Although I concur with the majority's judgment regarding the fifth assignment of error, I dissent with regard to the majority's judgment that Ohio State University ("OSU") was not negligent. Because OSU was negligent, because that negligence was a proximate cause of Stephanie Foucher's injury, and because OSU was not immune, I would hold OSU liable.
OSU is liable based on two breaches of duty, which in combination, if not individually, proximately caused James Waites's abuse of Stephanie. First, Ashtabula County extension agent Thomas Hopkins and Ashtabula County small animal committee member Kitty Butler conferred apparent legitimacy on Waites by hiring him as a fair judge and clinic instructor despite actual knowledge that he was a convicted child molester. Second, Hopkins failed to warn the Ashtabula County 4-H club advisors or parents of Waites's conviction. This negligent failure to warn resulted in the All-County Kids club advisors, Chris Malnar and Cindy Maddox Cook, and the parents of club members unwittingly allowing Waites unfettered access to the children. *Page 751
Ohio courts describe the tort of negligence as consisting of three elements: duty, breach of duty, and injury proximately caused by the breach of duty. See Littleton v. Good SamaritanHosp. Health Ctr. (1988), 39 Ohio St. 3d 86, 92,529 N.E.2d 449, 454-455; Strother v. Hutchinson (1981), 67 Ohio St. 2d 282,285, 21 O.O.3d 177, 179, 423 N.E.2d 467, 469-470; Malone v.Miami Univ. (1993), 89 Ohio App. 3d 527, 529, 625 N.E.2d 640,641-642; Abram Tracy, Inc. v. Smith (1993), 88 Ohio App. 3d 253,261, 623 N.E.2d 704, 709-710. Whether there exists a duty for purposes of a negligence action is a question of law for the court. Mussivand v. David (1989), 45 Ohio St. 3d 314, 318,544 N.E.2d 265, 269-270.
The general rule is that a person owes no duty to act for the protection of others.
"The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." Restatement of the Law 2d, Torts (1965) 116, Section 314.
Thus, under the general rule, OSU would not have any duty to protect its 4-H members. Two exceptions to this general rule impose a duty of reasonable care upon OSU: the negligent hiring exception and the "special relationship" exception.
One exception to the general rule of nonliability for the acts of third parties is that a principal may be liable for the negligent hiring of an agent. See Albain v. Flower Hosp. (1990),50 Ohio St. 3d 251, 257, 553 N.E.2d 1038, 1044-1045; Restatement of the Law 2d, Agency (1958) 458-460, Section 213 and Comment d. For example, in Akins v. Estes (Tex.App. 1994), 888 S.W.2d 35, the court held that the Boy Scouts of America and the regional Boy Scout council could be liable for negligently hiring a volunteer scoutmaster despite the fact that neither entity exercised direct control over the daily activities of local scout troops or their adult leaders. The court stated that, because they work with children, youth organizations must be held to an even higher standard of care when hiring youth leaders:
"As stated by the Supreme Court of New Jersey, `[o]ne dealing with the public is bound to use reasonable care to select employees competent and fit for the work assigned to them and to refrain from retaining the services of an unfit employee.' DiCosala v. Kay, 91 N.J. 159, [172] 450 A.2d 508, 515 (1982). * * * [O]rganizations such as the Boy Scouts, whose primary function is the care and education of children, owe a higher duty to their patrons to exercise care in the selection of their workers than would other organizations. Doe v. Boys Clubs of GreaterDallas, Inc., 868 S.W.2d [942] at 951 [1994]. A higher standard of care is owed to children than to similarly situated adults."Id., 888 S.W.2d at 42-43. See, also, Wilson v. Tobiassen (1989),97 Or.App. 527, 530-532, 777 P.2d 1379, 1382 (affirming verdict against Boy Scouts of America and regional council for *Page 752 sexual molestation by scoutmaster on theory of negligent supervision of scoutmaster).
The court in Akins concluded that Boy Scouts of America and its regional council had a duty to fire the scoutmaster if they knew or had reason to know he was unfit. Id., 888 S.W.2d at 43. "An employer who negligently hires or retains in his employ an individual who is incompetent or unfit for the job may be liable to a third party whose injury was proximately caused by the employer's negligence." Id. at 42.
I would hold that a convicted child molester is presumptively incompetent and unfit to work directly with children and that a youth organization is negligent if it knowingly allows a convicted child molester to work with its members without issuing reasonable warnings.4 In this case, Hopkins and Butler, despite having actual knowledge that Waites is a convicted child molester, hired Waites as a fair judge and clinic instructor to work with the children, yet failed to warn those who were in a position to protect them.
