Kennerly v. Montgomery County Board of Commissioners

814 N.E.2d 1252 | Ohio Ct. App. | 2004

OPINION {¶ 1} Plaintiff, Sheila Kennerly, appeals from an order of thecourt of common pleas that granted a Civ.R. 12(C) motion forjudgment on the pleadings filed by Defendants, Montgomery CountyBoard of Commissioners, et al. ("Board"). {¶ 2} On July 13, 1999, Kennerly's son, Byron, was murdered byPeter Atakpu, following Atakpu's removal of an electronic homemonitoring restraint he wore pursuant to court order and hisescape from home detention. {¶ 3} Kennerly commenced the action underlying this appealagainst the Board and the manufacturer of the device on claimsfor relief for wrongful death and loss of consortium. {¶ 4} The manufacturer settled and was dismissed from theaction. The Board, following its responsive pleadings, filed aCiv.R 12(C) motion for judgment on the pleadings, arguing that itwas entitled to judgment on grounds of immunity. {¶ 5} The trial court granted the Board's motion. Kennerlyappeals.

ASSIGNMENT OF ERROR {¶ 6} "The trial court erred by granting the commissioners'motion for judgment on the pleadings because no statutoryimmunity from liability exists when the negligence proximatelycausing the injury occurred on governmental property and,furthermore, because the public duty doctrine cannot provideimmunity to the commissioners as the doctrine has been supercededby the enactment of ohio revised code section 2744 et seq." {¶ 7} Political subdivisions of the State of Ohio are immunefrom civil liability for damages arising from injury, death, orloss to persons caused by any act or omission of the politicalsubdivision or its employees in connection with the performanceof a governmental or proprietary function. R.C. 2744.02(A)(1). {¶ 8} It is undisputed that the Board is a politicalsubdivision of the State. R.C. 2744.01(F). It is also undisputedthat utilization by the Board or its employees of the electronichome monitoring requirements to which Atakpu was subject, andwhich he violated or disabled, constitutes a governmentalfunction. R.C. 2744.01(C)(8). {¶ 9} A political subdivision may nevertheless be deprived ofthe blanket immunity that R.C. 2744.02(A)(2) provides if any ofthe express exceptions of R.C. 2744.02(B) apply to the claim orclaims for relief on which liability may result. Paragraph (4) ofthat section states: {¶ 10} "Except as otherwise provided in section 3746.24 of theRevised Code, political subdivisions are liable for injury,death, or loss to persons or property that is caused by thenegligence of the employees and that occurs within or on thegrounds of buildings that are used in connection with theperformance of a governmental function, including, but notlimited to, office buildings and courthouses, but not includingjails, places of juvenile detention, workhouses, or any otherdetention facility, as defined in section 2921.01 of the RevisedCode." (Emphasis supplied). {¶ 11} Detention facilities are defined by R.C. 2921.01(F) toinclude any public or private place used for confinement of aperson charged with or convicted of any crime. R.C. 2929.23provides for electronically-monitored house arrest and/ordetention of persons confined in those circumstances. Evenassuming that the location to which the detainee is confined istherefore a detention facility, such places are expresslyexcepted from the exemption from governmental liability for whichR.C. 2744.02(B)(4) provides. However, that issue was not the oneon which the trial court granted judgment in favor of the Boardon a finding that R.C. 2744.02(B)(2) has no application. {¶ 12} The other requirement imposed by R.C. 2744.02(B)(4)which the trial court found controlling of the Board's immunityor lack thereof is that the injury, death, or loss to persons orproperty claimed must be one that "occurs within or on thegrounds of buildings that are used in connection with theperformance of a governmental function." The record does notreflect where Kennerly's son was attacked and killed by Atakpu.However, at oral argument Kennerly stipulated that it was not inor on the grounds of a governmental building. Kennerly arguesthat the situs of the inquiry requirement no longer applies, perHubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 451,2002-Ohio-4718. {¶ 13} In Hubbard, a young girl was sexually assaulted by aschool board employee on the premises of a school. Provision of asystem of public education is a governmental function. R.C.2744.01(C)(1)(c). School districts are political subdivisions.R.C. 2744.01(F). The defendant school board argued that it wasnevertheless immune per R.C. 2744.02(B)(4) because the injuriesinvolved in the girl's sexual assault were not the result ofphysical defects within or on the grounds of the building. Theschool board argued that the additional "premises liability"requirement was within the contemplation of the General Assemblyin several recent amendments it had enacted to R.C.2744.02(B)(4). {¶ 14} The Supreme Court rejected the school board'scontention. It noted that the amendments on which the boardrelied were parts of several "tort reform" efforts the Court hadheld unconstitutional in State ex rel. Ohio Academy of TrialLawyers v. Sheward (1999), 86 Ohio St.3d 451, and Stevens v.Ackerman, 91 Ohio St.3d 182, 2001-Ohio-249. The Court declinedto apply the limitations the General Assembly enacted, for thatreason, or