McIntosh v. University of Cincinnati, C-840620

• Decision Date: 03 July 1985
• Docket Number: No. C-840620,C-840620
• Citation: 493 N.E.2d 321,24 Ohio App.3d 116,24 OBR 187
• Parties: , 32 Ed. Law Rep. 781, 24 O.B.R. 187 McINTOSH et al., Appellants, v. UNIVERSITY OF CINCINNATI et al., Appellees.
• Court: Ohio Court of Appeals

Page 116

24 Ohio App.3d 116

493 N.E.2d 321, 32 Ed. Law Rep. 781, 24 O.B.R. 187

McINTOSH et al., Appellants, v. UNIVERSITY OF CINCINNATI et al., Appellees.

No. C-840620.

Court of Appeals of Ohio, First District, Hamilton County.

July 3, 1985.

Syllabus by the Court

1. Under the Court of Claims Act, a civil suit filed against the University of Cincinnati is essentially a suit against the state of Ohio. Consequently, since the Court of Claims has original, exclusive jurisdiction over all civil actions against the state, a court of common pleas lacks jurisdiction over claims against the University of Cincinnati.

2. Under R.C. 9.86, state officers and employees have immunity from personal liability, unless they act beyond the scope of their official employment responsibilities or unless they act "with malicious purpose, in bad faith, or in a wanton or reckless manner." However, an action against state employees for acting "with malicious purpose, in bad faith or in a wanton or reckless manner" can only be brought in a court of common pleas, not the Court of Claims.

3. In the context of R.C. 2743.02(A)(1), "the court" means the Court of Claims. Thus, where a plaintiff has simultaneous actions pending in a court of common pleas and the Court of Claims against a state defendant and several state employees, the court of common pleas must defer to a ruling by the Court of Claims as to whether the employees acted "with malicious purpose, in bad faith, or in a wanton or reckless manner."

Steven C. Wilson, Cincinnati, for appellants.

Dinsmore & Shohl, Mark A. Vander Laan and Mark C. Bissinger, Cincinnati, Sp. Counsel to the Atty. Gen., for appellees.

PER CURIAM.

This cause came on to be heard upon an appeal from the Court of Common Pleas of Hamilton County.

Plaintiffs-appellants, Everett and Sandra McIntosh, appeal from the judgment ¹ of the trial court which granted a motion to dismiss in favor of defendants-appellees, the University of Cincinnati, and five employees of the university (Dr. Raymond R. Suskind, Dr. Stuart Brooks, Allen Vinegar, Ph.D., Jan-Arthur Utrecht and Roy McKay). ² While we disagree with appellants that the University of Cincinnati was improperly dismissed, we agree that the trial court erred in dismissing the five employees of the university from the action. Consequently, we reverse that part of the judgment which ordered the dismissal of the five individual employees.

On March 20, 1984, appellants filed a civil complaint against appellees in the Hamilton County Court of Common Pleas. In their complaint, appellants alleged that Everett McIntosh was employed by the university to work in its chemical laboratory. Appellants stated that Dr. Suskind is the head of the department responsible for the laboratory; that Dr. Brooks and Dr. Vinegar are McIntosh's immediate supervisors; that Roy McKay is an employee who was assigned to train McIntosh; and that Jan-Arthur Utrecht is an engineer who is responsible for maintaining the equipment and devices which are used in the laboratory.

Appellants alleged that the University of Cincinnati and its five employees were researching the properties and effects of a chemical known as "TDI." Appellants further alleged that Everett McIntosh was ordered to perform certain experiments with the chemical without having been previously warned by appellees of the dangerous and harmful effects of overexposure to TDI. Appellants declared that as a direct and proximate result of appellees' negligent, intentional and purposeful conduct, Everett McIntosh suffered serious personal injuries. The complaint contained a claim by Everett McIntosh's wife, Sandra, for loss of consortium.

On or about March 21, 1984, appellants filed a complaint ³ in the Court of Claims against the same defendants ⁴ based upon the same allegations. On April 18, 1984, appellees filed a motion to dismiss appellants' complaint in the court of common pleas for lack of jurisdiction over the subject matter and over the appellees (Civ.R. 12[B] and ) and for failure to state a claim upon which relief can be granted (Civ.R. 12[B] ). Appellants responded with a "[m]otion to stay the causes of action herein pending the decision of the Ohio Court of Claims and denying the motion to dismiss."

