Mullins v. Liberty Twp. , 2022 Ohio 4350 ( 2022 )

[Cite as Mullins v. Liberty Twp., 2022-Ohio-4350.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
WILBERT MULLINS ET AL.,
Plaintiffs-Appellants,
v.
LIBERTY TOWNSHIP ET AL.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Case No. 22 MA 0023
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2021 CV 252
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. John A. McNally, III, John A. McNally, III, Co., LPA, 100 East Federal Street, Suite
600, Youngstown, Ohio 44503, for Plaintiffs-Appellants and
Atty. Mel L. Lute, Jr., Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street,
North Canton, Ohio 44720, for Defendants-Appellees.
Dated: November 30, 2022
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D’Apolito, J.
{¶1} Appellants, Wilbert Mullins (“Mullins”) and Sherry C. Mullins (“Sherry”)
(collectively “Mullinses”),appeal the entry of summary judgment based on sovereign
immunity by the Mahoning County Court of Common Pleas in favor of Appellees, Liberty
Township and Liberty Township Police Officer No. 1 John Doe (“John Doe officer”) in this
action alleging negligence and loss of consortium. The trial court found that the political
subdivision was immune from liability because the police officer, sued in his official
capacity, was performing a governmental function when Leo, a certified police canine with
the Liberty Township Police Department, jumped on Mullins, causing Mullins to fall to the
ground, and allegedly bit him. For the following reasons, the judgment entry of the trial
court is affirmed.
FACTS
{¶2} Mullins is a former United States Marine, and a captain and thirty-year
veteran of the Youngstown Fire Department. He is 5’11 and weighs 230 pounds.
Through his employment with the fire department, Mullins has occasionally worked fire
scenes where police canines were present, but never encountered one as a part of his
job.
{¶3} Mullins testified at his deposition that he has an apprehensiveness around
dogs, particularly large dogs, based on “the aggressiveness of them” and “how they –
they have to be restrained.” (Deposition of Wilbert Mullins, p. 21.) Mullins further testified
that when his neighbors, who own large dogs, walk their dogs along the street toward his
property, he “immediately go[es]to [his] backyard or [he] go[es] to the front porch and
lock[s] the gate.” (Id., p. 24.)
{¶4} Officer David Rankin is a certified canine handler with the Liberty Township
Police Department. Liberty Township is located in Trumbull County. While on routine
patrol in Liberty Township, with Leo on March 4, 2020, Officer Rankin observed a red
truck with a loud exhaust, so he initiated a traffic stop.
{¶5} The red truck continued a short distance into the city of Youngstown, which
is located in Mahoning County. The red truck stopped on Upland Avenue, roughly two
Case No. 22 MA 0023
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blocks south of Gypsy Lane. Liberty Township Police Officer Robert Altier heard the
dispatch call and travelled to the scene to assist Officer Rankin.
{¶6} While running the identification information of the driver and the passenger
of the red truck, Officer Altier recognized the name of the passenger, Clifford Wright, as
an individual with three outstanding felony warrants and an open case in Trumbull County.
Officer Altier then observed Wright exit the passenger side of the red truck.
{¶7} Although Officer Altier commanded Wright to return to the vehicle, Wright
fled up Upland Avenue. Officer Rankin shouted, “[d]og out,” in order to alert Officer Altier
that Leo was being released from the cruiser, and Leo exited the police cruiser and began
his pursuit of Wright. Leo and Officers Altier and Rankin chased Wright into the backyard
of 922 Upland Avenue, where Mullins and Sherry reside.
{¶8} In an affidavit filed in support of his opposition brief to the motion for
summary judgment, Mullins provided the following summary of events:
In my back yard finishing grilling with my kids. The officer and his dog were
chasing a person up my driveway. I told the officer the person went over
the fence. He stated something to the dog in a foreign language and the
dog attacked me, knocking me down, biting my face. He pulled the dog
back by his back legs while I was pushing him off me.
