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Another foray into sovereign immunity

About six weeks ago, I detailed the 8th District's adventure into the wilderness that is Ohio sovereign immunity statutes.  That case, O'Toole v. Denihan, involved a suit against the Department of Children and Family Services over their failure to properly investigate claims of child abuse prior to the beating death of a a 4-year-old.  I mentioned at the time that while the decision probably came to the correct result, its analysis of the sovereign immunity statutes was not as rigorous as it could have been.

The court tackled the issue again in Rankin v. Children Services, a decision two weeks ago involving an equally appalling incident:

On July 23, 2003, Martin had a supervised visit with D.M. [his 3-year-old daughter].  Despite prior warnings not to allow any of Martin's activities with D.M. to go unsupervised, during the course of this visitation, Martin was allowed to take D.M. into a private restroom where he sexually assaulted her. Afterwards, Martin took D.M. back to the visitation room and placed her on his lap. He then placed a jacket over her lap and placed his hand under her clothing and fondled her genitals. Although Martin was under surveillance at the time, at no time did anyone from DCFS remove D.M. from Martin or contact the police.

While some courts have suggested that the Delphic riddles posed by the sovereign immunity statutes are only slightly less daunting than string theory, it's actually not quite that bad.  Basically, here's how it goes:  the government is immune from suit (RC 2744.02(A)), unless the conduct falls into one of the five exceptions under 2744.02(B).  But even if it does fall within one of those five exceptions, the government can still be held immune if the conduct falls within one of the seven items listed in 2744.03.

Without going into detail, the problem in Rankin was that the none of the five exceptions to immunity appear to apply.  So the plaintiff got creative, and the court bought into it:  it reversed the trial court's grant of summary judgment, finding that sovereign immunity could be overcome by the "special relationship" exception to the rule.  That exception, according to the court, exists when there is

(1) an assumption of an affirmative duty by a political subdivision; (2) knowledge on the part of the political subdivision or its agents that inaction could cause harm; (3) a direct contact between the political subdivision's agents and the injured party; and (4) that party's justifiable reliance on the political subdivision's affirmative undertaking.  

Again, this is a morally proper result, but the court's method is problematic: it's not clear that the exception the court relies upon even exists.  The "special relationship" exception actually was part of the "public duty rule," both of which are discussed in this 1987 Ohio Supreme Court case.  The problem is that the case arose before the sovereign immunity statutes were enacted, and it's not clear whether the whole concept survives them.

One other problem with Rankin is that it concluded that the individual defendants could be held liable under the exception in 2744.03 for "reckless" conduct, the same conclusion they reached in O'Toole.  As I pointed out there, though, reckless conduct is not a basis in itself for imposing liability; before you even get to that, you have to find that immunity is removed under one of the five exceptions of 2744.02(B).

This probably isn't the last word on either of these cases:  the Department's already filed a memorandum asking the Supreme Court to review O'Toole, and similar action is likely in Rankin.

One thing reading those cases did do for me, though, was reaffirm my conviction that I'd move to Brazil before I'd let Children's Services get within 100 yards of my kid.

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