Hendrickson v. Haven Place, Inc. , 2014 Ohio 3726 ( 2014 )


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  • [Cite as Hendrickson v. Haven Place, Inc., 2014-Ohio-3726.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 100816
    JUSTIN HENDRICKSON
    PLAINTIFF-APPELLEE
    vs.
    HAVEN PLACE, INC., ET AL.
    DEFENDANTS
    [Appeal By Cuyahoga County, Ohio,
    Demetria Chilton and Hope Gula]
    JUDGMENT:
    REVERSED AND REMANDED
    Civil Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CV-13-810721
    BEFORE: McCormack, J., Boyle, A.J., and Rocco, J.
    RELEASED AND JOURNALIZED: August 28, 2014
    ATTORNEYS FOR APPELLANTS
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    The Justice Center
    1200 Ontario Street
    Cleveland, Ohio 44113
    Steven W. Ritz
    Assistant Prosecuting Attorney
    3955 Euclid Avenue, Room 305-E
    Cleveland, Ohio 44115
    ATTORNEYS FOR APPELLEES
    For Justin Hendrickson
    Kyle L. Crane
    Kyle L. Crane Co., L.P.A.
    4820 Lorain Avenue
    Cleveland, Ohio 44102
    R. Jack Clapp
    4820 Lorain Avenue
    Cleveland, Ohio 44102
    ALSO LISTED:
    For The Haven Place, Inc., et al.
    Frank G. Mazgaj
    Hanna, Campbell & Powell, L.L.P.
    3737 Embassy Parkway, Suite 100
    Akron, Ohio 44333
    Michelle Campbell, pro se
    4371 Northfield Road, Apt. 308
    Cleveland, Ohio 44128
    (continued)
    Orlando Leonard, pro se
    10104 Olivet Avenue
    Cleveland, Ohio 44108
    Mildred Ray, pro se
    12828 Chapman Avenue, Apt. C
    Garden Grove, California 92840
    Noreen Smith, pro se
    3357 Sutton Road
    Shaker Heights, Ohio 44120
    TIMOTHY McCORMACK, J.:
    {¶1} Defendants-appellants, the county of Cuyahoga (the “County”) and Demetria
    L. Chilton and Hope Gula, employees of the Cuyahoga County Department of Children
    and Family Services (“CCDCFS”), bring this appeal from the denial of their motion to
    dismiss the claims against them brought by plaintiff-appellee, Justin Hendrickson.
    Appellants claim they are entitled to immunity from the claims brought by Hendrickson
    because of political subdivision immunity. Based on the facts as pled in the complaint and
    a review of the law, we reverse the decision of the trial court and hold that appellants are
    entitled to immunity.
    Procedural History and Substantive Facts
    {¶2} Hendrickson filed a complaint on July 16, 2013, naming several defendants:
    The Haven Place, Inc.; The Haven In Shaker-ACF; The Haven in Mount Pleasant;
    Orlando Leonard; Michelle Campbell; Andra Johnson; Sandra Marshall; Noreen Smith;
    Mildred Ray; Hope Gula; Demetria L. Chilton; Michelle Campbell; CCDCFS; the
    County; and County Executive Edward FitzGerald. The complaint alleged claims of
    negligence and premises liability against Orlando Leonard and Michelle Campbell;
    negligent supervision against Andra Johnson, Sandra Marshall, Noreen Smith, Mildred
    Ray, and Michelle Campbell; and negligent entrustment against The Haven Place, The
    Haven of Shaker, and The Haven of Mount Pleasant. Count 5 of the complaint, entitled
    “Wanton and Reckless,” asserted the following claims against Chilton and Gula:
    At all times relevant herein, Defendant Hope Gula and Defendant Demetria
    L. Chilton, acted negligently, carelessly, maliciously, willfully and
    wantonly, with conscious disregard to human life including but not limited
    to failing to adequately supervise Defendants Havens and its employees,
    failing to place Plaintiff in a safe group home environment, placing Plaintiff
    in and/or authorizing Plaintiff to stay in a group home which was being
    investigated for safety issues and/or violations and/or otherwise currently
    under investigation causing Plaintiff to be injured in the manner set forth in
    this Complaint.