I disagree with the majority's conclusion that OSU owed no duty to Stephanie on the ground that it was not foreseeable that its conduct would facilitate Waites's molestation of 4-H members. Hiring Waites as a fair judge and clinic instructor could serve only to foster Waites's prominence, respectability, power, and influence in the 4-H community. 4-H promoted its goat clinics with advertising featuring Waites's name and describing the value of the clinic in terms of Waites's role as a fair judge.5 A videotape of the August 8, 1989 Ashtabula County Junior Fair Goat Show reveals Waites speaking and working closely with the children and their goats. While OSU and the majority conclude that hiring Waites to work the fairs and clinics was safe and reasonable because *Page 753 Waites would presumably always be in public view, the fact is that repeatedly giving Waites a public forum in which to display the authority conferred upon him by 4-H served to legitimize a convicted child molester. Waites seduced Stephanie by telling her that he was a fair judge and former 4-H advisor, and he enticed parents by telling them he could help the children get 4-H scholarships. It was indefensible for Hopkins to conclude that he or anyone else could promote the involvement of a convicted child molester in the lives of 4-H members without subjecting the children to an unreasonable risk of sexual assault.
The other exception to the general rule of nonliability for the acts of third parties is that an actor owes a duty to exercise reasonable care to protect those with whom the actor has a special relationship from the conduct of third persons. See Fed. Steel Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St. 3d 171,173-174, 543 N.E.2d 769, 772 (citing cases). Restatement of the Law 2d, Torts (1965) 122, Section 315, states the rule:
"There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
"(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
"(b) a special relation exists between the actor and theother which gives to the other a right to protection." (Emphasis added.)
Section 314A of the Restatement lists four specific "special relationships" and the following caveat: "The Institute expresses no opinion as to whether there may not be other relations which impose a similar duty." The comments to Sections 314 and 314A express the same idea, that courts may recognize additional special relationships to expand the exception to the general rule:
"The result of the [general] rule has been a series of older decisions to the effect that one human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other drown. Such decisions have been condemned by legal writers as revolting to any moral sense, but thus far they remain the law. It appears inevitable that, sooner or later, such extreme cases of morally outrageous and indefensible conduct will arise that there will be further inroads upon the older rule." Section 314 of the Restatement, Comment c, paragraph 3.
"* * * The relations listed are not intended to be exclusive, and are not necessarily the only ones in which a duty of affirmative action for the aid or protection of another may be found. * * * The question is therefore left open by the Caveat * * *. The law appears, however, to be working slowly toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence." Restatement, Section 314A, Comment b. *Page 754
The trend has indeed been for courts to increase the number of instances in which a duty is imposed on the basis of special relationships. Tarasoff v. Regents of Univ. of California (1976), 131 Cal. Rptr. 14, 23, 551 P.2d 334, 343, fn. 5 (holding that when a psychological therapist determines that a patient presents a serious danger of violence to another, the therapist owes a duty of reasonable care to protect the intended victim). When imposed, the duty is only "to exercise reasonable care under the circumstances." Section 314A of the Restatement, Comment e.
Courts must consider all relevant circumstances when imposing duties:
"* * * There is no formula for ascertaining whether a duty exists. Duty `* * * is the court's "expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." (Prosser, Law of Torts (4th ed. 1971) pp. 325-326.) Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall.'" (Citations omitted.) Mussivand,45 Ohio St.3d at 318, 544 N.E.2d at 270.
Because children are among the most vulnerable members of our society, the law, in ways too numerous to count, makes special provision for their well-being.6 Youth organizations that undertake to provide learning experiences for children are particularly susceptible to attracting child molesters, who use organizations like 4-H7 as a pool from which to select their victims. Pedophiles pose a *Page 755 particular danger because of children's naiveté in sexual matters and because "there is little evidence that race, religion, intelligence, education, occupation, or social class can differentiate a child molester or pedophile from the general population." Fuller, Child Molestation and Pedophilia: An Overview for the Physician, Journal of the Am. Med. Assn. (Jan. 27, 1989) 602, 603. It is common knowledge that pedophiles use lies and threats to lure and silence children, and Waites used both, telling people he was innocent of the 1984 molestation charges, telling 4-H advisors, members, and parents that he was a healthcare worker, and stating that he did not want to be left alone with the children because he did not want anybody "accusing him of anything." After molesting Patty Bailey and Sabrina Bailey, Waites told them they would get in trouble if they told anyone. State v. Waites (Aug. 22, 1994), Lake App. No. 93-L-009, unreported, at 3-4, 1994 WL 590289. After molesting Terra Koch, he told her that, if she told anyone, they would get in a lot of trouble, she would be sent to a foster home or private school, and her parents would hate her. Waites told Stephanie that if she did not remove her clothes so he could put some medicine on her, she would require surgery on her reproductive system.
