Harris v. State, 75-0553

• Decision Date: 20 January 1976
• Docket Number: No. 75-0553,75-0553
• Citation: 48 Ohio Misc. 27,358 N.E.2d 639
• Parties: , 2 O.O.3d 358 HARRIS v. The STATE of Ohio, et al.
• Court: Ohio Court of Claims

Page 27

48 Ohio Misc. 27

358 N.E.2d 639, 2 O.O.3d 358

HARRIS v. The STATE of Ohio, et al.

No. 75-0553.

Court of Claims of Ohio.

Jan. 20, 1976.

Jerome Leiken, Cleveland, for plaintiff.

Gene W. Holliker, Columbus, for defendant.

TROOP, Judge.

A complaint was filed in this court, November 6, 1975, by Gordon Harris against the state of Ohio, Department of Mental Health and Mental Retardation. The allegations of the complaint which provide a background for the incident which is the basis for the complaint are of more than ordinary importance to this discussion and are quoted in full, as follows:

'(1) In 1972, Chester Holt, a female person, was a patient at the Cleveland State Hospital, a facility then owned and operated by the defendant, State of Ohio, through its agency, defendant, Department of Mental Health and Retardation.

'(2) In late 1972 or early 1973, said Chester Holt was, despite objections by her family, discharged from said hospital and continued treatment at several facilities owned and operated by the State of Ohio, as an out-patient.

'(3) While in the custody of the defendant, Department of Mental Health and Retardation, said Chester Holt demonstrated violent tendencies and the defendants knew or in the exercise of ordinary care should have known that said Chester Holt, would, if allowed her freedom, be a danger to the public, and in releasing said Chester Holt from custody, said defendants violated a duty to the public to protect them from such hazards, including the plaintiff, Gordon Harris.'

The complaint alleges (paragraph 4) that on or about June 6, 1975, Chester Holt feloniously assaulted the plaintiff, Gordon Harris, 'shooting him seven times' with a 22-caliber revolver, the shooting being the cause of the injuries about which plaintiff complains. Plaintiff says that Chester Holt is presently an inmate of Lima State Hospital for the Criminally Insane.

By appropriate motion, filed December 4, 1975, the Attorney General asks this court to dismiss the complaint of Gordon Harris for failure to state a claim upon which relief can be granted.

The argument developed by the Attorney General in support of his motion centers about the plaintiff's allegation that defendants knew or 'in the exercise of ordinary care should have known that said Chester Holt would, if allowed her freedom, be a danger to the public * * *.'

Briefly stated, plaintiff claims that the defendant, State of Ohio, Cleveland State Hospital, was negligent and thereby violated a duty to the public.

If the argument of the Attorney General in support of defendant's position can be stated briefly, it is that as a matter of law the defendants cannot be regarded as negligent and such claim is not well taken.

At the outset of this discussion of the problems raised by the motion of the Attorney General, R.C. 2743.02(A) must be noted. The language of the section is significant. It reads as follows:

'The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, subject to the limitations set forth in this chapter.'

At once, that provisions 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 customarily involved in actions for breach of contract, orthodox tort liability matters, and the commonly accepted equitable remedies.

Private parties do not ordinarily operate: prisons, institutions for the mentally ill or insane, institutions for the mentally retarded or institutions for the criminally insane. Nor do private persons patrol the highways, provide welfare assistance for the unfortunate and the impoverished. Further, private persons do not license and regulate professional and business entities and persons by an exercise of the police power of the state.

A careful reading of R.C. 2743.02(A) suggests that there must be an area, even if not too definitely marked out, where the rules applicable to the suits between private persons are inadequate and do not provide sufficient breadth to encompass the problems which arise incident to the functioning of government. Rules adequate as to private persons or private entities frequently do not provide room for government to govern.

This court has discussed at length the problem of giving government room to govern in at least two prior decisions. The first was a decision in Adamov v. State, Case No. 75-0303, released June 26, 1975 (46 Ohio Misc. 1, 345 N.E.2d 661), and second is Mawhirter v. Department of Rehabilitation, Case No. 75-0122, issued September 24, 1975.