    {¶3} Hendrickson further alleged that Chilton and Gula were acting within the
    course and scope of their employment with the County during all relevant times. He
    alleged that the County was liable under the theory of negligent entrustment or respondeat
    superior for the acts of its employees in the sixth count of his complaint. This count
    states, in part:
    At all times relevant herein, Defendants Hope Gula and/or Demetria L.
    Chilton were employees, agents, representatives and/or servants of
    Defendants [CCDCFS] and/or [the County] and Edward FitzGerald,
    Cuyahoga County Executor [sic] and at the time of this incident, were
    acting in the course and scope of their employment with Defendants and
    with the express permission and consent and for the benefit of said
    Defendants.
    {¶4} On September 24, 2013, appellants filed a motion to dismiss, arguing the
    claims against them were barred by political subdivision immunity under Chapter 2744 of
    the Ohio Revised Code.      The motion also argued that, regardless of immunity, the
    County was the properly named party and the county executive and CCDCFS were only
    departments of the County and not properly named defendants. Hendrickson opposed
    the motion arguing he pled sufficient facts to survive, but also conceded that CCDCFS
    and the county executive were not properly named defendants. The County filed a reply
    brief without leave of the court, which the court accepted and allowed Hendrickson to file
    a sur-reply brief.
    {¶5} On December 4, 2013, the court denied the County’s motion with the
    exception of dismissing CCDCFS and the county executive as parties. Appellants then
    filed the instant appeal on December 27, 2013, assigning two errors:
    I. The Court of Common Pleas erred by denying R.C. 2744 immunity to
    [the County] when the court denied [its] Motion to Dismiss by Order dated
    December 4, 2013.
    II. The Court of Common Pleas erred by denying R.C. 2744 immunity to
    [Chilton and Gula] when the court denied [their] Motion to Dismiss by
    Order dated December 4, 2013.
    Law and Analysis
    Standard of Review
    {¶6} This court has jurisdiction over this appeal because the trial court’s December
    4, 2013 order denies the County and its employees claimed immunity under Chapter 2744
    of the Ohio Revised Code and is therefore a final order. R.C. 2744.02(C); Hubbell v.
    Xenia, 
    115 Ohio St. 3d 77
    , 2007-Ohio-4839, 
    873 N.E.2d 878
    .
    {¶7} A motion to dismiss for failure to state a claim on which relief can be granted
    is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey
    Cty. Bd. of Commrs., 
    65 Ohio St. 3d 545
    , 
    605 N.E.2d 378
    (1992).
    {¶8} This court has previously set forth an exhaustive analysis of the notice
    pleading standard in light of developments in federal pleading standards. Tuleta v. Med.
    Mut. of Ohio, 2014-Ohio-396, 
    6 N.E.3d 106
    (8th Dist.). There, this court reviewed and
    then rejected federal case law, which heightened the notice pleading standard of
    Fed.R.Civ.P. 8(a), finding that Ohio has not adopted the modification of notice pleading
    standards as set forth in Bell Atlantic Corp. v. Twombly, 
    550 U.S. 544
    , 
    127 S. Ct. 1955
    ,
    
    167 L. Ed. 2d 929
    (2007), and Ashcroft v. Iqbal, 
    556 U.S. 662
    , 
    129 S. Ct. 1937
    , 
    173 L. Ed. 2d 868
    (2009).
