Clemets v. Heston, WMS-84-15

Citation20 OBR 166,20 Ohio App.3d 132,485 N.E.2d 287
Decision Date15 February 1985
Docket NumberNo. WMS-84-15,WMS-84-15
Parties, 20 O.B.R. 166 CLEMETS, Admx., Appellant, v. HESTON et al., Appellees. *
CourtUnited States Court of Appeals (Ohio)

Syllabus by the Court

1. While negligence actions always involve mixed questions of law and fact, the existence of a duty is, in the first instance, a question of law for the court.

2. In negligence cases wherein nonfeasance is alleged, the existence of a legal duty is critical to stating a cause of action. Unless such a duty is established, a defendant's mere failure to act does not create liability.

3. For "nonfeasance," the kind of duty contemplated is one obligating the defendant to act toward the plaintiff in some affirmative manner in a situation where a "definite relation" exists between them.

4. A law enforcement officer having custody of an arrestee or prisoner stands in a special relation to that person, toward whom he owes a duty of reasonable care and protection. (Restatement of the Law 2d, Torts [1965], Section 314A, construed and applied.)

5. The special relation arises upon arrest--i.e., when the officer "takes custody" of another, as "required by law." Once the custodial relationship thus begins, the duty to act affirmatively to protect the arrestee from harm and provide for his care and safety continues for the duration of the relationship--i.e., until the arrestee-prisoner is released from custody.

6. While the special relation exists, the custodial officer's duty is only to exercise reasonable care under the circumstances, though certain circumstances may heighten the need for a higher degree of care than would others. The custodial officer is not obligated to act until he knows or should know that the arrestee-prisoner is endangered, sick, injured or mentally disturbed.

7. The general "custodial negligence" rule is that a jailer (or other custodial personnel) owes a duty to those in his custody to keep them safe and protect them from harm. Under this rule, the requisite standard of care is that which is reasonable and ordinary for the health, care and well-being of the prisoner.

8. Ohio law imposes no additional duty on custodial officers to ensure that released prisoners are absolutely free from any danger in any form.

9. The special relation between the custodial officer and the arrestee-prisoner does not extend infinitely. The relationship terminates when the arrestee-prisoner is free to leave.

10. A custodial officer has no duty to prevent that which he could not have reasonably foreseen, notwithstanding that the custodial relationship has terminated.

John C. Milliken, Bryan, for appellant.

William A. Bish, Bryan, for appellees.

HANDWORK, Justice.

This case is before the court on appeal from a judgment of the Williams County Court of Common Pleas.

Plaintiff-appellant, Melinda Clemets, is the administratrix for the estate of Thomas Clemets. She is appealing from the trial court's dismissal of her complaint for failure to state a claim upon which relief could be granted.

I

Stating the appropriate legal test from an appellate court's perspective, the dismissal of an action, pursuant to a Civ.R. 12(B)(6) motion, will not be upheld on appeal unless it appears beyond doubt that the complainant can prove no set of facts in support of his claim that would entitle him to the relief prayed for. See Dickerhoof v. Canton (1983), 6 Ohio St.3d 128, 129, 451 N.E.2d 1193; O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753 ; Hedrick v. Center for Comprehensive Alcoholism Treatment (1982), 7 Ohio App.3d 211, 454 N.E.2d 1343; Stephens v. Boothby (1974), 40 Ohio App.2d 197, 318 N.E.2d 535 . Also, in construing the allegations in the complaint for purposes of the motion to dismiss, a court is required to accept them as admitted by the movant to be true. See Royce v. Smith (1981), 68 Ohio St.2d 106, 429 N.E.2d 134 ; State, ex rel. Alford, v. Willoughby (1979), 58 Ohio St.2d 221, 223, 390 N.E.2d 782 ; cf. Schulman v. Cleveland (1972), 30 Ohio St.2d 196, 198, 283 N.E.2d 175 .

In the present case, the facts alleged in appellant's complaint can be summarized thusly. On the evening of October 29, 1983, Clemets was driving his car in Montpelier, Ohio, where he was stopped by Officer Thomas Heston, a patrolman for the village of Montpelier (and one of the defendants-appellees herein). Ostensibly, the officer stopped Clemets for reasons relating to erratic driving and for failing to stop at a stop sign. The complaint, however, alleges only that, once stopped, the officer determined that Clemets was intoxicated. He then arrested Clemets for driving while intoxicated. It was at this point that Heston observed, apparently in plain view on the car seat beside Clemets, a 20-gauge shotgun and several shotgun shells.

After arresting him, Heston drove Clemets to the Bryan Police Department for the purpose of administering an intoxilyzer test. (The complaint does not disclose whether the shotgun was taken along to Bryan or left behind in Clemets' car.) At the Bryan police station, Clemets refused to take the intoxilyzer test. The testing officer (a Bryan patrolman) detected an odor of alcohol about Clemets' person. His eyes were glassy and he appeared to be confused. Once the intoxilyzer-refusal forms were completed, and the DWI citation issued, Heston drove Clemets back to his vehicle in Montpelier. He left Clemets in possession of the shotgun and ammunition. Tragically, Clemets committed suicide through use of the shotgun. On December 28, 1983, appellant commenced this wrongful death action against Heston, the Montpelier Police Department and the village of Montpelier.

