applies:
R.C. Chapter 2744 sets out the method of analysis, which can be
viewed as involving three tiers, for determining a political subdivision's
immunity from liability. First, R.C. 2744.02(A)(1) sets out a general rule that Stark County, Case No. 2015CA00114 7
political subdivisions are not liable in damages. In setting out this rule, R.C.
2744.02(A)(1) classifies the functions of political subdivisions into
governmental and proprietary functions and states that the general rule of
immunity is not absolute, but is limited by the provisions of R.C. 2744.02(B),
which details when a political subdivision is not immune. Thus, the relevant
point of analysis (the second tier) then becomes whether any of the
exceptions in R.C. 2744.02(B) apply. Furthermore, if any of R.C.
2744.02(B)'s exceptions are found to apply, a consideration of the
application of R.C. 2744.03 becomes relevant, as the third tier of analysis.
{¶23} R.C. 2744.02(A)(1) states:
For the purposes of this chapter, the functions of political
subdivisions are hereby classified as governmental functions and
proprietary functions. Except as provided in division (B) of this section, a
political subdivision is not liable in 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 or an employee of the political subdivision in connection
with a governmental or proprietary function.
{¶24} The parties do not dispute the claim alleged by the Wilsons involved
performance of a governmental function. R.C. 2744.02(A)(1) provides the defendants
immunity except as provided in division (B) of that section.
{¶25} We find the trial court properly determined none of the five (5) statutory
exceptions in R.C. 2744.02(B) applied. That determination does not appear to be
disputed by the Wilsons. Stark County, Case No. 2015CA00114 8
{¶26} However, the Wilsons maintain because employees of political subdivisions
are not immune from liability if their acts or omissions are undertaken in a reckless
manner, there is no requirement that an employee be named as a party to the suit under
traditional, common-law pleading rules. We, as have numerous other appellate districts,
disagree.
{¶27} This Court held in Dunn v. Licking County Humane Society, 5th Dist. Licking
No. 14-CA-101, 2015-Ohio-2561 “[t]he final tier of the analysis… is only applicable” if “the
political subdivision is subject to liability under one of the five exceptions contained in
R.C. 2744.02(B). Id, at ¶50. The Dunn decision was consistent with this Court’s earlier
holding in City of Columbus v. Sanders, 5th Dist. Delaware No. 11-CAE-05-0047, 2012-
Ohio-1514 (Thus, where, as here, it has been properly determined that none of the
exceptions in R.C. 2744.02(B) apply, it is unnecessary for this court to read the third tier
of the immunity analysis to determine whether immunity can be restored to the city under
R.C. 2744.03(A)(1) through (5), ¶33).
{¶28} As noted supra, other appellate districts have reached the same conclusion:
Reno v. City of Circleville, 2nd Dist. Montgomery No. 20078, 2004-Ohio-781, ¶53 (a
political subdivision may not be held liable under a theory of respondent superior unless
one of the exceptions to the sovereign immunity listed in R.C. 2744.02(B) applies); Pruce
v. Sleasman, 9th Dist. Lorain No. 11CA010088, 2012-Ohio-2427, ¶14 (political subdivision
not vicariously liable for tortious conduct of its employees because respondent superior
is not set forth as an exception to R.C. 2744.02’s general immunity provisions); Scott v.
Dennis, 8th Dist. Cuyahoga No. 94685, 2011-Ohio-12; ¶16, fn 1 (Scott’s respondent
superior claim is not addressed by any of the five enumerated exceptions to immunity); Stark County, Case No. 2015CA00114 9
Carter v. Karnes, 10th Dist. Franklin No 02 AP-98, 2002-Ohio-7193, ¶23 (explaining R.C.
2744.03(A)(6) is not applicable in the present matter because it relates only to the liability
of the individual employee – not the liability of the political subdivision). See, also, Woods
v. City of Wellston, S.D. Ohio No. 2:02-CV-762, 2005 WL 1406105, * * 17-18 (rejecting
argument political subdivisions can be held liable under the doctrine of respondent
superior if none of the exceptions in R.C. 2744.02(B) apply).
{¶29} Wilsons’ assignment of error is overruled.
{¶30} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur