Doe v. Cuyahoga Cty. Community CollegeDoe v. Cuyahoga Cty. Community College
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 24, 2022
Appearances:
Lowe Scott Fisher Co., L.P.A., Ryan H. Fisher, and Kyle B. Melling, for appellee.
Taft Stettinius & Hollister LLP, Ronald D. Holman, II, Brandon Summers, and Philip D. Williamson, for appellants.
EILEEN T. GALLAGHER, J.:
{¶ 1} Defendants-appellants, Emanuelа Friscioni (“Friscioni“), Paul Cox (“Cox“), and Amber Smith (“Smith“) (collectively “Appellants” or “Tri-C Administrators“) appeal a judgment of the Cuyahoga County Court of Common
The trial сourt should have granted Friscioni, Smith, and Cox‘s motion to dismiss.
{¶ 2} After careful review of the complaint, the parties’ briefs, and applicable law, we affirm the trial court‘s judgment.
I. Facts and Procedural History
{¶ 3} In September 2015, defendant Terence Greene (“Greene“) applied to work as a dance instructor in the Creative Arts Academy at Cuyahoga Community College (“Tri-C“). He had previously worked as a dance instructor at the Cleveland School of the Arts (“CSA“) in the Cleveland Metropolitan School District for 15 years. Greene indicated on the Tri-C application that he left his prior employment at CSA because he “started [his] own company and pursued other job opportunities.” (Complaint ¶ 23.)
{¶ 4} As part of the application process, Smith, a human resources representative at Tri-C, ordered a background check from a screening company known as “Truescreen.” Truescreen conducted the investigation and produced a report. The report stated that Greene was fired from CSA due to “allegations with students” and that he was ineligible for rehire. (Complaint ¶ 25.) The explanation was highlighted with a red “X.” (Complaint ¶ 25.) Despite the warning contained in the background report, Smith offered Greene a part-time position as a dance
{¶ 5} In October 2019, John Doe, who was then 17 years old, was enrolled in Tri-C‘s Creative Arts Academy as a dаnce student when Greene sexually assaulted him. (Complaint ¶ 38-43.) John Doe reported the sexual assault to a former high school advisor, who reported it to the Garfield Heights Police Department. Shortly thereafter, Tri-C terminated Greene‘s employment due to John Doe‘s allegations and because of the results of the background check conducted in 2015. (Complaint ¶ 49.)
{¶ 6} John Doe requested public records from Tri-C regarding Greene‘s termination. Tri-C produced the requested documents, including a document entitled “Conversation with Terence Green & Paul Cox 1-21-20, 2 p.m.” (Complaint ¶ 69.) The document revealed that “nobody from Tri-C, including defendants Friscioni, Smith, or Cox ever reviewed Terence Greene‘s background check prior to hiring him.” (Complaint ¶ 69.) Friscioni was the director of Tri-C‘s Creative Arts Academy, and Cox was the Dean of Tri-C‘s Creative Arts Department. As previously stated, Smith worked аt Tri-C as a human resources representative.
{¶ 7} In September 2020, John Doe filed a complaint against Tri-C and Appellants, in their individual and official capacities, asserting claims of breach of contract, wanton and reckless conduct, and negligent and reckless hiring, supervision, аnd retention of Greene. John Doe alleged that because the Tri-C Administrators failed to review the background check on Greene, they negligently,
{¶ 8} Appellants filed a motion to dismiss the complaint, arguing they are immune from liability pursuant to
II. Law and Analysis
A. Standard of Review
{¶ 9} Appellants filed their motion to dismiss pursuant to Civ.R. 12(B)(6), arguing the complaint fails to state a claim on which relief could be granted because they are immune from liability. Indeed, the affirmative defense of immunity under
{¶ 10} A Civ.R. 12(B)(6) motion does not test the merits of a claim. Filo v. Liberato, 2013-Ohio-1014, 987 N.E.2d 707, ¶ 15 (7th Dist.). A motion to dismiss filed pursuant to Civ.R. 12(B)(6) “is procedural and tests the sufficiency of the complaint.” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992), citing Assn. for Defense of Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117, 537 N.E.2d 1292 (1989).
{¶ 11} A trial court‘s review of a Civ.R. 12(B)(6) motion to dismiss is limited to the four corners of the complaint along with any documents properly attаched to, or incorporated within, the complaint. Glazer v. Chase Home Fin. L.L.C., 8th Dist. Cuyahoga Nos. 99875 and 99736, 2013-Ohio-5589, ¶ 38. In reviewing a Civ.R. 12(B)(6) motion to dismiss, we must presume all the material allegations are true, resolve all doubt and inferences in the plaintiff‘s favor, and view all allegations in the complaint in the light most favorable to the plaintiff. Ohio Assn. of Pub. Schоol Emps. v. School Emps. Retirement Sys. Bd., 10th Dist. Franklin No. 04AP-136, 2004-Ohio-7101, ¶ 43, citing State ex rel. Longacre v. Penton Publishing Co., 77 Ohio St.3d 266, 267, 673 N.E.2d 1297 (1997); Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 667, 653 N.E.2d 1186 (1995). “[A]s long as there is a set of facts, consistent with the plaintiff‘s complaint, which would allow the plaintiff to recover, the court may not grant a defendant‘s motion to dismiss.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).
