Johns v. Univ. Of Cincinnati Med. Assoc., Inc., 2004 Ohio 824 (OH 3/10/2004)

• Decision Date: 10 March 2004
• Docket Number: Case No. 2002-1560.
• Citation: 2004 Ohio 824,101 Ohio St.3d 234
• Parties: Johns, appellee, v. University of Cincinnati Medical Associates, Inc. et al.; Horton, appellant.
• Court: Ohio Supreme Court

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2004 Ohio 824

101 Ohio St.3d 234

Johns, appellee, v. University of Cincinnati Medical Associates, Inc. et al.; Horton, appellant.

Case No. 2002-1560.

In the Supreme Court of Ohio.

Submitted September 23, 2003.

Decided March 10, 2004.

APPEAL from the Court of Appeals for Hamilton County, No. C-010672, 2002-Ohio-3802.

Lamkin, Van Eman, Trimble, Beals & Dougherty and Timothy L. Van Eman, for appellee.

Freund, Freeze & Arnold, L.P.A., and Mark A. MacDonald, for appellant.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Stephen P. Carney, Senior Deputy Solicitor, Michael R. Gladman and Elizabeth Luper Schuster, Assistant Solicitors, urging reversal for amicus curiae Attorney General of Ohio.

LUNDBERG STRATTON, J.

I. Introduction

{¶1} The question before this court is whether the Court of Claims and the courts of common pleas have concurrent jurisdiction to determine whether a state employee is immune from personal liability under R.C. 9.86. We hold that pursuant to R.C. 2743.02(F), the Court of Claims has exclusive jurisdiction to make an immunity determination, and consequently, the immunity issue may not be reexamined by a court of common pleas.

II. Procedural History

{¶2} Appellant, Robert Horton, D.D.S., is an oral surgeon who was employed with the University of Cincinnati ("University"), a state entity, and University Surgical Dental Associates, Inc., during all times pertinent to this action.

{¶3} In 1998, appellee, Janice Johns, underwent a surgical procedure at University Hospital, Inc. ("UHI"). The operation was performed primarily by a third-year resident, under the supervision of Dr. Horton. During the operation, Johns's lingual nerve was damaged, causing permanent injury.

{¶4} On May 24, 1999, Johns filed a complaint in the Court of Claims, alleging that UHI, as well as its employees and agents, had been negligent, had failed to obtain her consent regarding who would perform the surgery, and had failed to warn her of all the risks related to the surgery. Johns alleged that UHI's employees and agents were acting within the scope of their employment with the state at the time of the surgery.

{¶5} Subsequently, the Attorney General filed a suggestion of a lack of jurisdiction, alleging that UHI was not a state entity and thus the Court of Claims had no jurisdiction over the matter. The Court of Claims granted Johns leave to amend her complaint to name the University as a defendant, which Johns apparently later did, effectively dismissing UHI as a defendant.

{¶6} On May 25, 1999, Johns filed a complaint regarding the same surgical procedure in the Hamilton County Court of Common Pleas, alleging that the University,¹ Dr. Horton, and other doctors who had purportedly taken part in the surgery had been negligent, had failed to obtain her consent regarding who would perform the surgery, and had failed to warn her of all the risks of the surgery. Johns alleged that the agents and employees of the University may have been acting within the scope of their employment during the surgery.

{¶7} On August 9, 1999, the court of common pleas granted Johns leave to amend her complaint to add UHI as a defendant. And on May 10, 2000, the court granted Johns leave to file a second amended complaint to add claims of fraud and battery.

{¶8} In his answer, Dr. Horton admitted that he was an employee of the University, a state entity, and claimed that he was acting within the scope of his employment at all relevant times and was therefore immune from personal liability. Dr. Horton also asserted that the Court of Claims had exclusive jurisdiction over the matter.

{¶9} On March 3, 2000, the Court of Claims held a hearing to determine whether Dr. Horton was immune ("immunity-determination proceedings"). Dr. Horton's attorney was given notice of the immunity-determination proceedings, but neither Dr. Horton nor his attorney appeared. At the immunity-determination hearing, the state and Johns stipulated that Dr. Horton was acting outside the scope of his employment with the University in supervising Johns's surgery. The Court of Claims, considering the "totality of the evidence presented at the hearing," determined that Dr. Horton was acting outside the scope of his employment at the time of the surgery, and, therefore, the court of common pleas had jurisdiction over the matter.

{¶10} On August 14, 2001, the Hamilton County Court of Common Pleas held, as a matter of law, that Dr. Horton was acting within the scope of his employment at the time of Johns's surgery and thus was immune from personal liability pursuant to R.C. 9.86.

