JEAN ANN MILLER, ET AL., PLAINTIFFS-APPELLEES, v. VAN WERT COUNTY BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, ET AL., DEFENDANTS-APPELLANTS.
CASE NO. 15-08-11
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY
September 28, 2009
[Cite as Miller v. Van Wert Cty. Bd. of Mental Retardation & Dev. Disabilities, 2009-Ohio-5082.]
Aрpeal from Van Wert County Common Pleas Court Trial Court No. CV-08-04-156
Judgment Reversed and Cause Remanded
Date of Decision: September 28, 2009
APPEARANCES:
Edward S. Kim and Brad E. Bennett for Appellants, Van Wert County Board of MRDD, Thomas Edison Center and Jim Stripe
Tim James for Appellant, Gerald E. Miller
Scott R. Gordon for Appellees
I. Procedural History
{1} Defendants-appellants, Van Wert County Board of Mental Retardation and Developmental Disabilities (“Van Wert County Bd. of MRDD“), the Thomas Edison Center (“Edison Center“), and Jim Stripe, Executive Director of the Van Wert County Bd. of MRDD (“Stripe“) (collectively “appellants“), appeal the August 20, 2008 judgment of the Van Wert County Court of Common Pleas denying appellants immunity under
{2} On April 2, 2008, Jean Ann Miller (“Miller“), аn incompetent person represented by guardian ad litem Jean Adele Miller, filed a civil complaint in the Van Wert County Court of Common Pleas. (Doc. No. 1). In addition to the defendants listed above, the complaint named the Van Wert County Board of Commissioners, County Commissioners Clair Dugeon, Gary Adams, and Harold Merkle (all separately), and Gerald E. Miller as defendants. (Id.).
{3} The complaint‘s first cause of action alleged, in pertinent part, that: “[o]n or about September 4, 2007 plaintiff, Jean Ann Miller, was enrollеd as a student in the Thomas Edison Center workshop and was a passenger on the school bus being driven by defendant, Gerald E. Miller, an employee of Defendants * * *.” (Doc. No. 1, at 7). The complaint further alleged that defendant Miller “wrongfully detained the plaintiff in the school bus causing her to be exposed to
{4} On June 30, 2008, the Van Wert County Board of Commissioners, and County Commissioners Clair Dugeon, Gary Adams, and Harold Merkle filed a motion for summary judgment. (Doc. No. 16). On July 1, 2008, the Van Wert County Bd. of MRDD, Edison Center, and Stripe filed a
{5} On August 20, 2008, the trial court granted summary judgment in favor of the Van Wert County Board of Commissioners and County Commissioners Clair Dugeon, Gary Adams, and Harold Merkle. (Doc. No. 27). That same day, however, the trial court denied the motion to dismiss filed by the Van Wert County Bd. of MRDD, Edison Center, and Stripe. (Doc. No. 26).
{6} On September 5, 2008, appellants Van Wert County Bd. of MRDD, Edison Center, and Stripe appealed the trial court‘s denial of their motion to dismiss. Appellants now appeal raising one assignment of error for our review.
{7} Before proceeding to the merits of appellants’ assignment of error, we must set forth the applicable standard of review. This Court reviews a trial court‘s decision to grant or deny a
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING THAT DEFENDANTS-APPELLANTS THE VAN WERT COUNTY BOARD OF MRDD, THOMAS EDISON CENTER, AND JIM STRIPE WERE NOT ENTITLED TO IMMUNITY PURSUANT TO O.R.C. §2744 ET SEQ.
{8} Appellants argue that the trial court erred by not dismissing Miller‘s complaint because
{10} Miller has failed to file an appellee‘s brief with this Court. When an appellee fails to file a brief, App.R. 18(C) provides that “in determining the appeal, the court may accept the appellant‘s statement of the facts and issues as correct and reverse the judgment if appellant‘s brief reasonably appears to sustain such action.” Accordingly, we accept appellants’ statement of the facts and issues for purposes of this appeal and reverse.
