783 N.E.2d 959 | Ohio Ct. App. | 2002
{¶ 2} "The trial court erred in granting judgment on the pleadings to the Ottawa County Board of Mental Retardation and Developmental Disabilities by finding that political subdivisions are immune from liability for employer intentional torts."
{¶ 3} Appellants commenced the instant action against MRDD, among others, alleging that MRDD, required its employees to work in an unhealthy workplace located at 140 Buckeye Boulevard in Port Clinton, Ohio. Appellants claimed that MRDD knew that there were toxigenic substances, e.g., visible mold in the building and a black sludge in the walls, and were substantially certain that injury would result to its employees. They maintained that MRDD "knowingly disregarded the harm to which it was exposing" those employees. Appellants maintained that they suffered from various physical ailments such as chronic sinus infections, headaches, "lung illness," vomiting, diarrhea, fatigue and anxiety because of this exposure.
{¶ 4} Appellants also filed a supplemental complaint based on the following facts. After they moved out of the premises at 140 Buckeye Boulevard, certain items (files, furniture, equipment and personal belongings) were delivered to appellants at their new workplaces. According to the supplemental complaint, MRDD engaged in "intentional misconduct" by not cleaning those items prior to delivery. Thus, appellants alleged that MRDD knowingly re-exposed them to the contaminated items thereby causing a reoccurrence of their physical symptoms.
{¶ 5} MRDD filed its answer, raising, inter alia, the defense of immunity under the Political Subdivision Tort Liability Act, R.C. Chapter 2744. In their subsequent motion for a judgment on the pleadings, MRDD observed appellants' claims were "employer intentional torts" within the meaning of Fyffe v. Jeno's, Inc. (1991),
{¶ 6} Appellants filed a memorandum in opposition in which it contended that an employer intentional tort was neither a "governmental" nor a "proprietary" function of the county; thus, MRDD was not provided with immunity under R.C.
{¶ 7} After MRDD filed a reply to the memorandum in opposition, the common pleas court granted the motion for a judgment on the pleadings and included the language required by Civ.R. 54(B) to render that judgment a final, appealable order. This appeal followed.
{¶ 8} The standard applicable to our review of this cause is found in Civ.R. 12(C). Because a motion for a judgment on the pleadings made pursuant to Civ.R. 12(C) may be made only after the pleadings are filed, it is characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted. Gawloski v. MillerBrewing Co. (1994),
{¶ 9} Appellants first argue that because MRDD engaged in an employer intentional tort, that county agency was not performing either a "governmental" or "proprietary" function. Appellants are mistaken in that they confuse the "tort" with the "function" engaged in by MRDD.
{¶ 10} R.C. Chapter 2744 was enacted by the General Assembly to provide Ohio's political subdivisions with immunity from tort liability, with a few enumerated exceptions. Wilson v. Stark Cty. Dept. of HumanServices (1994),
{¶ 11} Appellants, however, neither argued to the trial court nor attempt to raise on appeal the argument that an employer intentional tort can be classified as one of the exceptions listed in R.C.
{¶ 12} Issues not initially raised in the trial court may not be raised for the first time on appeal. Stevens Skin Softener, Inc. v. RevcoDrug Stores, Inc. (1997),
{¶ 13} Furthermore, R.C.
{¶ 14} Appellants' only other argument is that R.C. Chapter 2744 is inapplicable to employer intentional torts under R.C.
{¶ 15} R.C.
{¶ 16} "This chapter does not apply to, and shall not be construed to apply to, the following:
{¶ 17} "* * *
{¶ 18} "(B) Civil actions by an employee, or the collective bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision;
{¶ 19} "(C) Civil actions by an employee of a political subdivision against the political subdivision relative to wages, hours, conditions, or other terms of his employment; * * *."
{¶ 20} Initially, we note that ample case law exists which holds that political subdivisions cannot be held liable for intentional torts. Wilson v. Stark Cty. Dept. of Human Services, supra (claims for fraud and intentional infliction of emotional distress); Farra v. Dayton (1989),
{¶ 21} Indeed, other appellate courts addressed the issue of whether an employer intentional tort is excepted under R.C.
{¶ 22} Nevertheless, appellants also assert that because their injuries are related to conditions in their workplace, R.C.
{¶ 23} In Fabian v. Steubenville (Sept. 28, 2001), Jefferson App. No. 00-JE-33, the Seventh District Court of Appeals was asked to determine whether an employer intentional tort was exempted from the immunity provisions of R.C. Chapter 2744 by subsection R.C.
{¶ 24} The Fabian court noted that the language of R.C.
{¶ 25} We find the reasoning in Fabian persuasive and thus hold that R.C.
{¶ 26} Appellants next argue that R.C. Chapter 2744 is unconstitutional because it violates Section
{¶ 27} Finally, appellants assert that the preclusion of recovery for employer intentional torts is against public policy because (1) a hazardous workplace cannot lead to the efficient operation of government; (2) even a government owes a duty of care to provide its employees with a safe workplace; and (3) a system that allows employees of a political subdivision to recover for the negligent harm caused by their employer, but not to recover for intentional harm caused by that employer is anomalous.
{¶ 28} First, as aptly stated by MRDD, the public policy underlying the enactment of R.C. Chapter 2744 is the preservation of the financial soundness of its political subdivisions — not the promotion of the efficient operation of those governmental units. Menefeev. Queen City Metro. (1990),
{¶ 29} For all of the foregoing reasons, appellants' sole assignment of error is found not well-taken. The judgment of the Ottawa County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Peter M. Handwork, J., Melvin L. Resnick, J., and James R. Sherck, J., CONCUR.
{¶ b} "(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 upon the public roads, highways, or streets when the employees are engaged within the scope of their employment and authority.
{¶ c}The following are full defenses to that liability:
{¶ d} "(a) A member of a municipal corporation police department or any other police agency was operating a motor vehicle while responding to an emergency call and the operation of the vehicle did not constitute willful or wanton misconduct;
{¶ e} "(b) A member of a municipal corporation fire department or any other firefighting agency was operating a motor vehicle while engaged in duty at a fire, proceeding toward a place where a fire is in progress or is believed to be in progress, or answering any other emergency alarm and the operation of the vehicle did not constitute willful or wanton misconduct;
{¶ f} "(c) A member of an emergency medical service owned or operated by a political subdivision was operating a motor vehicle while responding to or completing a call for emergency medical care or treatment, the member was holding a valid commercial driver's license issued pursuant to Chapter 4506. or a driver's license issued pursuant to Chapter 4507. of the Revised Code, the operation of the vehicle did not constitute willful or wanton misconduct, and the operation complies with the precautions of section
{¶ g} "(2) Except as otherwise provided in sections
{¶ h} "(3) Except as otherwise provided in section
{¶ i} "(4) Except as otherwise provided in section
{¶ j} "(5) In addition to the circumstances 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 liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections