MAR 04 E013 CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO. Case No

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1 I G INAL IN THE SUPREME COURT OF OHIO W.GORDON FEDIACZKO, ADMINISTRATOR OF THE ESTATE OF JAMES P. HIGHAM, III, vs. Appellant, MAHONING COUNTY CHILDREN'S SERVICES, et al., Case No On Appeal from the Seventh Appellate District, Mahoning County App. Nos. 11MA186, 11MA199 Appellees. MEMORANDUM IN OPPOSITION TO JURISDICTION SHIRLEY J. SMITH ( ) 1399 E.Western Reserve Rd., Suite 2 Poland, OH Phone: (330) ; Fax: (330) Attorney for Appellant W. Gordon Fediaczko, Administrator of the Estate of James P. Higham III DANIEL T. DOWNEY ( ) J.QUINN DORGAN ( ) WESTON HuRD LLP 10 West Broad Street, Suite 2400 Columbus, Ohio Phone: (614) Fax: (614) ddowney@westonhurd.com Counsel for Defendant-Appellees Mahoning County Children's Services, Denise Stewart and Erin Davis MAR 04 E013 CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS 1. THIS APPEAL PRESENTS NO ISSUE OF OF PUBLIC OR GREAT GENERAL INTERE S T II. STATEMENT OF THE CASE AND FACTS... 2 III. NONE OF FEDIACZKO'S PROPOSITIONS MERIT REVIEW... 4 A. Fediaczko's First and Second Propositions of Law B. Fediaczko's Third Propositionof Law ^""" 7 IV. CONCLUSION CERTIFICATE OF SERVICE i

3 I. THIS APPEAL PRESENTS NO ISSUE OF PUBLIC OR GREAT GENERAL INTEREST. W. Gordon Fediaczko, Administrator for the Estate of James P. Higham, III ("Jimmy"), appeals from two Seventh Appellate District decisions that both stem from Jimmy's murder by the boyfriend of a woman who obtained legal custody of Jimmy following the recommendation of Mahoning County Children's Services. These decisions both concern the immunities that R.C. Chapter 2744 provides to a political subdivision and its employees. Fediaczko first challenges the appellate court's judgment in Case No. 11MA199, which affirmed summary judgment in favor of MCCS and held that the state's consent to be sued for a statutory "special relationship" claim, under R.C (A)(3), does not also serve as an exception to a political subdivision's immunity under R.C (B)(5). Second, Fediaczko disputes the appellate court's judgment in Case No. 11MA186, which reversed the trial court's denial of immunity to MCCS employees Denise Stewart and Erin Davis. According to the court of appeals, Stewart and Davis have immunity under R.C (A)(6) because Fediaczko failed to present admissible evidence on which to find that they acted maliciously, in bad faith, wantonly or recklessly toward Jimmy.1 None of Fediaczko's proposed propositions of law merit further review by this Court. As shown by his failure to cite any supporting authority, there is no basis for holding that a political subdivision's immunity under R.C. Chapter 2744 is subject to the State of Ohio's waiver of its immunity to a cause of action that is codified in R.C. Chapter Furthermore, the law concerning employee immunity under R.C. Chapter 2744 is already well-established, and 1. Case No. 11MA186 was the designation of Stewart's and Davis's interlocutory appeal from the trial court's order denying them immunity. Fediaczko filed an independent appeal on the question of MCCS's immunity, and the Seventh District designated that as Case No. 11MA199. The cases were not consolidated. 1

4 Fediaczko merely disputes the Seventh District's application of that law to these facts. Even if the appellate court did err, which it did not, this appeal presents, at best, a fact-specific exercise in error correction. II. STATEMENT OF THE CASE AND FACTS Like too many children, Jimmy Higham, III became involved with MCCS because he had been abused and because no one wanted him. By the summer of 2000, after being cast out by his mother, father, and other custodians, then-14-year-old Jimmy began living with another relative, Jennifer Snyder, and her boyfriend, David Sharpe. Whereas so many others had rejected Jimmy, Snyder and Sharpe did want to care for him, and they asked to be awarded legal custody. MCCS caseworker Erin Davis conducted a home study to determine Snyder's and Sharpe's suitability to take custody of Jimmy. The investigation showed that Snyder and Sharpe had a clean and orderly home, that they were making sure Jimmy received his medications and went to school, and that they had positive personal references. Snyder and Sharpe gave every indication that they genuinely cared for Jimmy's wellbeing. Davis's investigation also revealed, however, that Snyder had a conviction for telephone harassment and that Sharpe had convictions for non-violent offenses in 1994 and had been charged with domestic violence in Nevertheless, based on the totality of the information she had received and observed, Davis concluded that Snyder and Sharpe were ready, willing and able to provide a good home for Jimmy. Davis gave the results of her investigation (both positive and negative) to MCCS's counsel, who presented the matter to the Juvenile Court at a hearing in October The court found it would be in Jimmy's best interest for Snyder and Sharpe to have legai custody of him and entered judgment accordingly. With legal custody awarded to Snyder and Sharpe, MCCS closed its file. 2