He yelled at me to stay in the damn shed. I could hear him giving the dog
commands while I was holding the doors closed from the inside and the dog
shaking [sic] the doors of the shed trying to get in. Once I invited him in to
tell him what the dog did to my face, he showed no concern for my
wellbeing, only stating that the dog had his shots. He never had control of
the situation or the dog. I had just took [sic] my daughter in the house 15
minutes prior, thank goodness, cause [sic] she is disabled and in a wheel
chair.1
(Affidavit of Wilbert Mullins, ¶ 4.)
1Mullins’s daughter Malissa is non-verbal and in a wheelchair. She is unable to move from her
wheelchair to her bed without assistance, and requires assistance with mobility.
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{¶9} Mullins provided a more detailed account of the events leading to his
alleged injuries at his deposition. There is no garage on Mullins’s property. An eight-foot
fence surrounds the entire perimeter of the backyard, with a single gate at the top of the
driveway.
{¶10} Mullins was cleaning the grill and backyard after having prepared a meal for
his family including Sherry, their three daughters, and six grandchildren, when he heard
multiple sirens coming from the direction of Gypsy Lane. He then observed a Liberty
Township police cruiser initiate a traffic stop in front of his residence on Upland Avenue.
{¶11} Mullins described the time of day as “kind of twilight.” (Mullins Depo., p.
28.) The backyard was well lit due to a large area light mounted by the door on Mullins’s
property, as well as similar fixtures which cast light from the neighboring properties.
{¶12} Mullins resumed his tasks and entered a plastic 8’ x 10’ shed on his property
where he stored his grilling utensils. While in the shed, which provides a direct vantage
point down the driveway, Mullins heard the sound of labored breathing and saw Wright
running up his driveway, followed by a police officer, Leo, and a second police officer.
Mullins believed that Wright intended to enter the shed, so Mullins “flagged him off.” (Id.,
p. 34.) Leo was “about halfway up [Mullins’s] driveway” when Mullins confronted Wright
at the shed entry. (Id., p. 39.)
{¶13} Instead, Wright ran into Mullins’s backyard, climbed over the perimeter
fence, and fled down the driveway of the neighboring residence onto Outlook Avenue, the
street between Gypsy Lane and Upland Avenue. Leo narrowly missed apprehending
Wright as Wright cleared the fence. After Wright disappeared, Leo sat at the base of the
fence.
{¶14} While standing in the doorway of the shed, Mullins shouted to the officer,
“he went over the fence!” Mullins heard the police officer give Leo a command in a foreign
language. Then Leo ran the roughly seven feet from the fence to the doorway of the shed
then lunged at Mullins.
{¶15} Leo’s upper teeth made contact with Mullins’s face above his left eye and
Leo’s lower teeth made contact with the roof of Mullins’s mouth. Mullins conceded that
his eyeglasses remained not only in tact but also in place during the alleged bite to his
face. (Id.)
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{¶16} Leo’s “whole body” was on Mullins, which caused Mullins to fall backwards
into the shed onto various objects located on the floor of the shed. The shed contained
“various tools, rakes, shovels, [a] cast iron stove, just regular gardening equipment,” and
two adult bikes. (Id., p. 46.) Mullins struck his head on the cast iron stove.
{¶17} The police officer pulled Leo away from Mullins by grabbing Leo’s back legs,
while Mullins pushed Leo off with his right arm. The police officer was “screaming” at
Leo. Based on their combined efforts, Mullins was able to separate himself from Leo and
close the shed doors.
{¶18} However, Leo escaped the officer’s grasp and “came at [Mullins] again.”
(Id., p. 48.) As Leo was “growling and barking and clobbering [sic] at the door as [Mullins]
was holding it,” Mullins heard the officer speaking in a foreign language. (Id., p. 49.) The
officer twice commanded Mullins to “stay in the damn shed.” (Id., p. 50.)
{¶19} Mullins remained in the shed for roughly ten minutes because he was
“terrified.” When Mullins slowly opened the doors and determined that Leo was “still
there,” the officer was still speaking to Leo in the foreign language. Mullins quickly
removed himself to the back door of the residence.
{¶20} According to the officers, Mullins was in the shed when they entered his
backyard and they instructed him to stay there. He initially complied, closing the shed
doors behind him, then opened the doors suddenly and emerged from the shed. As a
result, Leo lunged at Mullins, making contact with him and causing Mullins to fall
backwards into the shed. Both officers attested that they did not see Leo bite Mullins.
