Terry v. Ottawa Cty. Bd. of Mrdd

• Decision Date: 30 December 2002
• Docket Number: No. OT-02-014.,OT-02-014.
• Citation: 783 N.E.2d 959,151 Ohio App.3d 234,2002 Ohio 7299
• Parties: TERRY et al., Appellants, v. OTTAWA COUNTY BOARD OF MENTAL RETARDATION & DEVELOPMENTAL DISABILITIES et al., Appellees.
• Court: Ohio Court of Appeals

783 N.E.2d 959

151 Ohio App.3d 234

2002 Ohio 7299

TERRY et al., Appellants, v. OTTAWA COUNTY BOARD OF MENTAL RETARDATION & DEVELOPMENTAL DISABILITIES et al., Appellees.

No. OT-02-014.

Court of Appeals of Ohio, Sixth District, Ottawa County.

Decided December 30, 2002.

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Margaret M. Murray, Dennis E. Murray Sr. and Duane L. Galloway, Sandusky, for appellants.

Joan C. Szuberla, Teresa L. Grigsby, Toledo, and Mark E. Mulligan, Port Clinton, for appellees.

MELVIN L. RESNICK, Judge.

{¶ 1} This case is before the court on appeal from a judgment of the Ottawa County Court of Common Pleas, which granted the motion of defendant-appellee, the Ottawa County Board of Mental Retardation and Developmental Disabilities ("MRDD"), for a judgment on the pleadings. Plaintiffs-appellants are several employees of MRDD; plaintiff-appellant, Louise Terry, also an employee of MRDD; and their respective spouses. Appellants assert the following assignment of error:

{¶ 2} "The trial court erred in granting judgment on the pleadings to the Ottawa County Board of Mental Retardation and Developmental Disabilities by finding that political subdivisions are immune from liability for employer intentional torts."

{¶ 3} Appellants commenced the instant action against MRDD, among others, alleging that MRDD required its employees to work in an unhealthy workplace located at 140 Buckeye Boulevard in Port Clinton, Ohio. Appellants claimed that MRDD knew that there were toxicogenic substances, e.g., visible mold in the building and a black sludge in the walls, and was result to that injury maintained result to its employees. They maintained that MRDD "knowingly disregarded the harm to which it was exposing" those employees. Appellants maintained that they suffered from various physical ailments such as chronic sinus infections, headaches, "lung illness," vomiting, diarrhea, fatigue, and anxiety because of this exposure.

{¶ 4} Appellants also filed a supple mental complaint based on the following facts. After they moved out of the premises at 140 Buckeye Boulevard, certain items (files, furniture, equipment, and personal belongings) were delivered to appellants at their new workplaces. According to the supplemental complaint, MRDD engaged in "intentional misconduct" by not cleaning these items prior to delivery. Thus, appellants alleged that MRDD knowingly re-exposed them to the contaminated items, thereby causing a reoccurrence of their physical symptoms.

{¶ 5} MRDD filed its answer, raising, inter alia, the defense of immunity under the Political Subdivision Tort Liability Act, R.C. Chapter 2744. In its subsequent motion for a judgment on the pleadings, MRDD observed that appellants' claims were "employer intentional torts" within the meaning of Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108. Therefore, as a county agency, MRDD concluded that it was, pursuant to R.C. Chapter 2744, immune from suit based on such a cause of action.

{¶ 6} Appellants filed a memorandum in opposition in which it contended that an employer intentional tort was neither a "governmental" nor a "proprietary" function of the county; thus, MRDD was not provided with immunity under R.C. 2744.02. In addition, appellants claimed that if MRDD was found immune pursuant to R.C. 2744.02, the claim was exempt under R.C. 2744.09(C). Finally, appellants asserted, in the alternative, that R.C. Chapter 2744 is unconstitutional because it violates Section 16, Article I, Ohio Constitution, which allows suits against the state.

{¶ 7} After MRDD filed a reply to the memorandum in opposition, the common pleas court granted the motion for a judgment on the pleadings and included the language required by Civ.R. 54(B) to render that judgment a final, appealable order. This appeal followed.

{¶ 8} The standard applicable to our review of this cause is found in Civ.R. 12(C). Because a motion for a judgment on the pleadings made pursuant to Civ.R. 12(C) may be made only after the pleadings are filed, it is characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted. Gawloski v. Miller Brewing Co. (1994), 96 Ohio App.3d 160, 163, 644 N.E.2d 731. Accordingly, the same standard of review is applied to both motions. Id. Thus, a court must limit its inquiry to the material allegations contained in the complaint and accept those allegations and all reasonable inferences as true. Lin v. Gatehouse Constr. Co. (1992), 84 Ohio App.3d 96, 99, 616 N.E.2d 519. If the allegations in the complaint are such that the plaintiff could prove no set of facts which would entitle him to relief, the moving party is entitled to judgment as a matter of law. Id.

{¶ 9} Appellants first argue that because MRDD engaged in an employer intentional tort, that county agency was not performing either a "governmental" or "proprietary" function. Appellants are mistaken in that they confuse the "tort" with the "function" engaged in by MRDD.

{¶ 10} R.C. Chapter 2744 was enacted by the General Assembly to provide Ohio's political subdivisions with immunity from tort liability, with a few enumerated exceptions. Wilson v. Stark Cty. Dept. of Human Services (1994), 70 Ohio St.3d 450, 452, 639 N.E.2d 105. A county is a political subdivision under the statute. R.C. 2744.01(F). The definition of a "governmental function" includes a function that is for the common good of all citizens of the state, R.C. 2744.01(C)(1)(b), and expressly includes the operation of mental retardation or developmental disabilities facilities, R.C. 2744.01(C)(2)(o). It is undisputed that MRDD was engaged in this governmental function when the alleged injuries to appellants occurred and is, consequently, generally immune from suits based upon tort claims. The alleged tortious act, that is, the employer intentional tort, must therefore meet one of the enumerated exceptions to the grant of general immunity.

{¶ 11} Appellants, however, neither argued to the trial court nor attempted to raise on appeal the argument that an employer intentional tort can be classified as one of the exceptions listed in R.C. 2744.02.¹ Instead, appellants assert, for the first time, that MRDD is liable for intentional torts pursuant to R.C. 2744.03(A)(5).

{¶ 12} Issues not initially raised in the trial court may not be raised for the first time on appeal. Stevens Skin Softener, Inc. v. Revco Drug Stores, Inc. (1997), 121 Ohio App.3d 212, 218, 699 N.E.2d 549. Accordingly, this court need not address the question of the effect, if any, of R.C. 2744.03 on the ability of appellants to bring a suit based upon employer intentional tort against MRDD.

{¶ 13} Furthermore, R.C. 2744.03 establishes immunities and defenses for political subdivisions and their employees in the event that one of the exceptions in R.C. 2744.02 does apply. Campbell v. Burton (2001), 92 Ohio St.3d 336, 340, 750 N.E.2d 539. Here, appellants apparently concede, and we agree, that none of the exceptions in R.C. 2744.02 do apply. Thus, sition of this cause and cannot be used by R.C. 2744.03 has no relevance to the disposition of this cause and cannot be used by appellants to support their claim.

{¶ 14} Appellants' only other argument is that R.C. Chapter 2744 is inapplicable to employer intentional torts under R.C. 2744.09 (B)² and (C).

{¶ 15} R.C. 2744.09 provides:

{¶ 16} "This chapter does not apply to, and shall not be construed to apply to, the following:

{¶ 17} "* * *

{¶ 18} "(B) Civil actions by an employee, or the collective bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision;

{¶ 19} "(C) Civil actions by an employee of a political subdivision against the political subdivision relative to wages, hours, conditions, or other terms of his employment * * *."

{¶ 20} Initially, we note that ample case law exists which holds that political subdivisions cannot be held liable for intentional torts. Wilson v. Stark Cty. Dept. of Human Services, supra (claims for fraud and intentional infliction of emotional distress); Farra v. Dayton (1989), 62 Ohio App.3d 487, 576 N.E.2d 807 (claim for intentional interference with business interests); Monesky v. Wadsworth (Apr. 3, 1996), Medina App. No. 2478-M, 1996 WL 148655 (claims for trespass and demolition of a building).

{¶ 21} Indeed, other appellate courts have addressed the issue of whether an employer intentional tort is excepted under R.C. 2744.09(B) from the statutory grant of immunity to political subdivisions and determined that it is not. Chase v. Brooklyn City School Dist. (2001) 141 Ohio App.3d 9, 749 N.E.2d 798, Engleman v. Cincinnati Bd. of Edn. (June 22, 2001), Hamilton App. No. C-000597, 2001 WL 705575; Stanley v. Miamisburg (Jan. 28, 2000), Montgomery App. No. 17912, 2000 WL 84645; Ventura v. Independence (May 7, 1998), Cuyahoga App. No. 72526, 1998 WL 230429; Ellithorp v. Barberton City School Dist. Bd. of Edn. (July 9, 1997), Summit App. No. 18029, 1997 WL 416333. The rationale underlying this finding is that an employer's intentional tort against an employee does not arise out of the employment relationship, but occurs outside of the scope of employment. Engleman, supra; Ellithorp, supra, citing Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, paragraph one of the syllabus. See, also, Chase v. Brooklyn City School Dist., 141 Ohio App.3d at 19, 749 N.E.2d 798, quoting Ventura, supra. We decline to depart from established appellate law and find that R.C. 2744.09(B) does not except an employer intentional tort from the immunity granted under the Political Subdivision Tort Liability Act.

{¶ 22} Nevertheless, appellants also assert that because their injuries are related to conditions in their workplace, R.C. 2744.09(C) removes their employer intentional tort claims from the ambit of the...