Tasse v. Marsalek
2020 Ohio 5084
Ohio Ct. App.2020Background
- On August 13, 2017 Catherine Tasse was bitten by Daniel Marsalek’s dog after approaching his residence; she and her husband sued the City of Rocky River and city animal control officer Michael Jarvis for negligence, reckless misconduct, and loss of consortium.
- Plaintiffs alleged the dog had prior bite history and that Rocky River/Jarvis knew but failed to classify the dog as "dangerous" or require confinement under Ohio law, causing the injury.
- Rocky River’s local ordinance limited the definition of "dangerous dog" to bites or attacks occurring off the owner’s premises; Marsalek’s earlier bite occurred on the premises, so the dog had not been designated dangerous under the city ordinance.
- Defendants moved to dismiss under Civ.R. 12(B)(6), asserting immunity under R.C. Chapter 2744 (political-subdivision immunity) and R.C. 2744.03(A)(6) (employee immunity); the trial court denied the motion, citing factual disputes over willful/wanton/reckless conduct.
- The court of appeals reviewed de novo and reversed: plaintiffs failed to plead an applicable R.C. 2744.02(B) exception to municipal immunity and failed to allege facts showing Jarvis acted with the level of wanton/reckless/ malicious conduct required to defeat employee immunity; case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rocky River is immune under R.C. Chapter 2744 | Tasse: city ordinance conflicted with state law (R.C. 955.22) and that conflict + prior-bite knowledge removes immunity | Rocky River: broad immunity under R.C. 2744; plaintiffs did not plead any R.C. 2744.02(B) exception | Reversed trial court; city immune. Plaintiffs failed to plead an enumerated exception to R.C. 2744.02(A)(1) immunity (no statute expressly imposing civil liability on city) |
| Whether Jarvis (employee) is immune under R.C. 2744.03(A)(6) | Tasse: Jarvis acted willfully/wantonly/recklessly by enforcing the city ordinance (conflicting with state law) and failing to require confinement | Jarvis: entitled to employee immunity absent acts outside scope or actions with malicious purpose, bad faith, or wanton/reckless conduct | Reversed trial court; Jarvis immune. Complaint lacks facts showing conscious or perverse disregard of a known risk necessary to defeat employee immunity |
Key Cases Cited
- Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44 (de novo review on Civ.R. 12(B)(6))
- Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136 (guidance on motion-to-dismiss review)
- Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268 (12(B)(6) standard: dismissal only when plaintiff can prove no set of facts entitling relief)
- Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845 (three-tier political-subdivision immunity framework)
- Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, 889 N.E.2d 521 (employee-immunity analysis under R.C. 2744.03(A)(6))
- O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505 (recklessness requires consciousness that conduct will in all probability result in injury)
- Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 639 N.E.2d 31 (wanton misconduct: failure to exercise any care)