Elizabeth Banks, as Administratrix of the Estate of Daniel Banks, Deceased, Plaintiff-Appellant, v. Ohio Bureau of Workers’ Compensation, Defendant-Appellee.
No. 17AP-748
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 27, 2018
2018-Ohio-5246
(Ct. of Cl. No. 2016-00922) (ACCELERATED CALENDAR)
Rendered on December 27, 2018
On brief: Kisling, Nestico & Redick, LLC, Christopher J. Van Blargan, and Michael J. Maillis, for appellant. Argued: Christopher J. Van Blargan.
On brief: Michael DeWine, Attorney General, and Velda K. Hofacker, for appellee. Argued: Velda K. Hofаcker.
APPEAL from the Court of Claims of Ohio.
BROWN, P.J.
{¶ 1} This is an appeal by plaintiff-appellant, Elizabeth Banks, as Administratrix of the Estate of Daniel Banks, Deceased, from a judgment of the Court of Claims of Ohio granting a motion for judgment on the pleadings filed by defendant-appellee, Ohio Bureau of Workers’ Compensation (“BWC“).
{¶ 2} Appellant is the administratrix for the estate of Daniel Banks (“Banks” or “the decеdent“). On December 20, 2016, appellant filed a complaint against BWC, alleging Banks, an aluminum extrusion press operator employed by BRT Extrusions, Inc.
{¶ 3} According to the complaint, BRT‘s normal operating procedures required the extrusion press to be set to “semi-automatic” to prevent the machine from cycling “without human action and verification that no one was in the point of operation when the machine cycled.” (Compl. at ¶ 8.) However, after Banks left the machine for a lunch break, another worker set the press to “automatic.” (Compl. at ¶ 8.) On returning from lunch, “a butt from the aluminum billet used in the press fell into the press’ point of operation.” (Compl. at ¶ 9.) Banks walked around to the back of the machine to clear the butt, unaware that the press had been set to automatic. As Banks attempted to clear the butt, the press cycled and he was crushed in an unguarded pinch point. Banks subsequently died of his injuries.
{¶ 4} The complaint alleged BRT had previously entered into an agreement with BWC wherеby “BWC agreed gratuitously or for pay to provide BRT with safety consulting services including but not limited to evaluating guarding and the safety of extrusion press operations, and recommending actions to meet industry safety standards.” (Compl. at ¶ 11.) It was further alleged BRT “justifiably relied upon the services provide[d] by BWC to determine whether the extrusion press’ operations and Banks’ workplace presented an unreasonable risk of danger and in taking action to improve safety.” (Compl. at ¶ 12.)
{¶ 5} Appellant alleged BWC was negligent in: (1) failing to recommend a comprehensive guarding audit to determine if the extrusion press’ guarding was adequate for its operation, (2) inspecting the extrusion press and its guards, (3) failing to advise BRT or others that the extrusion press guarding was inadequate for its operation, and (4) recommending inadequate guards.
{¶ 6} On January 18, 2017, BWC filed an answer. On May 9, 2017, BWC filed a motion for judgment on the pleadings, pursuant to
{¶ 7} By entry filed October 6, 2017, the Court of Claims grantеd BWC‘s motion for judgment on the pleadings. In its decision, the Court of Claims found BWC was
{¶ 8} On appeal, appellant sets forth the following three assignments of error for this court‘s review:
[I.] The Court of Claims court erred in granting the BWC judgment on the pleadings based on its finding that the BWC performed a public duty in providing individualized safеty consulting services to BRT Extrusions where such task is typically performed by the employer or third party safety consultants retained by the employer to fulfill the employer‘s duty to its employees under Revised Code Section 4101.11. Ohio‘s Frequenter Statute.
[II.] Assuming the activities performed by the BWC were public duties, the Court of Claims nevertheless erred in granting judgment on the pleadings based on its finding the Estate could not as a matter of law demonstrate the existence of a special relationship between the BWC and decedent under Revised Code Section 2743.02(A)(3)(b).
[III.] Assuming that the Estate failed to plead sufficient operative facts to demonstrate a special relationship between the BWC and the decedent, the Court of Clаims abused its discretion in denying the Estate‘s Motion for Leave to Amend Complaint where the Estate submitted evidence demonstrating that amendment would not be fruitless and dismissal was with prejudice.