5 Thereafter, MCCS received three calls regarding Jimmy. On December 6, 2000, an -anonymous caller alleged that Sharpe was using drugs and that a drug-dealer at the home had scared Jimmy. MCCS investigated but found no evidence of abuse or neglect. On June 14, 2001, MCCS received a call that Sharpe had been arrested and that he had abused Jimmy. According to Executive Director Denise Stewart, MCCS spoke with officers of the Youngstown Police Department, who stated that they had responded to Snyder's and Sharpe's home on June 12, 2001, but that Jimmy was not involved in the matter. On June 18, 2001, MCCS received a report that Jimmy had been abused. Caseworker Kim Vechiarelli was assigned to investigate that same day, but tragically, Jimmy was already dead. Snyder eventually told police that Sharpe had killed Jimmy on either June 15 or 16, 2001, and Sharpe ultimately pled guilty to reckless homicide and other offenses.2 While it is alleged that Vechiarelli had falsified records concerning her investigation into the reported abuse of Jimmy, it is undisputed that Vechiarelli did not become involved in this matter until at least two days after Jimmy's death. Gordon Fediazcko filed this action solely in his capacity as administrator for Jimmy's estate. He sued MCCS, Executive Director Stewart, caseworker Davis and other employees for wrongful death and other torts all premised on the central allegation that their acts led to Jimmy's suffering and death at the hands of David Sharpe. In a cursory opinion that resolved various defendants' motions for summary judgment, the trial court ruled that MCCS is immune from liability but that Stewart and Davis are not immune for the harm caused to Jimmy and by his death. 2. That Jimmy died on either June 15 or 16, 2001 has been accepted throughout this litigation. 3

6 Stewart and Davis took an interlocutory appeal from the Pursuant to R.C (C), Fediaczko v. Mahoning Cty. denial of immunity, and the Seventh District ultimately reversed. Mahoning App. 11MA186, 2012-Ohio-6090, And after obtaining Children Services, certification under Rule 54(b), Fediaczko separately appealed from the trial court's judgment granting summary judgment in favor of MCCS, but the court of appeals affirmed. Fediaczko v. Mahoning Cty. Children Services, Mahoning App. 11MA199, 2012-Ohio-6095, 29. Fediaczko now seeks this Court's discretionary review on three propositions of law. M. N F LAW A. Fediaczko's First and Second Propositions of Law: expressly holds a political subdivision liable in civil R.C (A)(3) actions where a special relationship can be established between the state and an injured party. Through permitted liability imposed on a political subdivision through R.C (A)(3), the Mahoning County Court of Common Pleas and the Seventh District Court of Appeals erred in granting summary judgment to MCCS and the MCCS Board. R.C. Chapter 2744 grarits broad immunity to political subdivisions and their agencies. See Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28; R.C (A), (B). There are five exceptions to this immunity, and the only one relevant to this case is R.C (B)(5): [A] political subdivision is liable for injury, death, or loss to person or property when civil liability Code, including, not limited tol subdivision by a section of the Revised sections and of the Revised Code. in his first and second propositions of law, Fediaczko seizes upon the part of this statute that refers to R.C From here, he jumps to R.C (A)(3), in which the state of Ohio has expressly waived its sovereign immunity to a codified "special relationship" claim: 4

