JANE DOE 1, et al. v. WILLIAM J. LICATE, et al.
CASE NOS. 2018-A-0019, 2018-A-0020
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
February 11, 2019
[Cite as Jane Doe 1 v. Licate, 2019-Ohio-412.]
TIMOTHY P. CANNON, J.
Civil Appeals from the Ashtabula County Court of Common Pleas. Case No. 2016 CV 0520. Judgment: Affirmed in part and reversed in part; remanded.
Patrick T. Murphy and Amanda Ackerman Condon, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, OH 44077 (For Plaintiffs-Appellees).
David E. Pontius, Jeffrey A. Ford, and Jason L. Fairchild, Andrews & Pontius LLC, 4817 State Road, Suite 100, P.O. Box 10, Ashtabula, OH 44005; David Kane Smith and David S. Hirt, Smith Peters Kalail Co., LPA, 6480 Rockside Woods Blvd. South, Suite 300, Cleveland, OH 44131 (For Defendants-Appellants William J. Licate, et al.)
Richard C.O. Rezie and Markus E. Apelis, Gallagher Sharp LLP, Sixth Floor, Bulkley Building, 1501 Euclid Avenue, Cleveland, OH 44115 (For Defendant-Appellant Jeffrey S. Farver).
TIMOTHY P. CANNON, J.
{¶1} Appellants—William J. Licate, Joseph F. Donatone, Alton Peck, Daniel D. Marling, Joe Allen, Gary Pasqualone (as administrator of the estate of Martha March), and Jeffrey S. Farver—appeal from the January 29, 2018 judgment of the Ashtabula
{¶2} This case involves three school children, referred to as Jane Doe 1, Jane Doe 2, and Jane Doe 3 (appellees herein), who attended school at the Ashtabula Area City School District (“ASD”). Appellees allege they are victims of sexual misconduct by Virgil Murphy, an employee of ASD, who is now deceased.
{¶3} On August 17, 2016, appellees filed a lawsuit against ASD and certain other defendants. Jane Doe 1 filed suit in her own capacity; Jane Doe 2 and Jane Doe 3 filed suit by and through their father and natural guardian, referred to as John Doe. The complaint was twice amended. Appellants remained the only defendants, named in their individual and official capacities. The complaint states that at times relevant, Licate and Donatone were Superintendents of ASD; Peck and Marling were Business/Operations Officers; and Allen and Farver were Transportation Supervisors. Martha March was also named as a Transportation Supervisor, but she died before the lawsuit was filed; Pasqualone is the Administrator of March’s estate.
{¶4} The complaint alleges that appellees were driven to school by Murphy, who was hired by ASD as a school bus driver in 2005. Appellees allege that between January 2005 and late 2009, Murphy made their home his first bus stop, assigned them seats directly behind him, gave them candy and cash, invited them to stand by him while he was driving, touched their legs, put his arm around them, and hugged them while on the bus. He allegedly placed a baseball cap over the security cameras on the school bus to conceal these actions.
{¶6} Appellees allege that, on several occasions in or around 2009 or 2010, Murphy got one or more of them alone on his bus, parked in a remote area, covered the security camera with his baseball cap, and sexually assaulted them.
{¶7} Appellees further allege that on or about January 1, 2009, through September 7, 2010, Murphy sexually abused them in locations other than on the school bus, including his home, his car, and his church. Jane Doe 1 had begun home schooling after February 2010 and no longer rode the school bus.
{¶8} On or about September 7, 2010, appellees reported the alleged sexual abuse by Murphy to the Geneva Police Department. They allege that after reporting, Murphy was maintained as a school bus driver, and Jane Doe 2 and Jane Doe 3 continued to ride the bus with him.
{¶9} Appellees allege that Licate, Peck, and/or March had recommended the hiring of Murphy as a bus driver on or about January 19, 2005. According to appellees, Murphy lied on his application by indicating he had never been convicted of an offense of violence.
{¶10} The complaint states that after Murphy was hired, ASD received a report from the Ohio Bureau of Criminal Identification and Investigation (“BCI”) on or about March 2, 2005, indicating Murphy had been arrested in 1995 for domestic violence,
{¶11} Appellees reference
{¶12} Appellees allege that if Licate, Peck, and/or March had engaged in any further reasonable investigation, they would have discovered that Murphy had also been arrested in 1994 for disorderly conduct and resisting arrest; that the police had been called to Murphy’s home in 2002 for an accusation of domestic violence; and that the police had been called to Murphy’s home in 2003 for an accusation of sexually abusing his two-year-old granddaughter.
{¶13} The complaint further alleges that, during Murphy’s employment at ASD, incident reports were filed with the police indicating Murphy was accused in 2005 of threatening his daughter-in-law with violence and death and of having previously assaulted her and was accused in 2007 of again sexually assaulting his granddaughter and a grandson, as well as threatening to assault a neighbor.
{¶14} Appellees allege that Donatone and Marling required Murphy to complete another background check in April 2011 for recertification as a bus driver, which again reported Murphy’s 1995 arrests and domestic violence conviction. Appellees allege that Donatone and Marling failed to terminate Murphy or recommend his termination and failed to conduct a reasonable investigation that would have revealed the alleged history outlined above.
{¶16} The complaint states that Murphy was suspended without pay in August 2011 after Donatone and Marling received information that Murphy had again been charged with domestic violence. He was reinstated in September 2011 after the charge was amended to one of disorderly conduct. In November 2011, Murphy was placed on administrative leave due to parental complaints.
{¶17} Finally, appellees state that Murphy was indicted in December 2011 on eight counts of gross sexual imposition and two counts of rape, and that he was indicted in April 2012 on an additional count of rape. Appellees are the alleged victims of these offenses. Murphy was never tried for these crimes, however, as he died before trial.
{¶18} Appellees’ second amended complaint alleges four counts of negligence, malicious purpose, and wanton and reckless conduct against appellants for failing to investigate Murphy’s criminal background; recommending Murphy be hired; hiring Murphy; failing to monitor and investigate Murphy’s conduct; and failing to report the alleged sexual abuse to the public children services agency. Appellees allege that as a direct and proximate result of appellants’ acts and omissions, appellees were sexually assaulted and raped and suffered significant physical and emotional injury.
{¶19} Appellants filed a joint motion to dismiss, which was overruled by the trial court.
{¶20} On November 22, 2017, appellants filed motions for judgment on the pleadings.
{¶22} The trial court overruled the motions for judgment on the pleadings on January 29, 2018, and the instant appeals followed.
{¶23} Appellants Licate, Donatone, Peck, Marling, Allen, and Pasqualone filed a joint appeal, assigned case No. 2018-A-0019; Appellant Farver filed an individual appeal, assigned case No. 2018-A-0020. Following separate briefing and oral arguments, the appeals were consolidated for purposes of disposition.
{¶24} The assignments of error raised by appellants in case No. 2018-A-0019 are as follows:
- [1.] The trial court erred when it failed to grant Defendants immunity from Plaintiffs’ negligence claims.
- [2.] The trial court erred when it failed to grant Licate and Peck immunity from Plaintiffs’ claim that they maliciously, and wantonly and recklessly, failed to investigate Murphy’s criminal background and recommend to the Board that it hire him.
- [3.] The trial court erred when it failed to grant Donatone, Marling, Allen, and March immunity from Plaintiffs’ claim that they maliciously, and wantonly and recklessly, failed to supervise Murphy.
- [4.] The trial court erred when it failed to grant Donatone and Marling immunity from Plaintiffs’ claim that they maliciously, and wantonly and recklessly, failed to investigate Murphy’s criminal background and recommend to the Board that it hire Murphy.
- [1.] The Trial Court erred in granting leave to Plaintiffs-Appellees to amend the second amended complaint by interlineation.
- [2.] The Trial Court erred by denying Jeffrey Farver’s motion for judgment on the pleadings.
{¶26} We initially consider Farver’s argument, under his first assignment of error, that the trial court erred by granting appellees leave to amend their second amended complaint by interlineation.
{¶27} Farver has appealed from the denial of his motion for judgment on the pleadings, which is generally not a final, appealable order. See, e.g., Steinbrink v. Greenon Local School Dist., 2d Dist. Clark No. 11CA0050, 2012-Ohio-1438, ¶16, citing
{¶28} Appellate review under
{¶29} The trial court’s decision to grant appellees leave to amend their second amended complaint was made in a separate order than the one denying appellants’ motions for judgment on the pleadings. More important, the decision to allow appellees to amend their pleading did not deny Farver the benefit of his alleged immunity from liability under
{¶30} Accordingly, we do not have jurisdiction to address the merits of Farver’s first assignment of error.
{¶31} We next consider appellants’ arguments that the trial court erred in failing to grant them immunity by denying their motions for judgment on the pleadings.
{¶32} “After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.”
{¶34} Under his second assignment of error, Farver argues that the trial court erred in determining he was sued only in his individual capacity rather than in his official capacity, and that the trial court should have engaged in an immunity analysis under
{¶35} “
{¶36} “The second tier in the immunity analysis focuses on the five exceptions to this immunity, which are listed in
{¶37} “Immunity is also extended to individual employees of political subdivisions.” Id. at ¶10, citing
{¶38} “Moreover, if the employee acted in good faith and not manifestly outside the scope of his or her employment or official responsibilities, the political subdivision has a duty to provide a defense for the employee if a civil action or proceeding against the employee for damages is commenced.” Id. at ¶11, citing
{¶39} In Lambert, the Ohio Supreme Court was asked to determine which
{¶40} The Lambert Court determined the suit was brought against Hartmann in his official capacity, as the person who held the elected position of “clerk of courts” at the time suit was filed. Id. at ¶15. It reached this decision by looking at the caption of the complaint as well as the allegations in the complaint. The complaint did not include the words “personally,” “individually,” “an employee of,” or anything similar. Id. “Additionally, the allegations in the state-filed complaint pertain[ed] to the policies and practices of the clerk of courts’ office and not to actions taken by Hartmann personally. * * * In fact, some of the allegations pertain[ed] to policies and procedures employed by the clerk of courts’ office prior to the time Hartmann became the clerk of courts.” Id. at ¶16.
