Leverett v. State

• Decision Date: 26 October 1978
• Citation: 399 N.E.2d 106,61 Ohio App.2d 35
• Parties: , 15 O.O.3d 62 LEVERETT, Admx., v. STATE of Ohio et al., Appellees. 1
• Court: Ohio Court of Appeals

Page 35

61 Ohio App.2d 35

399 N.E.2d 106, 15 O.O.3d 62

LEVERETT, Admx., v. STATE of Ohio et al., Appellees. ¹

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

Oct. 26, 1978.

Syllabus by the Court

1. Federal courts do not possess concurrent jurisdiction with the Court of Claims of Ohio over claims against the state brought pursuant to R.C. Chapter 2743.

2. A hospital may be liable for the negligent release of a mental patient when it, in exercising a medical judgment, knows or should know such patient would likely cause harm to himself or others.

3. There is a duty on the part of a physician employed by a state hospital to act reasonably and in good faith in releasing dangerous mental patients and an action may be maintained in the Court of Claims for a breach of such duty.

Elliot R. Levine, Cleveland, for appellant.

William J. Brown, Atty. Gen., Melvin D. Weinstein, Asst. Atty. Gen., for appellees, the State of Ohio et al.

Richard T. Reminger, Cleveland, for appellees Drs. Markiewicz and Silas.

STRAUSBAUGH, Judge.

This is an appeal by the plaintiff from a dismissal by the Court of Claims pursuant to Civ.R. 12(B)(6).

The complaint, filed on September 16, 1977, alleged that the release of Alfornia Lewis from the Western Reserve Psychiatric Habilitation Center, aka Hawthornden State Hospital, and the subsequent refusal to readmit Lewis, was negligent and careless and, or, willful and wanton. The plaintiff argued that the defendants knew or should have known that Lewis was a dangerous mental patient and that they owed a duty to the public to use reasonable care and exercise good faith in releasing Lewis.

Lewis was released on June 28, 1975. On September 16, 1975, Lewis shot and killed Mr. Remmie O. Leverett, the husband of Gladys M. Leverett, and has since been adjudicated mentally insane and committed to Lima State Hospital. The plaintiff claims that the negligent release of Lewis was the proximate cause of the death of Mr. Remmie O. Leverett, and she seeks damages from the state through the Court of Claims.

The defendants moved for a dismissal on November 21, 1977, for a failure to state a claim upon which relief could be granted. The plaintiff did not file a brief in opposition to the motion to dismiss within the 14 days provided by the rules of the Court of Claims. On December 19, 1977, the parties filed a joint motion to stay proceedings in the case, the filing of which appears on our copy of the original Court of Claims docket, but the original motion was not included in the record as originally transmitted from the Court of Claims due to a clerical error in filing the motion. From the record, it is impossible to determine if this motion was ever presented to the court. The motion states that another action arising out of the same circumstances and between the same parties was pending in the United States Court of Appeals for the Sixth Circuit. The issue before that court was whether the suit met the qualifying factors for a cause of action under Section 1983, Title 42, U.S.Code. The joint motion also contained the following:

" * * * Both Plaintiffs and Defendants also move that the submission of all further briefs and motions be stayed (including Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss) until twenty (20) days after this court has reactivated this cause of action (or ruled that the joint motion for stay of the proceedings should not be granted.)"

Without making reference to the joint motion, the Court of Claims dismissed the action on January 31, 1978. On February 22, 1978, the plaintiff filed the following:

"Motion to vacate the order and to grant the joint motion of plaintiffs and defendants to stay proceedings because of pending litigation in Federal Court. In the alternative motion to stay the order and to permit plaintiffs time to file a brief in opposition to defendants' motion to dismiss the complaint for failure to state a claim for which relief may be granted."

Plaintiff subsequently filed a notice of appeal with the Court of Claims on February 27, 1978. On February 28, 1978, the Court of Claims filed an order stating:

"A notice of appeal being filed, the motion for vacation of the dismissal order or to stay the order entered is not well taken and is denied and dismissed or alternatively considered as moot."

The plaintiff's first assignment of error is:

"It was error for the Court of Claims of Ohio not to grant the joint motion to stay the cause of action because another action is pending."

The plaintiff cites 14 Ohio Jurisprudence 2d 563, Courts, Section 149, for the well-settled principle that when two courts have concurrent or co-extensive jurisdiction, the court which first obtains jurisdiction has the right to adjudicate the action to the exclusion of all other courts.

