CATHERINE TASSE, ET AL., Plаintiffs-Appellees, v. DANIEL F. MARSALEK, AS ADMINISTRATOR, ET AL., Defendants-Appellants.
No. 109113
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 29, 2020
2020-Ohio-5084
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: October 29, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-917883
Appearances:
The Chamberlain Law Firm Co., L.P.A., and Henry W. Chamberlain, for appellees.
Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, Frank H. Scialdone, and Terence L. Williams, for appellants.
RAYMOND C. HEADEN, J.:
{¶ 1} Defendants-appellants the city of Rocky River (“Rocky River“) and Rocky River Animal Control Officer Michael Brooks Jarvis (“Jarvis“) (collectively,
Procedural and Substantive History
{¶ 2} On July 9, 2019, plaintiffs-appellees Catherine Tasse (“Tasse“) and Jeffrey Tasse (collectively, “Appellees“) filed a complaint against Rocky River, Jarvis, and Daniel F. Marsalek, individually and as Administrator of the Estate of Daniel E. Marsalek.1 Appellees brought claims for negligence, reckless misconduct, and loss of consortium.
{¶ 3} On the evening of August 13, 2017, Appellees were returning their boat to its dock when thе boat stalled, forcing Appellees to tie up in the Rocky River inlet adjacent to Marsalek‘s property at 269 Yacht Club Drive, Rocky River, Ohio. After tying up the boat, Tasse approached the Marsalek‘s back door to notify him of their presence. When Tasse approached the home, Marsalek‘s dog attacked her. Tasse alleged that she suffered severe injuries as a result of the attack.
{¶ 4} On August 28, 2019, Appellants filed a motion to dismiss Appеllees’ complaint for failing to state a claim upon which relief can be granted pursuant to
{¶ 5} On September 16, 2019, Appellees filed a brief in opposition to Appellants’ motion to dismiss, arguing that they were not immune because
{¶ 6} On October 2, 2019, the trial court denied Appellants’ motion to dismiss. In its journal entry, the trial court stated, in relevant part:
Plaintiff has alleged with sufficient particularity a set of facts where a question of fact exists whether the Rocky River [sic] and the dog warden Michael Brooks Jarvis behaved in a willful, wanton, or reckless manner in failing to deem the Marselek [sic] dog a vicious dog and requiring it to be in a pen per state law after the defendants’ knowledge of prior bite history.
Rocky River and Jarvis appealed, presenting two assignments of error for our review.
Law and Analysis
{¶ 7} In their first assignment of error, Appellants argue that the trial court erred by denying Rocky River‘s motion to dismiss because it is immune under
{¶ 8} We apply a de novo standard of review to a decision on a motion to dismiss pursuant to
{¶ 9} For a trial court to dismiss a complaint under
{¶ 10} Here, the motiоn to dismiss was based on political subdivision immunity pursuant to
I. Political Subdivision Immunity
{¶ 11} The determination of whether a political subdivision is entitled to immunity involves a three-tier analysis. Hunt v. Cleveland, 8th Dist. Cuyahoga No. 103468, 2016-Ohio-3176, ¶ 14, citing Elston v. Howland Local Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 N.E.2d 845, ¶ 10. First,
{¶ 12} Here, there is no dispute that the city of Rocky River is a “political subdivision” pursuant to
{¶ 13}
(B) Subject to sections
2744.03 and2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or of any of its employees in сonnection with a governmental or proprietary function, as follows:(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. * * *
(2) Except as otherwise provided in sections
3314.07 and3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss tо person or property caused by the negligent performance of actsby their employees with respect to proprietary functions of the political subdivisions. (3) Except as provided in section
3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads * * *.(4) Except as otherwise provided in section
3746.24 of the Revised Code, politicаl subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile detention, workhouses, or any other detention facility * * *.(5) In addition to the сircumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to person or property when civil liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections
2743.02 and5591.37 of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a politicаl subdivision, because that section provides for a criminal penalty, because of a general authorization in that section that a political subdivision may sue and be sued, or because that section uses the term “shall” in a provision pertaining to a political subdivision.
