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T-Day Minus 3; sovereign immunity

It's going to be a light week here, with the holiday coming up.  My daughter's coming over for Thanksgiving, and she's a vegetarian, so I'll probably have to come up with a tofu turkey or something.  For her, that is; I had tofu once, and I'd rather eat drywall.

I wanted to use the next few days to briefly highlight some recent decisions out of the 8th District.  One of them is O'Toole v. Denihan, which involved the death of a 4-year-old girl as the result of abuse, and the subsequent lawsuit against the Department of Childrens & Family Services, its director, the supervisor, and the social worker involved in the case.  The trial court had granted summary judgment on the basis of the Supreme Court case in Marshall v. Montgomery Cty. Children Services, which had rejected a similar claim on sovereign immunity grounds.  The 8th District reversed, finding the case to be similar to  Campbell v. Burtondecided by the Supreme Court the same day it handed down Marshall

The difference between the two turns on a very simple fact:  in Marshall, the plaintiffs argued that the defendants had failed to investigate a claim of child abuse, and in Campbell, they argued that the defendants had failed to report a claim of child abuse.  RC 2151.421 requires agency officials (and others) to report abuse.  The sovereign immunity statutes, specifically RC 2744.02(B)(5), provide an exception to immunity where a statute expressly imposes liability upon a political subdivision; according to the Campbell court, the requirement to report abuse did just that.  In Marshall, however, the court find that there was no similar statute requiring the agency to investigate abuse, and therefore the agency was immune.

One of the problems with O'Toole is that the facts really aren't laid out in the opinion; one of the key questions in the case appears to be if there's a "genuine dispute of fact" as to whether a report was faxed to the police, but it's not clear even what the report was, let alone its significance.  That's enough, though, for the court to hold that this is a "reporting" case like Campbell, rather than an "investigating" case like Marshall.

The court also suggests that another ground for distinguishing Marshall and holding that immunity does not apply is that the defendants' conduct here was reckless, and it goes into some detail on the agency's specific failings in that regard.  The court's opinion in this respect, though, seems to be based on a misunderstanding of how sovereign immunity works. 

It's not difficult to misunderstand it, because it's a mess.  Basically, the general rule of RC 2744.01 is that political subdivisions are immune from torts.  RC 2744.02 then sets out five exceptions to that rule.  If one of those five exceptions exists, you then look at RC 2744.03, which provides six defenses to the exceptions set forth in 2744.02.  You then multiply by Tuesday, and there's your answer. 

Okay, I'm kidding about the last part, but you get the idea.  The problem here arises because 2744.03 provides that "the employee is immune from liability unless * * * the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner."  If you're not careful, you think that immunity doesn't apply if the employee was acting recklessly, which was what the court in O'Toole was getting at.

But that's not how it works.  Unless you find immunity doesn't exist under 2744.02, you never get to 2744.03.  As the 11th District noted last year when confronted with the argument that a political subdivision and its employees waived immunity because of their intentional conduct,

R.C. 2744.03(A)(5) is not a workable exception to a political subdivision's general immunity; rather, stated with the turbidity of any summary pertaining to Chapter 2744, R.C. 2744.03(A)(5) provides an exception to an exception to an exception.  * * * A plaintiff may hold a political subdivision liable for those acts executed with "malicious purpose, in bad faith, or in a wanton or reckless manner" only where he or she first sets forth a valid exception to immunity under R.C. 2744.02(B) and the political subdivision asserts immunity anew under R.C. 2744.03(A)(5).

For those of you without a dictionary handy, "turbidity" means "being thick, muddy, not clear, confused, disordered."  That just about nails it.

It may be that O'Toole will usher in an era of holding child service agencies more accountable for their practices and placements, and that probably would be a good thing; even the Marshall court came its conclusion absolving the agency quite reluctantly.  If you want a rigorous analysis of how the sovereign immunity statutes work, though, you might be better off looking elsewhere.

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