Lisa Conner, Admr., etc., et al., Plaintiffs-Appellants, v. Wright State University, Defendant-Appellee.
No. 13AP-116 (C.C. No. 2012-02887)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 24, 2013
[Cite as Conner v. Wright State Univ., 2013-Ohio-5701.]
(REGULAR CALENDAR)
Rendered on December 24, 2013
Poling Law and Paul-Michael La Fayette, for appellants.
Michael DeWine, Attorney General, Peter E. DeMarco and Emily M. Simmons, for appellee.
APPEAL from the Court of Claims of Ohio
DORRIAN, J.
{¶ 1} Plaintiffs-appellants, Lisa and Michael Conner (“appellants“), appeal from a judgment of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee, Wright State University (“WSU“) on their claims related to the death of their son, Nathan Conner. Because we conclude that WSU was entitled to summary judgment because it had statutory immunity on appellants’ claims, we affirm.
{¶ 2} In January 2008, Nathan Conner (“Nathan“), was a second-year student at WSU. On January 15, 2008, officers from WSU‘s police department, including Sergeant James Facemire and Officer Jesse Harrod, were dispatched to Nathan‘s apartment following a call indicating that Nathan may have overdosed on prescription medication (the “January incident“). Nathan was visibly upset and admitted to the officers that he took several types of prescription medication. The officers contacted medics, and Nathan
{¶ 3} After the January incident, Nathan stayed at his parents’ house for approximately one week. Nathan told his parents that he wished to return to school at WSU. On his return to school, Nathan was required to participate in counseling through WSU‘s counseling and wellness services department.
{¶ 4} In the early morning of March 21, 2008, WSU‘s police department received an anonymous call advising that Nathan was going to harm himself using a container of helium. Multiple WSU police officers, including Sergeant Facemire and Officer Harrod, (collectively “WSU police officers“) responded to the call. The WSU police officers spoke with Nathan and assessed his condition. Nathan admitted that he had a helium container but explained that he planned to use it to blow up balloons for a party. Nathan told the officers that he had thoughts of harming himself during the previous week but that he felt better about his situation. After speaking with Nathan, the WSU police officers determined that he was not a threat to himself or others. Appellants assert that sometime after the WSU police officers left, Nathan committed suicide through asphyxiation using helium.
{¶ 5} Appellants filed a complaint in the Court of Claims of Ohio naming WSU, the WSU police department, the WSU department of public safety, and multiple WSU police officers as defendants. Appellants sought relief in their individual capacities and Lisa Conner asserted claims in her capacity as administrator of Nathan‘s estate. Appellants asserted claims for negligence, wrongful death, respondeat superior liability, survivorship, and loss of consortium, asserting that WSU and the other defendants failed to ensure Nathan‘s safety. The Court of Claims issued a pre-screening order dismissing the individual police officers on the grounds that only state agencies and instrumentalities could be defendants in original actions in the Court of Claims. The Court of Claims also deleted the WSU police department and WSU department of public safety from the case caption as surplusage.
{¶ 6} WSU moved for summary judgment on all claims, asserting, in part, that it had statutory immunity from civil liability for claims relating to the WSU police officers’
{¶ 7} Appellants appeal from the trial court‘s judgment, assigning two errors for this court‘s review:
I. THE TRIAL COURT ERRED IN DETERMINING THAT NO SPECIAL RELATIONSHIP EXISTED TO PROTECT APPEL LANT‘S DECEDENT FROM APPELLEE‘S NEGLIGENCE IN THE PERFORMANCE OF APPELLEE‘S PUBLIC DUTY. CONSTRUING THE EVIDENCE IN A LIGHT MOST FAVORABLE TO APPELLANTS, REASONABLE MINDS COULD ONLY CONCLUDE THAT A SPECIAL RELATION SHIP EXISTED BETWEEN APPELLANT‘S DECEDENT AND APPELLEE.
II. GIVEN THE DISPUTED FACTS RELATIVE TO THE REASONABLENESS OF APPELLEE LAW ENFORCEMENT OFFICERS’ ACTIONS AND BASED ON THE TOTALITY OF THE CIRCUMSTANCES, THE TRIAL COURT ERRED IN DETERMINING THAT APPELLEE‘S OFFICERS EXER CISED REASONABLE CARE AND JUDGMENT IN MAKING A DECISION THAT APPELLANT‘S DECEDENT DID NOT POSE AN IMMEDIATE THREAT TO HIMSELF AND THAT THERE WAS NOT FORESEEABLE RISK OF HARM.
