2020 Ohio 6713
Ohio Ct. App.2020Background
- On April 10, 2018, Kyle Plush became trapped by a folding back seat inside his van in the Seven Hills School parking lot and called 911 twice via Siri.
- Dispatcher Stephanie Magee took the first call (3:14–3:17 pm), heard banging and pleas that the caller would "die soon," entered limited CAD info, and classified the call as "unknown trouble" (Code 2).
- Officers Edsel Osborn and Brian Brazile arrived (3:26 pm), searched only part of the lot from their patrol car, called the phone (reached voicemail), and cleared the scene at 3:37 pm without locating Kyle.
- Dispatcher Amber Smith took the second call (3:34 pm), improperly activated TTY (reducing volume), experienced a CAD freeze, did not notify supervisors or on-scene officers, and the second-call details were not conveyed to officers.
- Kyle was found dead in the van by family hours later; plaintiffs sued the City, city manager Harry Black, the two dispatchers, and the two officers for wrongful death.
- The trial court denied a Civ.R. 12(B)(6) motion to dismiss; the court of appeals reversed as to the City and officials in their official capacities (governmental immunity applies) but affirmed denial as to individual defendants, finding the complaint adequately alleges at least reckless conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City (and officials in official capacity) is immune under R.C. 2744 | Plush: exceptions apply — R.C. 2744.02(B)(5) (express liability under R.C.128.32) and (B)(4) (physical-defect on government grounds) | City: general political-subdivision immunity applies; exceptions do not fit these facts | Court: City and officials in official capacities are immune; dismissal reversal on that point |
| Scope of R.C.128.32(A)(1) (does it impose liability for operation/maintenance of 911?) | Plush: statute imposes liability for misconduct relating to 911 system operation/development | City: statute applies narrowly to "bringing into operation" (creation) of 911 system only | Court: R.C.128.32(A)(1) applies to creation/bringing-into-operation only; not to ongoing operation |
| Applicability of physical-defect exception R.C.2744.02(B)(4) | Plush: death resulted from issues tied to 911 system or occurred on grounds used for governmental function | City: death occurred on private school parking lot; not "grounds" of a governmental building | Court: (B)(4) inapplicable — injury did not occur on grounds used in connection with a governmental function |
| Individual-employee immunity under R.C.2744.03(A)(6) (wanton/reckless exception) | Plush: complaint alleges facts showing wanton/reckless conduct by Black, Magee, Smith, Osborn, Brazile | Defendants: conduct, at most, negligent or result of training/practice/equipment deficits (thus immune) | Court: complaint plausibly alleges at least reckless conduct by each individual; denial of dismissal proper as to individuals |
Key Cases Cited
- Anderson v. Massillon, 134 Ohio St.3d 380 (defines "wanton" and "reckless" for political-subdivision-immunity analysis)
- Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351 (distinguishing negligence from reckless/wanton conduct)
- O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (pleading standard for dismissal)
- Marchetti v. Kalish, 53 Ohio St.3d 95 (explaining distinction between negligence and reckless misconduct)
- Argabrite v. Neer, 149 Ohio St.3d 349 (noting onerous standard to show law-enforcement recklessness)
- Scott v. Columbus Dept. of Pub. Util., 192 Ohio App.3d 465 (pleading exceptions to immunity need only be plausibly alleged)
- Riscatti v. Prime Properties Ltd. Partnership, 137 Ohio St.3d 123 (importance of resolving R.C. Chapter 2744 immunity early)