{¶21} The officers and Leo then resumed their pursuit of Wright, which led them
through a fence and several neighboring yards. Leo ultimately apprehended Wright in a
garage.
{¶22} Officer Rankin did not observe any injuries on Mullins consistent with a
police canine apprehension bite. According to Officer Rankin, Leo is trained to bite
suspects in specific locations to maximize his effectiveness, but he was never trained to
bite a suspect’s face. Officer Rankin further averred that “[a]t no time was [Leo] either not
under a leash or an electronic collar.” (Id., ¶ 20.)
{¶23} When Sherry saw Mullins enter the residence, she began to cry and insisted
that he go to the hospital because his face was bleeding. Mullins testified that he was “in
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shock.” (Mullins Depo. at p. 51.) Later in his testimony, Mullins stated that blood was
coming from his eye and that he could taste blood in his mouth.
{¶24} According to Mullins, the officer aggressively entered the residence with a
flashlight and appeared to be searching for the assailant. Mullins informed the officer that
he had been bitten by Leo. The officer responded that Leo had “all his shots.” (Id.) The
conversation between the two men lasted roughly five to ten minutes.
{¶25} Mullins drove himself to the main campus of St. Elizabeth’s Hospital in
downtown Youngstown. He was there for a little more than an hour and was given
prescriptions for narcotic pain medication (codeine) and an antibiotic.
{¶26} Next, Mullins drove himself to the Liberty Township Police Department to
file a complaint. Initially, Mullins was questioned by the officer from the scene. When
Mullins asked the officer why the dog did not follow the commands of the officer at the
scene, the John Doe officer responded, “because sometimes the dog doesn’t hear me.”
Realizing that the officer questioning him was the canine officer from the scene, Mullins
immediately terminated the interview and asked to speak to the canine officer’s
supervisor.
{¶27} Sergeant Chad McGarry, the canine officer’s supervisor, informed Mullins
that “[Mullins] just got a half bite.” (Id., p. 59.) The supervisor continued, “[y]ou ought to
see what he did to the guy when he caught him. He chewed up his left shoulder.” (Id.)
The supervisor also informed Mullins that Wright lived a few blocks from Mullins’s
residence, and Wright was trying to run to his house in order to elude the police.
According to McGarry’s affidavit, he observed no injuries to Mullins’s face or right arm,
the locations where Mullins claimed to have been bitten by Leo.
{¶28} Mullins did not work several shifts at the fire department due to severe,
lingering pain in his back and left knee. He did not return to work for fifteen months
because he “was not healed physically and mentally able to perform his duties as a fire
captain” during that time. (Mullins Depo., p. 62.)
{¶29} Mullins returned to work “because [he] ran out of sick time, and [he] would
not have gotten any monies to pay [his] bills. So [he] had – pretty much was forced to go
back to work.” He explained that he had previously called off from work four times in thirty
years. Mullins was required to provide documentation from his psychiatrist and medical
Case No. 22 MA 0023
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doctor stating the reasons for his injuries and explaining the treatment he was receiving
in order to continue collecting his salary.
{¶30} Mullins testified that he received no ongoing medical treatment for his
alleged back injury, but at the end of March he began physical therapy for both his back
and left knee, which continued for three months. Mullins underwent “needle therapy”2 to
address the pain in his left knee, which was not successful. As a consequence, in
November of 2020, he underwent arthroscopic surgery to repair a torn meniscus in his
left knee. Mullins conceded that no physician had opined that the encounter with Leo was
the cause of Mullins’s meniscal tear.
{¶31} Mullins testified that he is no longer able to perform certain activities
following his encounter with Leo, which include cycling, walking, and weightlifting. He
also struggles to help Sherry with Malissa. Her care is the predominant reason that he
aspired in the past to stay in peak physical condition.
{¶32} Mullins began treating his mental problems roughly two weeks after the
encounter with Leo, when he noticed that he became “sweaty and clammy” when he
watched the neighbors walking their dogs. Further, when he watched police shows that
featured aggressive dogs, he would have to change the channel. As of the date of the
deposition, Mullins continued to attend weekly psychiatric appointments.