{¶41} The Court ultimately held that the three-tiered immunity analysis in
{¶42} This court subsequently applied Lambert in determining whether a treasurer and superintendent of a school board had been sued in both their individual and official capacities. Kravetz v. Streetsboro Bd. of Edn., 11th Dist. Portage No. 2011-P-0025, 2012-Ohio-1455. In Kravetz, the named defendants were the Board of Education, the School District, Linda Keller, and James Estille. On appeal, the defendants argued Keller and Estille had been sued only in their official capacities. Id. at ¶18. We disagreed that the complaint did not also include claims against Keller and Estille in their individual capacities. Id. at ¶24. The complaint stated that “‘Keller and Estille are individuals employed by the Board of Education and/or School District in the capacity of Superintendent and Interim Treasurer respectively. Defendants Keller and Estille are sued in their individual capacities and in their official capacities due to their conduct as described herein.’” Id. “Additionally, the caption of the complaint named Keller and Estille individually and not in any representative capacity. Moreover, the allegations in the complaint, when taken as true and in favor of the non-moving party, must be construed to assert claims against Estille and Keller in their individual capacities.” Id.
{¶43} Here, the caption of the complaint names “Jeffrey S. Farver, Individually and in his capacity as Transportation Supervisor for the Ashtabula Area City School District.” The allegations of the complaint do not, however, challenge any policies and practices of the transportation supervisor’s office. Also, neither the Board of Education nor the School District were named in the complaint. The complaint alleges that Farver personally engaged in actions that subject him to liability as an employee of ASD. Accordingly, the
{¶44} Farver’s argument is not well taken.
{¶45} Appellants next maintain that, even in their individual capacities as employees of ASD, the trial court erred in failing to grant them immunity on appellees’ negligence claims and on appellees’ claims that appellants acted maliciously, wantonly, recklessly, or in bad faith.
{¶46} Again,
(a) The employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities;
(b) The employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code. * * *
{¶47} Appellees’ second amended complaint does not allege that any of appellants’ acts or omissions were manifestly outside the scope of their employment or official responsibilities nor does it allege civil liability imposed by a separate section of the Revised Code. Thus, the complaint does not allege facts that would overcome the
{¶48} The first assignment of error brought by appellants under case No. 2018-A-0019 has merit.
{¶49} The only relevant exception to appellants’ immunity as employees of ASD is for any acts or omissions committed with malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶50} “Malice” is characterized by “hatred, ill will or a spirit of revenge,” or “a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.” Preston v. Murty, 32 Ohio St.3d 334, 336 (1987). “Bad faith” connotes a “dishonest purpose” or “conscious wrongdoing.” Canfora v. Coiro, 11th Dist. Lake No. 2006-L-105, 2007-Ohio-2314, ¶72. “Wanton” misconduct is the failure to exercise any care whatsoever towards those to whom a duty of care is owed under circumstances where there is a great probability that harm will occur. Hawkins v. Ivy, 50 Ohio St.2d 114, 117-118 (1977). “Reckless” conduct includes actions where one possesses a “perverse disregard of a known risk” and where the actor is conscious that his conduct will in all probability result in injury. O’Toole, supra, at ¶73-74; Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, paragraph four of the syllabus (reckless conduct is “substantially greater than negligent conduct”).
{¶51} These mental states have been summarized as “a willful and intentional design to do injury without just cause or excuse (88 Ohio Jurisprudence 3d, Torts Section 1) or a failure to exercise any care when the probability of harm is great, and that
{¶52} Appellants argue that appellees failed to plead sufficient operative facts to establish that appellants acted with the requisite mental states.
{¶53} Construing the material allegations in the second amended complaint as true and drawing all reasonable inferences therefrom in favor of appellees, we conclude there may be a set of facts that could entitle appellees to recover from appellants individually. Any defenses appellants may have to individual liability must be established through the discovery process and will not be assumed for purposes of analyzing whether a
{¶55} We reach this conclusion with one limitation, however. In their second amended complaint, appellees allege that Jane Doe 1 stopped riding the bus in February 2010. Accordingly, judgment on the pleadings should have been granted in favor of appellants for any conduct alleged to have occurred after February 2010 with regard to Jane Doe 1.
{¶56} Farver’s second assignment of error and the second, third, and fourth assignments of error brought by the remaining appellants have merit to the extent indicated.
{¶57} Judgment on the pleadings should have been granted on appellees’ claims for negligence as well as any claims for conduct alleged to have occurred with regard to Jane Doe 1 after she stopped riding the school bus in February 2010. The remainder of the trial court’s entry is upheld.
{¶58} The judgment of the Ashtabula County Court of Common Pleas is affirmed in part and reversed in part; this matter is remanded for further proceedings consistent with this opinion.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents.
TIMOTHY P. CANNON
JUDGE, ELEVENTH APPELLATE DISTRICT