814 N.E.2d 505 | Ohio Ct. App. | 2004
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *142
{¶ 2} In connection with the dismissal of FedEx, Cooke asserts these assignments of error:
{¶ 3} "I. The trial court erred in determining that Fed Ex was not liable under a theory of respondeat superior.
{¶ 4} "II. The trial court erred in determining that Fed Ex was not liable under a theory of negligent supervision.
{¶ 5} "III. The trial court erred in determining that Fed Ex was not liable under a theory of intentional infliction of emotional distress."
{¶ 6} Cooke also claims the following errors concerning the trial court's dismissal of claims against the Board and Court:
{¶ 7} "I. The trial court erred in determining that Montgomery County was entitled to the defense of governmental immunity.
{¶ 8} "II. The trial court erred in determining that Montgomery County was not negligent in the death of Nathan Marshall."
{¶ 9} After considering the record and applicable law, we find all assignments of error without merit. Accordingly, the judgments of the trial court will be affirmed.
{¶ 11} Gapen was apparently scheduled to work for FedEx on September 17 and 18, 2000. Instead, Gapen broke the electronic detention and murdered three people: Martha Madewell, Nathan Marshall, and Jesica Young. Gapen was subsequently indicted and convicted on charges of aggravated murder in the deaths. Ultimately, Gapen received life sentences without parole for the deaths of Madewell and Marshall, and the death penalty for Young's death. *144
{¶ 12} On September 19, 2001, Cooke filed a wrongful death action against Gapen, the Board, the Court, FedEx, and Montgomery County, Ohio. The claims against FedEx were based on negligence, negligent supervision, and negligent infliction of emotional distress. FedEx filed a motion to dismiss under Civ. R. 12(b)(6), which was granted by the trial court without discussion on November 6, 2003.
{¶ 13} In her assignments of error, Cooke mentions three theories under which FedEx could potentially be held liable: respondeat superior, negligent supervision, and intentional infliction of emotional distress. The last theory is apparently raised in error, since both the complaint and text of Cooke's brief refer to negligent, rather than intentional infliction of emotional distress. Accordingly, we will confine our discussion to negligent infliction of emotional distress.
{¶ 14} Judgments of dismissal are reviewed de novo, which means that both trial and appellate courts apply the same tests.State ex rel. Karmasu v. Tate (1992),
{¶ 15} "a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. * * * Then, before we may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts warranting a recovery." Mitchell v. LawsonMilk Co. (1988),
{¶ 17} "[F]or an employer to be liable under the doctrine ofrespondeat superior, the tort of the employee must be committed within the scope of employment. Moreover, where the tort is intentional, * * * the behavior giving rise to the tort must be `calculated to facilitate or promote the business for which the servant was employed * * *.'" Byrd v. Faber (1991),
{¶ 18} In Byrd, the court stressed that: *145
{¶ 19} "`an intentional and wilful attack committed by an agent or employee, to vent his own spleen or malevolence against the injured person, is a clear departure from his employment and his principal or employer is not responsible therefor.' * * * In other words, an employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his business." Id. at 59.
{¶ 20} Furthermore, a "`"servant's conduct is within the scope of his employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limits of time and space, and is actuated, at least in part, by a purpose to serve the master."'" Anderson v. Toeppe (1996),
{¶ 21} Because the complaint in the present case lacks any allegations that would satisfy the above criteria, the trial court did not err in failing to find FedEx potentially liable under the theory of respondeat superior.
{¶ 23} "`"(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5) the employer's negligence in hiring or retaining the employee as the proximate cause of plaintiff's injuries."'" Evans v. OhioState Univ. (1996),
{¶ 24} We find negligent supervision inapplicable, because the complaint does not indicate that Gapen was acting within the scope of his employment at the time of the alleged crimes. Further, the complaint does not allege that FedEx had actual or constructive knowledge that Gapen would commit murder. The fact that Gapen was charged with abduction does not mean that an employer could reasonably anticipate that he would escape and commit three murders.
{¶ 25} In this regard, Cooke relies on 2 Restatement of the Law 2d, Torts (1965) 125, Section 317, as outlined in Kerans v.Porter Paint Co. (1991),
{¶ 26} "`"A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
{¶ 27} "(a) the servant
{¶ 28} "(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
{¶ 29} "(ii) is using a chattel of the master, and
{¶ 30} "(b) the master
{¶ 31} "(i) knows or has reason to know that he has the ability to control his servant, and
{¶ 32} "(ii) knows or should know of the necessity and opportunity for exercising such control."'" Id. at 491.
{¶ 33} According to Cooke, FedEx should be held liable for Gapen's crimes because FedEx knew of the pending criminal charge, requested that Gapen be allowed work release privileges, and allowed Gapen to frequently alter his work schedule without reporting changes to Montgomery County Pre-trial Services. However, we disagree. Even assuming the truth of these facts, there is simply no connection between any alleged actions of FedEx and Gapen's crimes. In Kerans, the Ohio Supreme Court stressed that:
{¶ 34} "An employer has a duty to provide its employees with a safe work environment and, thus, may be independently liable for failing to take corrective action against an employee who poses a threat of harm to fellow employees, even where the employee's actions do not serve or advance the employer's business goals. Whether the employer has acted appropriately in a particular situation is a factual matter to be determined on a case by case basis. However, where an employer knows or has reason to know that one of his employees is sexually harassing other employees, he may not sit idly by and do nothing." Id. at 493.