{¶33} Mullins testified that he intended to retire with 33 years of service, but was
forced to retire with only 30 years due to his injuries and the fact that he was currently
stationed on the east side. Mullins explained the east side contains all of the city’s
housing projects, (Id., p. 63), and “[n]obody likes [station 6] for that reason * * * [because]
[y]ou get all these canine incidents.” (Id., p. 71.)
{¶34} The Mullinses filed their three-count complaint on February 9, 2021 against
Liberty Township and the John Doe officer. The complaint was never amended to name
the John Doe officer.
{¶35} In Count One, the complaint alleges that Mullins was attacked by a police
dog under the control of Liberty Township and the John Doe officer. Count One further
2“Dry needling therapy” is a form of acupuncture and a treatment for osteoarthritis in the knee.
When successful, the procedure reduces pain and disability and can increase arterial pressure
around the knee by up to forty percent.
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reads, “[i]n addition to negligence, [the John Doe officer]’s acts and/or omissions were
willful, reckless, and/or were with a malicious purpose, in bad faith, and/or in a wanton or
reckless manner.” Complt., ¶ 8. Despite the foregoing allegations against the John Doe
officer in the complaint, Mullins’s counsel warranted at oral argument that the claims in
Count One are predicated exclusively upon the officer’s negligent supervision of Leo, and
Mullins is not alleging that Leo reacted to an intentional act of provocation by the John
Doe officer.
{¶36} In Count Two, the complaint asserts that Liberty Township and the John
Doe officer are strictly liable for Mullins’s injuries pursuant to R.C. 955.28(B), a statute
that imposes strict liability on owners for the injuries proximately caused by their dogs. In
Count Three, Sherry advances a claim for loss of consortium.
{¶37} Liberty Township and the John Doe officer filed their motion for summary
judgment on the basis of sovereign immunity on December 15, 2021. The Mullinses filed
their opposition brief on January 28, 2022. Liberty Township and the John Doe officer
filed their reply brief on February 4, 2022. The Mullinses filed a surreply on February 10,
2022.
{¶38} In the motion for summary judgment, Liberty Township and the John Doe
officer argue a claim for damages against an employee in his official capacity is the
equivalent of a claim against the political subdivision itself and is governed by R.C.
2744.02(A) and (B). Next, they argue that Liberty Township is immune from liability
pursuant to R.C. 2744.02(A) as it is a political subdivision, and the provision of police
services is a governmental function. Liberty Township and the John Doe officer further
argue that no R.C. 2744.02(B) exception to the grant of general immunity in R.C.
2744.02(A) applies, insofar as the John Doe officer was performing a governmental,
rather than a proprietary, function. Finally, they assert that no liability is imposed on
political subdivisions in R.C. 955.28.
{¶39} In the opposition brief, the Mullinses assert that “any alleged statutory
immunity of the Defendant Police Department [which was not named in the complaint]
and its officers were [sic] waived” based on the following alleged facts:
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1. Failure to announce that a dog was being released (citing [Liberty
Township Police] Manual 309.2.13).
2. Failure to keep the dog under control (citing Mullins’s affidavit)
3. Leo jumped at Mullins (citing Rankin Aff., ¶ 17).
4. Leo made contact with Mullins at about the knee-high level (citing Altier
Aff., ¶ 12).
5. While Leo allegedly may not have been trained to bite people in the
face, he did just that (citing Mullins’s affidavit, which, contrary to the
assertion in his opposition brief, does not have photographs attached).
6. While much has been discussed about biting about the eye, Mullins has
alleged other injuries to him, proximately caused by Leo (Mullins Aff., ¶
5-6).
(Opposition Brf., p. 4.) The Mullinses further assert that “[a]s to issues of immunity,
applying them to the facts of this case would deprive Plaintiffs of due process and equal
protection of laws.” (Id.)
{¶40} The Mullinses argue in their opposition brief that the Township is liable
under R.C. 2744.02(B) for the following reasons:
(a) This case involves the mishandling of a police dog by a Township
Employee;
(b) Outside the Statutory limits of the police subdivision;
(c) With violations of the Police Manual.
