Campbell v. Burton

• Decision Date: 25 July 2001
• Docket Number: No. 99-1838, No. 99-2106.
• Citation: 750 NE 2d 539,92 Ohio St.3d 336
• Parties: CAMPBELL ET AL., APPELLANTS, v. BURTON; CLIFTON ET AL., APPELLEES.
• Court: Ohio Supreme Court

92 Ohio St.3d 336

750 NE 2d 539

CAMPBELL ET AL., APPELLANTS, v. BURTON; CLIFTON ET AL., APPELLEES.

Nos. 99--2106.

Supreme Court of Ohio.

Submitted September 12, 2000.

Decided July 25, 2001.

Gary J. Leppla and Jennifer L. Hill, for appellants.

Law Offices of Nicholas E. Subashi, Nicholas E. Subashi and David J. Arens, for appellees.

Issac, Brant, Ledman & Teetor, Mark Landes and Barbara Kozar Letcher, urging affirmance for amici curiae County Commissioners Association of Ohio and Public Children's Service Association of Ohio.

Cloppert, Portman, Sauter, Lantanick & Foley and Frederick G. Cloppert, Jr., urging affirmance for amicus curiae Ohio Education Association.

DOUGLAS, J.

This case is before the court for the purpose of resolving a conflict among the courts of appeals for the Second, Fifth, Sixth, and Ninth District Courts of Appeals with regard to whether, within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421 expressly imposes liability for failure to perform the duty to report known or suspected child abuse.

Amber Campbell was an eighth-grade student at Baker Junior High, Fairborn City Schools ("Fairborn"), during the 1995 to 1996 school year. During the same time period Fairborn conducted a peer mediation program. The peer mediation program involved students as mediators and was designed to resolve disputes between students. Debra Mallonee was a teacher working for Fairborn from 1977 to 1997. In addition to teaching, Mallonee was the peer mediation coordinator.

From January to August 1996, Mallonee was on sabbatical pursuing her Ph.D. at Ohio State University. During her sabbatical, Mallonee was authorized by the school to conduct mediations requested by teachers and administration.

In March 1996, Campbell participated in two mediations as a disputant with another student, Amanda Adkins, regarding a disagreement over a male classmate. In the first mediation, Campbell, Adkins, and Mallonee were present. The mediation concluded with Campbell and Adkins entering into a written agreement. When their dispute resumed shortly thereafter, Adkins sought another mediation with Campbell.

According to Campbell, during the second mediation she told Mallonee that there was a male friend of the family, David Burton, who hugged her and made her feel uncomfortable. Relating an incident in which Burton picked her up from Saturday school in his car, Campbell stated, "[H]e told me to kiss him and slapped me on the butt and touched my necklace and went down to my breasts and crotch area." Campbell described another incident in which Campbell sat on Burton's lap while sledding. In addition, Campbell stated in her deposition that she told Mallonee that Burton would call her and ask her to go over to his house when no one else was home. Specifically, Mallonee recounted in her deposition that Campbell told her that Burton would try to touch her and kiss her and that this made her uncomfortable.¹

In addition to the information regarding Burton, Campbell said she also told Mallonee a story about Campbell having sex with the brother of one of her friends. Campbell claimed that Mallonee did not pay attention to what she had said about Burton, so Campbell made up the story about having sex with the friend's brother in order to get Mallonee's attention. Mallonee recalled the incident differently, stating that Campbell first told the story about having sex with the brother of a friend and then described the incidents with Burton. Mallonee believed that the story about Burton was simply an attempt by Campbell to change the subject from the initial discussion about having sex with the brother of her friend.

At the close of the mediation, Mallonee instructed Campbell to tell her mother about Burton and to stay away from him if he made her feel uncomfortable. Mallonee did not report Campbell's concerns regarding Burton to anyone. Campbell alleges that after her conversation with Mallonee, Burton continued to hug her, touch her buttocks, and on one occasion "french kissed" her.