{11} Our analysis will be divided into five parts. First, we will briefly examine this Court‘s jurisdiction. Second, we will review the trial court‘s judgment entry. Third, we will review political subdivision liability. Fourth, we will interpret and apply the “negligent operation of any motor vehicle” exception under
{12} As an initial matter, this Court notes that “[g]enerally an order denying a motion to dismiss is not a final order” subject to appellate review. State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1199, ¶8, citing Polikoff v. Adam (1993), 67 Ohio St.3d 100, 103, 616 N.E.2d 213. However,
2. Trial Court‘s Judgment
{13} The trial court began its analysis of the issues as follows:
Construing her complaint most strongly in her favоr, Miller alleges that the acts or omissions of the school bus driver employed by MRDD in operating the school bus resulted in injuries to her. MRDD claims that they are immune pursuant to
R.C. 2744.02 , Ohio‘s Political Subdivision Tort Liability Law. Miller claims that her claim falls within the exception provided inR.C. 2744.02(B)(1) , the negligent operation of a motor vehicle.
(Aug. 20, 2008 JE, Doc. No. 26). The trial court then noted that the parties had inappropriately relied upon facts outside of the complaint for their respective positions for and against the motion to dismiss. (Id.). Next, the trial court found that the Seсond District Court of Appeals had addressed the issue of “operation” of a motor vehicle in Doe v. Dayton School Dist. Bd. of Edn. (1999), 137 Ohio App.3d 166, 738 N.E.2d 390. (Id.) The trial court then quoted the following text from Doe v. Dayton:
This court has rejected the argument that operation of a motor vehicle for purposes of
R.C. 2744.02(B)(1) is limited to manipulation of the vehicle‘s controls during its travel along a street or highway. In Groves v. Dayton Pub. Schools (1999), 132 Ohio App.3d 566, 725 N.E.2d 734, we held that the vehicle‘s operation includes a school bus driver‘s negligent acts or omissions in assisting a handicapped student off the bus. However, in Glover v. Dayton Pub. Schools (August 13, 1999),Montgomery App. No. 17601, unreported, 1999 WL 958492, we held that the vehicle‘s operation did not embrace infliction of injuries that a child suffered after alighting from the bus, when she darted into a street and was struck by a car. Groves and Glover may be reconciled by application of a proximate-cause standard consistent with the narrow construction of
R.C. 2744.02(B)(2) that we discussed above. That construction reasonably requires proof that the injuries or losses alleged are a direct consequence of the employee‘s negligent operation of the motor vehicle. Such direct consequences follow in sequence from the employee‘s acts or omissions in the vehicle‘s operation, without the intervention of any external forces that came into active operation at a later time or apart from it to cause the injury or loss alleged. See Prosser & Keeton, Laws of Torts (5 Ed. 1984), Section 43. Thus, in Groves, the handicapped student‘s injuries were directly traceable to the driver‘s acts or omissions in assisting her to alight, without the intervention of external forces. In contrast, in Glover, the car that struck the student after she had alighted from the bus was such an external force.The “direct consequences” rule is grounded in the doctrine of intervening cause. That doctrine relieves a party of liability when a break occurs in the chain of causation. A break will occur when there intervenes between an agency creating a hazard and an injury resulting therefrom another conscious and responsible agency that could or should have eliminated the hazard. Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 323, 58 O.O. 119, 130 N.E.2d 824. Howevеr, the intervening cause must be disconnected from the negligence of the first person and must be of itself an efficient, independent, and self-producing cause of the injury. Id. In contrast, a concurrent negligence, that is, one which concurs in point of consequence with the original negligence to produce the harm involved, does not cut off liability. Garbe v. Halloran (1948), 150 Ohio St. 476, 38 O.O. 325, 83 N.E.2d 217.
3. Political Subdivision Liability
{14}
{15} Appellants are political subdivisions for purposes of immunity under
4. “Negligent Operation of any Motor Vehicle” Exception
{16}
(1) Except as otherwise provided in this division, political subdivisions are liable for injury, death, or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority.