3 Although Mullins’s affidavit alleges violations of Liberty Township’s Police Manual, and cites
large passages from the manual, he did not attach a copy of the manual to his opposition brief in
violation of Civ. R. 56(E). See Target Nat’l Bank v. Loncar, 7th Dist. (Mahoning) No. 12 MA 0104,
2013-Ohio-3350, ¶ 8 (“‘Sworn or certified copies of all papers or parts of papers referred to in an
affidavit shall be attached to or served with the affidavit.’ Id. This requirement is satisfied by a
statement in the affidavit declaring that the documents attached are true copies.”)
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(Id.) Finally, the Mullinses argue that R.C. 955.28 imposes strict liability against the owner
of a dog for injury or loss proximately caused by the dog.
{¶41} On February 24, 2022, the trial court entered summary judgment in favor of
Liberty Township and the John Doe officer for the reasons stated in the motion for
summary judgment. This timely appeal followed.
STANDARD OF REVIEW
{¶42} An appellate court conducts a de novo review of a trial court’s decision to
grant summary judgment, using the same standards as the trial court set forth in Civ.R.
56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Before
summary judgment can be granted, the trial court must determine that: (1) no genuine
issue as to any material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, (3) it appears from the evidence that reasonable minds can
come to but one conclusion, and viewing the evidence most favorably in favor of the party
against whom the motion for summary judgment is made, the conclusion is adverse to
that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
Whether a fact is “material” depends on the substantive law of the claim being litigated.
Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995).
{¶43} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party’s
claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264(1996). If the moving party carries its burden, the nonmoving party has a reciprocal burden
of setting forth specific facts showing that there is a genuine issue for trial. Id. at 293, 662
N.E.2d 264. In other words, when presented with a properly supported motion for
summary judgment, the nonmoving party must produce some evidence to suggest that a
reasonable factfinder could rule in that party's favor. Brewer v. Cleveland Bd. of Edn., 122
Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).
{¶44} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
Case No. 22 MA 0023
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written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a light
most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327, 364 N.E.2d 267.
SOVEREIGN IMMUNITY
{¶45} The availability of immunity is a question of law properly determined by the
court prior to trial. Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862(1992); Hall v. Ft. Frye Local School Dist. Bd. of Edn., 111 Ohio App.3d 690, 694, 676
N.E.2d 1241 (4th Dist.1996). The burden of proof is initially on the political subdivision to
establish general immunity, and when established, the burden then shifts to the plaintiff
to demonstrate one of the exceptions to immunity applies. Horen v. Bd. of Edn. of Toledo
Pub. Schools, 6th Dist. Lucas No. L-09-1143, 2010-Ohio-3631, ¶ 33; Ramey v. Mudd,
154 Ohio App.3d 582, 798 N.E.2d 57, 2003-Ohio-5170, ¶ 16 (4th Dist.)
{¶46} The determination of whether a political subdivision is immune from liability
involves a three-tiered analysis. The first tier requires a determination of whether the
political subdivision is generally immune from liability because the alleged negligent acts
of its employee occur in connection with a governmental or proprietary function pursuant
to R.C. 2744.02(A).
{¶47} If general immunity exists, the second tier provides five exceptions to
immunity, which are listed in R.C. 2744.02(B). Doe v. Skaggs, 2018-Ohio-5402, 127
N.E.3d 493, ¶ 18 (7th Dist.). The R.C. 2744.02(B) exceptions include:
(1) the negligent operation of a motor vehicle by an employee who is acting
within the subdivision’s scope of employment and authority;
(2) an employee’s negligent performance of acts with respect to the
subdivision’s proprietary functions;
(3) the negligent failure to repair public roads and negligent failure to
remove obstructions from public roads;
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(4) negligence of employees 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; and,
(5) when a section of the Revised Code expressly imposes civil liability on
the subdivision.
Bowman at ¶ 7.
{¶48} If one of these exceptions is found to apply, the political subdivision loses
its immunity. Id. However, immunity may be restored after an analysis of the third tier,
set forth in R.C. 2744.03(A).
