2004 Ohio 347 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 2} Around the age of three, Adam Riegle was diagnosed with autism and pervasive disability disorder. As a result of his diagnosis, Adam was eligible for services under the Individuals with Disabilities Education Act ("IDEA"). IDEA is a federal law requiring states to provide a full educational opportunity to all children with disabilities. Section 1412(a)(2), Title 20, U.S.Code. One of the goals of IDEA is to educate disabled children in the least restrictive environment possible. This goal is stated as:
To the maximum extent appropriate, children with disabilities,including children in public or private institutions or othercare facilities, are educated with children who are not disabled,and special classes, separate schooling, or other removal ofchildren with disabilities from the regular educationalenvironment occurs only when the nature or severity of thedisability of a child is such that education in regular classeswith the use of supplementary aids and services cannot beachieved satisfactorily.
Section 1412(a)(5)(A), Title 20, U.S.Code.
{¶ 3} The primary means of implementing congressional goals through IDEA is through the Individualized Education Program ("IEP"). Section 1401(11), Title 20, U.S.Code; AustintownLcl.Sch. Dist. Bd. of Edn. v. Mahoning Cty. Bd. of Mental Retardation Dev. Disabilities (1998),
{¶ 4} Prior to enrolling Adam in kindergarten, the Riegles and Riverdale personnel developed an IEP for Adam. Riverdale wanted to place Adam in a more restricted setting designed specifically for handicapped students, while the Riegles wanted to place Adam in a regular kindergarten classroom fulltime. Eventually, the IEP resulted in a plan in which Adam was placed in a regular kindergarten class for five out of ten days. On the other days, Adam attended a kindergarten class for multi-handicapped children. Although Adam exhibited violent and disruptive behavior during class, he was promoted by Riverdale to the first grade.
{¶ 5} Together, Barbara Riegle and Riverdale personnel developed an IEP for Adam's first grade year that placed Adam in a regular classroom with the assistance of a full-time aid. Again, Adam exhibited disruptive and violent behavior, yet was promoted to the second grade.
{¶ 6} In May of 1998, an IEP for Adam's second grade year was completed. The IEP team set forth the following recommendation:
Typical 2nd grade classroom, including PE, with full-time aide and the exception of speech/language therapy and OT, full-time aide.
{¶ 7} In accordance with the IEP, Adam was placed in Cheryl Coolidge's mainstream second grade classroom with the assistance of a full-time aide, Linda Strader. On October 19, 1998, a periodic review of Adam's IEP was held. As a result of increased violent and disruptive behavior on the part of Adam, the team modified the previous plan and recommended:
Typical 2nd grade classroom, including PE, with full-time aide — with the exception of speech/language therapy and OT services pull out to separate location as necessary, full-time aide, behavior plan.
{¶ 8} On October 22, 1998, Cheryl Coolidge's second grade class was taking a math test. Adam refused to take part in the test. Instead, Adam's attention was focused on a clock which sat on his desk. Adam's aide, Linda Strader, made an effort to take the clock away. Strader's efforts were unsuccessful, so she sought Coolidge's assistance. Coolidge also attempted to take the clock away, but Adam refused to let go. Adam proceeded to fly into a rage, screaming at Coolidge and striking her repeatedly on the chest, arms, and shins. Adam's disruptive behavior prompted Coolidge to remove him to the hallway. There, Coolidge took Adam to the floor and restrained him. She told him that when he calmed down, they would go back into the classroom. After a time, when Adam appeared to relax, Coolidge began to let him get up, and Adam kicked her in the face and neck area.
{¶ 9} Based on the attack, the Coolidges filed a negligence claim against the Riegles and an employment intentional tort claim against Riverdale. Both the Riegles and Riverdale moved for summary judgment, and the trial court granted both parties' motions. From this judgment, the Coolidges appeal presenting three assignments of error for our review.
{¶ 11} The party moving for the summary judgment has the initial burden of producing some evidence which affirmatively demonstrates the lack of a genuine issue of material fact. Stateex rel. Burnes v. Athens City Clerk of Courts (1998),
{¶ 12} In their first assignment of error, the Coolidges maintain that the trial court erred by granting summary judgment to the Riegles. They claim that a material issue of fact remains regarding the Riegles prior knowledge of Adam's violent propensities and likelihood to harm people. Specifically, they allege that the Riegles were aware or reasonably should have been aware that Adam suffered from conditions that would result in fits of rage and physical violence towards others. Given the Riegles' awareness of their son's propensity for violence, the Coolidges assert that the Riegles acted negligently by insisting that Adam be placed in a regular classroom and, as a result of this negligence, the appellants suffered injuries and damages.
