WILLIAM MOHAT, ON HIS OWN BEHALF AND ON BEHALF OF THE ESTATE OF ERIC MOHAT, et al. v. THOMAS M. HORVATH, IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES.
CASE NO. 2013-L-009
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
August 26, 2013
[Cite as Mohat v. Horvath, 2013-Ohio-4290.]
CYNTHIA WESTCOTT RICE, J.
Civil Appeal from the Lake County Court of Common Pleas, Case No. 12CV001481.
Judgment: Affirmed.
Kenneth D. Myers, 6100 Oak Tree Boulevard, #200, Cleveland, OH 44131 (For Plaintiffs-Appellees).
David Kane Smith, Lindsay Ferg Gingo, and Krista K. Kleim, Britton, Smith, Peters & Kalail Co., L.P.A., 3 Summit Park Drive, Suite 400, Cleveland, OH 44131 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Thomas M. Horvath, appeals the judgment of the Lake County Court of Common Pleas denying his motion to dismiss the complaint of appellees, William Mohat and Janis Mohat. The Mohats’ complaint asserted claims for damages resulting from their minor son, E.M.‘s, commission of suicide as a result of the failure of
{¶2} The following statement of facts is based on the allegations in the Mohats’ complaint. They alleged that E.M. was 17 years old and a student at Mentor High School in 2007, when he committed suicide. For several months before E.M.‘s death, he was constantly bullied and harassed by several other students. They engaged in unrelenting name-calling, teasing, and verbal harassment. They called E.M. vile and degrading names that were sexual in nature, such as “fag,” “queer,” and “homo.” These students also repeatedly pushed, shoved, and hit E.M.
{¶3} The Mohats alleged that Horvath knew about this bullying and harassment directed against E.M. because most of it took place in Horvath‘s classroom during class and also because E.M. complained to Horvath about it.
{¶4} The complaint alleged that on the day E.M. committed suicide, another student taunted E.M., telling him in front of other students and also in front of Horvath, “Why don‘t you go home and shoot yourself? No one would miss you.”
{¶5} Further, the complaint alleged that, prior to E.M.‘s suicide, Horvath knew or should have known that another student at the high school had committed suicide as a result of bullying.
{¶6} The Mohats alleged that, despite Horvath‘s knowledge that E.M. was being regularly bullied and harassed, Horvath did nothing to stop it. He never intervened and never reported the bullying to school officials. The Mohats alleged that
{¶7} The Mohats alleged that Horvath‘s conduct constituted negligence and/or gross negligence (Count I) and that his conduct was committed with malice, in bad faith, and was wanton and reckless (Count II). As a result, they suffered and continue to suffer extreme emotional distress and loss of the companionship of their son for which they prayed for an unspecified amount of damages.
{¶8} The Mohats filed the complaint on their own behalf and also on behalf of their son‘s estate. The complaint constituted a timely re-filing of a prior action they had filed in the United States District Court for the Northern District of Ohio, as Mohat v. Mentor Exempted Village School District, et al., Case No. 1:09 CV 688. The district court dismissed the claims filed by the Mohats on behalf of their son‘s estate with prejudice as barred by the statute of limitations. The district court also dismissed the federal claims asserted by the Mohats on their own behalf. However, declining to maintain supplemental jurisdiction over the Mohats’ state law claims filed on their own behalf, which were the same as the claims they asserted against Horvath in the instant action, the district court dismissed the Mohats’ state law claims without prejudice.
{¶9} Returning to the procedural history of the instant case, Horvath subsequently filed a motion to dismiss pursuant to
{¶11} Horvath appeals the trial court‘s judgment, asserting the following for his sole assignment of error:
{¶12} “The Trial Court erred in overruling Appellant Thomas Horvath‘s Motion To Dismiss Appellees’ Complaint to the extent it denied appellant statutory immunity from liability under
{¶13} As a preliminary matter, we note that an appellate court can review only final orders, and without a final order, an appellate court has no jurisdiction. Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, ¶ 9. Generally, an order denying a motion to dismiss is not a final, appealable order. Polikoff v. Adam, 67 Ohio St.3d 100, 103 (1993). However, under
{¶15} A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt from the face of the complaint that the plaintiff can prove no set of facts entitling him to recover. Cleveland Elec. Illuminating Co. v. PUCO, 76 Ohio St.3d 521, 524 (1996). “As 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
{¶16} The Supreme Court of Ohio has stated that the immunity enjoyed by a political subdivision, such as a school district, is extended, with three exceptions, to employees of political subdivisions under
{¶17} (a) The employee‘s acts or omissions were manifestly outside of the scope of the employee‘s employment or official responsibilities;
{¶18} (b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
{¶19} (c) Civil liability is expressly imposed upon the employee by a section of the Revised Code. (Emphasis added.)
{¶20} The Mohats’ complaint alleged that Horvath was acting within the course and scope of his employment at the time of his acts or omissions. Further, the complaint did not predicate Horvath‘s liability on any section of the Ohio Revised Code.
