CAMPBELL ET AL., APPELLANTS, v. BURTON; CLIFTON ET AL., APPELLEES.
Nos. 99-1838 and 99-2106
SUPREME COURT OF OHIO
Submitted September 12, 2000 — Decided July 25, 2001.
92 Ohio St.3d 336 | 2001-Ohio-206
APPEAL from and CERTIFIED by the Court of Appeals for Greene County, No. 99CA12.
SYLLABUS OF THE COURT
- Within the meaning of
R.C. 2744.02(B)(5) and2744.03(A)(6)(c) ,R.C. 2151.421 expressly imposes liability for failure to perform the duty to report known or suspected child abuse. - Pursuant to
R.C. 2744.02(B)(5) , a political subdivision may be held liable for failure to perform a duty expressly imposed byR.C. 2151.421 . - Pursuant to
R.C. 2744.03(A)(6)(c) , an employee of a political subdivision may be held liable for failure to perform a duty expressly imposed byR.C. 2151.421 .
{¶ 1} This case is before the court for the purpose of resolving a conflict among the courts of appeals for the Second, Fifth, Sixth, and Ninth District Courts of Appeals with regard to whether, within the meaning of
{¶ 2} Amber Campbell was an eighth-grade student at Baker Junior High, Fairborn City Schools (“Fairborn“), during the 1995 to 1996 school year. During the same time period Fairborn conducted a peer mediation program. The peer mediation program involved students as mediators and was designed to resolve disputes between students. Debra Mallonee was a teacher working for Fairborn from 1977 to 1997. In addition to teaching, Mallonee was the peer mediation coordinator.
{¶ 3} From January to August 1996, Mallonee was on sabbatical pursuing her Ph.D. at Ohio State University. During her sabbatical, Mallonee was authorized by the school to conduct mediations requested by teachers and administration.
{¶ 4} In March 1996, Campbell participated in two mediations as a disputant with another student, Amanda Adkins, regarding a disagreement over a male classmate. In the first mediation, Campbell, Adkins, and Mallonee were present. The mediation concluded with Campbell and Adkins entering into a written agreement. When their dispute resumed shortly thereafter, Adkins sought another mediation with Campbell.
{¶ 5} According to Campbell, during the second mediation she told Mallonee that there was a male friend of the family, David Burton, who hugged her and made her feel uncomfortable. Relating an incident in which Burton picked her up from Saturday school in his car, Campbell stated, “[H]e told me to kiss him and slapped me on the butt and touched my necklace and went down to my breasts and crotch area.” Campbell described another incident in which Campbell sat on
{¶ 6} In addition to the information regarding Burton, Campbell said she also told Mallonee a story about Campbell having sex with the brother of one of her friends. Campbell claimed that Mallonee did not pay attention to what she had said about Burton, so Campbell made up the story about having sex with the friend‘s brother in order to get Mallonee‘s attention. Mallonee recalled the incident differently, stating that Campbell first told the story about having sex with the brother of a friend and then described the incidents with Burton. Mallonee believed that the story about Burton was simply an attempt by Campbell to change the subject from the initial discussion about having sex with the brother of her friend.
{¶ 7} At the close of the mediation, Mallonee instructed Campbell to tell her mother about Burton and to stay away from him if he made her feel uncomfortable. Mallonee did not report Campbell‘s concerns regarding Burton to anyone. Campbell alleges that after her conversation with Mallonee, Burton continued to hug her, touch her buttocks, and on one occasion “french kissed” her.
{¶ 8} On March 21, 1997, Campbell, through her mother and next friend, Sharon Campbell, and father, Carl W. Campbell, appellants, filed an action against Steven Clifton, who is the Superintendent of Fairborn City Schools, and the Board of Education of the Fairborn City Schools (also “Fairborn“), appellees, and Burton. On March 23, 1998, appellants filed an action against Mallonee, who is also an appellee. The two complaints allege that appellees failed to report, pursuant to
{¶ 9} On January 27, 1999, the trial court granted summary judgment in favor of Clifton and Mallonee on the basis that they were immune from liability pursuant to
{¶ 10} Appellants appealed the trial court‘s decision to the Greene County Court of Appeals. The court of appeals affirmed, holding that within the meaning of
{¶ 11} The certified question presented to this court on appeal from the Second Appellate district is:
“For the purposes of the immunity exceptions in
R.C. 2744.02(B)(5) andR.C. 2744.03(A)(6)(c) , doesR.C. 2151.421 expressly impose liability on political subdivisions and their employees for failure to report child abuse?”