{¶ 9} Appellant‘s first and second assignments of error are interrelated and will be considered together. Under these assignments of error, appellant asserts the Court of Claims erred in granting BWC‘s motion for judgment on the pleadings on the grounds that BWC performed a public duty in providing safety consulting services to BRT, and appellant could not demonstrate the existence of a special relationship between BWC and decedent.
{¶ 10}
{¶ 11} A motion for judgment on the pleadings under
{¶ 12}
{¶ 13}
“Public duty” includes, but is not limited to, any statutory, regulatory, or assumed duty concerning any action or omission of the state involving any of the following:
(a) Permitting, certifying, licensing, inspecting, investigating, supervising, regulating, auditing, monitoring, law enforcement, or emergency response activity.
{¶ 14} The doctrine of public duty immunity “does not apply, however, ‘under circumstances in which a special relationship can be established between the state and an injured party.’ ” Lawrence v. Meridian Senior Living, L.L.C., 10th Dist. No. 16AP-326, 2016-Ohio-8500, ¶ 8, quoting
The state immunity provided in division (A)(3)(a) of this section does not apply to any action of the state under circumstances in which a special relationship can be established between the state and an injured party. A special
relationship under this division is demonstrated if all of the following elements exist: (i) An assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who was allegedly injured;
(ii) Knowledge on the part of the state‘s agents that inaction of the state сould lead to harm;
(iii) Some form of direct contact between the state‘s agents and the injured party;
(iv) The injured party‘s justifiable reliance on the state‘s affirmative undertaking.
{¶ 15} We initially address appellant‘s contention that the Court of Claims erred in concluding the public duty doctrine was applicable to BWC‘s safety consulting services. According to appellant, the services provided by BWC are similar to those typically provided by an employer or third-party safety consultants (i.e., commonly performed by private entities) and, therefore, should not be subject to the public duty doctrine. In support, appellant relies in part on a decision by this court in Jones v. Dept. of Health, Div. of Public Health & Laboratories, 69 Ohio App.3d 480, 488 (10th Dist.1990), holding the public duty doctrine did not apply to lаboratory testing by the Ohio Department of Health (“ODH“) for phenylketonuria (“PKU“) with respect to newborn babies, as “ODH performs the same function as private laboratories when it tests samples for PKU.”
{¶ 16} In response, BWC argues appellant ignores the clear statutory definition of the public duty statute and seeks to invoke a common law exception by relying on a decision (Jones) that predates the statute. BWC maintains the public duty statute provides only one exception to public duty immunity, i.e., the special relationship test.
{¶ 17} As noted, appellant‘s complaint alleged BWC agreed to provide safety consulting services to BRT, including “evaluating guarding and the safety of extrusion press operations, and recommеnding actions to meet industry safety standards.” Further, appellant alleged BWC was negligent in (1) failing to recommend a comprehensive guarding audit, (2) inspecting the extrusion press and guards, (3) failing to advise BRT or others that the extrusion guarding was inadequate for its operation, and (4) in recommending inadequate guards.
{¶ 19}
{¶ 20} In addressing the issue of public duty immunity with respect to the allegations in the complaint, the Court of Claims held in part:
Defendant admits in its answer that at various times, BWC provided consulting services to BRT, at times through BRT‘s participation in the Industry-Specific Safety Program as set forth in Ohio Administrative Code section 4123-17-56.3, and at other times through BWC‘s division of safety and hygiene created in R.C. 4121.37. * * * Thus, defendant‘s duty to inspect the extrusion press where Banks was injured was a statutory or assumed duty by BWC. These duties are public duties, and “[a]s such, [public duties] do not flow to any private individual, including the individual being regulated, inspected, licensed or audited, and including any individuals who would benefit from these governmental functions.” Markowitz v. Dept. of Ins., 144 Ohio App.3d 155, 161 (10th Dist.2001).
(Entry Granting Def.‘s Mot. for Judgment on the Plеadings at 3-4.)