{¶11} Johns appealed from this judgment to the Court of Appeals for Hamilton County. The court of appeals held that the Court of Claims had exclusive jurisdiction to determine whether a state employee is immune from personal liability under R.C. 9.86. Consequently, the appellate court vacated the common pleas court's determination that Dr. Horton was immune.

{¶12} The appellate court also held that although, pursuant to R.C. 2743.02(E), a state employee cannot be a party in the Court of Claims immunity-determination proceedings, the employee "may fully participate" in the proceedings and may appeal from the Court of Claims' decision. The court determined that without this ability to participate, the employee's due process rights and right of access to Ohio courts would be violated.

{¶13} The court of appeals held that Dr. Horton had waived his right to participate in the immunity-determination proceedings. Consequently, the court of appeals held that the Court of Claims' determination that Dr. Horton had acted outside the scope of his employment at the time of the surgery was valid and controlling and, thus, Dr. Horton was not immune from personal liability.

III. Sovereign Immunity

A. The State's Liability for Its Employees' Actions

{¶14} In 1912, Section 16, Article I of the Ohio Constitution, the open courts provision, was amended, and the following language was added:

{¶15} "Suits may be brought against the state, in such courts and in such manner, as may be provided by law." "This provision was `not self-executing,' and constituted only an authorization for subsequent statutes in which the General Assembly could grant its specific consent to be sued." Conley v. Shearer (1992), 64 Ohio St.3d 284, 285, 595 N.E.2d 862, citing Raudabaugh v. State (1917), 96 Ohio St. 513, 518, 118 N.E. 102.

{¶16} However, in 1975, the "General Assembly enacted legislation [the Court of Claims Act, R.C. Chapter 2743] creating the Court of Claims and specifying the forum and manner in which actions may be brought against the state and its officers and employees." Id. at 286, 595 N.E.2d 862. Under the Court of Claims Act, the state "waives its immunity from liability" and "consents to be sued" in the Court of Claims. R.C. 2743.02(A)(1).

{¶17} "Except in the case of a civil action filed by the state, filing a civil action in the court of claims results in a complete waiver of any cause of action, based on the same act or omission which the filing party has against any [state] officer or employee." Id. If the employee would have been liable for his or her actions but for the determination that the employee was immune from suit under R.C. 9.86,² then the state will be held liable for the employee's actions if a claim is timely filed in the Court of Claims pursuant to R.C. 2743.16. R.C. 2743.02(A)(2).

{¶18} However, "if the court determines that the act or omission was manifestly outside the scope of the officer's or employee's office or employment or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner," then the waiver is void, the Court of Claims loses jurisdiction over the matter, and the plaintiff may then pursue his or her claim against the employee personally in a court of common pleas. R.C. 2743.02(A)(1).

B. Jurisdiction to Determine Whether a State Employee is Immune

{¶19} This court first addressed whether courts of common pleas have jurisdiction to determine whether a state employee is personally immune from liability in Cooperman v. Univ. Surgical Assoc., Inc. (1987), 32 Ohio St.3d 191, 513 N.E.2d 288. In that case, Cooperman had filed suit against various employees of the Ohio State University Hospitals in the court of common pleas. He alleged that the employees had violated Section 1983, Title 42, U.S.Code by taking actions that were detrimental to his career. Cooperman alleged that the employees had acted outside the scope of their employment and that they were not immune from personal liability pursuant to R.C. 9.86.

{¶20} The employees moved to dismiss, asserting that the Court of Claims, not the court of common pleas, had jurisdiction to determine the immunity of state employees. The common pleas court granted the employees' motion to dismiss. The court of appeals reversed that portion of the judgment and held that the common pleas court did have jurisdiction to determine whether a state employee was immune from personal liability. Cooperman v. Univ. Surgical Assoc., Inc. (Aug. 26, 1986), 10^th Dist. No. 86AP-242, 1986 WL 9524.

{¶21} After examining the provisions in R.C. Chapter 2743 and finding no language granting exclusive jurisdiction over the immunity-determination proceedings to the Court of Claims, we affirmed that portion of the appellate court's judgment and held, "A court of common pleas does not lack jurisdiction over an action against state officers or employees merely because the Court of Claims has not first determined that the act or omission, which is the subject of the action, was manifestly outside the scope of the officer's or employee's office or employment, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner * * *." Cooperman, 32 Ohio St.3d 191, 513 N.E.2d 288, at paragraph two of the syllabus.

{¶22} However, effective October 20,...