In bringing this appeal, appellant assigns as her only error the following:

"The trial court erred in granting the defendant's motion to dismiss for failure to state a claim upon which relief can be granted."

II
A

Essentially, appellant's complaint alleges that appellees' negligent failure to act proximately caused Clemets' death. In dismissing appellant's complaint, the trial court determined that because no legal duty existed toward Clemets, there was no actionable negligence and, therefore, no cognizable claim for relief stated. The trial court did not reach the parties' additional contentions regarding foreseeability, proximate cause and independent intervening agency. In this appeal, the parties apparently agree that the dispositive question is limited to: What duty, if any, did Officer Heston owe to Clemets?

While negligence actions always involve mixed questions of law and fact, the existence of a duty is, in the first instance a question of law for the court. 1 See Railroad Co. v. Harvey (1907), 77 Ohio St. 235, 240, 83 N.E. 66; Porter v. Miller (1983), 13 Ohio App.3d 93, 96, 468 N.E.2d 134; Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19, 22, 443 N.E.2d 532; Restatement of the Law 2d, Torts (1965), Section 328B(b) and at Comment e; see, also, Prosser & Keeton, Torts (5 Ed.1984) 236, Section 37; cf. Martinelli v. Cua (1962), 115 Ohio App. 151, 152, 184 N.E.2d 514 .

Negligence is posited here on the officer's failure to act when there arguably existed a positive duty to do so. Liability, then, is predicated on a theory of nonfeasance. Yet, even in cases of nonfeasance, the existence of a legal duty is still critical. Under Ohio law, unless such a duty is established, a defendant's mere failure to act does not create liability. Taylor v. Continental Cas. Co. (1945), 75 Ohio App. 299, 61 N.E.2d 919 ; cf. Wigton v. Lavender (1980), 70 Ohio App.2d 241, 251, 436 N.E.2d 1378 (Rutherford, J., dissenting: "Negligence cannot be found for failure to perform a nonexistent duty.").

As Prosser states, "for 'nonfeasance' it is necessary to find some definite relation between the parties, of such a character that social policy justifies the imposition of a duty to act." (Emphasis added; footnote omitted.) Prosser & Keaton, supra, at 374, Section 56. The kind of "duty" thus contemplated is one obligating the defendant to act toward the plaintiff in some affirmative manner in situations where a "definite relation" exists between them. 2 Our inquiry is to determine what particular kind of relationship is necessary to justify imposing on appellees a duty of affirmative action.

B

In this context, the Restatement of Torts 2d, supra, provides some guidance:

"s 314. Duty to Act for Protection of Others

"The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." Id. at 116.

"s 314A. Special Relations Giving Rise to Duty to Aid or Protect

" * * *

"(4) One who is required by law to take * * * the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other." Id. at 118.

Section 314 states the general rule regarding a duty of "affirmative action." No such general duty exists. Section 314A(4), the only pertinent subsection, identifies the "special relation" which, in this context, gives rise to a duty to aid or protect another person. A law enforcement officer having custody of an arrestee or prisoner stands in a special relation to that person, toward whom he owes a duty of reasonable care and protection. 3 See id. at 120, Comment e.

This special relation arises upon arrest--i.e., when the officer "takes the custody" of another, as "required by law." In the case of a misdemeanant, here a DWI offender, R.C. 2935.03 authorizes (indeed requires ) the officer in whose presence the offense was committed to effect the perpetrator's arrest. Once the relationship thus begins, the duty to act affirmatively to protect the arrestee from harm and provide for his care and safety continues for the duration of that relationship--i.e., until the arrestee-prisoner is released from custody.

While...

To continue reading

Request your trial
226 cases
  • Minneci v. Pollard
    • United States
    • United States Supreme Court
    • 10 Enero 2012
    ...Carolina Dept. of Health and Human Servs., 176 N.C.App. 278, 280, 626 S.E.2d 666, 668 (2006) (North Carolina, same); Clemets v. Heston, 20 Ohio App.3d 132, 135–136, 485 N.E.2d 287, 291 (1985) (Ohio, same); Williams v. Syed, 782 A.2d 1090, 1093–1094 (Pa.Commw.2001) (Pennsylvania, same); Sala......
  • Ciotto v. Hinkle, H-18-011
    • United States
    • United States Court of Appeals (Ohio)
    • 20 Septiembre 2019
    ...... fact, the existence of a duty is, in the first instance a question of law for the court." Clemets v. Heston , 20 Ohio App.3d 132, 134-135, 485 N.E.2d 287 (6th Dist.1985). {¶ 14} The allegations ......
  • Culberson v. Doan, C-1-97-965.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 14 Diciembre 2000
    ......Whether a duty exists between Chief Payton and Plaintiffs is a question of law. Clemets v. Heston, 20 Ohio App.3d 132, 134-35, 485 N.E.2d 287, 290 (1985). .         Having ......
  • Asad v. Continental Airlines, Inc., 1:99-CV-2194.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 4 Junio 2004
    ......Forest City Enterprises, Inc., 111 Ohio App.3d 283, 285, 675 N.E.2d 1356 (1996); Clemets v. Heston, 20 Ohio App.3d 132, 135-136, 485 N.E.2d 287 (1985) (explaining that negligence actions ......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT