Minnie Ruth Hurst, Executrix Plaintiff-Appellant v. Ohio Department of Rehabilitation and Correction Defendant-Appellee
No. 93AP-672.
93-LW-5791 (10th)
Court of Appeals of Ohio, Tenth District Franklin.
September 28, 1993
APPEAL from the Ohio Court of Claims.
Gooding Huffman, Kelley & Becker, and Matthew C. Huffman, for appellant.
Lee Fisher, Attorney General, and Eric A. Walker, for appellee.
OPINION
TYACK J.
On January 21, 1991, Gary E. Smith was released from the Lebanon Correctional Institution and was placed on parole. Mr. Smith had been convicted of aggravated robbery and burglary, breaking and entering, and sale of a controlled substance. Mr. Smith was assigned to parole officer Richard Yoshino and was placed under maximum parole supervision. Mr. Smith was directed to reside in the Toledo Volunteers of America halfway house ("VOA").
On February 11, 1991, Mr. Smith was arrested and held in custody as a result of testing positive for alcohol use, a violation of a specific condition of his parole. He was released after five days and returned to the VOA.
On March 10, 1991, Mr. Smith again tested positive for alcohol use, so he left the VOA without permission. As a result, Mr. Yoshino considered Mr. Smith absent without leave. The next day, Mr. Yoshino submitted to the Toledo Police Department an order for the arrest of Mr. Smith. According to the deposition of David C. Knepper, Mr. Yoshino's supervisor, the Toledo Police Department was responsible for entering the arrest order into its computers. Pursuant to an Ohio Department of Rehabilitation and Correction bulletin, Mr. Yoshino waited thirty days before drafting a parole-violator-at-large report on April 10, 1991. This report was typed by a stenographer on April 16, 1991, submitted to Mr. Knepper, and then sent to the Adult Parole Authority ("APA") on the same date.
On April 14, 1991, Mr. Smith had been arrested by the Ohio State Highway Patrol for operating a motor vehicle while under the influence of alcohol. Mr. Smith pled guilty and was sentenced to the Allen County Correctional Center, where he remained until May 4, 1991.
While Mr. Smith was still serving his OMVI sentence, Mr. Knepper sent an updated parole-violator-at-large report to the APA. APA parole programs specialist James Harris received one of the parole-violator-at-large reports on May 2, 1991, verified its information, and left it with the person in charge of preparing the special minutes. Mr. Harris testified that once the secretary types the minutes, the report is sent to a coordinator who then enters the information into the National Crime Investigation Commission ("NCIC") and Law Enforcement Assistance Data Systems ("LEADS") computer systems. Mr. Smith's parole-violator-at-large status was never entered into either system.
The special minutes declaring Mr. Smith to be a parole-violator-at-large, effective April 16, 1991, were not signed until May 8, 1991. Mr. Harris testified that the report he verified on May 2 probably sat in the secretary's office until May 8 when the special minutes were signed, and that the information was thereafter sent to the NCIC/LEADS coordinator who, presumably, did not enter the information due to the fact that Mr. Smith had been located by May 8, 1991.
On May 8, 1991, Mr. Smith had participated in the beating death of Della W. Hawkins in Lima, Ohio. Mr. Smith was arrested that same day. He subsequently was convicted of aggravated murder and is currently serving a life sentence.
On April 9, 1992, Minnie Ruth Hurst, executrix of the estate of Ms. Hawkins, filed a lawsuit against the Ohio Department of Rehabilitation and Correction ("ODRC") in the Ohio Court of Claims. The complaint initiating the lawsuit alleged wrongful death, negligence and negligence per se. On August 11, 1992, ODRC filed a motion for judgment on the pleadings which was subsequently overruled. On September 30, 1992, ODRC filed a motion for summary judgment, arguing that it was immune from liability.and that it owed no duty to the decedent. On October 30, 1992, Ms. Hurst responded and moved the court for an order allowing her to amend the complaint, stating that the original did not mention the failure to register Mr. Smith's parole-violator-at-large status on the NCIC/LEADS systems. On April 19, 1993, the Court of Claims granted ODRC's (hereinafter "appellee") motion for summary judgment and denied Ms. Hurst's request to amend her complaint. Ms. Hurst (hereinafter "appellant") has timely appealed, assigning two errors for our consideration:
"I. THE LOWER COURT ERRED IN DENYING PLAINTIFF-APPELLANT'S MOTION TO AMEND HER COMPLAINT.
"II. THE LOWER COURT ERRED IN FINDING THAT A SPECIAL DUTY WAS NECESSARY AS TO THE VICTIM IN THIS CASE IN ORDER FOR THE STATE OF OHIO TO BE HELD LIABLE."
Traditionally, the questions regarding financial responsibility flowing from alleged negligence have been answered in favor of the government. Sovereign immunity, which flows from the rationale that the king or queen could do no wrong, protected the governmental coffers.
More recently, other legal theories have protected governmental entities from liability, most notably the "public duty rule" set forth in Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222. The syllabus for Sawicki reads:
"1. Generally, a municipality may not be found liable in negligence when its employees act or refuse to act so as to conform to a municipal ordinance and/or a state statute.
"2. When a duty which the law imposes upon a public official is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, is generally a public and not an individual injury.
"3. The public duty rule, and the special duty exception, comprise a doctrine which is independent of, and accordingly survived the abrogation of, sovereign immunity.
"4. In order to demonstrate a special duty or relationship, the following elements must be shown to exist: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking."
Stated simply, the public duty rule holds that government shall not be held financially liable for bungling a duty it owes to the public-at-large. Instead, the government can be held liable only if that governmental entity affirmatively undertakes a duty to act in a situation where the governmental entity knows that inaction will cause harm and when a party who ultimately is injured relies upon the government to do what it promised. Further, the government and the injured party must have had some sort of "direct contact."
Prior to the Sawicki case, the Supreme Court of Ohio had decided Reynolds v. State (1984), 14 Ohio St.3d 68. The syllabus for the Reynolds case reads:
"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."
Sawicki could be construed as overruling the Reynolds case, since the duty to confine a furloughed prisoner could be construed as a duty owed to the public-at-large, not a duty flowing from an express promise made to an individual citizen upon which the citizen relied. However, the Supreme Court of Ohio reaffirmed the result of the Reynolds case in . In the Crawford case, a "furlough violator at large" shot and killed Charles Crawford during an attempted robbery. The state's liability was based upon the APA's allowing a furloughed prisoner to attend an Alcoholics Anonymous meeting from which the prisoner did not return. The state was found to be negligent, in part as a result of its violation of its statutory duty to confine furloughed prisoners. The opinion in the Crawford case does not expressly address the potential conflict with Sawicki.
The question before us is whether appellant's case is more to be guided by the legal theories reflected in the Reynolds and Crawford opinions; whether it is to be decided based upon the public duty rule from the Sawicki case, thereby relieving the state from financial responsibility; or whether some consistency can be found between the legal theories from the cases such that a result is reached which does violence to neither set of theories.
Both the Reynolds and Crawford cases place great emphasis upon the state's violation of a statutory duty as a foundation for liability. Therefore, we first address the potentially applicable statutes which are included in the briefs of the parties.
R.C. 5149.04(A) requires:
"Persons
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