[Cite as Fitzgerald v. Cuyahoga Cty., 2011-Ohio-3476.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96333
ARNETTA FITZGERALD
PLAINTIFF-APPELLANT
vs.
COUNTY OF CUYAHOGA, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-738363
BEFORE: Blackmon, J., Kilbane, A.J., and Cooney, J.
RELEASED AND JOURNALIZED: July 14, 2011
ATTORNEY FOR APPELLANT
Paul M. Kaufman
801 Terminal Tower
50 Public Square
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
William D. Mason
Cuyahoga County Prosecutor
Steven W. Ritz
Assistant County Prosecutor
3955 Euclid Avenue, Room 305E
Cleveland, Ohio 44115
PATRICIA ANN BLACKMON, J.:
{¶ 1} Appellant Arnetta Fitzgerald appeals the trial court’s dismissal of
her complaint and assigns the following error for our review:
“I. The trial court erred in granting defendants-appellees’
motion to dismiss. (A) Sovereign immunity violates the
United States Constitution and the Ohio Constitution and
should be judicially abolished.”
{¶ 2} Having reviewed the record and pertinent law, we affirm the trial
court’s decision. The apposite facts follow.
{¶ 3} The instant matter arises out of the October 24, 2009 death of
Fitzgerald’s grandson, Arshon Baker, who died as a result of being beaten by
his mother, Angel Glass. On October 5, 2010, Fitzgerald, as administrator
of her grandson’s estate, filed a complaint against Cuyahoga County
Department of Children and Family Services (“CCDCFS”) for negligence and
wrongful death.
{¶ 4} According to the complaint, Fitzgerald alleged that Baker was
under the care and supervision of CCDCFS’s social workers, supervisors, and
related staff. Fitzgerald alleged that CCDCFS failed to provide Baker with
safe and acceptable social services care. Fitzgerald specifically alleged that
as a result of CCDCFS’s negligent acts and/or omissions, Baker sustained
injuries, which resulted in his death.
{¶ 5} On December 3, 2010, CCDCFS filed a motion to dismiss
Fitzgerald’s complaint on the basis of sovereign or governmental immunity.
In response to CCDCFS’s motion, Fitzgerald argued that governmental
immunity as applied to the case was unconstitutional. On December 29,
2010, the trial court granted CCDCFS’s motion to dismiss the complaint.
Governmental Immunity
{¶ 6} In the sole assigned error, Fitzgerald argues the trial court erred
in granting CCDCFS’s motion to dismiss. We disagree.
{¶ 7} We review an order granting a Civ.R. 12(B)(6) motion to dismiss
de novo. Silver v. Krulak, Cuyahoga App. No. 93285, 2011-Ohio-1666. We
afford no deference to the trial court’s decision and independently review the
record to determine whether the dismissal was appropriate. Hollins v.
Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637.
{¶ 8} During oral argument, Fitgerald’s counsel conceded that
CCDCFS is immune under R.C. 2744, which provides for governmental
immunity, and acknowledged that willful, wanton, or reckless conduct was
not alleged in Fitzgerald’s complaint. Fitzgerald’s only issue is that R.C.
2744 is unconstitutional.
{¶ 9} However, the Ohio Supreme Court in O’Toole v. Denihan, 118
Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, refused to revisit the
constitutionality of R.C. Chapter 2744, and stated: “In reviewing our
precedent and that of numerous appellate courts, we conclude that this issue
is one that is settled and need not be discussed any further in this case.” Id.,
see, also, Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 670, 1995-Ohio-295, 653
N.E.2d 1186, (“[w]e hold that R.C. 2744.02(B)(1) is a constitutional exercise of
legislative authority which does not violate the guarantees of equal protection
of the Ohio and United States Constitutions because its grant of limited
immunity of political subdivisions is rationally related to legitimate state
interest”).
{¶ 10} As such, Fitzgerald’s constitutional challenge is without merit.
Given that Fitzgerald is unable to prove any set of facts entitling her to relief,
the trial court did not err in granting CCDCFS’s motion to dismiss the
complaint. Accordingly, we overrule the sole assigned error.
Judgment affirmed.
It is ordered that appellees recover from appellant their costs herein
taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY EILEEN KILBANE, A.J., and
COLLEEN CONWAY COONEY, J., CONCUR