{¶ 8} WSU asserts the following cross-assignments of error:
- Whether WSU officers had a special relationship with the decedent.
- Whether the decedent‘s intentional actions were the sole proximate cause of his death.
- Whether Appellant‘s claims are barred by the doctrine of primary assumption of the risk.
{¶ 9} We review the trial court‘s grant of summary judgment de novo. Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). “De novo appellate
{¶ 10} WSU asserts that it has statutory immunity from civil liability on any claims arising from the WSU police officers’ actions because they were performing a “public duty” when they responded to the March 21, 2008 call regarding Nathan. Appellants argue that there was a “special relationship” between WSU and Nathan which creates an exception to the public duty immunity. In the proceeding below, the trial court concluded that WSU was entitled to summary judgment because appellants failed to establish that there was a genuine issue of material fact regarding one of the elements required to establish a special relationship. Under the de novo standard of review, we must examine whether appellants demonstrated a genuine issue of material fact as to each element of the special relationship test.
{¶ 11} By statute, the state is generally immune from liability in a civil action based on the performance or nonperformance of a “public duty.”1
A special relationship under [
R.C. 2743.02(A)(3)(b) ] 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 could 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.
{¶ 12} The trial court concluded that the WSU police officers were performing a public duty when they were dispatched to Nathan‘s apartment on March 21, 2008. It appears that appellants do not dispute this conclusion because their arguments on appeal focus on the issue of whether a special relationship existed. The WSU police officers were responding to an anonymous call advising that Nathan was going to harm himself. We conclude that this constitutes law enforcement or emergency response activity, and, therefore, the WSU police officers were performing a public duty when they went to Nathan‘s apartment. Under
{¶ 13} In its motion for summary judgment, WSU conceded that the WSU police officers had direct contact with Nathan. This satisfies the element set forth in
{¶ 15} We conclude that the existence of the on-call pager protocol does not demonstrate that WSU assumed an affirmative duty to act on Nathan‘s behalf. Police officers have a general duty to enforce the law and protect the public. See, e.g., Warrensville Hts. v. Jennings, 58 Ohio St.3d 206, 211 (1991) (referring to “[a] police officer‘s continuing duty to obey and enforce the criminal law, even when off duty“); Luketic v. Univ. Circle, Inc., 134 Ohio App.3d 217, 223 (8th Dist.1999) (referring to off-duty university police officer‘s “legal and moral duty, pursuant to statutory authority and his oath as a police officer, to protect the public and attempt to prevent a violent felony“). The on-call pager protocol provided one set of procedures for the WSU police officers to use when performing this general duty. The fact that WSU‘s department of public safety implemented this protocol did not constitute the assumption of an affirmative duty to act on any particular individual‘s behalf. See, e.g., Burgess v. Doe, 116 Ohio App.3d 61, 67 (12th Dist.1996) (“It is well established that no special relationship exists simply because a member of the general public requests assistance from the police.“); Drexler v. Greater Cleveland Regional Transit Auth., 80 Ohio App.3d 367, 371-72 (8th Dist.1992) (concluding that a regional transit authority‘s maintenance of a security force did not create a special duty or special relationship with an individual who was abducted from one of the transit authority‘s stations).
{¶ 17} In addition to the officer‘s statement on March 21, 2008, there is evidence suggesting that WSU may have formed a special relationship with Nathan when he returned from school after the January incident. Lisa Conner testified at her deposition that Nathan was admitted back into school after the January incident under certain guidelines, which included participating in counseling through one of WSU‘s departments. She also testified that she believed that, after returning to school, Nathan was diagnosed as having bipolar disorder and was placed on medication under the care of a counselor affiliated with WSU. Lisa Conner further testified that she and Nathan attended a meeting in February 2008 where officials from WSU indicated that Nathan was not meeting the required conditions for continued residence in university housing. The evidence attached to appellants’ memorandum in opposition to summary judgment includes a record showing that Nathan attended multiple appointments with WSU‘s counseling and wellness services department between January 18 and March 19, 2008.