The mission of youth organizations to educate children, the naiveté of children, and the insidious tactics employed by child molesters dictate that the law recognize a special relationship between youth organizations and their members such that the youth organizations are required to exercise reasonable care to protect their members from the foreseeable conduct of third persons. Such a holding is supported by the opinions of foreign courts that have addressed the question of how the Restatement's "special relationship" concept should be applied to situations in which the defendants took inadequate action to prevent a known pedophile from sexually abusing the plaintiffs.
Courts have said that neighbors, relatives, and youth organizations can be in a special relationship with children so as to create a duty. In Pamela L. v. Farmer (1980),112 Cal. App. 3d 206, 169 Cal. Rptr. 282, the court reversed judgment on the pleadings and held that the wife of a known pedophile had a special relationship with the plaintiff children because she invited the children to her home to play in the swimming pool under the exclusive supervision of her husband. The court wrote:
"* * * [T]he necessary special relationship between respondent and plaintiffs in this case can be inferred. The trend has been to expand the list of special relationships which justify imposing liability. * * * In this case plaintiffs were dependent upon respondent because plaintiffs are children. Being of tender years they were particularly vulnerable to this sort of misconduct and not fully able to protect themselves against it. * * * In inviting the children to her home, respondent assumed that special relationship. Respondent recognized that special *Page 756 duty and relationship when she assured plaintiffs' parents it would be safe for them to play at her house." Id. at 211,169 Cal.Rptr. at 285. See Chaney v. Superior Court (1995),39 Cal. App. 4th 152, 157, 46 Cal. Rptr. 2d 73, 76 ("Without knowledge of her husband's deviant propensities, a wife will not be able to foresee that he poses a danger [to the family friend and frequent visitor]").
In N.W. v. Anderson (Minn.App. 1991), 478 N.W.2d 542, the court held that the plaintiffs' landlords did not owe a duty to warn them of the fact that a co-tenant was a convicted child molester. The court grudgingly affirmed summary judgment in favor of the landlords based on state Supreme Court precedent holding that a duty to warn exists only when the actor knows of specific threats against specific victims. Id. at 544. Left to decide the issue of duty in the absence of this precedent, the court stated that it would have held that the landlords did owe a duty to warn:
"In this case, the following facts exist which may have made the sexual assault foreseeable: the Andersons [the landlords] knew Bearbower was a convicted sex offender for an offense against a young female child; the Andersons knew that when appellants moved onto the farm, Bearbower was still on probation for the sex offense; the Andersons knew appellants' family included young children; the Andersons knew Bearbower raised rabbits near the trailer which attracted the children; and the Andersons never advised appellants that Bearbower had a history of sexual misconduct against children." Id., 478 N.W.2d at 544.
The court expressed its distaste for having to follow the restrictive precedent:
"We note that this is an extremely tortious [sic, tortuous] case and we are troubled by the decision we are required to make. The harm to N.W. may have been prevented by the Andersons had they simply warned appellants about Bearbower. We believe the risk to N.W. was not so speculative that, as matter of law, the Andersons were under no duty to warn appellants of Bearbower's dangerous propensities. Yet under the rule set forth in Cairl [v. State, 323 N.W.2d 20 (1982)] — that there must be a specific threat against a specific victim — we are compelled to hold the Andersons had no duty to warn appellants." Id.
The court was unequivocal that it believed the law should impose on the landlords a duty to warn.
"We believe the standard set forth in Cairl does not comport with reality or the facts of this case. It would be a rare case where a child molester would make a specific threat against a specific victim. Nevertheless, the indication of impending danger or harm may be so great, that a duty to warn should be imposed on those who could reasonably prevent the harm from occurring. *Page 757
"Except for the restrictive language in Cairl, we feel the danger to N.W. was so compelling or foreseeable, that the Andersons may have had a duty to warn appellants of Bearbower's dangerous proclivities." Id., 478 N.W.2d at 544-545. SeeSmith v. Orkin Exterminating Co. (La.App. 1989), 540 So. 2d 363,368 (holding that because exterminating business sends employees into homes, it owes a higher standard of duty to protect against intentional torts than does a regular business); Williams v.Butler (La.App. 1991), 577 So. 2d 1113, 1116 (applying Smith to case involving supervisor of public recreation center, who "was placed in a position of authority over young children," thereby creating duty on the part of the employer).
Similarly, relatives of children can be in a special relationship with them. In A.R.H. v. W.H.S. (Mo.App. 1994),876 S.W.2d 687, the court, reversing judgment on the pleadings, held that a grandmother who knew that her husband had sexually assaulted her granddaughter could be liable for negligence for the subsequent sexual assaults. In T.A. v. Allen (1995),447 Pa. Super. 302, 669 A.2d 360, three grandchildren accused their stepgrandmother of negligence for not warning or protecting them from their natural grandfather, the defendant's husband, whom the defendant knew to be a pedophile. The trial court found for the plaintiffs, but a five-judge majority of the superior court reversed, relying solely on the law of premises liability. However, in a partial dissent relying on Comment c to Section 314 of the Restatement, two members of the court wrote that they would hold that the stepgrandmother did owe a general duty to warn the grandchildren that her husband was a pedophile:
"* * * The facts of this case strongly implicate `our ideas of morals and justice' and `the mores of the community.' Appellees, while mere licensees, were children. They were particularly ill-equipped to recognize and deal with the danger posed by their grandfather. The bizarre details of Eugene Allen's pedophilic practices which came out at trial demonstrate the exceptional magnitude of this danger. Also, Elizabeth Allen had first-hand knowledge of her husband's pedophilic practices. These weighty factors must coalesce into some kind of duty."Id. at 317, 669 A.2d at 367 (Olszewski, J., concurring in part and dissenting in part).
Youth organizations also can be in a special relationship with their members. In L.P. v. Oubre (La.App. 1989),547 So. 2d 1320, the court, reversing partial judgment on the pleadings, held that the Boy Scouts of America and the regional Boy Scout council could be liable for failing to warn scouts and their parents that the scoutmaster was a pedophile.
"We further recognize the legal principle that an actor has no duty to control the conduct of a third person so as to prevent him from causing physical harm to another unless a special relationship exists between the actor and the other so as *Page 758 to afford the other a right to protection. We decline to adopt the arguments of Istrouma [the regional council] and BSA, that the existence of a special relationship is limited to those found in current reported decisions or that it arises through payment of a fee. The law is not a static concept, both civilian and common theory provide for its application and extension as the case arises. * * * Plaintiffs have pleaded the existence of a special relationship between themselves, Oubre [the scoutmaster], Istrouma and BSA. Where such relationship exists, the law currently characterizes the duty as one to warn of risks of which the actor knew or should have known. * * *" Id. at 1324.
The duty of youth organizations to exercise reasonable care to protect against the foreseeable conduct of third persons is limited to the organization's members and other children significantly connected with the organization. There is no duty to protect the community at large. See Section 314A of the Restatement, Comment c (duty contemplates only risk of harm arising in the course of the relationship).
As counsel for OSU conceded at oral argument, OSU owed a general duty to exercise reasonable care to protect its 4-H members against the foreseeable conduct of third persons. The next question is whether OSU breached that duty, or in other words, whether under the circumstances OSU's general duty to exercise reasonable care required OSU to take action specifically regarding Waites, the least burdensome action being warning Ashtabula County 4-H club advisors or parents that Waites was a convicted child molester. OSU argues that it cannot be charged with this specific duty because the Ashtabula County 4-H agent, Hopkins, did not even know that Waites was involved with 4-H in Ashtabula County, other than with the events for which Hopkins hired him, judging fairs and running 4-H clinics.
Although Hopkins did not know of Waites's other involvement with Ashtabula County 4-H, once he received Jodi Black's memo, he owed a specific duty either to find out whether Waites was involved with a 4-H club or to warn the Ashtabula County 4-H club advisors that Waites was a convicted child molester so that they could protect the children. Hopkins breached this duty. Hopkins failed to warn the people who most needed the information regarding Waites, the club advisors and parents. When Hopkins failed to warn the club advisors or parents of Waites's conviction, they had no reason to let Hopkins know that Waites was involved with the club.
4-H's salaried line-management personnel in Ashtabula County consists of just two people, county extension agent Hopkins and a part-time home economics agent. The mission of 4-H is carried out mostly through the work of volunteers, who run the clubs with little organizational oversight. Under the 4-H structure, a county extension agent like Hopkins would probably not know when uninformed *Page 759 club advisors are allowing someone the agent knows to be a pedophile to work with 4-H members. Black did not know whether Waites was involved with 4-H in Ashtabula County or elsewhere; that is why she sent the warning memo to all eighty-eight county extension agents. Similarly, because Hopkins was not in a position within the organization to know whether Waites was involved with 4-H in Ashtabula County, he had a duty either to investigate himself or to warn the people that would know, the club advisors. The fact that Hopkins would not know of Waites's involvement with the All-County Kids club made it imperative that he inform the club advisors that Waites was a convicted child molester.
Upon learning of Waites's conviction and involvement with 4-H, OSU, through Black's memo, began the process of fulfilling its duty to protect its members by disseminating the information of Waites's conviction to those who were in a position to protect the children. This process broke down in Ashtabula County. Hopkins breached the duty by failing to pass the information on to all of the Ashtabula County 4-H club advisors. Malnar and Maddox Cook subsequently encouraged their club members to work one-on-one with Waites, making Waites's abuse of them highly probable, if not inevitable. This failure by Hopkins constituted a breach of the duty to take reasonable care to protect 4-H members from the foreseeable risk Waites presented.
After receiving Black's memo, Hopkins raised the issue of Waites at the April 9, 1990 meeting of the Ashtabula County 4-H small animal committee. Although the memo was addressed to "County Extension Personnel Responsible for Hiring Junior Fair Judges," and although Black's intent was that the memo be passed on to the county committees hiring junior fair judges, Hopkins did not distribute or display Black's memo. At the meeting, Butler defended her friend Waites, stating that based on what she heard from friends, Waites was innocent despite his no contest plea. As county extension agent, Hopkins was the ultimate authority in Ashtabula County on 4-H matters. Relying on Butler, Hopkins took no other action on Black's memo and, instead, agreed to hire Waites again. Hopkins's reasoning for siding with Waites is inconsistent. Hopkins testified that he relied both on Kitty Butler's recommendation that Waites was innocent of the 1984 charge and on the belief that Waites should be given a "second chance."
Although all club advisors, including Malnar and Maddox Cook, were members of the small animal committee and received copies of the minutes of committee meetings, the minutes of the April 9, 1990 meeting do not mention the committee's discussion of Waites.8 Because the minutes were silent, and because neither *Page 760 Malnar nor Maddox Cook attended that meeting, Maddox Cook did not learn of Waites's 1984 conviction until after the 1992 molestations were publicized.
With club advisors Malnar and Maddox Cook lacking the information they should have had, that Waites was a convicted child molester, and Hopkins lacking the information that he should have had, that Waites was involved with the club, Malnar and Maddox Cook encouraged contact between Waites and club members. Malnar and Maddox Cook introduced Stephanie to Waites in the fall of 1991 and lauded him as a goat expert, "the man to talk to about your goats." Shortly after Waites took Stephanie and her father to buy her first goat, Waites and Maddox Cook went to Stephanie's home to dehorn the goat. Waites visited Stephanie's home five times after that and telephoned her five or six times. Terra Koch, another of Waites's victims, was introduced to Waites by a 4-H advisor at the 1989 Ashtabula County 4-H goat clinic. Malnar also met Waites for the first time at a 4-H clinic. Malnar told Terra and her mother to call Waites if they needed help with her goat. Malnar and Maddox Cook told members at a club meeting that Waites was the expert to call. Stephanie's mother and Terra's mother testified that Waites was promoted as an integral part of their daughters' 4-H experience. Stephanie considered Waites "like an advisor" and called him when she had questions about her goat. Maddox Cook knew that Waites had previously been a 4-H volunteer in Lake County, and when asked by Terra's mother whether Waites was all right, Malnar responded, "Oh, yes, he just loves kids and goats, and he has been in 4-H for years."
According to Terra, Waites attended nine or ten meetings of the All-County Kids club in 1990, eight or nine meetings in 1991, and one or two meetings in 1992. Terra's mother also testified that Waites attended and spoke at no fewer than five or six club meetings. One meeting was held at Waites's home. Stephanie also testified regarding Waites's attendance at a club meeting. Waites did not merely attend club meetings as a parent. He assisted the advisors, served as the expert instructor at meetings of the All-County Kids club, and went with the advisors to the members' homes. Waites also drove club members to meetings and to fairs in Ohio and Pennsylvania.9
Still, OSU would escape liability if Waites's molestation of club members were not a foreseeable consequence of the access and status 4-H accorded him. The majority does plaintiffs a disservice by limiting its analysis of their negligence *Page 761 theory to the hiring of Waites as a fair judge and clinic instructor. Although I disagree with its conclusion, the majority thoroughly discusses the negligent hiring component of appellants' case. The majority fails, however, to discuss the greater part of the negligence attributable to OSU: the duty to warn arising from the special relationship between 4-H and the children and the failure of Hopkins to warn his club advisors or members' parents of Waites's conviction. This breach resulted in Malnar, Maddox Cook, and the parents continuing to allow Waites supervised and unsupervised access to the children. Stephanie's injury was the foreseeable result of the dual breaches of duty: failure to warn and negligent hiring.
