Two cases that were recently decided by the Ohio Supreme Court that re-affirm a county children's services agency's statutory immunity in cases when a child is harmed after the agency has become involved.
Both cases were decided on June 4, 2008 and involved the Cuyahoga County Department of Children and Family Services as the defendant. In Rankin v. Cuyahoga Co. Dept. of Children & Family Svcs. (2008), 118 Ohio St.3d 392, the minor child was having a supervised visit at the agency when she was sexually molested by her father. The child's representatives filed suit alleging that the agency was not immune under Ohio law since a "special relationship" had been established due to the fact that the child was in the agency's custody and on agency premises when the assault occurred. The Court held that plaintiffs may not borrow concepts from the common law of torts to impose liability on governmental agencies. Instead the Court reaffirmed that a governmental entity performing a governmental function is immune from suit under O.R.C. §2744.02(A)(1) unless the plaintiff can show that one of the five exceptions under O.R.C. §2744.02(B) applies.
Similarly, the Court reaffirmed that immunity applies against an individual government employee unless the plaintiff can prove that the employee's acts or omissions were malicious, in bad faith or wanton or reckless. O.R.C. §27.4403(A)(6)(b).
In prior cases the Court has stated that, to be considered reckless, the employee must act so that his/her conduct creates an unreasonable risk of physical harm to another, and such that the risk is substantially greater than that which would make his/her conduct negligent. Thompson v. McNeil (1990), 53 Ohio St.3d 102. The Court did not find the caseworker's conduct to be reckless, therefore, the employees were also considered immune from suit.
In O'Toole v. Denihan, 118 Ohio St. 3d 374 (2008) the referral to the public children's services agency (PCSA) was investigated pursuant to the department's normal procedures. A caseworker was assigned and developed a safety plan for the child. The mother appeared to be cooperating with the agency. The mother requested and received permission to take the child out of state so the agency lost contact with the child for approximately one month. The child died due to injuries inflicted by her mother on April 28, 2000.
The child's representative filed suit against the agency alleging, among other theories, that the agency lost its governmental immunity because it had a duty under O.R.C. §2151.421(A) to report the suspected abuse to a law enforcement agency, which it failed to do.
| The Court analyzed O.R.C. §2151.421(A) as requiring a person to report suspected child abuse to either a public children's services agency or to a municipal or county law enforcement officer. The Court did not find that, once suspected abuse is reported to a PCSA that the PCSA then had a duty to further report the situation to a law enforcement agency until after the PCSA has completed its statutory duty to investigate. Since the agency had no duty under O.R.C. §2151.421(A) to report the suspected abuse to law enforcement, the agency remained immune from suit. Appellee's second theory was that the agency forfeited its statutory abuse immunity by violating O.R.C. §2919.22 which states: "No person who is the parent, guardian, custodian, person having custody or control or person in loco parentis of a child ...shall create a substantial risk to the health or safety of the child by violating a duty of care, protection or support." The Court stated that the agency was not a "person" as defined in the statute unless and until the agency had taken either legal or physical custody of the child. As the agency did not have the legal grounds to remove the child from the home in this case, there was no special duty placed on the agency, therefore, the agency's statutory immunity remained intact. |
- No duty to report abuse
- No guardianship or legal custody
- Proven recklessness burden not met
THEN Immunity stands. |
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Finally, Appellee attempted to argue that the agency's investigator acted recklessly, thereby creating individual liability for him in the death of the child. As in Rankin, supra, the Court found that proving recklessness was an extremely high burden which plaintiff could not meet under these facts.
As in all cases in which a child is injured or killed after the PCSA has become involved, there is a desire to hold the PCSA responsible. However, the Supreme Court in Ohio continues to affirm that a PCSA is a government agency subject to the same statutory immunities as any other and that the statutory immunity analysis under O.R.C. §2744 does not change based on either the type of agency or the facts of the case.
Because Downes Hurst & Fishel regularly defends public sector agencies in all types of litigation, the issue of governmental immunity is an area of law that we constantly monitor. While these cases are specific to PCSA's, the legal conclusions can be applied to all types of public sector agencies.