Butler v. Jordan
| Decision Date | 25 July 2001 |
| Docket Number | No. 99-1816.,99-1816. |
| Citation | 750 NE 2d 554,92 Ohio St.3d 354 |
| Parties | BUTLER, APPELLEE, v. JORDAN ET AL.; CUYAHOGA COUNTY DEPARTMENT OF HUMAN SERVICES, APPELLANT. |
| Court | Ohio Supreme Court |
William D. Mason, Cuyahoga County Prosecuting Attorney, Sandra Curtis-Patrick and Arline M. Zehe, Assistant Prosecuting Attorneys, for appellant.
Novak, Robenalt, Pavlik & Scharf, L.L.P., William J. Novak, Thomas D. Robenalt and David W. Skall, for appellee.
According to appellee's complaint, Geraldine Jordan was the operator and primary care giver at Guardian Angel Day Care ("Guardian Angel"). Guardian Angel was a type-B day-care home certified by the Cuyahoga County Department of Human Services ("CCDHS").1
On the morning of April 6, 1995, Venisha Butler, appellee, placed her eight-month-old son, Aaron, and two-year-old son, Sam, in the care of Jordan and Guardian Angel. At approximately 3:15 p.m., that same day, Butler returned to Guardian Angel to pick up her children. When Jordan brought Aaron out to his mother, Aaron was not breathing and his body was cold. Butler noticed that there was a sticky substance around Aaron's nose and mouth. When Aaron failed to respond to CPR, an ambulance was called. Aaron could not be revived and was pronounced dead on arrival at University Hospitals Rainbow Babies and Children's Hospital. The sticky substance on Aaron's face was the residue of tape that had been placed over Aaron's nose and mouth.
On January 22, 1997, Butler filed a complaint in the Common Pleas Court of Cuyahoga County, naming Jordan, Guardian Angel, and CCDHS as defendants. The complaint alleged that CCDHS, appellant, was negligent and/or reckless in the licensing and certification of Guardian Angel, and that its negligence or recklessness was the proximate cause of Aaron's death. On May 16, 1997, CCDHS filed a Civ.R. 12(B)(6) motion to dismiss Butler's claims. CCDHS contended that it was immune from civil liability pursuant to R.C. 2744.02. On April 15, 1998, the trial court granted CCDHS's motion to dismiss. Butler appealed.
The Court of Appeals for Cuyahoga County reversed the judgment of the trial court. The court of appeals held that R.C. 5104.11 imposed a duty upon appellant to inspect and license2 type-B day-care homes and that the failure to carry out that duty qualified as an exception to immunity under R.C. 2744.02(B)(5). The case is now before this court upon our allowance of a discretionary appeal.
R.C. Chapter 5104 provides the procedures for licensing, inspecting, and certifying publicly funded child day-care centers, type-A day-care homes, and type-B family day-care homes. Each facility has its own certification procedures. In the case of type-B family day-care homes, R.C. 5104.11(A) required a county department of human services, not the state, to inspect and certify type-B family day-care homes.
Former R.C. 5104.11(A) provided:
"[A]fter receipt of an application for certification from a type-B family day-care home, the county director of human services shall inspect and, if it complies with this chapter and any applicable rules adopted under this chapter, certify the type-B family day-care home to provide publicly funded child day-care pursuant to this chapter and any rules adopted under it." (Emphasis added.) Sub.H.B. No. 155, 144 Ohio Laws, Part III, 3317. Former R.C. 5104.013(A)(2) provided:
"The director of a county department of human services, as part of the process of certification of type-B family day-care homes, shall request the superintendent of the bureau of criminal identification and investigation to conduct a criminal records check with respect to any authorized provider of a certified type-B family day-care home and any person eighteen years of age or older who resides in a certified type-B family day-care home."3 (Emphasis added.) Am.Sub.H.B. No. 687, 145 Ohio Laws, Part IV, 6949.
Butler alleged in her complaint that CCDHS "was negligent and/or reckless in licensing and certifying Defendant Guardian Angel to provide day care services to infants." In support of her complaint, Butler argues that Guardian Angel was a certified type-B family day-care home subject to inspections by CCDHS and that CCDHS failed to perform the mandatory criminal background checks on Guardian Angel's day-care providers.4
R.C. 2744.02(A)(1) provides immunity to political subdivisions and their employees for torts caused by any act or omission of a political subdivision or its employee. R.C. 2744.02(B) sets forth exceptions to that grant of immunity. Specifically, R.C. 2744.02(B)(5) provides:
Appellant argues that within the meaning of R.C. 2744.02(B)(5), R.C. 5104.11 does not expressly impose liability upon a political subdivision for failure to inspect and for negligent certification of type-B family homes. We agree.
In order to determine the immunity of a political subdivision pursuant to the Political Subdivision Tort Liability Act, a three-tiered analysis of R.C. Chapter 2744 is required. We set forth that analysis in Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610, 614, and in Campbell v. Burton (2001), 92 Ohio St.3d 336, 750 N.E.2d 539. We will not repeat that discussion here. After applying the three-tiered analysis we hold that the exception to political subdivision immunity found in R.C. 2744.02(B)(5) does not apply.