On March 21, 1997, Campbell, through her mother and next friend, Sharon Campbell, and father, Carl W. Campbell, appellants, filed an action against Steven Clifton, who is the Superintendent of Fairborn City Schools, and the Board of Education of the Fairborn City Schools (also "Fairborn"), appellees, and Burton. On March 23, 1998, appellants filed an action against Mallonee, who is also an appellee. The two complaints allege that appellees failed to report, pursuant to R.C. 2151.421, the alleged abuse. As a result of Mallonee's failure to report Campbell's concerns, appellants contend, Campbell suffered psychological and other permanent injury. The court consolidated the two cases. On January 27, 1999, the trial court granted summary judgment in favor of Clifton and Mallonee on the basis that they were immune from liability pursuant to R.C. 2744.03(A)(6). The trial court also granted summary judgment in favor of Fairborn on the grounds that it was immune from liability pursuant to R.C. 2744.02(A)(1).

Appellants appealed the trial court's decision to the Greene County Court of Appeals. The court of appeals affirmed, holding that within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421 did not expressly impose liability. Appellants then moved the court of appeals to certify a conflict in this case. The court of appeals granted the motion with respect to the following cases: Rich v. Erie Cty. Dept. of Human Resources (1995), 106 Ohio App.3d 88, 665 N.E.2d 278; Crago v. Lorain Cty. Commrs. (1990), 69 Ohio App.3d 24, 590 N.E.2d 15; Sprouse v. Lucas Cty. Bd. of Edn. (Mar. 12, 1999), Lucas App. No. L-98-1098, unreported, 1999 WL 128636; Reed v. Perry Cty. Children's Serv. (June 29, 1993), Perry App. No. CA-429, unreported, 1993 WL 274299. This cause is now before this court upon our determination that a conflict exists (case No. 99-2106), and pursuant to the allowance of a discretionary appeal (case No. 99-1838).

The certified question presented to this court on appeal from the Second Appellate district is:

"For the purposes of the immunity exceptions in R.C. 2744.02(B)(5) and R.C. 2744.03(A)(6)(c), does R.C. 2151.421 expressly impose liability on political subdivisions and their employees for failure to report child abuse?"

We answer the certified question in the affirmative. R.C. 2151.421, through its penalty statute, R.C. 2151.99, expressly imposes liability, within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), on political subdivisions and their employees for failure to report suspected child abuse. Accordingly, we reverse the judgment of the court of appeals and remand this matter to the trial court for further proceedings consistent with this opinion.

The issues raised by the parties concern sovereign immunity pursuant to the Political Subdivision Tort Liability Act and the exceptions to immunity set forth in R.C. 2744.02 and 2744.03.² In order to determine immunities set forth in the chapter, a three-tiered analysis of R.C. Chapter 2744 is required. Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610, 614. First, we analyze R.C. 2744.02(A)(1), which provides:

"Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision * * *."

Second, we analyze R.C. 2744.02(B), which provides: "[S]ubject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees * * * as follows." These exceptions to immunity are set forth in R.C. 2744.02(B)(1) through (5). For the purposes of the present case, only R.C. 2744.02(B)(5) applies. It provides:

"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 persons or property when liability is expressly imposed upon the political subdivision by a section of the Revised Code * * *. Liability shall not be construed to exist under another section of the Revised Code merely because a responsibility is imposed upon a political subdivision or because of a general authorization that a political subdivision may sue and be sued."

The third and final tier of analysis requires review of R.C. 2744.03 and 2744.05. R.C. 2744.05, which restricts damage awards, is not applicable here. R.C. 2744.03, which provides defenses and immunities to political subdivisions, is applicable. For the purposes of our review, only R.C. 2744.03(A)(6) applies. It provides immunity to an employee of a political subdivision unless an exception found within R.C. 2744.03(A)(6)(a) through (c) applies. Only R.C. 2744.03(A)(6)(c) is pertinent. R.C. 2744.03(A)(6)(c) provides that an employee may be liable if "[l]iability is expressly imposed upon the employee by a section of the Revised Code."

As stated in the exceptions to immunity set forth in R.C. 2744.02(B)(5) and R.C. 2744.03(A)(6)(c), an express imposition of liability in another section of the Revised Code negates immunity. Accordingly, we direct our attention to R.C. 2151.421, which mandates the reporting of known or suspected child abuse. We must further determine whether R.C. 2151.421 expressly imposes liability within the meaning of R.C. 2744.02(B)(5) and R.C. 2744.03(A)(6)(c).

R.C. 2151.421(A)(1)(a)³ states:

"No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows or suspects that a child under eighteen years of age or a mentally retarded, developmentally disabled, or physically impaired child under twenty-one years of age has suffered or faces a...