Katko v. Balcerzak

• Decision Date: 10 September 1987
• Docket Number: No. 87AP-347,87AP-347
• Citation: 536 N.E.2d 10,41 Ohio App.3d 375
• Parties: KATKO, exr., Appellant, v. BALCERZAK et al., Appellees.
• Court: Ohio Court of Appeals

Page 375

41 Ohio App.3d 375

536 N.E.2d 10

KATKO, exr., Appellant, v. BALCERZAK et al., Appellees.

No. 87AP-347.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 10, 1987.

Syllabus by the Court

1. There is nothing in either R.C. 2743.02 or R.C. 9.86 which confers exclusive jurisdiction upon the Court of Claims to determine whether a state employee is entitled to the immunity afforded by R.C. 9.86.

2. The immunity of state employees set forth in R.C. 9.86 is not available to an employee-physician who performs actions outside the scope of his employment by conducting a private practice.

Savoy & Bilancini, Jerome J. Savoy and Darrell Bilancini, Elyria, for appellant.

Bricker & Eckler, Randolph C. Wiseman and Richard S. Lovering, Columbus, for appellees.

WHITESIDE, Judge.

Plaintiff, John A. Katko, Jr., appeals from a judgment of the Franklin County Court of Common Pleas contending that that court erred in dismissing his complaint, but fails to set forth a specific assignment of error and, instead, has set forth the following issue presented for review (which we shall consider to be his assignment of error):

"Did the documentation filed in support of and in opposition to the Motion for Summary Judgment of Stanley P. Balcerzak, M.D. demonstrate that a genuine issue of material fact exists as to whether the defendant Dr. Balcerzak was employed by the State of Ohio at all times that he provided medical care and treatment to the plaintiff's decedent, John A. Katko." (Emphasis sic.)

Plaintiff brought this action against defendants, Stanley P. Balcerzak and Charles T. Cloutier, founded in medical malpractice, contending that the defendants, both doctors, negligently caused the death of plaintiff's decedent, John A. Katko, through negligent medical services performed while the decedent was a patient at Ohio State University Hospitals. Both defendants filed answers to plaintiff's complaint, alleging various defenses, including a defense that the complaint failed to state a claim upon which relief could be granted and a defense that the common pleas court lacked jurisdiction over the subject matter and over the person of the defendants, but failed to allege any affirmative defense of immunity from suit.

However, both defendants filed motions for summary judgment supported by affidavits which raised the affirmative defense of immunity pursuant to R.C. 9.86, which motions were sustained by the trial court. The basic contention of defendants is that they are immune from liability pursuant to R.C. 9.86 because they were full-time employees of the Ohio State University and acted within the scope of that employment in rendering medical services to plaintiff's decedent. Plaintiff did not contest the motion of defendant Dr. Cloutier but filed a memorandum opposing the motion of defendant Dr. Balcerzak as supported by his deposition.

R.C. 9.86 provides in pertinent part as follows:

"Except for civil actions that arise out of the operation of a motor vehicle and civil actions in which the state is the plaintiff, no officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer's or employee's actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner."

Defendants make two contentions in reliance upon R.C. 9.86: one to the effect that, if a person against whom an action for negligence is brought demonstrates that he is a state employee, the immunity attaches unless it be proved that he acted outside the scope of such employment; and the other to the effect that the common pleas court has no jurisdiction to determine the immunity issue, sole jurisdiction to determine that issue being vested in the Court of Claims. We reject both of defendants' contentions.

Turning first to the second contention, that only the Court of Claims has jurisdiction to determine the immunity issue, R.C. 2743.02(A)(1) provides in pertinent part 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 * * *. To the extent that the state has previously consented to be sued, this chapter has no applicability.

"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. The waiver shall be void 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."

Thus, R.C. 2743.02 refers to the immunity of R.C. 9.86 as being a waiver created by filing the action in the Court of Claims. Similarly, R.C. 2743.02(A)(2) provides as follows:

"In any circumstance in which a claimant proves in the court of claims that an officer or employee, as defined in division (A) of section 109.36 of the Revised Code, would have personal liability for his acts or omissions but for the fact that the officer or employee has personal immunity under section 9.86 of the Revised Code, the state shall be held liable in the court of claims in any action that is timely filed * * *."

Accordingly, R.C. 2743.02(A) would tend to indicate that R.C. 9.86 is not self-executing as to actions in the Court of Claims. Instead, it is the filing of an action in the Court of Claims (not the determination of the Court of Claims) that invokes the application of R.C. 9.86 to confer immunity upon a state employee whose negligent acts are alleged to have injured another and constitutes a predicate for an action against the state. The waiver is absolute unless it is later determined by the Court of Claims that the employee acted outside the scope of his employment or acted maliciously, wantonly, recklessly or in bad faith.

However, there is nothing in either R.C. 2743.02 or R.C. 9.86 which confers exclusive jurisdiction upon the Court of Claims to determine whether a state employee is entitled to the immunity afforded by R.C. 9.86. Rather, R.C. 2743.02 clearly indicates that the Court of Claims has no jurisdiction over the immunity issue unless and until an action is commenced in the Court of Claims predicated upon the allegedly immune employee's negligence. An injured person is precluded from maintaining an action against the state in the Court of Claims pursuant to R.C. 2743.02(A) unless such injured person concedes that the state employee is entitled to the immunity of R.C. 9.86 and waives any right to contend otherwise. In the Court of Claims, only the state can contest the issue of whether the employee acted within the scope of his employment or acted maliciously, wantonly, recklessly or in bad faith. The employee is not a party and has no right to be heard upon the immunity issue in the Court of Claims.

Accordingly, reading R.C. 9.86 and R.C. 2743.02(A) in pari materia, we conclude that a person injured by the negligence of a state employee has an election whether to bring the action against the employee in a common pleas court (or other court of appropriate jurisdiction) by contending that the employee acted outside the scope of any state employment or acted maliciously, wantonly, recklessly or in bad faith, or to...