Adamov v. State, 75-0303

• Decision Date: 26 June 1975
• Docket Number: No. 75-0303,75-0303
• Citation: 345 N.E.2d 661,46 Ohio Misc. 1
• Parties: , 75 O.O.2d 41 ADAMOV v. The STATE of Ohio, Ohio Youth Commission. *
• Court: Ohio Court of Claims

Page 1

46 Ohio Misc. 1

345 N.E.2d 661, 75 O.O.2d 41

ADAMOV v. The STATE of Ohio, Ohio Youth Commission. ^*

No. 75-0303.

Court of Claims of Ohio.

June 26, 1975.

Syllabus by the Court

1. The waiver of sovereign immunity provided in R.C. 2743.02 is not a complete and absolute waiver.

2. The 'state' as defined in R.C. 2743.01 is not liable when its officers reasonably exercise discretion vested in them, even when such exercise may result in damage.

Charles Thomas Crangle, Akron, for plaintiff.

William J. Brown, Atty. Gen., and Steven L. Ball, Columbus, for defendants.

TROOP, Judge.

This opinion is addressed to the motion of the Attorney General, filed on behalf of the state of Ohio May 14, 1975, asking for summary judgment favorable to the state. The date set for hearing on the motion was June 11, 1975, at which time the cause came on for consideration and disposition.

The complaint, filed April 17, 1975, by Gail M. Adamov, seeks to recover damages for personal injuries suffered as a result of an attack by one Carl Dwayne Harris, a minor. Details respecting the nature of the attack, which took place February 11, 1975, in the home of Mrs. Adamov, are set out in the complaint.

It is further alleged that Harris, as a delinquent, had been committed to the custody the Ohio Youth Commission Center by the Juvenile Court of Summit County, and was, on February 11, 1975, on 'released' status from that institution, but remained under the supervision of the Youth Commission.

Counsel for the claimant makes a clear statement of the theory upon which plaintiff relies for recovery in the allegations of the complaint. In paragraph 4, this proposition appears:

'The injuries suffered by the plaintiff were a direct and proximate and foreseeable result of the gross and flagrant violation of duty imposed upon the Ohio Youth Commission and its employees by Chapter 5139 of the Ohio Revised Code.'

In paragraph 6 of the complaint, it is claimed that the expenses incurred by Mrs. Adamov, by reason of the injuries suffered, were 'a further and proximate result of the aforesaid gross negligence and flagrant violation of a statutory and a common law duty * * *.'

In paragraph 7, the claimant reiterates, and adds, that her injuries were not only the direct and proximate result, but also a 'foreseeable result of the gross negligence and flagrant violation of statutory duty.'

If there be a violation of a duty in this case, chargeable against the employees of the state of Ohio, as a basis of recovery, there must be shown to be a statutory duty. State agencies are directed by statutory provision and duties are defined and imposed by legislative enactment and not by common-law rule.

To complete the factual picture, it is necessary to note an affidavit, attached to the memorandum of the Attorney General in support of his motion for summary judgment. The affiant is Howard V., Ware, chief of the classification and assignment section of the Ohio Youth Commission. The facts recited in the affidavit are important to this discussion. The pertinent portion of the documents reads, as follows:

'1. That he is Chief of the Classification and Assignment Section of the Ohio Youth Commission and he is responsible for the administration of intake, transfer, release, and discharge, of youths committed to the custody of the Ohio Youth Commission.

'2. That he has carefully examined the records regarding the medical and psychiatric examinations of Carl Dwayne Harris, as well as the administrative records regarding his commitment to the Ohio Youth Commission.

'3. That Carl Dwayne Harris was committed to the permanent care and custody of the Ohio Youth Commission by the Juvenile Court of Summit County, Ohio on February 19, 1974.

'4. That a study was made of Carl Dwayne Harris after he was committed to the custody of the Ohio Youth Commission to assist in determining his course of rehabilitation.

'5. That Carl Dwayne Harris remained in institutional custody at the Training Institution of Central Ohio until November 12, 1974, the date of his release from physical custody on parole to his parents.

'6. That the Juvenile Court of Summit County, Ohio was notified of the release of Carl Dwayne Harris over 15 days prior to such release.'

It is noted that this affidavit, in support of the motion for summary judgment, has been refuted by affidavits, attached to a memorandum contra, as is required by Civ.R. 56(C) and (E).

It is established that Carl Dwayne Harris was committed to O.Y.C., February 19, 1974, and was released, on parole, to his parents, November 12, 1974, which was more than five months after his commitment. The Juvenile Court of Summit County was notified of the contemplated release more than fifteen days before release occurred.

The plaintiff alleges that O.Y.C. and its employees violated applicable statutory requirements and duties. Those applicable statutes are examined in connection with that allegation.

Applicable law is not limited to that included in R.C. Chapter 5139. The chapter covering the Juvenile Court, R.C. 2151, is closely related. It is significant because procedures for dealing with juveniles begin there. R.C. 2151.01 is basic. It supplies the motivating philosophy and purpose for the enactment. The pertinent portions read as follows;

'The sections in Chapter 2151, of the Revised Code, with the exception of those sections providing for the criminal prosecution of adults, shall be liberally interpreted and construed so as to effectuate the following purposes;

'(A) To provide for the care, protection, and mental and physical development of children subject to Chapter 2151, of the Revised Code;

'(B) To protect the public interest in removing the consequences of criminal behavior and the taint of criminality from children committing delinquent acts and to substitute therefor a program of supervision, care, and rehabilitation;

'(C) To achieve the foregoing purposes, whenever possible, in a family environment, separating the child from its parents only when necessary for his welfare or in the interests of public safety;'

It should be noted that the Juvenile Court deals with the 'child.' A 'child' is under 18 years of age, and any child who violates the law prior to 18 years is deemed a 'child' at the time a complaint is filed, or hearing had, if under 18 years at the time the offense was committed. (R.C. 2151.011.)

R.C. 2151.355 provides how the court may make disposition of the offending child. One way is to '(D) Commit the child to the legal custody of the Ohio Youth Commission;'

Such disposition brings into focus the duties of the commission. R.C. 5139.04(C) is important to this discussion. It reads, as follows;

'The youth commission shall:

'(C) Receive custody of all children committed to the commission in accordance with Sections 2151.01 to 2151.99, inclusive, of the Revised Code; cause a study to be made of such individuals, and issue such orders for the treatment of each child as the commission considers best suited to the needs of the individual and the interest of the public;'

Of even more interest to this discussion is R.C. 5139.06, which deals with what the commission may do with the child after its commitment. The entire section is of interest because it reflects the philosophy of the legislation providing a wide range of discretion to be exercised by those who are responsible for the child. R.C. 2151.01 defines the public interest in the delinquent child to be;

'* * * removing the consequences of criminal behavior and the taint of criminality from children committing delinquent acts and to substitute therefore a program of supervision, care, and rehabilitation.'

To accomplish that objective, R.C. 5139.06 provides that:

'When a child has been committed to the youth commission it may:

'* * *

'(B) Order his release on parole under such supervision as it believes conducive to law-abiding conduct; provided that fifteen days notice shall be given to the committing court prior to release on parole.' (Emphasis added.)

In this instance, the O.Y.C. did precisely what the statute allows it to do, and did it in compliance with the limitations imposed. In releasing Carl Dwayne Harris to his parents, the commission responded to the direction in R.C. 2151.01(C) to the effect that it, the commission, should accomplish rehabilitation of the child, and other purposes, 'whenever possible, in a family environment, separating the child from its parents only when necessary for his welfare or in the interest of public safety.'

When and how to act in determining the necessity of advancing the child's welfare, and at once protecting the public safety, falls within the discretion of the commission and its employees.

This original action, and others reflecting at least a hope that the state of Ohio, under R.C. Chapter 2743, will provide reimbursement for all kinds of unfortunate injuries and losses, raises difficult questions of interpretation of the new law.

The new law waiving the sovereign immunity of the state does encompass a broad base, but it is not without limitations, as is true of the court of claims statutes in other jurisdictions. That the waiver does not extend to political subdivisions is clearly stated in R.C. 2743.01(A). Those areas 'responsible for governmental activities' in geographical areas smaller than the state still enjoy immunity. (R.C. 2743.01(B).)

Equally significant is R.C. 2743.02, which waives the sovereign immunity, enjoyed in the state over many years, and then follows language, as follows:

'* * * and consents to be sued, and have its liability determined, * * * in accordance with the same rules of law applicable to suits between private parties * * *.'

At once, that provision suggests that the causes of action in which private parties are concerned are the kinds of causes in which there can be the possibility of recovery from the state by the citizens of the state. Private parties are...