Section 302B, Restatement of the Law 2d, Torts (1965) 88, addresses the specific issue of foreseeability of intentional or criminal conduct:
"An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal."
I expect the framers of Section 302B had cases like this one in mind when they drafted the accompanying Comments d and e:
"d. * * * In the ordinary case [the actor] may reasonably proceed upon the assumption that others will not interfere in a manner intended to cause harm to anyone. * * *
"e. There are, however, situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal, misconduct of others. In general, these situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct; or where the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account. The following are examples of such situations.
"* * *
"D. Where the actor has brought into contact or association with the other a person whom the actor knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct."
The issue, therefore, is whether it is foreseeable that a convicted child molester will commit another pedophilic crime if placed in a position of leadership, authority, or responsibility in a youth organization without issuing reasonable warnings. Or, to paraphrase the Restatement's comments, whether the youth organization realizes or should realize that the child molester's sanctioned involvement *Page 762 with the youth organization involves an unreasonable risk of harm to the children, whether the youth organization should be required to anticipate and guard against the child molester's pedophilic proclivities, whether the youth organization is under a special responsibility toward its members to protect them against such intentional misconduct, whether the youth organization's own affirmative act has created or exposed its members to a recognizable high degree of risk of harm through such misconduct, which a reasonable person would take into account, or whether the youth organization has brought its members into contact or association with the child molester, whom the organization knows or should know to be peculiarly likely to commit a pedophilic crime under circumstances which afford a singular opportunity or temptation for such misconduct.
The scientific literature, legislative pronouncements, and judicial opinions support the conclusion that the magnitude of the risk — the foreseeability — that a known child molester will commit a pedophilic offense when placed in a position of leadership, authority, or responsibility in a youth organization without reasonable warnings requires that the youth organization be held liable.
Child molesters usually do not limit themselves to one victim. Fuller, Child Molestation and Pedophilia, supra, at 603. In the largest study of pedophiles ever undertaken, an analysis of five hundred seventy-one cases showed that those who admitted to probation officers to one to four incidents of molesting young girls admitted to an average of twenty-three incidents when guaranteed anonymity. Meyer, Abnormal Behavior and the Criminal Justice System (1992) 94. Of course, most convicted child molesters are not allowed to work with youth organizations.
Legislatures have responded to the particular risk posed by pedophiles with registration and public notification laws. Statutorily mandated child abuse registries proliferated in the 1970s. Note, The Constitutionality of Employer-Accessible Child Abuse Registries: Due Process Implications of Governmental Occupational Blacklisting (1993), 92 Mich.L.Rev. 139. In response to the particular risk of recidivism of sex offenders, the Ohio General Assembly instituted required registration of habitual sex offenders in 1963. See R.C. 2950.01 to 2950.08. Increasingly since 1993, states have been implementing sex offender notification statutes. See Note, There Goes the Neighborhood: Notifying the Public When a Convicted Child Molester is Released into the Community (1995), 28 Ind.L.Rev. 715, 716; see, also, Comment, Examining Sex Offender Community Notification Laws (1995), 83 Cal.L.Rev. 885, 904; "Megan's Law": Community Notification and the Constitution (1995), 29 Colum.J.L. Soc.Probs. 117, 120. The Washington and Idaho legislatures included in their sex offender registration/notification *Page 763 legislation findings of a higher risk of recidivism.10 In May 1996 the federal government enacted "Megan's Law," Pub.L.104-145, 110 Stat. 1345 (1996) (to be codified at Section 14071[d], Title 42, U.S.Code), which requires state and local law enforcement agencies to "release relevant information that is necessary to protect the public concerning a specific person required to register" under the now federally mandated state registration programs.
Court opinions also support the conclusion that it is foreseeable that a convicted child molester will commit a pedophilic offense when provided extraordinary access to unsuspecting children. In Almonte v. New York Med. College (D.Conn. 1994), 851 F. Supp. 34, a ten-year-old hospital patient was sexually assaulted by a resident psychiatrist. The resident had undergone psychoanalysis with the defendant psychiatrist, during which the psychiatrist learned that the resident was a pedophile and that he planned on specializing in child psychiatry. The court denied the psychiatrist's motion for judgment on the pleadings and held that the psychiatrist had a duty to warn the resident's child patients of the resident's pedophilia:
"* * * [T]he plaintiffs allege that although Ingram knew that DeMasi was a pedophiliac and that he intended to pursue and practice child psychiatry, neither Ingram nor the College took any steps on the basis of this knowledge. Because the court finds that a self-confessed pedophiliac who intends to practice child psychiatry presents a foreseeable threat of harm to future minor patients, * the plaintiffs' complaint states a claim against Ingram and the College for failure to exercise reasonable care to protect Denny against such foreseeable harm."Id. at 41.