    {¶9} Prior to these cases, a motion to dismiss should have been granted only where
    it appeared that no set of facts would entitle the plaintiff to relief. Conley v. Gibson, 
    355 U.S. 41
    , 45, 
    78 S. Ct. 99
    , 
    2 L. Ed. 2d 80
    (1957). In Twomlby and Iqbal, the U.S. Supreme
    Court modified the “no set of facts” standard set forth in Conley to require a plaintiff to
    set forth plausible facts to demonstrate a probable claim for relief. Tuleta at ¶ 14-21;
    Iqbal at 678-679. This court rejected the idea that the Eighth District Court of Appeals
    had adopted the heightened pleading standards merely by citing to Twombly and Iqbal,
    and instead adhered to the “no set of facts” language enunciated in Conley and adopted by
    the Ohio Supreme Court in O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
    St.2d 242, 245, 
    327 N.E.2d 753
    (1975).
    {¶10} However, one idea that underpins Twombly and Iqbal — that bald legal
    conclusions do not constitute a well-pled complaint — is not new in Ohio. Indeed, the
    Ohio Supreme Court made similar statements in 1989, where it reasoned that while the
    factual allegations of the complaint are taken as true, “[u]nsupported conclusions of a
    complaint are not considered admitted * * * and are not sufficient to withstand a motion
    to dismiss.” State ex rel. Hickman v. Capots, 
    45 Ohio St. 3d 324
    , 
    544 N.E.2d 639
    (1989).
    {¶11} Therefore, the proper standard for reviewing a motion to dismiss pursuant to
    Civ.R. 12(B)(6) is, after construing all facts and inferences in favor of the nonmoving
    party, whether there is no set of facts that would entitle the plaintiff to relief. However,
    factually unsupported legal conclusions should not be construed in such a manner and are
    insufficient to state a claim for relief.
    [T]he complaint must contain either direct allegations on every material
    point necessary to sustain a recovery on any legal theory, even though it
    may not be the theory suggested or intended by the pleader, or contain
    allegations from which an inference fairly may be drawn that evidence on
    these material points will be introduced at trial.
    Fancher v. Fancher, 
    8 Ohio App. 3d 79
    , 83, 
    455 N.E.2d 1344
    (1st Dist.1982).
    {¶12} Because factual allegations in the complaint are presumed true, only the
    legal issues are presented, and an entry of dismissal on the pleadings will be reviewed de
    novo. Rocky River v. Lakewood, 8th Dist. Cuyahoga No. 90908, 2008-Ohio-6484, ¶ 6.
    De novo review requires this court to undertake an independent analysis of the issues
    without deference to the trial court’s determination. Gilchrist v. Gonsor, 8th Dist.
    Cuyahoga No. 88609, 2007-Ohio-3903, ¶ 16.
    Claims Against the County
    {¶13} Appellants first claim the trial court erred when it denied immunity to the
    County.
    {¶14} “In 1985, the General Assembly enacted R.C. Chapter 2744, the Political
    Subdivision Tort Liability Act, in response to the judicial abolishment of common-law
    sovereign immunity by this court’s decision in Haverlack v. Portage Homes, Inc. (1982),
    
    2 Ohio St. 3d 26
    , * * * 
    442 N.E.2d 749
    .” Cramer v. Auglaize Acres, 
    113 Ohio St. 3d 266
    ,
    2007-Ohio-1946, 
    865 N.E.2d 9
    , ¶ 13.
    {¶15} Immunity of a political subdivision requires a three-tiered analysis according
    to R.C. 2744.01 and 2744.02. 
    Id. at ¶
    14-16. The general presumption, as outlined in
    R.C. 2744.02(A), is that political subdivisions of the state are immune from suit.
    However, immunity is removed for any of five categories of claims under R.C.
    2744.02(B)(1) through 2744.02(B)(5). Those categories are (1) the negligent operation
    of a motor vehicle by an employee with certain exceptions, (2) negligent acts by an
    employee engaged in a proprietary function, (3) the negligent failure to keep roads in
    good repair, (4) negligence that results in injury on subdivision property used for a
    governmental function, and (5) “when civil liability is expressly imposed upon the
    political subdivision by a section of the Revised Code * * * .” If immunity is removed
    under one or more of these subsections, it may be restored if one of the provisions of R.C.
    2744.03(A)(1) through 2744.03(A)(5) are met. Auglaize Acres at ¶ 16.
    {¶16} First, there is no dispute that the County is a political subdivision that
    qualifies for immunity under R.C. 2744.01(A). The second step requires an analysis of
    R.C. 2744.02(B) to determine if that immunity is abrogated. There are two categories of
    claims that would possibly remove immunity from the County in this case — negligent
    acts of employees engaged in a proprietary function and civil liability expressly imposed
    by statute. R.C. 2744.02(B)(2) and 2744.02(B)(5).
    {¶17} Under R.C. 2744.01, actions of a political subdivision are divided into two
    categories: governmental functions and proprietary functions. This statute includes a
    non-exhaustive list of activities that are governmental functions. R.C. 2744.01(C)(2)(m)
    defines “[t]he operation of a job and family services department or agency, including, but
    not limited to, the provision of assistance to aged and infirm persons and to persons who
    are indigent” as a governmental function.
    {¶18} In Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio
    St.3d 392, 2008-Ohio-2567, 
    889 N.E.2d 521
    , a juvenile in the temporary custody of
    CCDCFS was sexually abused by a parent during a visit supervised by CCDCFS
    employees at a county facility. The child’s mother and grandmother, the appointed
    guardian, filed suit against the County. The Rankin court held that the County was not
    liable in tort because no provision of R.C. 2744.02(B) removed immunity. It found that
    “[u]nder either R.C. 2744.01(C)(2)(m) or (o),1 Cuyahoga County Department of Children
    and Family Services is a political subdivision performing a governmental function.” 
    Id. at ¶
    16.
    {¶19} Hendrickson claims, for the first time on appeal and without support, that
    the placement of individuals under the supervision of CCDCFS into housing facilities is a
    This subsection provides, “The operation of mental health facilities, mental retardation or
    1
    developmental disabilities facilities, alcohol treatment and control centers, and children’s homes or
    agencies[.]”
    proprietary function because it is not strictly required for the operation of CCDCFS.
    However, the provision of necessary services to wards of the County is indeed a
    governmental function. This is the conclusion reached by the Eleventh District in Doe v.
    Trumbull Cty. Children Servs. Bd., 11th Dist. Trumbull No. 2011-T-0080,
    2012-Ohio-1463. There, the plaintiff-appellant argued “that the phrase ‘operation of
    children service agencies or homes’ applies to their operation, not to the care, custody,
    and control of children.” 
    Id. at ¶
    13. Based on the holding in Rankin, the court rejected
    that claim and found this to be a governmental function not subject to the removal of
    immunity under R.C. 2744.02(B)(2).
    {¶20} The housing, care, and maintenance of children in the custody of a
    department of children and family services is a governmental function.               R.C.
    2744.02(B)(2) does not remove immunity from the County in this case.
    {¶21} This leaves express statutory imposition of liability under R.C.
    2744.02(B)(5). Hendrickson does not cite to any statute that imposes liability. Therefore,
    the County’s general grant of immunity under R.C. 2744.02(A) has not been abrogated,
    and the trial court erred in denying its motion to dismiss. While determinations of
    immunity are more appropriately made on summary judgment, Caraballo v. Cleveland
    Metro. School Dist., 8th Dist., Cuyahoga No. 99616, 2013-Ohio-4919, ¶ 9, no set of facts
    removes immunity from the County, as alleged in this complaint.
    Claims Against Individual Employees
    {¶22} Appellants argue in their second assignment of error that the trial court
    “erred by denying R.C. 2744 immunity to [Chilton and Gula] when the court denied
    [their] Motion to Dismiss by Order dated December 4, 2013.”
    {¶23} Claims against governmental employees are subject to a different analysis
    than claims against the subdivision itself. Sickles v. Jackson Cty. Hwy. Dept., 196 Ohio
    App.3d 703, 2011-Ohio-6102, 
    965 N.E.2d 330
    , ¶ 32 (4th Dist.); R.C. 2744.03(A)(6).
    {¶24} The employees in this case are generally immune from liability unless:
    (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. 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.
    R.C. 2744.03(A)(6).
    {¶25} Here, Hendrickson alleges that Chilton and Gula acted in a wanton or
    reckless manner by allowing him to remain in a facility that was under investigation by an
    unidentified entity for unidentified “issues and/or violations * * *” and that they failed to
    adequately supervise this private facility. Therefore, appellant argues, immunity is
    removed by R.C. 2744.03(A)(6)(b).
    Willful misconduct implies an intentional deviation from a clear duty
    or from a definite rule of conduct, a deliberate purpose not to discharge
    some duty necessary to safety, or purposefully doing wrongful acts with
    knowledge or appreciation of the likelihood of resulting injury. Tighe v.
    Diamond, 149 Ohio St. [520,] at 527, 
    80 N.E.2d 122
    [(1948)]; see also
    Black’s Law Dictionary 1630 (8th Ed.2004) (describing willful conduct as
    the voluntary or intentional violation or disregard of a known legal duty).
    Wanton misconduct is the failure to exercise any care toward those
    to whom a duty of care is owed in circumstances in which there is great
    probability that harm will result. Hawkins [v. Ivy], 50 Ohio St.2d [114,] at
    117-118, 
    363 N.E.2d 367
    [(1977)]; see also Black’s Law Dictionary
    1613-1614 (8th Ed.2004) (explaining that one acting in a wanton manner is
    aware of the risk of the conduct but is not trying to avoid it and is
    indifferent to whether harm results).
    Reckless conduct is characterized by the conscious disregard of or
    indifference to a known or obvious risk of harm to another that is
    unreasonable under the circumstances and is substantially greater than
    negligent conduct. Thompson [v. McNeill], 53 Ohio St.3d [102,] at
    104-105, 
    559 N.E.2d 705
    [(1990)], adopting 2 Restatement of the Law 2d,
    Torts, Section 500, at 587 (1965); see also Black’s Law Dictionary
    1298-1299 (8th Ed.2004) (explaining that reckless conduct is characterized
    by a substantial and unjustifiable risk of harm to others and a conscious
    disregard of or indifference to the risk, but the actor does not desire harm).
    Anderson v. Massillon, 
    134 Ohio St. 3d 380
    , 2012-Ohio-5711, 
    983 N.E.2d 266
    , ¶ 32-34.
    {¶26} In the present case, there are no factual allegations that would lead to
    reckless, wanton, or willful conduct. The complaint does not set forth in any manner
    how Chilton or Gula acted willfully, recklessly, or wantonly with respect to the alleged
    injury.     There is no indication that any investigation into the facility in which
    Hendrickson was housed would impact this case. This is not a case of abuse of a
    resident at the hands of an employee of a facility of which a caseworker of CCDCFS
    knew or should have known.           Here, we have a dog bite that occurred at a private
    residence where Hendrickson was attending a party.
    {¶27} “Under the notice pleading requirements of Civ.R. 8(A)(1), the plaintiff is
    only required to plead sufficient, operative facts to support recovery under her claims.”
    Moncrief v. Bohn, 8th Dist. Cuyahoga No. 100339, 2014-Ohio-837, ¶ 22. A well-pled
    complaint must include factual allegations going to each element of the claim, and
    conclusory statements without any factual allegations in support are insufficient. Here,
    Hendrickson claims the County employees acted recklessly because the facility where he
    resided was under investigation for possible safety violations. He in no way indicates
    how those possible violations or lack of supervision led to or contributed to his injuries.