7 (A)(3)(a) Except as provided in division (A)(3)(b) of this section, the state is immune from liability in any civil action or proceeding involving the performance or nonperformance of a public duty, including the performance or nonperformance of a public duty that is owed by the state in relation to any action of an individual who is committed to the custody of the state. (b) The state immunity provided in division (A)(3)(a) of this section does not apply to any action of the state under circumstances in which a special relationship can be established between the state and an injured party. A special relationship under this division is demonstrated if all of the following elements exist: (i) An assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who was allegedly injured; (ii) Knowledge on the part of the state's agents that inaction of the state could lead to harm; (iii) Some form of direct contact between the state's agents and the injured party; (iv) The injured party's justifiable reliance on the state's affirmative undertaking. (Underscores added).3 Thus, because R.C (B)(5) says a political subdivision can be held liable under other statutes that expressly impose liability on a political subdivision, and because R.C (B)(5) refers to R.C , a part of which subjects the state to a codified "special relationship" claim, Fediaczko asserts that a political subdivision must also be subject to such a "special relationship" claim. It is a novel argument - so novel that Fediaczko cites no authority that might indicate it is even plausible. In fact, no such authority exists. And beyond that, the statutes themselves could not be clearer: the state's waiver of immunity to the "special relationship" claim created by R.C (A)(3)(b) applies expressly to "the state," not to a "political subdivision." 3. This statutory claim is based on the common-law "special duty" exception to the "public duty" rule. In Estate of Graves v. City of Circleville, 124 Ohio St.3d 339, 2010-Ohio-168, this Court explained how these common-law doctrines have been superseded by R.C. Chapter

8 While Fediaczko treats the terms "state" and "political subdivision" as synonymous, the Revised Code does not. Indeed, the legislature gave these terms very precise definitions. For purposes of R.C. Chapter 2744, which concerns political subdivisions' immunity: (F) "Political subdivision" or "subdivision" means a municipal corporation, township, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state. (I) "State" means the state of Ohio, including, but not limited to, the general assembly, the supreme court, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, colleges and universities, institutions, and other instrumentalities of the state of Ohio. "State" does not include political subdivisions. R.C (emphases added). The same definitions apply in R.C. Chapter 2743, which addresses the state's immunity: (A) "State" means the state of Ohio, including, but not limited to, the general assembly, the supreme court, the offices of all elected state officers, and all departments, boards, offices, commissions, agencies, institutions, and other instrumentalities of the state. "State" does not include political subdivisions. (B) "Political subdivisions" means municipal corporations, townships, counties, school districts, and all other bodies corporate and politic responsible for governmental activities only in geographic areas smaller than that of the state to which the sovereign immunity of the state attaches. R.C (emphases added). R.C (B)(5) does refer broadly to R.C But R.C. Chapter 2743 has only one provision where "liability is expressly imposed upon the political subdivision." This is R.C (B), which states: The state hereby waives the immunity from liability of all hospitals owned or operated by one or more political subdivisions and consents for them to be sued, and to have their liability determined, in the court of common pleas, in accordance with the same rules of law applicable to suits between private parties, subject to the limitations set forth in this chapter. 6

9 (Emphasis added.) In Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-Ohio- 1250, this Court recognized exactly what R.C (B)(5) is referring to in R.C : R.C (B)(5) states that a political subdivision may be liable when a statute expressly imposes liability: "[A] political subdivision is liable for injury, death, or loss to person or property when civil liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections [hospitals and [guardrails] of the Revised Code." (Emphasis added.) (Alterations original; underscore added.) Id. at 21 (holding that R.C. Chapter the Landlords and Tenants Act - imposes civil liability on landlords in general but does not expressly impose liability on a political subdivision). Of course, this case does not involve a hospital, and thus R.C (B) is inapposite. The plain language of these statutes cannot support Fediaczko's assertion that the state 's waiver of immunity to the "special relationship" claim codified in R.C (A)(3)(b) also means that "liability [has been] expressly imposed upon the political subdivision," as required by the exception to apolitical subdivision's immunity set forth in R.C (B)(5). B. Fediaczko's Third Proposition of Law: The Seventh District Court of Appeals erred in reversing the trial court's decision denying immunity to Executive Director Stewart and Caseworker Erin Davis. Pursuant to R.C (A), an employee of a political subdivision has personal immunity from suits seeking "to recover damages for injury, death or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function." Such an employee is not immune, however, if "the employee's acts or omissions were malicious, in bad faith, or wanton or reckless...." Rankin v. Cuyahoga Cty. Dept. of Children and Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567; R.C (A)(6)(b). 7

10 Here, Fediaczko alleges that Stewart and Davis should be deprived immunity under R.C (A)(6)(b) because they acted with malice, bad faith, wantonness or recklessness. These are very high degrees of culpability. "Malice" constitutes a "willful and intentional design to do injury, or the intention or desire to harm another, usually seriously, through conduct which is unlawful or unjustified." Jackson v. Butler County Bd. of Comm'rs (12th Dist. 1991), 76 Ohio App.3d 448, , citing Bush v. Kelley's, Inc. (1969), 18 Ohio St.2d 89. "Bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud." Id. at 454, quoting Slater v. Motorists Mut. Ins. Co. (1962), 174 Ohio St. 148, paragraph two of the syllabus. This Court also has emphasized that both wanton and reckless behavior are characterized by the actor's perverse disregard for a known risk. Rankin, supra, at 398. The determination of whether an employee acted with this degree of culpability must be made without the benefit of hindsight. O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 76. Fediaczko does not challenge any part of the foregoing law, nor does he suggest that the appellate court should have applied different standards. Rather, Fediaczko disputes only how the appellate court applied this law under the circumstances of this case. Even if the appellate court did err, which it did not, Fediaczko's appeal presents nothing but an exercise in error correction involving the application of well-settled law to these particular facts. This does not warrant further review; indeed, as Justice Cook once observed, "this court sits to settle the law, not to settle cases." Baughman v. State Farm Mut. Auto. Ins. Co. (2000), 88 Ohio St.3d 480, 492 (Cook, J., concurring). 8

11 Moreover, the Seventh District did not err. In fact, this Court's decision in O'Toole, 118 Ohio St.3d 374, 2008-Ohio-2574, is instructive on just how high the standard is for denying immunity to a children's services employee. There, a children services agency received a call regarding the condition of a child who had marks on her body. A social worker for the agency interviewed the child, her mother, and other parties and created a safety plan for the child. He did not follow up or monitor the situation, however, and the mother subsequently killed the child. The representative of the child's estate filed suit against the agency and the social worker for failure to protect the child. This Court held as a matter of law that the social worker did not act with the degree of culpability necessary to overcome immunity under R.C (A)(6)(b). The Seventh District reached the same conclusion with respect to caseworker Erin Davis. Her involvement began on August 14, 2000, when she began investigating an allegation that Jimmy's father had abused him. Af of E. Davis at 4, Ex. A (Chronology) at 1. On August 16, 2000, she met with Jimmy at Jennifer Snyder's and David Sharpe's home, and she noted that: Dave [Sharpe] and Jen [Snyder] appear very confused about [Jimmy] being put out by dad and nobody caring about him. They have taken him to JJC, D&E, and ACLD for summer school. Dave and Jen have given him his own bedroom. He has a nice room with bed and desk.... The home is very neat and clean and furnished very nicely. Dave and Jen appear to be very caring and concerned for [Jimmy]. They have started all follow up appointments with [Jimmy]. Id. at 2-3. Over the next month, Sharpe and Snyder continued to work towards meeting Jimmy's various needs, including make sure he had clothes, medication, special-education classes, insurance, etc. Id. at 4. Snyder also reported to Davis that Jimmy was "doing very well in school." Id. at 5. Davis then conducted a home study in connection with the possibility of awarding legal custody to Snyder and Sharpe. Part of this involved speaking to Jimmy directly, and she noted: 9

12 Face to face contact with [Jimmy]. He is doing very good, has adjusted very well. He was done well in school and counseling. When worker [Davis] arrived his counselor, Jerry Laska, was finishing up with him. [Jimmy] appears to have begun to open up. Jen and Dave stated he does homework each night and does his chores. They stated he has become upset a couple of times and took a walk to calm down. [Jimmy] was quiet and went and sat down in the living room. Aff. of E. Davis at 4, Ex. A (Chronology) at 5. Davis also investigated Snyder and Sharpe from a multitude of perspectives, as reflected in her home study report. Id. at 5, Ex. B (Home Study). She inquired into: their relationships with their respective families; their house and the space they had set up for Jimmy; their monthly expenses; their employment; health; education; previous marriages and children; how they would handle discipline of Jimmy; how they would deal with Jimmy's biological parents; and their special interests. Id. Davis then followed up with their four, personal references, and she wrote, "Results were favorable, no voiced areas of concern. All state they see positive changes in [Jimmy's] behavior and attitude." Id. at 5. To be sure, not all of the information that Davis had collected was positive. She summarized the results of the criminal background checks as follows: Dave Sharpe had charges of four counts of forgery in April 1993, receiving stolen property, and four counts of theft, and served six months in Lorain Correctional Facility. He was released on shock probation in October of In May, 1991, he was charged with domestic violence and criminal damaging and was taken to Woodside Receiving Hospital for examination. He was released per court order. In December 1994, Dave was charged with driving while under suspension. In November 1994, Dave was arrested for failure to comply with a court order. In November 1994, Jennifer Snyder was charged with wrongful entrustment, parking tickets, and was released a day later. In May 1999, Jennifer was charged with criminal damaging/endangering-knowingly, and with telephone harassment. On July 14, 1999, the charge of criminal damaging was dismissed. Jennifer is on probation for telephone harassment. Af of E. Davis at 5, Ex. B (Home Study) at 2. Thus, while Snyder and Sharpe had previous run-ins with law enforcement, Snyder's only conviction was apparently for telephone harassment, and Sharpe's convictions were for non-violent offenses that occurred six years 10

13 earlier. Id. at 2. And while Sharpe had been charged with domestic violence nine years earlier, there is no evidence that he was convicted or that the offense involved Snyder or a child. Id. Based on the totality of the information she had received and observed, Davis believed that Snyder and Sharpe were ready, willing and able to provide a good home for Jimmy, and thus, she recommended that Snyder be given legal custody of Jimmy. Aff. of E. Davis at 6. Regardless, Davis gave all of the information she had collected to MCCS's counsel, who presented the matter to the Mahoning County Juvenile Court during a hearing on October 19, Id. at 7. Davis was not present for the hearing. Id. Upon consideration of the evidence, the juvenile court determined it would be in Jimmy's best interest for Snyder and Sharpe to have legal custody of him. MAH_ (Juv. Ct. Magistrate Amendolara's Order of October 26, 2000). Davis had no further involvement with Jimmy, Snyder or Sharpe, and she was not asked for any additional information or to conduct any further activity. Af of E. Davis at 8. Fediaczko undoubtedly believes that Snyder's and Sharpe's criminal histories made them unsuitable for having custody of a child like Jimmy. But it is not fair to pick just one aspect from Davis's home study and ignore all of the other evidence that she collected. The home study shows that Davis found much evidence on which to conclude that Snyder and Sharpe were ready, willing and able to provide a suitable home for Jimmy. No one could have foreseen that Snyder or Sharpe would harm Jimmy, and thus, as the Seventh District concluded, there is no basis for believing that Davis acted maliciously, in bad faith, recklessly or wantonly toward Jimmy. There is even less evidence from which to conclude that Denise Stewart should be deprived of immunity in this case. Stewart was serving as Executive Director for MCCS, and in this capacity, her responsibilities included overseeing MCCS's operations, policies and staff at an agency-wide level. She had no involvement with MCCS's activities with Jimmy, Jennifer 11

14 Snyder and David Sharpe, and thus there is no basis on which to believe that Stewart acted maliciously, in bad faith, recklessly or wantonly with respect to Jimmy. What Fediaczko has tried to do, instead, is to argue that Stewart is liable simply because she is in charge of MCCS, as if respondeat superior theories apply in this context. See Mem. Supp. Jur. at 14. They do not. In fact, there is no authority at all for the proposition that Stewart may lose her statutory immunity just because she is the boss. Rather, the law holds quite the opposite: immunity is personal, and `[c]ommon law agency principles... are clearly trumped by the Political Subdivision Tort Liability Act. "' Friga v. City of E. Cleveland, Cuyahoga App , 2007-Ohio-1716, 17, quoting Woods v. Wellston, (Jun. 15, 2005), S.D. Ohio, Eastern Division, No. 2:02 CV 762. Accordingly, Fediaczko cannot show that the Seventh District erred by holding that Stewart and Davis are entitled to immunity under R.C. Chapter IV. CONCLUSION Fediaczko presents two central issues for this Court's consideration. First, despite the statutes' plain language and without any supporting authority, he asks this Court to hold that the state's consent to be sued for a statutory "special relationship" claim, under R.C (A)(3), also serves as an exception to a political subdivision's immunity under R.C (B)(5). Second, he asks the Court to find that the court of appeals erroneously applied well-established law to the particular facts of this case. The court of appeals did not err in either respect, but regardless, these issues do not raise any question of public or great general interest that might justify the exercise of this Court's discretionary review. 12

15 Respectfully submitted, tl^ DANIE T DOWN Y ( ) J.QUINN DORGAN ( ) WESTON HURD LLP 10 West Broad Street, Suite 2400 Columbus, Ohio Phone: (614) Fax: (614) ddowney@westonhurd.com Counsel for Defendant-Appellees Mahoning County Children's Services, Denise Stewart and Erin Davis CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served by regular U.S. mail, postage prepaid, this 4th day of March, 2013, upon the following: Shirley J. Smith ( ) 1399 E. Western Reserve Rd., Suite 2 Poland, OH Phone: (330) Fax: (330) Attorney for Appellant W. Gordon Fediaczko, Administrator of the Estate of James P. Higham III r)^ J.QUINN O GAN ) - 13