to read them into the text of R.C. 2749.02(B)(4) as itexisted without them. The Court held: {¶ 15} "The exception to political-subdivision immunity inR.C. 2744.02(B)(4) applies to all cases where an injury resultingfrom the negligence of an employee of a political subdivisionoccurs within or on the grounds of buildings that are used inconnection with the performance of a governmental function. Theexception is not confined to injury resulting from physicaldefects or negligent use of grounds or buildings." {¶ 16} It may be that R.C. 2744.02(B)(4) makes more sense whenapplied as an exception to immunity with respect to claims forrelief for premises liability than as an exception to immunityfor all claims alleging negligence on the part of governmentalemployees. After all, if its scope is that broad, what differencedoes it make that the employee's negligence occurredoff-premises? However, we need not be occupied by that question.The issue for us is whether per R.C. 2744.02(B)(4) PlaintiffKennerly's claims for relief arising from her son's murdersurvive the Defendant Board's immunity claim. {¶ 17} We find nothing in Hubbard that rejects therequirement imposed by R.C. 2744.02(B)(4) that the injury, death,or loss from which the alleged liability arises must be aninjury, death, or loss "that occurs within or on the grounds ofbuildings that are used in connection with the performance of agovernmental function." R.C. 2744.02(B)(4). Hubbard merelystands for the proposition that the exception for which R.C.2744.02(B)(4) provides "is not confined to injury resulting fromphysical defects or negligent use of grounds or buildings."Id., at p. 455. {¶ 18} Kennerly relies on a sentence in the Hubbard opiniondirectly following the one just quoted. It states: "Since theinjuries claimed by the plaintiffs were caused by negligenceoccurring on the grounds of a building used in connection with agovernmental function, R.C. 2744.02(B)(4) applies and the boardis immune from liability." Standing alone, that passage might beread to indicate that the statutory exception to immunity turnson where the negligent act occurs. And, an argument may be madethat, here, the Defendant Board's negligent act or omission thatpermitted Atakpu's escape occurred in such a place becauseinstallation and supervision of his electronic home monitoringtook place there, at least in part. {¶ 19} We do not read Hubbard to hold that application ofR.C. 2744.02(B)(4) turns on where the negligent act occurred.Viewed as a premises liability provision, the negligent act oromission typically would occur on the premises or grounds of apublic building, but a reading of R.C. 2744.02(B)(4) supports aview that the negligent act or omission itself might not have tooccur in or on the grounds of a public building at all. Thenegligent act or omission need merely be the proximate cause ofthe injury, death, or loss complained of. Even so, and regardlessof where the negligent act takes place, neither Hubbard nor aplain-meaning construction of R.C. 2744.02(B)(4) permits itsapplication to an injury, death, or loss that occurs anywhereother than in or on the grounds of a building where agovernmental function from which the harm proximately resulted isperformed. {¶ 20} On this record, Kennerly's claims for relief arisingfrom her son's death cannot fit within the R.C. 2744.02(B)(4)exception because the death did not occur in or on the grounds ofa building where the governmental function took place from whichthe death allegedly arose. The trial court was correct when itdeclined to apply the R.C. 2744.02(B)(4) exception for thatreason. {¶ 21} Kennerly also cites several other appellate decisionsin which immunity was denied. However, each differs significantlyfrom the issue presented here on the facts and/or law on whichthe case was decided. We need not distinguish them further. {¶ 22} Finally, Kennerly argues that the common law PublicDuty Rule announced in Sawicki v. Village of Ottawa Hills(1988), 37 Ohio St.3d 222, supercedes any immunity that the Boardenjoys pursuant to R.C. 2744.02(A)(1). That rule, while it nolonger applies to claims against the state, "remains viable asapplied to actions brought against political subdivisionspursuant to R.C. 2744." Yates v. Mansfield Bd. of Edn.,102 Ohio St.3d 205, 212, Fn. 2, 2004-Ohio-2491. {¶ 23} Under the Public Duty Rule, a public official orpolitical subdivision may be liable for a breach of a duty if itis a "special duty" imposed by law. A duty is a special duty ifit involves: (1) an assumption of an affirmative duty by apolitical subdivision, (2) knowledge on the part of the politicalsubdivision or its agents that inaction could cause harm, (3) adirect contact between the political subdivision's agents and theplaintiff, and (4) the plaintiff's justifiable reliance on thepolitical subdivision's affirmative undertaking. Sawicki at p.232. {¶ 24} Here, the tragic death of Kennerly's son resulted froman act of violence committed by Atakpu. There was no directcontact between Kennerly or her son and the Board's agents fromwhich that arose. Neither had Kennerly's son specifically reliedon the Board's proper performance of its duties. No special dutyexisted, therefore, and the Public Duty Rule cannot apply. {¶ 25} The assignment of error is overruled. The judgment ofthe trial court will be affirmed. Judgment affirmed. Brogan, J. and Young, J., concur.