{¶ 14} In light of the presumption of broad immunity for political subdivisions, the statute does not place the burden on the political subdivision to demonstrate that no exceptions apply; “rather, once the first tier has been met, the plaintiff must demonstrate one of the statutorily defined exceptions apply in order to proceed.” Sims v. Cleveland, 8th Dist. Cuyahoga No. 92680, 2009-Ohio-4722,
{¶ 15} In denying the motion to dismiss in this case, the trial court did not point to a particular exception in
Plaintiff has alleged with sufficient particularity a set of facts where a question exists whether the Rocky River [sic] and the dog warden Michael Brooks Jarvis behaved in a willful, wanton, or reckless manner in failing to deem the Marselek [sic] dog a vicious dog and requiring it to be in a pen per state law after the defendants’ knowledge of prior bite history. The court finds the complaint alleges sufficient facts where a question of fact exists whether or not defendants failure to classify the dog, with a prior bite history, a vicious dog and enforce Ohio statute requiring the dog to be properly secured constitute willful, wanton, or reckless behavior.
{¶ 16} We note that none of the language in this jоurnal entry corresponds to any of the enumerated exceptions in
{¶ 17} Appellees likewise argue that Appellants are not immune because there are questions of fact surrounding Jarvis‘s willful, wanton, and reckless behavior in enforcing Rocky River‘s “dangerous dog” ordinance (“the ordinance” or “the Rocky River ordinance“). Appellees also assert that the trial court‘s denial of the motion to dismiss was appropriate because the оrdinance conflicted with state law.
{¶ 18} To support their first argument, Appellees rely almost exclusively on an Eleventh District case, Perry v. E. Cleveland, 11th Dist. Lake No. 95-L-111, 1996 Ohio App. LEXIS 507 (Feb. 16, 1996). In Perry, the court quotes
If governmental, and not subject to one of the exceptions enumerated in
R.C. 2744.02(B) , the political subdivision may only liable for an act or omission of an employee involved in a resource allocation judgment decision which was malicious, in bad faith, wanton or reckless. If proprietary, the governmental body may be liable for a negligent act or nonact unless the act (1) involved the necessary or essential exercise of it [sic] powers; (2) was within the discretionary policy-making powers of the employee; or (3) was within the resource allocation powers of the employee unless the decision was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.
Id. at 8. Because Appellees rely on this passage without a full appreciation of its statutory context, and Perry itself presents a somewhat distorted interpretation of the law, their reliance on Perry is misplaced.
{¶ 19} Notably, the first sentence in the foregoing passage does not contain a citation to any part of
The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, оr in a wanton or reckless manner.
{¶ 20} It is well-established that the defenses in
{¶ 21} The second sentence in the Perry passage likewise appears to refer to
{¶ 22} Beyond this misguided reliance on Perry, Appellees do not explicitly argue that any of the
{¶ 23} Appellees do, however, argue that Rocky River should not be immune here because its former local ordinance conflicted with state law.
Except when a dangerous dog is lawfully engaged in hunting or training for the purpose of hunting and is accompanied by the owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of a dangerous dog shall fail to do either of the following: (1) While that dog is on the premises of the owner, keeper, or harborer, securely confine it at all times in a locked pen that has a top, locked fenced yard, or other locked enclosure that has a top.
{¶ 24} At the time of the incident in this case, Rocky River had an ordinance in place defining a “dangerous dog” in relevant part as follows:
a dog that, without provocation, has chased or apprоached in either a menacing fashion or an apparent attitude of attack, or has attempted to bite or otherwise endanger any person, or bites or causes physical harm to another dog or kills another companion animal * * * while that dog is off the premises of its owner, keeper or harborer and not under the reasonable control of its owner, keeper, harborer, or some other responsible person.
