Reynolds v. State, Div. of Parole and Community Services

• Court: Ohio Supreme Court
• Writing for the Court: CLIFFORD F. BROWN; FRANK D. CELEBREZZE; LOCHER; HOLMES; WILLIAM B. BROWN
• Citation: Reynolds v. State, Div. of Parole and Community Services, 471 N.E.2d 776, 14 Ohio St.3d 68, 14 OBR 506 (Ohio 1984)
• Decision Date: 12 December 1984
• Docket Number: No. 83-1955,83-1955
• Parties: , 14 O.B.R. 506 REYNOLDS et al., Appellants, v. The STATE of Ohio, DIVISION OF PAROLE AND COMMUNITY SERVICES, Appellee.

Page 68

14 Ohio St.3d 68

471 N.E.2d 776, 14 O.B.R. 506

REYNOLDS et al., Appellants, v. The STATE of Ohio, DIVISION OF PAROLE AND COMMUNITY SERVICES, Appellee.

No. 83-1955.

Supreme Court of Ohio.

Dec. 12, 1984.

Syllabus by the Court

1. The language in R.C. 2743.02 that "the state" shall "have its liability determined * * * in accordance with the same rules of law applicable to suits between private parties * * * " means that the state cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion. However, once the decision has been made to engage in a certain activity or function, the state may be held liable, in the same manner as private parties, for the negligence of the actions of its employees and agents in the performance of such activities.

2. Once a decision has been made to furlough a prisoner pursuant to R.C. 2967.26, a cause of action can be maintained against the state for personal injuries proximately caused by the failure to confine the prisoner during non-working hours in accordance with R.C. 2967.26(B). Such a failure to confine is negligence per se, and is actionable pursuant to R.C. 2743.02.

John E. Rockel, Cincinnati, for appellants.

Anthony J. Celebrezze, Jr., Atty. Gen., and Mark T. D'Alessandro, Asst. Atty. Gen., for appellee.

Plaintiffs-appellants, Debbie Lee Reynolds and her husband David Harold Reynolds, appeal from a judgment of the Court of Claims dismissing their complaint for failure to state a claim upon which relief could be granted. Civ.R. 12(B)(6). The Court of Appeals for Franklin County affirmed the judgment of the trial court.

Plaintiff Debbie Reynolds was brutally assaulted and raped by Earl Elder on or about July 7, 1981. Elder, after viciously attacking the plaintiff, left her unconscious with her head in a gas oven. As a result of the injuries which plaintiff sustained, she is completely paralyzed and requires constant medical attention.

At the time of Elder's attack on the plaintiff he was on furlough pursuant to R.C. 2967.26. Elder had been convicted of involuntary manslaughter in the 1976 death of a Cincinnati woman. While serving a prison term for the 1976 homicide he was granted a work release furlough. R.C. 2967.26, permits the Adult Parole Authority to grant furloughs to trustworthy prisoners for the purpose of aiding their rehabilitation by allowing them to participate in educational and work-training programs. A prisoner who is granted such a furlough is required by R.C. 2967.26(B) " * * * to be confined for any periods of time that he is not actually working at his approved employment or engaged in vocational training or other educational program. * * * "

Plaintiffs asserted in their amended complaint that the state was liable for the injuries suffered by Debbie Reynolds. The trial court and the appellate court both found that R.C. 2743.02, the Court of Claims Act, did not create a cause of action in this area and that the plaintiffs, therefore, could not maintain a suit against the state.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

CLIFFORD F. BROWN, Justice.

The reasons for incarcerating a convicted felon are multiple, such as rehabilitation and punishment. It is unquestioned that one of the reasons felons are incarcerated is for the protection of society. R.C. 2967.26 is a statute designed to give greater flexibility to Ohio's prison system in the attempt to help rehabilitate prisoners. The statute does not, however, ignore the other reasons prisoners are set apart from society. This is self-evident from the language of R.C. 2967.26(B), which requires the state to confine a furloughed prisoner during any non-working periods. A breach of this duty by the state officials responsible for the supervision of furloughed prisoners is negligence per se. ¹ The Court of Claims dismissed the plaintiffs' complaint, finding that R.C. 2743.02 ² does not create a cause of action against the state in this area, and further that because there was no penalty provision contained in R.C. 2967.26, the state cannot be held accountable to private individuals for the negligent supervision of a furloughed prisoner. The Court of Appeals for Franklin County affirmed this dismissal for the reason that the state breached no duty owed to plaintiffs.

R.C. 2743.02 was enacted by the Ohio General Assembly in 1975 as part of the Court of Claims Act. It limited the immunity of the state of Ohio. With the passage of the Act, individuals can sue the state and have liability determined with the same rules of law applicable to suits between private parties. The courts below have interpreted this abrogation of immunity to be different from the recent abrogation of municipal sovereign immunity found in Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 442 N.E.2d 749, and Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 451 N.E.2d 228.

We disagree. The abrogation of the sovereign immunity of the state, which was accomplished by the passage of R.C. 2743.02, is not significantly different from the common-law abrogation of municipal sovereign immunity accomplished by this court. ³ The language in R.C. 2743.02 that "the state" shall "have its liability determined * * * in accordance with the same rules of law applicable to suits between private parties * * * " means that the state cannot be sued for its legislative or judicial functions or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion. However, once the decision has been made to engage in a certain activity or function, the state may be held liable, in the same manner as private parties, for the negligence of the actions of its employees and agents in the performance of such activities.

Under the above standard plaintiffs may not maintain an action against the state for its decision to furlough a prisoner. However, once such a decision has been made pursuant to R.C. 2967.26, a cause of action can be maintained against the state for personal injuries proximately caused by the failure to confine the prisoner during non-working hours in accordance with R.C. 2967.26(B). ⁴ Such a failure to confine is negligence per se, ⁵ and is actionable pursuant to R.C. 2743.02. ⁶ Dismissal of plaintiffs' action on a Civ.R. 12(B)(6) motion was reversible error.

Therefore, the judgment of the court of appeals is reversed and the cause remanded to the Court of Claims for further proceedings in accordance with the opinion of this court.

Judgment reversed and cause remanded.

FRANK D. CELEBREZZE, C.J., and SWEENEY and JAMES P. CELEBREZZE, JJ., concur.

LOCHER, J., concurs in judgment only.

WILLIAM B. BROWN and HOLMES, JJ., dissent.

HOLMES, Justice, dissenting.

I sincerely have a great deal of sympathy in support of attempting to find a more adequate mode of recovery for the appellants than is currently provided by Ohio statutory law. However, in that the Ohio General Assembly has specifically spoken as to the state's waiver of liability in tort, courts should show due deference to such enactments.

By way of the Court of Claims Act, the General Assembly waived the state's sovereign immunity on a limited basis. R.C. 2743.01(A) and (B), 2743.02. Local governmental agencies, such as municipalities, counties, school districts, etc., were excluded from the state's statutory waiver of immunity. In a series of cases, Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St.3d 26, 442 N.E.2d 749, and Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St.3d 31, 451 N.E.2d 228, this court judicially abrogated the common-law immunity of local governmental entities. In those instances this court was confronted with entities where sovereign immunity had not been abrogated by statute, as had the state's immunity by way of the Court of Claims Act. This difference was recognized by language in Haverlack, wherein the majority concluded that "in the absence of a statute," the immunity defense was not available to a municipality in an action for alleged negligence in the operation of a sewage treatment plant.

With the enactment of the Court of Claims Act, the General Assembly provided the manner and extent to which the state of Ohio may be sued. This action by the legislative body of this state, which was noted with approval by this court in Boggs v. State (1983), 8 Ohio St.3d 15, 455 N.E.2d 1286, should be adhered to in this matter, in that the Act reflects a policy decision by that branch of government so empowered by Section 16, Article I of the Ohio Constitution.

R.C. 2743.02(A), within the Court of Claims Act, waived the state's immunity in a limited manner. This statutory provision did not create any new claims for relief against the state.

By virtue of being the statutory appellate court from the Court of Claims, the Tenth District Court of Appeals has had the opportunity to consider a number of cases involving the general issue presented herein. That court has on numerous occasions interpreted the limited waiver of state immunity as found in R.C. 2743.02(A). In Smith v. Wait (1975), 46 Ohio App.2d 281, 350 N.E.2d 431 [75 O.O.2d 560], Judge Whiteside stated, 46 Ohio App.2d at 283, 350 N.E.2d 431, that 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."

Furthermore, in Spencer v. State (April 14, 1977), Franklin App. No. 76AP-1021, unreported, Judge Whiteside concurred by stating, at page 3,...