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN
FAVOR OF THE DEFENDANT-APPELLEE, LIBERTY TOWNSHIP, ET
AL.; LEGALLY[.]
{¶49} Having reviewed the evidence in this case, we find that Liberty Township is
entitled to the grant of general immunity from liability for Mullins’s injuries under the first
tier of the sovereign immunity analysis. First, there is no dispute that Liberty Township is
a political subdivision. Second, the John Doe officer was pursuing a suspect when Leo
encountered Mullins in Mullins’s backyard.
{¶50} The exercise of law enforcement is a governmental function. R.C.
2744.01(C)(1)(i). Further, R.C. 2744.01(C)(2)(i) reads, in relevant part: “A governmental
function includes, but is not limited to, the following: * * *[t]he provision * * * of police * *
* services.” Last year, the Ninth District Court of Appeals recognized that “the operation
of a police department and the maintenance, care, training, harboring, and deployment
of a police dog” is a governmental function. Callaway v. Akron Police Dept., 9th Dist. No.
29852, 2021-Ohio-4412, 183 N.E.3d 1, ¶ 12.
{¶51} We further find that none of the exceptions to the grant of general immunity
have been established in this case. More specifically, we reject Mullins’s argument that
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civil liability is expressly imposed upon political subdivisions and their canine handlers for
injuries proximately caused by certified police canines.
{¶52} R.C. 2744.02(B)(5) reads, in its entirety:
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 civil liability is expressly imposed upon the political
subdivision by a section of the Revised Code, including, but not limited to,
sections 2743.024 and 5591.375 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
political 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.
{¶53} R.C. 955.28, captioned “Dog may be killed for certain acts; owner liable for
damages,” reads, in pertinent part, “The owner, keeper, or harborer of a dog is liable in
damages for any injury, death, or loss to person or property that is caused by the dog * *
*.” R.C. 955.28(B).
{¶54} We have previously opined that the strict liability provision in R.C. 955.28(B)
does not fall within the ambit of R.C. 2744.02(B)(5), as R.C. 955.28 is a general liability
statute and does not expressly impose civil liability on political subdivisions. In re T.B.Y.
v. Martins Ferry, 7th Dist. No. 16 BE 0002, 2016-Ohio-8482, 78 N.E.3d 242, ¶ 48; see
also Callaway, supra, at ¶ 15; Jamison v. Stark Cty. Bd. of Commrs., 5th Dist. Stark No.
2014CA00044, 2014-Ohio-4906, 2014 WL 5586143, ¶ 18; Perry v. East Cleveland, 11th
Dist. No. 95-L-111, 1996 WL 200558 (Feb. 16, 1996).
4R.C. 2743.02 codifies the state’s waiver of immunity to be sued in the Court of Claims.
5R.C. 5591.37, captioned “noncompliance” reads, in its entirety, “Negligent failure to comply with
section 5591.36 of the Revised Code shall render the county liable for all accidents or damages
resulting from that failure.”
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{¶55} Next, as Mullins failed to establish that Liberty Township and the John Doe
officer lose their immunity in the second tier of the analysis, we need not undertake the
third tier analysis.
{¶56} Finally, Mullins’s counsel asserted at oral argument that Liberty Township
is not immune from liability because the alleged negligent acts occurred outside of
Trumbull County. At oral argument, Mullins’s counsel conceded that there is no section
of the sovereign immunity statute that strips a municipality of its sovereign immunity
where the employee’s conduct occurs outside of the municipality. Appellant’s counsel
further conceded the John Doe officer had the authority to pursue Wright into Mahoning
County and arrest him.
{¶57} Accordingly, we find that Liberty Township is a political subdivision and the
John Doe officer was performing a governmental function when Leo encountered Mullins.
Because Mullins has not established any of the exceptions to the general grant of
immunity, we further find that Mullins’s sole assignment of error has no merit and affirm
the entry of summary judgment by the trial court in favor of Liberty Township and the John
Doe officer in his official capacity.
Waite, J., concurs.
Robb, J., concurs.
Case No. 22 MA 0023
[Cite as Mullins v. Liberty Twp., 2022-Ohio-4350.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellants.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.