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2007-0056. O’Toole v. Denihan, Slip Opinion No. 2008-Ohio-2574
Cuyahoga App. No. 87476, 2006-Ohio-6022. Judgment reversed and cause remanded.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., concurs in part and dissents in part.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-2574.pdf
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(June 4, 2008) The Supreme Court of Ohio ruled today that the Cuyahoga County Department of Children and Family Services (CCDCFS), is immune from civil liability for its handling of a case in which a four-year-old was killed by her mother after department employees investigating a report of possible abuse determined that leaving the child with the mother under a “safety plan” rather than removing her from the mother’s home was appropriate. Today’s ruling also disposed of all claims of personal liability against one of three department employees named as co-defendants, but left limited individual claims pending against a case worker and former department director William Denihan.
In a 6-1 majority opinion written by Justice Maureen O’Connor, the Court held that:
The case involved a wrongful death lawsuit filed by the estate of the deceased child, Sydney Sawyer, against the Cuyahoga County Department of Children & Family Services (CCDCFS), former director William Denihan and two of the department’s employees, caseworker Kamesha Duncan and her supervisor, Tallis George-Munro. The suit alleged that CCDCFS as an institution and Denihan, Duncan and Munro as individuals should be held liable for civil damages based on alleged statutory violations and reckless conduct that contributed to Sydney’s beating death at the hands of her mother and the mother’s live-in boyfriend.
On March 29, 2000, CCDCFS received a report from a nurse at a daycare facility that she suspected Sydney had been physically abused. Duncan was sent to the daycare center, where she examined and interviewed Sydney and her mother, LaShon Sawyer, and spoke with the nurse and the operator of the center. The following day, Duncan visited Sydney’s home and had additional discussion with her mother about the circumstances of the child’s injuries, which included facial bruises, burns on both hands and abrasions on her back. Duncan and George-Munro discussed the findings of their preliminary investigation and determined that it was appropriate to leave Sydney in the custody of her mother under a “safety plan” while CCDCFS completed a full investigation of the alleged abuse over the next 30 days. The safety plan included requirements that Sydney be examined at a nearby health clinic and the findings be reported to CCDFS, that Sydney continue to attend daycare and that the daycare facility monitor for any further indications of abuse, and that caseworker Duncan meet with Sydney face-to-face during the 30-day investigatory period. Two days later, LaShon sought and was granted approval by CCDFS to take Sydney out of daycare, purportedly to attend an out-of-state funeral.
On April 28, 2000, Sydney was transported to Rainbow Babies and Children’s Hospital in Cleveland where she was pronounced dead of internal injuries that the medical examiner attributed to being beaten. LaShon Sawyer was subsequently convicted of murder in the death of her daughter, and her boyfriend, Patrick Frazier, was convicted of involuntary manslaughter.
On Oct. 16, 2001, appellee John K. O’Toole, as the personal representative and administrator of the estate of Sydney Sawyer, filed a wrongful death suit against CCDCFS and against Denihan, George-Munro, and Duncan, in their individual and official capacities. O’Toole argued that the defendants were not entitled to immunity for acts or omissions in the course of their governmental duties because liability was imposed expressly by their alleged violations of R.C. 2151.421(A) (which requires anyone suspecting child abuse to report it to a children services agency or police) and R.C. 2919.22 (which prohibits child endangering). In addition, O‘Toole maintained that the conduct of CCDCFS’s employees in their handling of the case was reckless. The trial court eventually granted summary judgment dismissing all of O’Toole’s claims against all of the defendants, based on its finding that they were immune from liability.
The estate appealed the trial court’s rulings to the Eighth District Court of Appeals. The appellate court found that there existed genuine issues of material fact that precluded summary judgment. As a result, the court of appeals reversed and remanded the case to the trial court for further proceedings. CCDCFS and the individual defendants appealed the 8th District’s decision to the Supreme Court, which agreed to review the court of appeals’ rulings.
In today’s decision, Justice O’Connor wrote: “The issue before us is whether appellants are entitled to immunity under R.C. Chapter 2744. Subject to a few exceptions, R.C. 2744.02(A)(1) provides that political subdivisions are ‘not 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 an employee of the political subdivision in connection with a governmental or proprietary function.’ Likewise, immunity is extended, with three exceptions, to employees of political subdivisions under R.C. 2744.03(A)(6). The exceptions to immunity that are relevant in this case are twofold. First, immunity can be lost as to both political subdivisions and their employees when the Revised Code expressly imposes liability. ... Second, employees can lose their immunity for acting ‘with malicious purpose, in bad faith, or in a wanton or reckless manner.’”