{¶ 12} We answer the certified question in the affirmative.
{¶ 13} The issues raised by the parties concern sovereign immunity pursuant to the Political Subdivision Tort Liability Act and the exceptions to immunity set forth in
“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 persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision * * *.”
{¶ 14} Second, we analyze
“In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to persons or property when liability is expressly imposed upon the political subdivision by a section of the Revised Code * * *. Liability shall not be construed to exist under another section of the Revised Code merely because a responsibility is imposed
upon a political subdivision or because of a general authorization that a political subdivision may sue and be sued.”
{¶ 15} The third and final tier of analysis requires review of
{¶ 16} As stated in the exceptions to immunity set forth in
{¶ 17}
“No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows or suspects that a child under eighteen years of age or a mentally retarded, developmentally disabled, or physically impaired child under twenty-one years of age has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child, shall fail to
immediately report that knowledge or suspicion to the public children services agency or a municipal or county peace officer * * *.”
{¶ 18}
{¶ 19} Appellees argue that
{¶ 20} Appellees argue that a criminal sanction is not an express imposition of liability within the meaning of
{¶ 21} In
{¶ 22} Appellees also contend that the word “liability” as used in
{¶ 24} Accordingly, we hold that within the meaning of
I. Liability of Fairborn
{¶ 25} In order to determine the potential liability of Fairborn, we now apply the three-tiered analysis of
{¶ 26} Next we determine whether one of the
{¶ 27} Finally, we are required to review
{¶ 28} Based upon the foregoing analysis, we find that pursuant to
II. Liability of Clifton and Mallonee
{¶ 29} Clifton and Mallonee claim immunity pursuant to
{¶ 30} Since
{¶ 31} While we hold that liability may be imposed, we make no determination of appellees’ liability. The only determination we make is that the
{¶ 32} The judgment of the court of appeals is reversed, and this cause is remanded to the trial court.
Judgment reversed and cause remanded.
RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
COOK, J., dissenting.
{¶ 33} By virtue of
{¶ 34} Fairborn City Schools (“Fairborn“) is a political subdivision, as defined in
“[A] political subdivision is liable for injury, death, or loss to persons or property when liability is expressly imposed upon the political subdivision by a
section of the Revised Code, including, but not limited to, sections 2743.02 and5591.37 of the Revised Code. Liability shall not be construed to exist under another section of the Revised Code merely because a responsibility is imposed upon a political subdivision or because of a general authorization that a political subdivision may sue or be sued.” (Emphasis added.)
{¶ 35} As individual employees of Fairborn, Mallonee and Clifton were also entitled to qualified immunity under
{¶ 36} When interpreting statutes, we must give words their ordinary and natural meaning unless a different intention appears in the statute. Layman v. Woo (1997), 78 Ohio St.3d 485, 487, 678 N.E.2d 1217, 1218. The ordinary definition of “expressly” is “in direct or unmistakable terms * * *: explicitly, definitely, directly.” (Emphasis added.) Webster‘s Third New International Dictionary (1971) 803. Thus, the relevant inquiry is whether
{¶ 37} As the majority notes,
employee‘s failure to report abuse, we are left to infer the existence of liability for the employee‘s breach of the statutory duty. That we must infer liability necessarily means that the statute does not expressly impose it. Because it contains no explicit declaration that the political subdivision or its employee can be held liable in a civil action for damages,
{¶ 38} The majority solves this analytic problem by invoking
{¶ 40} I therefore cannot agree with the majority‘s holding that
{¶ 41} The majority‘s rationale is more defensible as applied to the potential liability of Mallonee and Clifton. As school district employees, both are included among the persons required to report suspected child abuse under
{¶ 43}
“In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages * * * caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability.” (Emphasis added.)
{¶ 44} This introductory paragraph specifies that the “defenses or immunities” contained in
{¶ 45} If the legislature had truly intended to subject a political subdivision and its employees to tort liability for a violation of
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing dissenting opinion.
Gary J. Leppla and Jennifer L. Hill, for appellants.
Law Offices of Nicholas E. Subashi, Nicholas E. Subashi and David J. Arens, for appellees.
Issac, Brant, Ledman & Teetor, Mark Landes and Barbara Kozar Letcher, urging affirmance for amici curiae County Commissioners Association of Ohio and Public Children‘s Service Association of Ohio.
Cloppert, Portman, Sauter, Lantanick & Foley and Frederick G. Cloppert, Jr., urging affirmance for amicus curiae Ohio Education Association.