The Adamov and Mawhirter decisions are in point since both involve the release of persons confined in state institutions. In Adamov a juvenile delinquent attacked a woman after his release on parole to his parents by order of the Ohio Youth Commission, and while still under the commissions control. In Mawhirter two convicted murderers had been released to attend the Ohio State Fair under a program permitting furloughs, as provided in R.C. 2967.27, arranged by the Department of Rehabilitation. The walk-aways engaged a taxicab and on the way to Dayton stopped and assaulted the driver and stole his cab.

The suggested parallel in this case is that Chester Holt was released while a patient at the Cleveland State Hospital. Whether she was there for treatment on a voluntary or an involuntary basis is not alleged. The status of her commitment is of no consequence because release is available in either case. She had been released two years or more at the time of the incident, and it is alleged, received outpatient care during the period.

In the Adamov decision this court noted the social philosphy evident in the statutes dealing with 'the child' offender. An underlying purpose to rehabilitate a minor is evident. (R.C. 2151.01.) The basic social purposes appear several times in the applicable statutes. Release for a child committed to the Ohio Youth Commission is provided in R.C. 5139.06. The section provides that:

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

'(B) Order his release on parole under such supervision and conditions 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; * * *.'

In the Adamov incident the OYC did precisely what the statute allowed and encouraged it to do. The commission complied with every requirement and at the same time responded to the statutory directive to attempt to accomplish rehabilitation of the child:

'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.'

This Court, in Adamov, concluded that the OYC decision regarding when and how to act in meeting the requirement to advance the child's welfare and rehabilitation, and its simultaneous decision to decide on the matter of protecting the public safety, required the exercise of its lawful discretion.

Such an exercise of discretion, no abuse thereof having been claimed or shown, is not negligence.

In the Mawhirter decision, which deals with an entirely different type of inmate, the court points out that the permission granted Williams and Hall, the walk-aways, to go to the Ohio State Fair was a part of a program authorized by R.C. 2967.27. The pertinent portion of the section reads as follows:

'(A) The department of rehabilitation and correction may grant furloughs to trustworthy prisoners confined in any state penal, reformatory, or other facility for the custody and rehabilitation of persons convicted of crime. Such furloughs may be authorized for the purpose of:

'* * *

'(7) Otherwise aiding in the rehabilitation of the inmate.'

Certainly, the determination which inmates are trustworthy requires an exercise of discretion. To make such selection, absent any abuse of discretion, as authorized by a statute is not negligence.

This case presents a parallel pattern to that in Adamov and in Mawhirter. In this case, Chester Holt was released from a state hospital.

The Department of Mental Health and Mental Rehabilitation has basic responsibility for the operation of the institution with which this decision is concerned. R.C. Chapter 5119 provides the basic law.

The necessity for the department to release persons held in the institution is made clear by the provisions of R.C. 5119.14. It is clear that in order to protect those not insane, authority to release must rest in the hands of some employee of the state. A portion of R.C. 5119.14 makes that point. That portion reads as follows:

'The department of mental health and mental retardation may examine into, with or without expert assistance, the question of the sanity or condition of any person committed to or confined in any hospital or asylum for the insane, or restrained of his liberty at any place within this state by reason of alleged insanity and may order and compel the discharge of any such person who shall not be insane and direct what disposition shall be made of him.' (Emphasis added.)

R.C. 5119.56, which incidentally requires that the section be liberally construed, announces a basic objective of the department to be the development of conditions:

'that will restore the largest possible portion of the dependent wards of the state to useful citizenship.' (Emphasis added.)

Specific provision for the hospitalization of the mentally ill is found in R.C. Chapter 5122. Provision for trial visits at the discretion of the 'head of a hospital' is made possible. There are no limitations in voluntary admittance cases but there was some restrictions where admission has been by judicial order. The introductory portion of R.C....