Justice O’Connor rejected O’Toole’s claim that the defendants in this case exposed themselves to liability by violating R.C. 2151.421(A)(1)(a) when they failed to pass on the daycare nurse’s report that she suspected Sydney was being abused to local police after initiating their own investigation. She noted that “(T)he statute requires the report to be made ‘to the public children services agency or a municipal or county peace officer in the county in which the child resides ...’ (Emphasis added.) ... The statute does not expressly state that once the agency receives that initial report, the agency must then immediately cross-report it to law enforcement. As a result, the fact that a public children services agency receives a report does not trigger any duty to cross-report to law enforcement. ... We have previously recognized that the purpose of the statute is for ‘children services agencies [to] take responsibility for investigating and proceeding with appropriate action to prevent further child abuse or neglect in specific, individual cases’ ... Therefore, based on the language and intent of the statutory scheme as a whole, it cannot be read to require a public children services agency to cross-report to law enforcement. ... Because there was no duty violated, there is no exception to immunity. The court of appeals erred, therefore, in finding that appellants were not entitled to immunity as to this issue.”
The Court also found no merit in O’Toole’s claim that CCDCFS and the individual defendants forfeited their immunity by violating R.C. 2919.22, which prohibits any “person” who has custody or control of a child from creating “a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.” Justice O’Connor wrote: “R.C. 2919.22 uses the word ‘person’ without any reference to political subdivisions or their employees. There is no indication whatsoever in the language of R.C. 2919.22 that the General Assembly has abrogated the immunity provided to political subdivisions and their employees with an express imposition of liability. Again, if the General Assembly had wanted to specifically include employees of public children services agencies among the list of people potentially liable, it could have done so. Without any express imposition of liability, appellants are entitled to immunity.”
Having rejected both statutory claims as applied to all of the defendants, Justice O’Connor noted that because those claims were the only basis on which CCDCFS could be found institutionally liable, the department was therefore “immune from liability in this case.”
Although the Court declined to review the individual immunity of Duncan and Denihan from the reckless conduct claims asserted against them, it held that George-Munro, the intake supervisor in Sydney’s case, was immune from personal liability based on alleged reckless acts or omissions.
Justice O’Connor noted that in order to find a breach of immunity, a court must find that an employee acted “with malicious purpose, in bad faith or in a wanton or reckless manner.” Citing past Supreme Court decisions and Ohio appellate cases interpreting that standard, Justice O’Connor wrote: “Distilled to its essence, and in the context of R.C. 2744.03(A)(6)(b), recklessness is a perverse disregard of a known risk. ... Recklessness, therefore, necessarily requires something more than mere negligence. In fact, ‘the actor must be conscious that his conduct will in all probability result in injury.’” Applying that standard to the actions of George-Munro in this case, she concluded that the 8th District erred in finding anything in the case record that would support a claim that he acted recklessly.
“Although Sydney’s death was tragic, that tragedy does not mean that the burden for showing recklessness is any different in this case. We must apply the law without consideration of the emotional ramifications and without the benefit of 20-20 hindsight. ... Although it is tempting to employ hindsight to blame George-Munro, as he himself did on the day he learned of Sydney’s death, there is no evidence that George-Munro consciously left Sydney in the home with the knowledge that it was substantially certain that she would be further injured.”
The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.
Justice Paul E. Pfeifer concurred in the portion of the syllabus holding that county children services agencies are not required by law to cross-report child abuse reports filed with them to the police. He dissented from the remainder of the majority opinion, reiterating his view that the doctrine of sovereign immunity is contrary to Section 16, Article I of the Ohio Constitution, which guarantees that “every person, for an injury done him ... shall have remedy by due course of law.”Contacts
David Ross, 216.687.1311, for
the Cuyahoga Cty Dept. of Children & Family Services, William Denihan and Kamesha Duncan.
James C. Cochran, 216.664.3806, for Tallis George-Munro.
Joan E. Pettinelli, 216.781.7777, for John K. O’Toole (personal representative and administrator of the estate of Sydney Sawyer).