Former Rоcky River Codified Ordinances 505.11. Although Marsalek‘s dog had bitten another individual several months before biting Tasse in this case, neither Rocky River nor Jarvis had deemed the dog a dangerous dog because this incident did not happen “off the premises of its owner” as described in the statute. In the absence of such a determination, Marsalek had not been instructed to keep the dog restrained in accordance with
{¶ 25} Appellees also point out that
{¶ 26} Appellees are effectively arguing that a violation of state law directly amounts to liability. Whether the former local ordinance conflicted with a state statute is outside the scope of this appeal. Even if the local ordinance in place at the time of the incident in this case conflicted with a state statute, Appellees have not presented a compelling argument that any statute or case law instructs us to find that this conflict operates as an exception to the broad immunity laid out in
{¶ 27}
{¶ 28} Further, Ohio courts have held that
{¶ 29} Although Appellees refer to Ohio‘s dangerous dog statute, rather than the dog bite statute, the same reasoning applies here.
{¶ 30} Regardless of whether
{¶ 31} Further, while Appellees generally imply that liability is appropriate here because of
II. Employee Immunity
{¶ 32} In their second assignment of error, Appellants argue that the trial court erred in denying Jarvis‘s motion to dismiss because he is immune under
{¶ 33} For individual employees, the immunity analysis requires an evaluation of
(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 wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised Code. Civil liability shall not be construed to exist under
another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon an employee, because that section provides for a criminal penalty, because of a general authorization in that section that an employee may sue and be sued, or because the section uses the term “shall” in a provision pertaining to an employee.
{¶ 34} Appellees have not alleged that Jarvis‘s conduct was manifestly outside the scope of his employment. Appellees alleged that Jarvis willfully, wantonly, or recklessly failed to require Marsalek to confine his dog in accordance with
{¶ 35} The Ohio Supreme Court has determined that showing recklessness in this context is subject to a high standard and defines “reckless” as “‘knowing or having reason to know of fact which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.‘” Rankin at ¶ 37, quoting Cater v. Cleveland, 83 Ohio St.3d 24, 33, 697 N.E.2d 610 (1998). “Distilled to its essence, and in the context of
Recklessness, therefore, necessarily requires something more than mere negligence. Farey, 70 Ohio St.3d at 356, 639 N.E.2d 31. In fact, “the actor must be conscious that his conduct will in all probability result in injury.” Id.
O‘Toole at ¶ 74; see also Elam v. Emp. & Family Servs., 8th Dist. Cuyahoga No. 98323, 2012-Ohio-5076, ¶ 19 (“such perversity must be under such conditions that
{¶ 36} Appellees argue that Jarvis was reckless because he knowingly enforced the Rocky River ordinance, which conflicted with state law, and therefore allowed a dangerous dog to exist outside of homes not properly penned. In other words, because Jarvis‘s interpretation of the Rocky River ordinance clearly violated state law, according to Appellees, this enforcement amountеd to recklessness. To the extent that Appellees are arguing that either the
{¶ 37} Our de novo review of the four corners of the complaint does not reveal the existence of facts to remove immunity granted to Jarvis; specifically, that Jarvis acted in a “willful/wanton/reckless” manner by not enforcing the state statute and declaring the dog a “dangerous dog.” The Rocky River ordinance limited the definition of “dangerous dog” to one that without provocation has attacked or attempted to attack a person off the premises of its owner. Nothing in the record indicates that the Marsalek dog satisfied the “dangerous dog” definition in the Rocky River ordinance. Appellees allege that Jarvis knew the dog at issue “was vicious and dangerous” because it had previously bit another person and therefore acted “willfully, and/or wantonly and/or recklessly” by failing to require the dog owner to “keep his dоg inside or confined outside in a pen as required by Ohio law.” Yet, nothing in the record indicates that Jarvis acted with a “perverse disregard” or
{¶ 38} Appellees again cite to
{¶ 39} Because Appellees have not established that an exception to employеe immunity applies here, Jarvis is entitled to immunity from their negligence claims. Therefore, Appellants’ second assignment of error is sustained.
{¶ 40} Judgment is reversed and remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellants recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
RAYMOND C. HEADEN, JUDGE
PATRICIA ANN BLACKMON, P.J., and MICHELLE J. SHEEHAN, J., CONCUR