{¶ 13} First we must consider whether the Riegles can be held liable for Coolidge's injuries. To overcome a motion for summary judgment on a negligence claim, the plaintiff must identify a duty owed to him by the defendant. Nearor v. Davis (1997),
{¶ 14} Ordinarily at common law, a parent is not liable for damages caused by their child's wrongful conduct. Elms v. Flick
(1919), 100 Ohio St. 186, paragraph four of the syllabus;Huston,
{¶ 15} It is the second situation delineated above that is arguably applicable to this case. "To establish foreseeability of the act or injury * * *, plaintiff must prove that specific instances of prior conduct were sufficient to put a reasonable person on notice that the act complained of was likely to occur."Nearor,
{¶ 16} The trial court found no conflict between the federal preference for educating disabled children in a regular classroom and a parent's obligation to ensure that their disabled child does not cause harm to others. Thus, the trial court focused on the question of foreseeability and found "nothing in Adam's history of school attendance that could substantiate a finding that he would cause injuries of the magnitude alleged by [the Coolidges]."
{¶ 17} It is clear that Adam has had problems with hitting and kicking others — be they teachers, aides, or fellow students — since first being enrolled in kindergarten at Riverdale. These incidents of lashing out occurred most often when Adam would become frustrated with a classroom activity or when he would be bumped or touched by another student. The evidence that bears this out comes from deposition testimony of Adam's parents and teachers, multiple IEP plans, minutes from meetings between the parents and Riverdale staff, and daily notes that were exchanged between the Riegles and Adam's teachers.
{¶ 18} Upon our review of the record and the applicable law, we are unable to agree with the trial court's finding that, based upon Adam's past actions, injury to another was not a foreseeable risk.
{¶ 19} Furthermore, we find that material issues of fact also remain concerning the proximate cause. The purposes and procedures of IDEA complicate the circumstances of the case herein. Because the express terms of IDEA entitle Adam to be educated, to the maximum extent appropriate, with children who do not have disabilities, merely advocating that their son be placed in a normal educational setting pursuant to Adam's right under IDEA cannot, without more, make the Riegles' conduct liable. And, while the Riegles, as Adam's parents, are part of the IEP team which made the decisions regarding Adam's placement, the final placement decision was not one the Riegles could make alone. Instead, the final decision as to Adam's placement, and the conditions thereof, was committed to the entire IEP team of which the Riegles were only a part. Section 1414(d), Title 20, U.S.Code. However, there was evidence presented that the Riegles' aggressive participation and pressure at the IEP meetings was a major factor in the IEP team's final decision.
{¶ 20} Having found that unresolved material issues of fact remain, we sustain the Coolidges' first assignment of error and overrule the decision of the trial court granting summary judgment in favor of the Riegles.
{¶ 21} In their second assignment of error, the Coolidges assert that the trial court erred by granting summary judgment in favor of Riverdale. They claim that it was error for the trial court to find that the school district was entitled to political subdivision immunity under R.C.
{¶ 22} As a general rule, R.C.
* * * [A] political subdivision is liable for injury, death,or loss to person or property when liability is expressly imposedupon the political subdivision by a section of the Revised Code,
including, but not limited to, sections
{¶ 23} The Coolidges assert that the provisions of R.C.
Every employer shall furnish employment which is safe for theemployees engaged therein, shall furnish employment which shallbe safe for the employees therein and for frequenters thereof,shall furnish and use safety devices and safeguards, shall adoptand use methods and processes, follow and obey orders, andprescribe hours of labor reasonably adequate to render suchemployment and places of employment safe, and shall do everyother thing reasonably necessary to protect the life, health,safety and welfare of such employees and frequenters.
{¶ 24} R.C.
No employer shall require, permit, or suffer any employee togo or be in any employment or place of employment which is notsafe, and no such employer shall fail to furnish, provide and usesafety devices and safeguards, or fail to obey and follow ordersor to adopt and use methods and processes reasonably adequate torender such employment and place of employment safe. No employershall fail to do every other thing reasonably necessary toprotect the life, health, safety, and welfare of such employeesor frequenters.
{¶ 25} The appellants assert that R.C.
{¶ 26} Additionally, the Coolidges argue that R.C.
This chapter does not apply to, and shall not be construed toapply to the following: (C) Civil actions by an employee of a political subdivisionagainst the political subdivision relative to wages, hours,conditions, or other terms of his employment. (Emphasisadded.)
{¶ 27} The Coolidges maintain that the conditions of Cheryl's employment were affected with the placement of Adam in her classroom.