    {¶28} Estate of Graves v. Circleville, 4th Dist. Ross No. 04CA2774,
    2005-Ohio-929, demonstrates the types of allegations that constitute a well-pled cause of
    action to overcome immunity. In that case, Jillian Graves was killed in a collision with a
    drunk driver, Cornelius Copley. His estate alleged the following facts in its amended
    complaint against the city of Circleville:
    (1) Copley had multiple OMVI convictions before July 6, 2003, including
    two OMVIs in 2003; (2) Copley had been arrested multiple times for
    driving under the influence of alcohol and/or drugs; (3) Copley had multiple
    hit-and-run violations; (4) on July 4, 2003, the Officers arrested Copley for
    driving while intoxicated after he sideswiped a parked car and fled the
    scene; (5) at the time of his arrest, Copley informed the Officers that he was
    driving under a suspended drivers license as a result of a prior OMVI; (6)
    the Officers charged Copley with driving under the influence of alcohol
    and/or drugs, driving under a suspended license, hit-and-run, and failing to
    maintain control of his vehicle within the proper marked lanes; (7) the
    Officers seized and impounded Copley’s vehicle at the time of his arrest;
    (8) Copley’s car was to remain impounded until his initial court appearance
    on July 7, 2003, under R.C. 4507.38, because he was charged with driving
    under a suspended or revoked Ohio driver’s license; (9) Copley’s vehicle
    was to remain impounded until his initial court appearance because R.C.
    4511.195 requires impoundment in all cases of OMVI arrest where the
    defendant has been convicted of or has plead guilty to an OMVI offense
    within the prior six year period; (10) the purpose of R.C. 4507.38 and
    4511.195 is to prevent a dangerous driver from gaining access to his vehicle
    before a Court has an opportunity to determine whether the defendant poses
    a threat to the public if the vehicle is released; (11) despite the law, the
    Officers allowed Copley to obtain his vehicle from the impound lot on July
    5, 2003, two days before his scheduled initial court appearance; and (12) the
    officers acted wantonly, recklessly, and with complete disregard for the
    foreseeable consequences of their actions.
    {¶29} The complaint, containing more facts than are probably required, established
    some connection between the alleged breach of duty and the injury. The Fourth District
    reversed the trial court’s decision granting Circleville’s Civ.R. 12(C) motion for judgment
    on the pleadings, finding that the complaint sufficiently alleged a cause of action that
    could remove immunity from Circleville. 
    Id. at ¶
    28.
    {¶30} Here, there is no link or any factual allegations that would lead to the
    conclusion that county employees acted recklessly, wantonly, or in clear disregard for a
    foreseeable risk of harm, even where facts are construed in Hendrickson’s favor. “Ohio
    remains a notice pleading state, but the complaint must still advance a rational basis for
    holding a defendant liable.”    Cleveland v. JP Morgan Chase Bank, N.A., 8th Dist.
    Cuyahoga No. 98656, 2013-Ohio-1035, ¶ 11, citing Gallo v. Westfield Natl. Ins. Co., 8th
    Dist. Cuyahoga No. 91893, 2009-Ohio-1094, ¶ 9.
    {¶31} Construing the factual allegations as true means only that the facility in
    which Hendrickson was housed was under investigation for safety violations. There is
    no causal connection between any of the alleged violations and the dog attack that
    occurred at the private residence where Hendrickson was attending a party.
    Hendrickson’s incantatory inclusion of the words “willful, wanton, and reckless” in a
    paragraph of his complaint is insufficient to demonstrate any set of facts that would allow
    him to recover from Gula or Chilton for their failure to prevent him from getting bitten by
    a dog during a party at a private residence. Accordingly, the trial court erred in denying
    Chilton and Gula immunity pursuant to R.C. 2744.03(A)(6).
    {¶32} The County and its employees are entitled to immunity in this case, and the
    trial court erred in denying their motion to dismiss. No provision of R.C. 2744.02(B)
    removes immunity from the County, and Hendrickson’s claims against individual
    employees are not sufficient to remove immunity under R.C. 2744.03(A)(6). This cause
    is reversed and remanded to the lower court for further proceedings consistent with this
    opinion.
    It is ordered that appellants recover of said appellee costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    TIM McCORMACK, JUDGE
    MARY J. BOYLE, A.J., and
    KENNETH A. ROCCO, J., CONCUR