{¶ 18} Construing this evidence in favor of appellants, reasonable minds could come to different conclusions as to whether WSU assumed an affirmative duty to act on Nathan‘s behalf by entering into a program of treatment and counseling for him. Therefore, WSU cannot demonstrate that there was no genuine issue of material fact as to whether WSU assumed an affirmative duty, through promises or actions, to act on Nathan‘s behalf. We do not conclude that there was a special relationship between WSU and Nathan but, rather, that appellants have presented evidence establishing that there is a genuine issue of material fact as to this element of the special-relationship test.
{¶ 20} Finally, assuming for purposes of analysis that WSU assumed an affirmative duty to act on Nathan‘s behalf, we turn to the question of whether Nathan justifiably relied on this undertaking.
{¶ 21} Appellants argue that justifiable reliance is a factual inquiry that is inappropriate for summary judgment. However, as explained above, we conclude that appellants failed to demonstrate that Nathan relied on WSU for his care. Appellants also suggest that the justifiable-reliance element should not apply in a situation such as this, where an individual is potentially experiencing a mental health crisis.2 The statute contains no exceptions for particular conditions and provides that all four elements, including justifiable reliance, must be demonstrated in order to establish the existence of a special relationship. We are limited to applying the statute as written. See Skilton v. Perry Loc. School Dist. Bd. of Edn., 102 Ohio St.3d 173, 2004-Ohio-2239, ¶ 14 (“It is not the role of the courts to question the public policy values of a legislatively enacted statutory scheme. We are limited to applying the statutes as written and passing on the constitutionality thereof.“).
{¶ 22} Based on our de novo review of the evidence presented below, we conclude that WSU demonstrated that there was no genuine issue of material fact as to whether Nathan justifiably relied on an affirmative undertaking by WSU to act on his behalf. Establishing the existence of a special relationship between the state and an injured party requires demonstrating all four statutory elements, including justifiable reliance. Because appellants failed to establish that Nathan justifiably relied on an affirmative undertaking by WSU, it is entitled to judgment as a matter of law in its favor on the issue of whether a special relationship existed between WSU and Nathan. Because there was no special relationship between WSU and Nathan and because the WSU police officers were engaged in a public duty, WSU is immune from liability under
{¶ 24} Accordingly, we overrule appellants’ first assignment of error.
{¶ 25} In appellants’ second assignment of error, they assert that the trial court erred by concluding that the WSU police officers exercised reasonable care and judgment in deciding that Nathan was not an immediate threat to himself. The question of whether the WSU police officers exercised reasonable care goes to the merits of appellants’ negligence claims. See, e.g., Ford v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 05AP-357, 2006-Ohio-2531, ¶ 10-14. However, as explained above, the trial court granted summary judgment in WSU‘s favor on the negligence claims and all of appellants’ other claims. Therefore, the trial court‘s statement regarding whether the WSU police officers exercised reasonable care was not necessary for resolution of the case and constituted dictum. See Sellers v. Williams, 105 Ohio App. 332, 334 (4th Dist.1957) (“These opinions
{¶ 26} Finally, we turn to WSU‘s cross-assignments of error. WSU did not file a cross-appeal; however, a cross-appeal is not required where a party intends to defend an appealed judgment on a ground other than that relied on by the trial court but does not seek to change the judgment. App.R. 3(C)(2). Under its first cross-assignment of error, WSU argues that the WSU police officers did not have a special relationship with Nathan. The substance of this cross-assignment of error is resolved through our decision on appellants’ first assignment of error; therefore, we need not address it further here. In its second and third cross-assignments of error, WSU argues for alternative grounds to support the trial court‘s judgment. Because we have overruled appellants’ first assignment of error, we need not address these cross-assignments of error because they are moot.
{¶ 27} For the foregoing reasons, appellants’ first assignment of error is overruled, and their second assignment of error is rendered moot. WSU‘s cross-assignments of error are also rendered moot. We affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
SADLER and GREY, JJ., concur.
GREY, J., retired, of the Fourth Appellate District, assigned to active duty under the authority of the Ohio Constitution, Article IV, Section 6(C).