DocketNumber: Case No. 99-CA-9.
Judges: GWIN, J.
Filed Date: 12/20/1999
Status: Non-Precedential
Modified Date: 4/18/2021
ASSIGNMENT OF ERRORS
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANTS' MOTION TO DISMISS FINDING THEM IMMUNE FROM SUIT PURSUANT TO R.C.
2744.03 (A)(6).
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DECIDING THE ISSUE OF IMMUNITY UNDER R.C.
2744.03 (A)(6) PRIOR TO APPELLANT HAVING THE RIGHT UNDER CIV. R. 56 TO CONDUCT DISCOVERY.
Appellees served as appellant's court-appointed public defenders in a criminal action against him. Appellant was convicted and sentenced. Appellant then brought the within action, for legal malpractice, alleging appellees breached a duty to represent him zealously and to insure a fair trial by failing to file a motion for change of venue. Appellants' complaint alleged failure to file a motion for a change of venue was negligent because it is standard practice to file for a change of venue when publicity about an accused presents a reasonable likelihood of prejudice at trial. Appellant alleged his conviction was due to the negligent representation. Appellees filed a motion to dismiss the action based upon R.C.
(3) the political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to policy-making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee.
(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or section
3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:(A) His acts or omissions were manifestly outside the scope of his employment or official responsibilities; (B) his actions or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; (C) Liability is expressly imposed upon the employee by a section of the Revised Code.
Appellant argues appellees' acts and omissions were outside the scope of their employment or official responsibilities because he was charged with murder in a rural community where nearly every juror knew the prosecution's version of the case because of pre-trial publicity. Appellant also urges the failure to file for a change of venue was inexcusable callous neglect, and at the very minimum wanton misconduct. Appellees point out appellant had not alleged any set of acts, which if proven, would entitle him to defeat appellees' immunity and prevail in his claim against appellees. Appellees also urge the decision of whether or not to file a motion for change of venue is not manifestly outside the scope of appellees' employment, but rather, exactly the sort of decision defense counsel makes as part of his employment. Civ.R. 12(B)(6) permits a court to dismiss an action if it finds the complaint fails to state a claim upon which relief can be granted. On review, we must accept the allegations in the complaint as true, and view all relevant facts in the light most favorable to the plaintiff, see Doe v. First United Methodist Church (1994),
The second assignment of error is overruled. For the foregoing reasons, the judgment of the Court of Common Pleas of Knox County, Ohio, is affirmed.
By: Gwin, J., Wise, P.J., and Reader, J., concur.