{¶ 28} Several of our sister appellate courts have determined that the term "conditions" in this statute refers to "those conditions that employees must satisfy in order to maintain his or her employment rather than actual physical conditions in the workplace." Terry v. Ottawa Cty. Bd. of Mental Retardation Dev. Disabilities,
{¶ 29} Specifically, the Sixth District has noted that:
* * * R.C.
{¶ 30} We find the reasoning in Terry to be persuasive and hold that R.C.
{¶ 31} Although, the Ohio Supreme Court has struck down statutory immunity for employer intentional torts committed by private entities resulting in workplace injuries, the Supreme Court has never done so with respect to the statutory immunity granted to political subdivisions performing governmental functions. We likewise decline to do so. Therefore, we overrule the Coolidges' second assignment of error.
{¶ 32} In their final assignment of error, the Coolidges contend that R.C. 2744 is unconstitutional because it violates Section
{¶ 33} Numerous other courts, including the Ohio Supreme Court, have heard constitutional challenges to R.C. 2744 based on Section
{¶ 34} Plaintiff asserts, however, that this case is different because it presents the specific issue of whether R.C. 2744 may grant immunity to a political subdivision against an employer intentional tort action. Plaintiff claims that the authority of Brady v. Saftey-Kleen Corp. (1991),
{¶ 36} Having found error prejudicial to the appellant herein, in the particulars assigned and argued, we reverse in part the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part.
Walters, P.J., concurs.
Shaw, J., concurs in part and dissents in part.
Dissenting Opinion
{¶ 37} While concurring with the majority's analysis and conclusion as to the first assignment of error, I must respectfully dissent from the majority's disposition of the second and third assignments of error. I would hold that Riverdale is not immune from civil liability in this case pursuant to R.C.
{¶ 38} Pursuant to R.C.
(B) Civil actions by an employee, or the collective bargainingrepresentative of an employee, against his political subdivisionrelative to any matter that arises out of the employmentrelationship between the employee and the politicalsubdivision[.]
{¶ 39} Several appellate courts and the trial court in this case have determined that an intentional tort committed by an employer does not "arise out of the employment relationship" and, therefore, the R.C.
{¶ 40} The courts listed above rely primarily on Blankenshipv. Cincinnati Milacron Chemicals, Inc. (1982),
{¶ 41} Since the briefs in this case were filed, the Ohio Supreme Court in Penn Traffic Co. v. AIU Ins. Co.,
In Blankenship v. Cincinnati Milacron Chemicals, Inc.,
Although an employer intentional tort occurs outside theemployment relationship for purposes of recognizing a common-lawcause of action for intentional tort, the injury itself mustarise out of or in the course of employment; otherwise, there canbe no employer intentional tort. * * *
`[A]rise out of or in the course of employment' merely meansthat the injury is causally related to one's employment."
{¶ 42} Based on the foregoing, if we were to continue to define terms in R.C.
{¶ 43} To further support the contention that a political subdivision will not always be immune to an employer intentional tort claim, I note that the Court in Jones affirmed a jury verdict ordering the city of Painesville to pay an employee of the city for committing an employer intentional tort resulting in his death which occurred while the employee was performing a function of his job. Furthermore, while the following cases do not involve a workplace injury resulting in an "employer intentional tort" claim, each instance involves an intentional claim against a political subdivision. In both Nungester v.Cincinnati (1995),
{¶ 44} While Marcum, Nungester and Marsh do not involve employer intentional torts per se, I think the treatment of these cases is significant to our analysis of employer intentional torts in the present case. If in the above cases, a political subdivision could be sued for a tort which did not produce a physical workplace injury, I fail to see why a political subdivision should be immune from suit which resulted in a physical work place injury. Moreover, the use of the phrase "arising out of the employment relationship" in the above cases is consistent with a finding of no immunity in the case before us.
{¶ 45} That said, in the present case, Coolidge was performing her duties as a teacher at Riverdale when she was assaulted. Therefore, I would hold that Riverdale is not protected by immunity from Coolidge's employer intentional tort claim. As for the summary judgment, there is evidence in the record that Riverdale was aware of the child's propensities for violent behavior over a three year period prior to the infliction of the present injuries, had on more than one occasion modified the IEP plan to accommodate those propensities and yet continued to promote the child to the next grade level each year within the mainstream class structure, possibly disregarding the objections of the plaintiff and other teachers in doing so, thereby subjecting classmates and teachers alike to a known and substantial risk of injury. This evidence is clearly sufficient to establish at least a genuine issue of material fact as to whether Riverdale has committed an intentional tort within the requirements of Fyffe v. Jeno's, Inc. (1991),
{¶ 46} For the foregoing reasons, I would reverse the judgment of the trial court in its entirety.