{¶ 21} As noted,
{¶ 22} In reviewing the pleadings at issue, we agree with the Court of Claims that the allegаtions regarding the safety consulting services BWC provided to BRT (i.e., involving inspecting, auditing, and consulting with an employer to address workplace safety concerns) implicate statutory or assumed duties by BWC for which the public duty doctrine is applicable. Appellant‘s claim that third parties also engage in activities such as inspecting, auditing, and investigating is not pеrsuasive. Although private parties may engage in similar activities, “a private party‘s duty to inspect and to enforce safety standards is not created by statute.” Shelton at 130.
{¶ 23} Having found no error with the Court of Claims’ determination that the duties alleged to have been violated by BWC are public duties, we next consider appellant‘s contention that the Court of Claims erred in failing to find a special relationship as an exception to the public duty doctrine. As noted, an exception to the public duty doctrine “allows recovery * * * where a ‘special relationship,’ as defined by meeting all elements of a four-part test, is established between the state and an injured party.” Rudd v. Ohio State Hwy. Patrol, 10th Dist. No. 15AP-869, 2016-Ohio-8263, ¶ 13. With respect to the first element necessary to prove a special relationship, “in order for the state to assume an affirmative duty to act on behalf of an injured party it must ‘do more than adhere to its statutory duty.’ * * * ‘It must voluntarily assume some additional duty.’ ” Lawrence at ¶ 12, quoting Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 101 (1989).
{¶ 24} In the present case, the Court of Claims noted appellant‘s complaint alleged BWC was negligent in its performance of safety cоnsultant services provided to BRT through an agreement between them, and that “BRT‘s justifiable reliance on BWC‘s
{¶ 25} We agree with the Court of Claims that the complaint lacks factual allegations as to all of the elements of the special relationship exception, including facts alleging that BWC assumed an affirmative duty to act on behalf of Banks, or allegations of “direct contact” between BWC and Banks. This court has previously held the absence of such facts renders a complaint subject to dismissal pursuant to
{¶ 26} Accordingly, the Court of Claims did not err in its determination that, on making all reasonable inferences in favor of appеllant, BWC was immune from liability under the public duty doctrine and that no special relationship existed between BWC and Banks. Based on the foregoing, appellant‘s first and second assignments of error are not well-taken and are overruled.
{¶ 27} Under the third assignment of error, appellant asserts the Court of Claims erred in denying a request for leave to amend the complaint. Appellant argues the Court of Claims denied the request for leave without explanation, and that leave should have been freely granted pursuant to
{¶ 28} By way of background, in response to BWC‘s motion for judgment on the pleadings, appellant filed a “memorandum in opposition” on May 23, 2017. In the last section of appellant‘s memorandum, appellant requested, in the event the Court of Claims disagreed with appellant‘s contention that BWC was not entitled to judgment on the
{¶ 29} After a responsive pleading is filed, “a party may amend his pleading only by leаve of court or by written consent of the adverse party.” Reighard v. Cleveland Elec. Illuminating, 7th Dist. No. 05 MA 120, 2006-Ohio-1283, ¶ 39, citing
{¶ 30} In the present case, appellant did not seek to amend the complaint before BWC filed its motion for judgment on the plеadings. Further, appellant did not file a formal motion for leave to amend (nor did appellant submit a proposed amended complaint). Rather, appellant made an alternative request in the memorandum in opposition to BWC‘s motion for judgment on the pleadings to amend “if the Court disagrees and finds the Estate‘s complaint deficient.” (Pl.‘s Memo in Oрposition to Def.‘s Mot. for Judgment on the Pleadings at 1-2.) Under these circumstances, we find no abuse of discretion by the Court of Claims by not granting appellant leave to amend the complaint. See Miller v. Med. Mut. of Ohio, 5th Dist. No. 2012CA0020, 2013-Ohio-3179, ¶ 59 (trial court did not abuse its discretion in failing to grant leave to amend where appellants did not file formal motion for leave to amend complaint but, instead, in response to motion to dismiss, requested the court allow them to file amended pleading in the event the court found the complaint deficient); White v. Roch, 9th Dist. No. 22239, 2005-Ohio-1127, ¶ 8 (finding no abuse of discretion by trial court in not granting appellant leave to amend complaint where appellant did not file formal motion seeking leave to amend but rather made passing request for leave to amend in brief opposing motion to dismiss).
{¶ 31} Appellant‘s third assignment of error is not well-taken and is overruled.
Judgment affirmed.
LUPER SCHUSTER and BRUNNER, JJ., concur.
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