"Ordinary people do not commit outrages against others because they have relatively little inclination to do so, and because any inclination in that direction is suppressed by moral inhibitions and fear of the practical risks associated with the commission of crimes. A person with a history of rape or child molestation stands on a different footing. His past conduct provides evidence that he has the combination of aggressive and sexual impulses that motivates the commission of such crimes, that he lacks effective inhibitions against acting on these impulses, and that the risks involved do not deter him." Karp, Evidence of Propensity and *Page 764 Probability in Sex Offense Cases and Other Cases (1994), 70 Chi.-Kent L.Rev. 15, 20.
The Eleventh Circuit Court of Appeals made a similar observation:
"[S]ex offenders are subject to a continually recurring physiological urge which is part of their nature and requires the imposition of effective restraints in order to curb the habitual repetition of episodes producing the harmful consequences to the public resulting from the propensities of their nature." Hendking v. Smith (C.A. 11, 1986), 781 F.2d 850,852 (holding that a prison rule that excludes from certain privileges inmates with a history of violent sex offenses is reasonable and appropriate and not violative of the Equal Protection Clause); see Lustgarden v. Gunter (C.A. 10, 1992),966 F.2d 552, 555 (same); Neal v. Shimoda (D.Haw. 1995),905 F. Supp. 813, 819 (following Hendking and noting high risk of recidivism of untreated sex offenders).
In Haddock v. New York (1988), 140 A.D.2d 91, 98,532 N.Y.S.2d 379, 383, affirmed (1990), 75 N.Y.2d 478,554 N.Y.S.2d 439, 553 N.E.2d 987, the city of New York employed a man with a long criminal record, including one conviction of attempted rape and parole revocation based on another rape charge, to work at a children's playground. The man abducted and raped a nine-year-old girl at the playground. The jury awarded $3.5 million, but the trial court granted the city's motion for judgment notwithstanding the verdict, in part on the ground that the attack was not foreseeable. Id. at 482-483, 554 N.Y.S.2d at 442,553 N.E.2d at 990. The Appellate Division reversed, reinstating the jury's verdict subject to remittitur. The New York Court of Appeals affirmed. Employment of a person with such a criminal history, the Appellate Division stated, subjected children at the playground to a clearly foreseeable risk of harm. Id. at 94-96, 532 N.Y.S.2d at 381. The city considered the criminal's job at the playground as not involving public contact or working with children. Id. at 480-484, 554 N.Y.S.2d at 440-442,553 N.E.2d at 989-990. Similarly, 4-H's Hopkins testified that he thought that Waites was not a threat because of his presumed limited access to 4-H members.
The foreseeability at issue here — the foreseeability that defines the scope of the youth organization's liability — is not the foreseeability that a convicted child molester will commit another crime, or even that a convicted child molester will commit another sexual or pedophilic crime. Rather, the foreseeability at issue here — and to which I would limit the holding — is the foreseeability that a convicted child molester will commit another pedophilic crime if placed in a position of leadership, authority, or responsibility in a youth organization without warning members, parents, or staff that are in a position to protect the children. The effect of OSU's negligent hiring and negligent failure to warn was that Waites was made a judge, instructor, and mentor. This negligence provided him access to the children and the status to exploit that access. As should have been *Page 765 anticipated, Waites used the postincarceration access and status given him by 4-H to molest more children. Waites's path to Stephanie was not merely foreseeable; it was the classicmodus operandi of a child molester.
OSU owed a duty of care to Stephanie, and it breached that duty. OSU, through Hopkins, breached its duty to exercise reasonable care to protect its 4-H members by failing to warn Ashtabula County 4-H club advisors or parents11 of Waites's conviction. This breach resulted in the All-County Kids club advisors and parents unwittingly allowing Waites unconscionable access to the children. Compounding the injurious effect of this breach, OSU, through Hopkins and Butler, breached its duty to exercise reasonable care in hiring fair judges and clinic instructors by hiring Waites, thereby bestowing upon him the imprimatur of 4-H's approval, despite actual knowledge that he was a convicted child molester. Appellants' second assignment of error should be sustained.