{17} The school board appealed the trial court‘s decision to the Court of Appeals for the Fifth District and argued that it was entitled to sovereign immunity under
{18} Thereafter, the girl‘s custodial parеnts appealed to the Ohio Supreme Court, which accepted the appeal. Marlington, 2009-Ohio-1360, at ¶¶1, 8; 116 Ohio St.3d 1460, 2007-Ohio-6803, 878 N.E.2d 36. Analyzing the meaning of “operation” under
{19} We find the Ohio Supreme Court‘s decision in Marlington controlling here. Miller alleged that she was injured when she was left on the bus, which is essentially a claim of negligent supervision; namely, the bus driver‘s negligent supervision in ensuring that Miller got off the bus. According to Marlington, negligent supervision of passengers is not “negligent operation of any motor vehicle” under
{20} Based upon Marlington‘s interpretation of “negligent operation of any motor vehicle,” we must conclude that Miller “can prove no set of facts in support of the claim that would entitle [her] to relief,” and the trial court erred in denying appellants’ motion to dismiss. 2009-Ohio-1360; LeRoy, 2007-Ohio-3608, at ¶14, citing Archdiocese of Cincinnati, 2006-Ohio-2625, at ¶11.
{21} Since this Court has found Marlington‘s holding—that “negligent operation of any motor vehicle” does not encompass supervision of the conduct of passengers in the vehicle—dispositive here, we need not address appellants’ further arguments limiting
{22} Appellant Stripe argues that the trial court erred in not dismissing the complaint against him because: (1) he is immune under
{23} The trial court did not address Stripe‘s immunity separately in its opinion; however, the trial court did list Stripe as one of the defendants that filed the motion to dismiss. (Aug. 20, 2008 JE, Doc. No. 26). Accordingly, we find that the trial court denied Stripe‘s motion to dismiss, though it erred in doing so.
{24} As an initial matter, Stripe is not liable in his official capacity since we have found that Miller failed to state a claim for which
(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:
(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. * * *
IV. Conclusion
{25} For all the aforementioned reasons, the triаl court erred in denying appellants’
{26} Having found error prejudicial to the appellants herein in the particulars assigned and argued, we reverse the judgment of the trial court and instruct the trial court to dismiss the complaint as to appellants Van Wert County Bd. of MRDD, the Edison Center, and Stripe.
Judgment Reversed and Cause Remanded.
WILLAMOWSKI, J., concur.
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{27} Although I concur in the majority‘s decision to reverse, I concur separately because I would reverse on the basis that the issue of sovereign immunity was not ripe for determination. It is important to distinguish between a proper
In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, want of consideration for a negotiable instrument, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
{28} The clear, unambiguous, and unequivocal requirement of this language is that any affirmative defense, and any defense that constitutes an avoidance of liability, must be specifically pleaded as an affirmative defense. If it is not properly and affirmatively set forth in a responsive pleading, the defense is waived. Additionally, the Ohio Supreme Court has defined an affirmative defense as:
a new matter which, assuming the complaint to be true, constitutes a defense to it * * * [and] “any defensive matter in
the nature of a confession and avoidance. It admits that the plaintiff has a claim (the ‘confession‘) but asserts some legal reason why the plaintiff cannot have any recovery on that claim (the ‘avoidance‘).”
State ex rel. The Plain Dealer Publishing Co. (1996), 75 Ohio St.3d 31, 33 (citations omitted).
{29} Logically, because the affirmative defense includes the confession, it is incompatible with the
{30} The trial court in this сase, and effectively the majority in this Court, have ignored the obvious distinction between the “failure to state a claim upon which relief can be granted” and matters which “constitut[e] an avoidance or affirmative defense.” See
{31}
{32} The Ohio Supreme Court has also held that matters designated by
{33} I am, however, aware that there are reported cases which have ignored this distinction and state that an affirmative defense may be the subject of a motion under
{34} “A motiоn to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint.” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 548. In order for a trial court to grant a motion to dismiss for failure to state a claim upon which relief may be granted, “it must appear beyond doubt from the complaint that
{35} Finally, I would point out that Ohio requires only notice pleading. A plaintiff is not required to anticipate all possible defenses, let alone affirmative defenses. Therefore, a plaintiff is not required to include in the complaint all circumstances which might negate potential affirmative defenses; and which can also be waived by failure to plead them. For the trial court to consider a
{36} The trial court in this case considered an affirmative defense which had not been included in a pleading; a matter outside of the pleadings. It is interesting to observe that the trial court noted that, in response to the motion, the parties to the action had argued facts not included in the pleаdings, and yet proceeded to determine the case on matters not included in the pleadings.
{38} I would reverse the decision of the trial court and remand for further proceedings.
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