{¶ 35} Notably, Kerans dealt with a "safe work environment." Other courts have refused to apply Section 317 where the tortious conduct did not occur on company premises. See, e.g., Gilkey v. Gibson (Jan. 6, 2000), Franklin App. No. 98AP-1570, 2000 WL 4973, *3. See, also, Vance v. Consol. RailCorp., *147
{¶ 36} The law generally provides that:
{¶ 37} "a defendant has no duty to control the violent conduct of a third person as to prevent that person from causing physical harm to another unless a `"special relation" exists between the defendant and the third person or between the defendant and the other. In order for a special relation to exist between the defendant and the third person, the defendant must have the ability to control the third person's conduct." Estatesof Morgan v. Fairfield Family Counseling Ctr.,
{¶ 38} Again, a duty could arise in the context of the employment relationship, but only in limited situations that simply do not exist in the present case. Accordingly, we agree with the trial court that Cooke's claims for negligent supervision fail to state a claim upon which relief can be granted. The second assignment of error is, therefore, without merit and is overruled.
{¶ 40} Accordingly, the third assignment of error is without merit and is overruled.
{¶ 42} As a preliminary point, we note that the complaint does not mention retention of bond money. Instead, the complaint simply states that Montgomery County had a duty, statutory or otherwise, to monitor Gapen and negligently breached this duty. Similar allegations are made regarding Montgomery County Pre-Trial Services.
{¶ 43} To decide if political subdivisions are immune from liability, courts use a three-tier analysis. Cater v. City ofCleveland,
{¶ 44} "First, R.C.
{¶ 45} "* * *
{¶ 46} "The immunity afforded a political subdivision in R.C.
{¶ 47} Political subdivisions are generally immune from liability for both proprietary and governmental functions. R.C.
{¶ 48} R.C.
{¶ 49} "(a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement;
{¶ 50} "(b) A function that is for the common good of all citizens of the state;
{¶ 51} "(c) A function that promotes or preserves the public peace, health, safety, or welfare; that involves activities that are not engaged in or not *149 customarily engaged in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function."
{¶ 52} The specific governmental functions mentioned in R.C.
{¶ 53} "(a) The function is not one described in division (C)(1)(a) or (b) of this section and is not one specified in division (C)(2) of this section;
{¶ 54} "(b) The function is one that promotes or preserves the public peace, health, safety, or welfare and that involves activities that are customarily engaged in by nongovernmental persons." R.C.
{¶ 55} R.C.
{¶ 56} Based on the preceding discussion, the first assignment of error directed to the Board and the Court is without merit and is overruled.
{¶ 58} "[w]hen a duty which the law imposes upon a public official is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, is generally a public and not an individual injury.
{¶ 59} "The public duty rule, and the special duty exception, comprise a doctrine which is independent of, and accordingly survived the abrogation of, sovereign immunity.
{¶ 60} "In order to demonstrate a special duty or relationship, the following elements must be shown to exist: (1) an assumption by the municipality, through *150 promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking." Id. at paragraphs two, three, and four of the syllabus.
{¶ 61} Cooke argues that the facts in the complaint raise a genuine factual question concerning whether the Board and the Court assumed an affirmative duty toward Marshall. We disagree.
{¶ 62} As an initial point, we note that the "special duty" exception does not apply to the court's judicial actions. Members of the judiciary with jurisdiction over a controversy have "absolute immunity from civil liability for acts occurring during the performance of the judicial function." Loyer v. Turner
(1998),
{¶ 63} Some appellate courts have held that passage of the Ohio Political Subdivision Tort Liability Act abrogated the public duty rule and the special duty exception in the context of political subdivision liability. See, e.g., Franklin v.Columbus (1998),
{¶ 64} While the Board is potentially liable, the allegations in the complaint fail to meet the requirements for finding the Board responsible under the "special duty" exception. Specifically, the complaint does not indicate that either the Board or its agents assumed an affirmative duty to act on Marshall's behalf. The complaint also does not allege that Marshall had direct contact with agents of the Board, or that Marshall relied on the affirmative undertaking of such parties. As a result, the complaint fails to state a claim under the "special duty" exception to the "public duty" rule.
{¶ 65} According to Cooke, two Ohio Supreme Court cases have held that the state creates an actionable duty to the public when the state imposes *151
specific statutory standards on itself. Cooke argues that this concept is relevant because the State statutorily defined duties for electronic home monitoring in R.C.
{¶ 66} In the first place, R.C.
{¶ 67} As an additional matter, the cases Cooke has cited do not deal with "public duty" or the "special duty" exception to the public duty rule. See Reynolds v. State, Div. of Parole andCommunity Services (1984),
{¶ 68} No such statutory duty applies to the present case. Moreover, there is a distinction between accused parties and prisoners who have, in fact, been convicted of crimes. Without question, some accused individuals can pose a risk of harm to society. However, a presumption of innocence does exist before conviction. After conviction, this presumption is rebutted, and criminals no longer have a constitutional right to bail. Statev. Steffen,
{¶ 69} Because we can find no basis for holding the Board or the Court liable under the "special duty" exception to the "public duty" rule, the second assignment of error asserted against these parties is without merit and is overruled.
{¶ 70} Based on the preceding discussion, all assignments of error are overruled and the judgments of the trial court are affirmed.
Fain, P.J., and Young, J., concur. *152