B. Sovereign Immunity
{¶ 13} In the sole assignment of error, Appellants argue the trial court should have dismissed John Doe‘s complaint in its entirety because they are immune from liability pursuant to
{¶ 14}
{¶ 15} The second tier of the analysis requires the court to determine whether any of the five exceptions to immunity enumerated in
{¶ 16} John Doe alleged that the Tri-C Administrators negligently, recklessly and wantonly hired, supervised, and retained Greene, who later sexually assaulted him. To establish a claim of negligent hiring or retention, Jоhn Doe must establish
(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 emрloyer‘s negligence in hiring or retaining the employee as the proximate cause of plaintiff‘s injuries.
Sosic, 8th Dist. Cuyahoga No. 109993, 2021-Ohio-2592, at ¶ 26.
{¶ 17} It is undisputed that the Tri-C Administrators are employees of a political subdivision and that they were acting within the scope of their employment when they hired Greene. It is also undisputed that they were engaged in a governmental or proprietary function. They are, therefore, presumptively immune under
Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result. Hawkins, 50 Ohio St.2d at 117-118, 363 N.E.2d 367; see also Black‘s Law Dictionary 1613-1614 (8th Ed.2004) (explaining that one acting in a wanton manner is aware of the risk of the conduct but is not trying to avoid it and is indifferent to whether harm results).
Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct. Thompson, 53 Ohio St.3d at 104-105, 559 N.E.2d 705, adopting 2 Restatement of the Law 2d, Torts, Section 500 at 587 (1965); see also Black‘s Lаw Dictionary 1298-1299 (8th Ed.2004) (explaining that reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a conscious disregard of or indifference to the risk, but the actor does not desire harm).
{¶ 19} John Doe alleged in the complaint that the Tri-C Administrators were provided an оbvious warning that Greene posed a potential threat to students in the background check. The background check “highlighted” Greene‘s departure from CSA with a “red X” and stated that he was terminated from his prior employment due to “allegations from students.” (Complaint ¶ 25.) The complaint further allеges that the Tri-C Administrators recklessly disregarded this warning. (Complaint ¶ 70.) Although it is not clear from the complaint how obvious the “red X” warning was to the report‘s intended recipients, we must view the allegations in a light most
{¶ 20} The Tri-C Administrators nevertheless argue thаt their decision to hire Greene was not reckless or wanton because they did not know what was in the background check since they never read it. They assert that while their failure to review the background check may constitute negligence, for which they are immune, it does not constitutе reckless or wanton behavior. They also argue that even if they had read the background check, the report “did not actually contain any details about Greene‘s past” and they, therefore, would not have known the details of Greene‘s prior misconduct. (Appellant‘s brief р. 7.)
{¶ 21} However, the complaint alleges that the reported background check on Greene contained a note, highlighted with a red “X,” warning the Tri-C Administrators that Greene posed a risk of some kind and that he would not be rehired by CSA. The complaint further alleges that Smith sent the letter to Greene, offering him employment contingent upon the satisfactory completion of the background check and a drug screen. (Complaint ¶ 26.) The letter advised that, assuming he passed the background check and drug screen, Friscioni would contact him prior to his start date regarding his schedule. (Complaint ¶ 26-27.)
{¶ 22} Notes produced pursuant to John Doe‘s public records request indicate that when Greene was hired, Cox told Greene “to keep it professional.” The complaint further claims “[t]his language reveals a pre-hiring concern and
{¶ 23} We have no way of knowing from the face of the complaint what Cox knew about Greene‘s past at the time Greene was hired or what Cox meant by the instruction to “keeр it professional.” We know, however, that the background check included a warning that was disregarded by the Tri-C Administrators. It is not clear whether the warning was visible on the face of the report or whether it was buried inside. And we may not speculate as to exactly what Cox, Smith, or Friscioni knew about Grеene when they hired him; we have to accept the material allegations of the complaint as true and make all reasonable inferences in favor of the plaintiff. Jenkins v. Cleveland, 8th Dist. Cuyahoga No. 104768, 2017-Ohio-1054, ¶ 8. What the Tri-C Administrators knew when Green was hired is a question of fact outside the scope of motion to dismiss. Seе, e.g., Smiley v. Cleveland, 8th Dist. Cuyahoga No. 103987, 2016-Ohio-7711, ¶ 12 (holding that whether a wet metal strip constitutes a physical defect on the premises is a question of fact that cannot be resolved through a motion to dismiss.). Therefore, the trial court properly denied the motion to dismiss John Doe‘s tort claims against the Tri-C Administrators.
{¶ 24} Although the trial court denied Appellants’ motion to dismiss John Doe‘s breach-of-contract claim, Appellants make no argument as to why or how the failure to dismiss the breach-of-contract claim was erroneous. They simply assert that the trial court should have dismissed the complaint in its entirety, including the
{¶ 25}
{¶ 26} The burden is on the appellant, not the appellate court, to construct the legal arguments neсessary to support an appellant‘s assignment of error. Taylor-Stephens v. Rite Aid of Ohio, 8th Dist. Cuyahoga No. 106324, 2018-Ohio-4714, ¶ 121. Appellate courts are not advocates. Id. We, therefore, decline to address the merits of the Appellants’ motion to dismiss John Doe‘s breach-of-contract claim and whether the claims against Appellants in their personal capacities should havе been dismissed.
{¶ 27} The sole assignment of error is overruled.
{¶ 28} Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
SEAN C. GALLAGHER, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR