Riсhard Rooney, Administrator of the Estate of Anna Rooney, Plaintiff-Appellant, v. Ohio State Highway Patrol, Defendant-Appellee.
No. 16AP-204
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 28, 2017
[Cite as Rooney v. Ohio State Hwy. Patrol, 2017-Ohio-1123.]
(Ct. of Cl. No. 2015-00623) (REGULAR CALENDAR)
DECISION
Rendered on March 28, 2017
On brief: Dinsmore & Shohl LLP, Mark A. Vander Laan, and Mark B. Gerano, for appellant. Argued: Mark A. Vander Laan.
On brief: Michael DeWine, Attorney General, Lee Ann Rabe, and Peter E. DeMarco, for аppellee. Argued: Peter E. DeMarco.
APPEAL from the Court of Claims of
BRUNNER, J.
{¶ 1} Plaintiff-appellant, Richard Rooney (“Dr. Rooney“), appeals the February
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Dr. Rooney filed this negligence action in the Court of Claims on July 1, 2015, naming the Patrol and its employеe, dispatcher Catherine A. Davis, as defendants. The complaint states that Davis acted negligently in failing to properly handle a report of a recklessly driven vehicle that subsequently collided with the car driven by Dr. Rooney‘s daughter, Anna Rooney, resulting in her death.
{¶ 3} Specifically, the complaint states that, on the night of July 4, 2013, an off-duty Chillicothe police officer reported to the Chillicothe Police Department that he was driving behind a car that was being driven recklessly through Chillicothe on U.S. 50. The Chillicothe Police Department dispatcher telephoned the Patrol and requested backup that could intercept the vehicle. Davis was the Patrol dispatcher who received the call and who neither entered the request into the Patrol‘s dispatch system nor alerted a trooper or any other agency about the recklessly driven vehicle. Several minutes later, that vehicle struck Ms. Rooney‘s vehicle. Ms. Rooney died the following day of injuries sustained in the collision.
{¶ 4} Dr. Rooney has alleged that Davis‘s failure to enter the Chillicothe Police Department‘s requеst into the Patrol‘s dispatch system or to otherwise notify a Patrol officer or any other agency of the recklessly driven vehicle was a breach of duty that led to the fatal collision and was the direct and proximate cause of Ms. Rooney‘s injuries and death. Dr. Rooney also has alleged that the public duty immunity provision of
{¶ 5} On July 7, 2015, the dispatcher, Davis, was dismissed as a party before the Cоurt of Claims because
{¶ 6} On October 23, 2015, the Patrol moved to dismiss Dr. Rooney‘s complaint pursuant to
{¶ 7} In its motion to dismiss, the Patrol argued that Dr. Rooney‘s complaint lacked allegations of facts establishing the four elements set forth in
{¶ 8} Dr. Rooney responded that the Patrol‘s claim of immunity “after it blatantly failed to dispatch a trooper to a report of a drunk driver defies principles of law, public policy, and common sense.” (Nov. 16, 2016 Pl.‘s Opp. to Def.‘s Mot. to Dismiss at 1.) Dr. Rooney, relying on this Court‘s holding in Legacy Academy for Leaders and the Arts v. Mt. Cavalry Pentecostal Church, 10th Dist. No. 13AP-203, 2013-Ohio-4214, argued that his complaint need only “set forth facts ‘sufficient to give the [Patrol] fair notice of [Dr. Rooney‘s] claim that any asserted immunity is overcome.‘” (Pl.‘s Opp. to Def.‘s Mot. to Dismiss at 3-4, quoting Legacy Academy for Leaders and the Arts at ¶ 16.) Dr. Rooney asked the Court of Claims to evaluate “the totality of the circumstances, especially in light of public policy,” in determining whether he had pled facts sufficient to support his claims. Id. at 10.
{¶ 9} On February 19, 2016, the Court of Claims granted the Patrol‘s motion to dismiss for failure to state a claim. The Court of Claims found that Davis, the alleged negligent state employee, was clearly engaged in the performance or nonperformance of a public duty for which the state was immune from liability. The Court of Claims stated the public duty immunity set forth in
{¶ 10} Dr. Rooney thеn filed this appeal, seeking to have the entry of dismissal reversed and the case remanded for further proceedings.
II. ASSIGNMENT OF ERROR
{¶ 11} Dr. Rooney presents one assignment of error for our review:
The trial court erred to the prejudice of Appellant by concluding that Appеllant could prove no set of facts to establish a special relationship between Anna L. Rooney and Dispatcher Catherine Davis and therefore, the Ohio State Highway Patrol.
III. LAW AND DISCUSSION
{¶ 12} Dr. Rooney argues on appeal that the trial court should not have dismissed his complaint for failure to plead facts demonstrating all of the required elements to state a claim under
{¶ 13} We review de novo a trial court‘s decision to dismiss pursuant to
{¶ 14} In such cases, a trial court must presume that all factual allegations in the complaint are true and draw all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). The appellate court need not, however, accept as true any unsupported or conclusory legal propositions advanced in the complaint. Rudd v. Ohio State Hwy. Patrol, 10th Dist. No. 15AP-869, 2016-Ohio-8263, ¶ 12, citing Morrow v. Reminger & Reminger Co., LPA, 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 7 (10th Dist.).
{¶ 15} Dr. Rooney alleged in his complaint that Davis, the Patrol dispatcher, assumed a duty on behаlf of the Patrol to act on behalf of the decedent, Ms. Rooney, when she accepted the call from the Chillicothe Police Department dispatcher requesting backup to intercept a vehicle described as being driven recklessly and which ultimately сollided with Ms. Rooney‘s vehicle, injuring her so severely that she died. Davis failed to dispatch a Patrol car to the scene. Dr. Rooney alleged that the Patrol, as the agency responsible for traffic safety and enforcement, had affirmatively assumed a duty to act оn behalf of Ms. Rooney. Dr. Rooney also alleged that the Patrol knew or should have known that failing to dispatch an officer to a report of a reckless driver could lead to the type of harm sustained by Ms. Rooney. Dr. Rooney also alleged that the Patrol “had dirеct contact with Annie Rooney and/or others acting on Annie Rooney‘s behalf prior to and immediately after the collision” and that Ms. Rooney relied on “[the Patrol‘s] affirmative undertaking to provide traffic enforcement on the state‘s roadways.” (Feb. 19, 2016 Compl. at ¶ 24-25.) Dr. Rоoney also alleged that Davis breached a duty of care in failing to dispatch a Patrol officer in response to the call and that this was the direct and proximate cause of Ms. Rooney‘s death. Dr. Rooney concluded that these facts were sufficient tо establish that “a special relationship existed between [the Patrol] and Annie Rooney; therefore
{¶ 16} Unless Dr. Rooney pled sufficient facts to overcome the state‘s
[B]ecause neither Davis nor [the Pаtrol] had direct contact with [Ms. Rooney], she could not have justifiably relied on [the Patrol‘s] employee to undertake any specific action. * * * As such, the facts of the complaint, if true, simply do not furnish a basis upon which a claim for relief may be sustained against [the Pаtrol].
(Entry of Dismissal at 4.)
{¶ 18} On appeal, Dr. Rooney argues that the Court of Claims and the Patrol‘s “interpretation of the pleading standard regarding immunity defenses is overly broad, and it contravenes well-established Ohio jurisprudence, which only requires a plaintiff to set forth facts sufficient to place a defendant on notice of the claims asserted.” (May 20, 2016 Appellant‘s Reply Brief at 1.) Dr. Rooney argues that the Court of Claims’ “narrow application of the special-relationship exception to the public duty rule completely eviscerates the plain language of
{¶ 19} Dr. Rooney relies on this Court‘s decision in Scott v. Columbus Dept. of Pub. Util., 192 Ohio App.3d 465, 468, 2011-Ohio-677 (10th Dist.), recognizing that because Ohio is a notice-pleading state, the plaintiff need not affirmatively dispose of the immunity question altogether at the pleading stage. However, exceptions in Scott to the immunity provisions of
{¶ 20} The Supreme Court of Ohio held generally in Scott that a plaintiff seeking to overcome immunity must allege a set of facts that, if proven, would plausibly allow for recovery. Dr. Rooney did not allege in his complaint facts sufficient to establish that a special relationship, as defined in
{¶ 21} This Court recently addressed a similar negligence claim against State agents in Rudd at ¶ 16, in which we held that any duty owed to employees and patrons of a truck stop was a public duty owed generally to the public at large rather than an assumption by the State, by means of promises or actions to specifically act on behalf of the party allegedly injured.
{¶ 22} Applying our analysis and holding in Rudd to Dr. Rooney‘s case, we find that the facts as pled in his complaint do not permit it to survive a
IV. CONCLUSION
{¶ 23} Based on the foregoing, we overrule Rooney‘s assignment of error and affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
SADLER and LUPER SCHUSTER, JJ., concur.