On July 10, 1984, the trial court granted appellees' motion to dismiss on the ground that "the Court of Claims has exclusive, original jurisdiction over the claims asserted against the University of Cincinnati and its employees." From this judgment, appellants timely filed the instant appeal.

In support of their appeal, appellants raise a single assignment of error, as follows:

"The trial court erred in refusing to grant the appellants a stay of their cause of action against the University of Cincinnati and its employees pending a decision by the Court of Claims as to whether or not the acts complained of were within the scope of employment."

At oral argument, appellants respectfully requested that their assignment of error be amended to state that "the trial court erred in granting appellees' motion to dismiss the claims against them for lack of jurisdiction." Appellees did not object to this change. Accordingly, we will recast appellants' assignment of error so as to comply with the parties' wishes.

We shall first address appellants' contention that the University of Cincinnati was improperly dismissed from the lawsuit. We conclude that the court properly dismissed the university from the case because the Court of Claims has exclusive, original jurisdiction over claims filed against the state.

Prior to the enactment of the Court of Claims Act (R.C. Chapter 2743), the state of Ohio and its various instrumentalities and institutions were protected from suit under the doctrine of sovereign immunity. See Thacker v. Bd. of Trustees of Ohio State Univ. (1973), 35 Ohio St.2d 49, 298 N.E.2d 542 . However, the General Assembly prescribed the method and the forum for bringing suit against the state with the enactment of R.C. 2743.02(A)(1). That section provides, in pertinent part, that "[t]he state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims * * *." R.C. 2743.03(A) provides that " * * * [t]he court of claims is a court of record and has exclusive, original jurisdiction of all civil actions against the state * * *."

It is clear that the University of Cincinnati is an instrumentality of the state of Ohio inasmuch as it has been a state institution since July 1, 1977. Collins v. Univ. of Cincinnati (1981), 3 Ohio App.3d 183, 444 N.E.2d 459; R.C. 3361.01. Under the Act, "state" means " * * * all * * * institutions and other instrumentalities of the state of Ohio. * * * " R.C. 2743.01(A). Thus, under the Court of Claims Act, a civil suit filed against the University of Cincinnati is essentially a suit against the state of Ohio. Consequently, since the Court of Claims has original, exclusive jurisdiction over all civil actions against the state, the court of common pleas lacked jurisdiction over the claims against the University of Cincinnati, and the university's dismissal, pursuant to Civ.R. 12(B)(1) and (2), was proper.

Turning to the question of whether the claims against the five individual employees of the university were properly dismissed by the court of common pleas for lack of jurisdiction, we begin by recognizing that under R.C. 9.86, state officers and employees have immunity from personal liability, unless they act beyond the scope of their official employment responsibilities or unless they act "with malicious purpose, in bad faith, or in a wanton or reckless manner." ⁵ Furthermore, under R.C. 2743.02(A)(1), the filing of a civil action against the state, in the Court of Claims, constitutes a complete waiver of any cause of action, based on the same act or omission, against any state officer or employee. However, the waiver is void if "the court" determines that the act or omission was 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." ⁶

In the instant case, appellants did not allege that the individual employees acted outside the scope of their employment. However, appellants did allege that the employees acted "intentionally and purposefully." Thus, it is conceivable that these employees could lose their cloak of immunity, granted them by R.C. 9.86, if "the court" ⁷ determines that they acted with malicious purpose, in bad faith, or in a wanton or reckless manner. If so, these employees could properly be subject to suit in the court of common pleas. If, on the other hand, the court determines that these employees did not act with malicious purpose, in bad faith, or in a wanton or reckless manner, viz., that they acted negligently, then the state of Ohio alone would be subject to suit in the Court of Claims.

Given this state of the law, appellants concede that the court of common pleas does not have jurisdiction to entertain a civil lawsuit against the five employees in their individual capacities unless and until the Court of Claims determines that the employees acted with malicious purpose, in bad faith, or in a wanton or reckless manner. However, appellants advance what is, in essence, an equitable argument. Appellants' position on appeal is that in order to protect their claims for intentional tort against the five employees, from the running of the applicable statute of limitations, they have the right to file their complaints concurrently in the Court of Claims and the court of common pleas. Appellants contend that a dismissal by the court of common pleas, prior to a determination of maliciousness by the Court of...