Miller v. Van Wert Cty. Bd. of Mental Retardation & Dev. Disabilities, 2009 Ohio 5082 (Ohio App. 9/28/2009), 15-08-11
| Decision Date | 28 September 2009 |
| Docket Number | No. 15-08-11,15-08-11 |
| Citation | 2009 Ohio 5082 |
| Parties | Jean Ann Miller, et al., Plaintiffs-Appellees, v. Van Wert County Board of Mental Retardation and Developmental Disabilities, et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Appeal from Van Wert County Common Pleas Court, Trial Court No. CV-08-04-156
Judgment Reversed and Cause Remanded.
Edward S. Kim and Brad E. Bennett for Appellants, Van Wert County Board of MRDD, Thomas Edison Center and Jim Stripe.
Tim James for Appellant, Gerald E. Miller
Scott R. Gordon for Appellees.
{¶1} Defendants-appellants, Van Wert County Board of Mental Retardation and Developmental Disabilities ("Van Wert County Bd. of MRDD"), the Thomas Edison Center ("Edison Center"), and Jim Stripe, Executive Director of the Van Wert County Bd. of MRDD ("Stripe") (collectively "appellants"), appeal the August 20, 2008 judgment of the Van Wert County Court of Common Pleas denying appellants immunity under R.C. 2744 et seq. We reverse.
{¶2} On April 2, 2008, Jean Ann Miller ("Miller"), an incompetent person represented by guardian ad litem Jean Adele Miller, filed a civil complaint in the Van Wert County Court of Common Pleas. (Doc. No. 1). In addition to the defendants listed above, the complaint named the Van Wert County Board of Commissioners, County Commissioners Clair Dugeon, Gary Adams, and Harold Merkle (all separately), and Gerald E. Miller as defendants. (Id.).
{¶3} The complaint's first cause of action alleged, in pertinent part, that: "[o]n or about September 4, 2007 plaintiff, Jean Ann Miller, was enrolled as a student in the Thomas Edison Center workshop and was a passenger on the school bus being driven by defendant, Gerald E. Miller, an employee of Defendants * * *." (Doc. No. 1, at ¶7). The complaint further alleged that defendant Miller "wrongfully detained the plaintiff in the school bus causing her to be exposed to extreme heat and unbearable conditions" for approximately five (5) hours. (Id. at ¶¶8, 10). The complaint alleged that the plaintiff's wrongful detention and removal from the bus thereafter caused her severe emotional distress and bodily harm, to wit: heat exhaustion and dehydration. (Id. at ¶¶10-11). The complaint's second cause of action alleged that defendant Miller's previously alleged conduct was done willfully, wantonly, and in reckless disregard for plaintiff's safety and sought punitive damages. (Id. at ¶16).
{¶4} On June 30, 2008, the Van Wert County Board of Commissioners, and County Commissioners Clair Dugeon, Gary Adams, and Harold Merkle filed a motion for summary judgment. (Doc. No. 16). On July 1, 2008, the Van Wert County Bd. of MRDD, Edison Center, and Stripe filed a Civ.R. 12(B)(6) motion to dismiss. (Doc. No. 18).
{¶5} On August 20, 2008, the trial court granted summary judgment in favor of the Van Wert County Board of Commissioners and County Commissioners Clair Dugeon, Gary Adams, and Harold Merkle. (Doc. No. 27). That same day, however, the trial court denied the motion to dismiss filed by the Van Wert County Bd. of MRDD, Edison Center, and Stripe. (Doc. No. 26).
{¶6} On September 5, 2008, appellants Van Wert County Bd. of MRDD, Edison Center, and Stripe appealed the trial court's denial of their motion to dismiss. Appellants now appeal raising one assignment of error for our review.
{¶7} Before proceeding to the merits of appellants' assignment of error, we must set forth the applicable standard of review. This Court reviews a trial court's decision to grant or deny a Civ.R. 12(B)(6) motion to dismiss de novo. Risser v. Risser, 173 Ohio App.3d 430, 2007-Ohio-4936, 878 N.E.2d 1073, ¶10, citing Davidson v. Davidson, 3d Dist. No. 17-05-12, 2005-Ohio-6414, ¶8, citing Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶¶4-5. To determine whether a motion to dismiss should have been granted, we accept all factual allegations in the complaint as true. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. In order to sustain a trial court's dismissal, "it must appear beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." LeRoy v. Allen, Yurasek, & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶14, citing Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶11. Additionally, we must construe the complaint's material allegations and any inferences drawn therefrom in the nonmoving party's favor. LeRoy, 2007-Ohio-3608, at ¶14, citing Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, 418, 650 N.E.2d 863.
THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING THAT DEFENDANTS-APPELLANTS THE VAN WERT COUNTY BOARD OF MRDD, THOMAS EDISON CENTER, AND JIM STRIPE WERE NOT ENTITLED TO IMMUNITY PURSUANT TO O.R.C. §2744 ET SEQ.
{¶8} Appellants argue that the trial court erred by not dismissing Miller's complaint because R.C. 2744.02(B)(1)'s exception to immunity for "negligent operation of any motor vehicle" does not apply to the facts of this case. Appellants argue that since "motor vehicle" in R.C. 2744.01(E) has the same meaning as in Ohio's traffic laws, "operation" should also be construed consistent with Ohio's traffic laws. Appellants point out that the traffic laws define "operate" as: "to cause or have caused movement of a vehicle, streetcar, or trackless trolley." R.C. 4511.01(HHH). Appellants cite Perales v. City of Toledo in further support of their position that "operation" requires the vehicle to be in motion. (Apr. 23, 1999), 6th Dist. No. L-98-1397. Therefore, appellants conclude that Miller has failed to state a claim of negligent operation since Miller never alleged her injuries were caused while the bus was in motion or being driven. Appellants also argue that the cases upon which the trial court relied are no longer reliable because their rationale has been undermined by subsequent contrary decisions.
{¶9} Appellants further argue that the trial court erred by not dismissing the complaint against defendant Stripe, because: (1) he is immune acting in his official capacity as Executive Director of the Board of MRDD; and (2) the complaint failed to allege facts that would result in Stripe being personally liable.
{¶10} Miller has failed to file an appellee's brief with this Court. When an appellee fails to file a brief, App.R. 18(C) provides that "in determining the appeal, the court may accept the appellant's statement of the facts and issues as correct and reverse the judgment if appellant's brief reasonably appears to sustain such action." Accordingly, we accept appellants' statement of the facts and issues for purposes of this appeal and reverse.
{¶11} Our analysis will be divided into five parts. First, we will briefly examine this Court's jurisdiction. Second, we will review the trial court's judgment entry. Third, we will review political subdivision liability. Fourth, we will interpret and apply the "negligent operation of any motor vehicle" exception under R.C. 2744.02(B)(1) based upon recent Ohio Supreme Court precedent. Fifth, we will analyze Stripe's liability. We ultimately conclude that Miller failed to state a claim upon which relief could be granted, and thus, the trial court erred by not dismissing the complaint as to these appellants. We further conclude that Stripe is immune, and therefore, the trial court erred in denying his motion to dismiss as well.
{¶12} As an initial matter, this Court notes that "[g]enerally an order denying a motion to dismiss is not a final order" subject to appellate review. State Auto. Mut. Ins. Co. v. Titanium Metals Corp., 108 Ohio St.3d 540, 2006-Ohio-1713, 844 N.E.2d 1199, ¶8, citing Polikoff v. Adam (1993), 67 Ohio St.3d 100, 103, 616 N.E.2d 213. However, R.C. 2744.02(C) provides that "[a]n order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order." "Accordingly, * * * when a trial court denies a motion in which a political subdivision or its employee seeks immunity under R.C. Chapter 2744, that order denies the benefit of an alleged immunity and thus is a final, appealable order pursuant to R.C. 2744.02(C)." Hubbell v. City of Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, ¶27. Therefore, a trial court's decision to deny a political subdivision's motion to dismiss which seeks immunity under R.C. Chapter 2744 is a final, appealable order pursuant to R.C. 2744.02(C). Id.; Slonsky v. J.W. Didado Elec., Inc., 9th Dist. No. 24228, 2008-Ohio-6791, ¶8, citing In re Ohio Political Subdivision Immunity Cases, 115 Ohio St.3d 448, 2007-Ohio-5252, 875 N.E.2d 912, ¶2 (). Pursuant to the foregoing authorities, this Court has jurisdiction to decide this case.
{¶13} The trial court began its analysis of the issues as follows:
Construing her complaint most strongly in her favor, Miller alleges that the acts or omissions of the school bus driver employed by MRDD in operating the school bus resulted in injuries to her. MRDD claims that they are immune pursuant to R.C. 2744.02, Ohio's Political Subdivision Tort Liability Law. Miller claims that her claim falls within the exception provided in R.C. 2744.02(B)(1), the negligent operation of a motor vehicle.
(Aug. 20, 2008 JE, Doc. No. 26). The trial court then noted that the parties had inappropriately relied upon...
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