The threshold issue, however, is whether the federal courts have concurrent or co-extensive jurisdiction to decide claims against the state of Ohio. The plaintiff contends that the state's waiver of immunity under R.C. 2743.02 applies to the facts of this case. Jurisdiction over such actions, however, has been vested exclusively in the Court of Claims under R.C. 2743.03, which states:

" * * * The court of claims is a court of record and has exclusive, original jurisdiction of all civil actions against the state permitted by the waiver of immunity contained in section 2743.02 of the Revised Code * * * ."

In Mierke v. Superintendent of Banks, unreported, Tenth Appellate District, No. 78AP-304, decided September 7, 1978, we interpreted the state's waiver of immunity in R.C. 2743.02 as follows:

"A federal district court has no jurisdiction in an action against the state, unless the state has consented to be sued. Although the state has consented to be sued by R.C. 2743.02, such Section expressly provides that the state 'consents to be sued * * * in the court of claims created in this chapter * * * .' We find nothing in R.C. 2743.03(E), Supra, which in any way consents to the filing of a suit in federal court. * * * " Therefore, the federal courts are Not courts of concurrent or co-extensive jurisdiction as to this action, and the Court of Claims' refusal to grant a stay was proper. Plaintiff's first assignment of error is overruled.

Plaintiff's second assignment of error is:

"The waiver of immunity from liability by the state of Ohio makes the state of Ohio and its agencies liable under the facts of this case. In that private hospitals are liable for releasing and/or non-readmitting a patient who was known or should have been known to be dangerous and homicidal the state of Ohio is liable under ORC § 2743.02 for releasing such a patient under its care."

We interpreted the state's waiver of sovereign immunity in R.C. 2743.02(A) in the case of Smith v. Wait (1975), 46 Ohio App.2d 281, 350 N.E.2d 431. In determining whether the plaintiff in that case had stated a claim upon which relief could be granted against the state, we said, at page 283, 350 N.E.2d at page 433:

"The state's waiver of its sovereign immunity from liability has not opened up the public coffers to all who may seek recompense but, rather, permits the liability of the state to be determined in accordance with the rules of law applicable to suits between private parties, no new claim for relief or right of action being created by the waiver of immunity. R.C. 2743.02(A) merely permits actions against the state to be brought which were previously barred by the doctrine of sovereign immunity, but such actions must be predicated upon previously recognized claims for relief, for which the state would have been liable except for sovereign immunity. * * * "

Expanding upon this interpretation in Hahn v. Brown (1976), 51 Ohio App.2d 177, at page 179, 367 N.E.2d 884, at page 886, we said:

" * * * Certainly the action brought herein is not one which could have been brought between private parties, inasmuch as private parties have no duty, as does the state, to incarcerate criminals and juvenile offenders. It must be remembered that the Court of Claims Act did not create new causes of action where none existed in the past. * * * "

Applying these principles to the instant case, we must first determine if there is a duty on the part of private hospitals to use reasonable care in releasing and refusing to readmit potentially dangerous mental patients, and second whether this same duty attaches to the state. For a survey of how other jurisdictions have dealt with this issue, see Annotation, 38 A.L.R.3d 699. As authority for its decision that no actionable claim was alleged, the Court of Claims cited Adamov v. State (1975), 46 Ohio Misc. 1, 345 N.E.2d 661; Mawhirter v. Dept. of Rehabilitation and Correction, unreported, Court of Claims, No. 75-0122, decided September 24, 1975; Harris v. State (1976), 48 Ohio Misc. 27, 358 N.E.2d 639; Smith, supra, Hahn, supra, and Walker v. State, unreported, Tenth Appellate District, No. 76AP-960, decided November 1, 1977.

With regard to the specific duty in question, Adamov, Mawhirter, Hahn and Walker, are distinguishable in that all deal with the state's duty to incarcerate, where no corresponding activity is undertaken in the private sector, as discussed in Hahn. There are, however, private hospitals for mental patients. Therefore, these four cases are not controlling. The Smith case dealt with the state's regulation of securities, and can be cited for a general interpretation of the state's waiver of immunity, but not as it relates specifically to the instant case.

Only the Harris case speaks directly to the issue before us now. The syllabus of that case states:

"1. The Department of Mental Health and Mental Retardation is not, as a matter of law, responsible for the actions of a former inmate and current out-patient of its facilities, where such actions took place approximately two years after the inmate's discharge and where the discharge was in accordance with the...