Within the meaning of R.C. 2744.02(B)(5), the term "liability" refers to either criminal or civil liability. Campbell v. Burton, supra. However, unlike R.C. Chapter 2151, which we reviewed in Campbell, R.C. Chapter 5104 provides no penalties for violation of statutory duties. R.C. 5104.99 does impose penalties for violations of R.C. 5104.02, 5104.09(B), and 5104.09(C), but none of these sections deals with the duty of a political subdivision to inspect or certify a type-B family day-care home. Accordingly, we hold that within the meaning of R.C. 2744.02(B)(5), R.C. 5104.11 does not expressly impose liability on a political subdivision for failure to inspect or for the negligent certification of a type-B family day-care home even where the political subdivision has completely ignored the obligations imposed upon it by the statute. Further, after an extensive review of pertinent sections of the Revised Code, we also find that within the meaning of R.C. 2744.02(B)(5), no other section of the Revised Code expressly imposes liability on a political subdivision for failure to inspect or for the negligent certification of a type-B family day-care home.
Appellee, like the court of appeals, relies upon Globe Am. Cas. Co. v. Cleveland (1994), 99 Ohio App.3d 674, 679, 651 N.E.2d 1015, 1018, to support the proposition that a statute, by imposing an express duty, also imposes express liability. However, R.C. 2744.02(B)(5) specifically provides to the contrary. "Expressly" means "in direct or unmistakable terms: in an express manner: explicitly, definitely, directly." (Emphasis added.) Webster's Third New International Dictionary (1986) 803. Clearly, neither R.C. 5104.11 nor 5104.99, nor any other section of the Revised Code, expressly imposes liability upon a political subdivision for failure to inspect or for negligent certification of a type-B family day-care home. Accordingly, based upon R.C. 2744.02(B)(5), strange as it may seem, CCDHS is immune from liability for failure to inspect or for the negligent certification of a type-B family day-care home because there is no statute expressly imposing liability.
The tragedy of this case is that appellant is able to shuck its clear duties and responsibilities, as are other political subdivisions, on the sole basis of the doctrine of sovereign immunity. What is this doctrine that permits the government to injure its citizens with impunity? How can a government be immune from liability for an act for which that same government would impose liability upon one of its citizens? The answer is that "government," whoever that may be, has accorded itself the right to negligently injure its citizens with immunity, all in disregard of constitutional protections reserved by its citizens to themselves.
Appellee did not raise the constitutionality of R.C. Chapter 2744 generally or R.C. 2744.02(B)(5) specifically in the courts below. Appellee does, at footnote two of her brief here, urge the court to consider the constitutionality of R.C. 2744.02(B)(5). Such a reference is not the procedurally proper way to raise the constitutionality of a statute. See Cicco v. Stockmaster (2000), 89 Ohio St.3d 95, 728 N.E.2d 1066, and R.C. 2721.12.
However, given the allegations of this case, that a child was placed in the care of a person and her facility, that the facility was to be inspected and approved by the Cuyahoga County Department of Human Services, that the background of the care givers was to be checked, that the political subdivision entirely failed to comply with these statutory mandates before the facility was certified, and that when returned to his mother at the end of the work day, the child was dead, having been smothered with duct tape, it does seem that serious questions arise. This is especially true given the allegation that even though the political subdivision entirely failed to carry out its statutorily mandated duties, the political subdivision is found not to be liable, on the basis that it...
To continue reading
Request your trial
-
Estate of Owensby v. City of Cincinnati, No. 1:01 CV 00769.
...Rev.Code §§ 2744.02 and 2744.03, respectively. The Court found, based upon the recent Ohio Supreme Court precedent Butler v. Jordan, 92 Ohio St.3d 354, 750 N.E.2d 554 (2001) and consistent with its prior decisions, that these statutory immunity provisions violate the Ohio Constitution and, ......
-
Estate v. Fairfield City Sch. Dist. Bd. of Educ.
...means "in direct or unmistakable terms: in an express manner: explicitly, definitely, directly." Butler v. Jordan , 92 Ohio St. 3d 354, 357, 750 N.E.2d 554, 558 (Ohio 2001). A political subdivision or school board is not expressly listed as a person to which the reporting requirement in Ohi......
-
McClain v. State
...very lives to preserve for the people of the United States of America the inestimable right to trial by jury." Butler v. Jordan , 92 Ohio St.3d 354, 371, 750 N.E.2d 554 (2001). It is no surprise, in light of this history, that some version of the civil right to trial by jury found its way i......
-
Webb v. Greene County Sheriff's Office
...on his absolute prosecutorial immunity. 18. The decision in Kammeyer was based on a plurality opinion, expressed in Butler v. Jordan, 92 Ohio St.3d 354, 750 N.E.2d 554 (2001), that called into question the validity of O.R.C. § 2744 under the Ohio state constitution. Kammeyer v. City of Shar......