{¶21} “Malice” includes a conscious disregard for the rights and safety of others that has a great probability of causing substantial harm. Preston v. Murty, 32 Ohio St.3d 334, 336 (1987). “Bad faith” connotes conscious wrongdoing. Jackson v. McDonald, 144 Ohio App.3d 301, 309 (5th Dist.2001). “Wanton” misconduct is the failure to exercise any care whatsoever. Hawkins v. Ivy, 50 Ohio St.2d 114, 117-118 (1977). “Recklessness” is a perverse disregard of a known risk where the actor is conscious that his conduct will probably result in injury. O‘Toole, supra, at ¶ 73-74.
{¶22} Distilled to their essence, these mental states ““impl[y] a willful and intentional design to do injury without just cause * * * or a failure to exercise any care when the probability of harm is great, and that probability of harm is known to the actor * * *.” (Emphasis added.) Piispanen v. Carter, 11th Dist. Lake No. 2005-L-133, 2006-Ohio-2382, ¶ 28, quoting McCarty, supra, at *5. Whether an actor‘s conduct was committed with malice, in bad faith, or was wanton or reckless are generally jury questions. Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 356 (1994).
{¶24} Further, the complaint also alleged that Horvath‘s actions were malicious, in bad faith, and were wanton and reckless.
{¶25} This court in Piispanen, supra, found a similar claim to be sufficient to avoid a motion to dismiss. In that case, the plaintiff-student, T.P., was assaulted by another student on school property. T.P. and his parents filed a complaint against the school‘s principal, alleging she was negligent in failing to provide a safe environment. The principal filed a motion to dismiss, arguing she was entitled to immunity. The trial
{¶26} Further, in Shively v. Green Local School Dist. Bd. of Educ., 2013 U.S. Dist. Lexis 37581 (N.D. Ohio Feb. 28, 2012), a case involving the bullying of a student in a public school, the student and her father filed an action asserting one count of negligence/gross negligence and a separate count for malice, bad faith, wanton, and reckless conduct against various employees of the school. The district court found that the plaintiffs’ allegations were sufficient to avoid dismissal at the pleading stage. Id. at *29-*30.
{¶27} Here, because the Mohats also alleged that Horvath was grossly negligent, they impliedly alleged that his conduct was wanton or reckless. Harsh, supra; Tellez, supra. In addition, the instant complaint alleged that Horvath‘s actions constituted malicious purpose, bad faith, and wanton and reckless conduct. Thus, contrary to Horvath‘s argument, the Mohats’ claim in Count I was not based solely on ordinary negligence.
{¶28} Second, Horvath argues that Count II of the complaint does not properly assert a separate claim. In Count II, the Mohats incorporated their negligence/gross negligence claim in Count I and also alleged that Horvath acted with malice, in bad faith, and that his conduct was wanton and reckless “in violation of [R.C.] 2744.03(A)(6).” (Emphasis added.) Horvath argues this statute does not impose liability for its violation, but, rather, provides an exception to immunity if the defendant‘s acts or omissions were committed with one of the listed mental states. Thus, he argues it was incorrect for the
{¶29} Third, Horvath argues that the Mohats failed to allege any facts demonstrating that he acted with malice or in bad faith, or that his conduct was wanton or reckless. This court has held that a plaintiff is not required to affirmatively demonstrate an exception to immunity at the pleading stage because that would require the plaintiff to overcome a motion for summary judgment in his complaint. Howard, supra. Instead, a plaintiff is only required to allege a set of facts, which, if proven, would plausibly allow him to recover. Id.
{¶30} Before addressing the sufficiency of the allegations in the Mohats’ complaint, we note that in Piispanen, supra, this court considered the sufficiency of the factual allegations in a case involving an assault on a student by another student in a public school. There, the plaintiff-student, T.P., had committed an act of vandalism, which resulted in another student assaulting him. Based on the principal‘s failure to notify T.P.‘s parents of the assault after the fact and the principal‘s failure to seek medical attention for T.P., he and his parents alleged the principal negligently failed to aid or protect him. This court held the plaintiffs pled sufficient facts to avoid a motion to
{¶31} Further, in Shively, supra, the student-plaintiff and her father alleged in their complaint that the defendants, who were employees of the school district, failed to stop the constant bullying to which the student was subjected over a period of time. They alleged the defendants’ inaction resulted in emotional and physical injury, and eventually caused her to withdraw from the school. The district court found that the plaintiffs’ allegations were sufficient to avoid dismissal and that the defendants’ immunity defense was more properly raised on summary judgment or in a jury trial. Id.
{¶32} Here, the Mohats alleged that Horvath was E.M.‘s teacher and that E.M. was in Horvath‘s class when E.M. was subjected to repeated verbal and physical bullying and harassment by other students. The complaint alleged that Horvath knew E.M. was the victim of constant bullying because much of it took place in Horvath‘s classroom during class and also because E.M. complained to him about it. The complaint also alleged that Horvath did nothing to stop the bullying over a period of time. He never intervened and never notified school officials about the bullying.
{¶33} In light of the facts provided in the Mohats’ complaint regarding Horvath‘s prior knowledge of the ongoing bullying to which E.M. was subjected and Horvath‘s failure to do anything to stop it or to help E.M. over a period of time, the allegations in the instant complaint are even more detailed than those which this court found to be sufficient to avoid a motion to dismiss in Piispanen.
{¶35} For the reasons stated in the opinion of this court, appellant‘s assignment of error is overruled. It is the judgment and order of this court that the judgment of the Lake County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
COLLEEN MARY O‘TOOLE, J.,
concur.