The third element of a negligence action is injury proximately caused by the breach of duty. The proximate cause element requires some reasonable connection between the defendant's negligent act or omission and the plaintiff's injury. Prosser Keeton, supra, at 263, Section 41. Like the duty element, proximate cause is often expressed as a function of foreseeability:
"A person is not liable for proximately causing an injury if, under all of the circumstances, he did not foresee and, acting as a reasonably prudent person, could not have foreseen the consequences of his alleged negligent acts." Jeffers v. Olexo (1989), 43 Ohio St. 3d 140, 539 N.E.2d 614, paragraph one of the syllabus.
Ohio courts also say that an injury is proximately caused by a breach of duty when the injury is the natural and probable consequence of the breach. The injury must have been, under the surrounding circumstances of the particular case, foreseeable or anticipated by the wrongdoer as likely to follow from the breach of duty. Id. at 143, 539 N.E.2d at 617; Strother, supra,67 Ohio St.2d at 287, 21 O.O.3d at 180-181, 423 N.E.2d at 470-471;Ross v. Nutt (1964), 177 Ohio St. 113, 114, 29 O.O.2d 313, 314,203 N.E.2d 118, 119-120; Jeanne v. Hawkes Hosp. of Mt. Carmel (1991), 74 Ohio App. 3d 246, 252, 598 N.E.2d 1174, 1177-1178;Grange Mut. Cas. Co. v. Fleming (1982), 8 Ohio App. 3d 164,166-167, 8 OBR 223, 225-226, 456 N.E.2d 816, 818-820. An injury may have multiple proximate causes. Taylor v. Webster (1967),12 Ohio St. 2d 53, 41 O.O.2d 274, 231 N.E.2d 870; Reed v. Weber (1992), 83 Ohio App. 3d 437, 441, 615 N.E.2d 253, 255-256.
The determination of whether a breach of duty was the proximate cause of an injury is usually termed a question of fact. Strother, supra, 67 Ohio St. 2d 282, *Page 766 21 O.O.3d 177, 423 N.E.2d 467. A trial court's findings of fact are presumed to be correct and will not be reversed as being contrary to the manifest weight of the evidence if there is competent and credible evidence supporting the finding.Wisintainer v. Elcen Power Strut Co. (1993), 67 Ohio St. 3d 352,355, 617 N.E.2d 1136, 1138-1139; Myers v. Garson (1993), 66 Ohio St. 3d 610,614, 614 N.E.2d 742, 745; Seasons Coal Co. v.Cleveland (1984), 10 Ohio St. 3d 77, 79-80, 10 OBR 408, 410-411,461 N.E.2d 1273, 1275-1277. By their third assignment of error, plaintiffs argue that the trial court erred in finding that it was not reasonably foreseeable that Waites would sexually molest Stephanie.
For the same reasons that the foreseeability of harm meant that OSU's general duty to exercise reasonable care required it to warn of Waites's conviction, the foreseeability of harm satisfies the proximate cause element of appellants' negligence claim.
In arguing that 4-H's decision to hire Waites, even if negligent, was not a proximate cause of Stephanie's injury, OSU relies on the facts that 4-H last hired Waites to run a 4-H goat clinic in April 1991, and that Stephanie was not a 4-H member at that time and did not meet Waites until the fall of 1991. OSU argues that because Stephanie was not a 4-H member at the time Waites was last in the paid service of 4-H, it was unforeseeable that Stephanie would be victimized. I do not dispute the proposition that it was unforeseeable which 4-H member Waites would victimize, but it was eminently foreseeable that Waites would victimize a 4-H member. The duty and proximate cause elements of a negligence claim do not require that a particular individual be the object of foreseeable harm. It is sufficient that the breach of duty is likely to result in injury to someone. Williams v. Williams (1990), 68 Ohio App. 3d 529, 532,589 N.E.2d 89, 91-92; Strother, supra, 67 Ohio St.2d at 287-288, 21 O.O.3d at 180-181, 423 N.E.2d at 470-472; Mudrich v. Std. OilCo. (1950), 153 Ohio St. 31, 39, 41 Ohio Op. 117, 121,90 N.E.2d 859, 863-864; see Semadeni v. Ohio Dept. of Transp. (1996),75 Ohio St. 3d 128, 131, 661 N.E.2d 1013, 1016 (holding the Ohio Department of Transportation liable for the death of a motorist killed by a concrete block thrown from a highway overpass, on the ground that the department had a duty to foreseeable travelers to timely implement policy of installing protective fencing on overpasses).
The anonymous caller from Ross County foresaw the risk. Jodi Black and the 4-H administrators in Columbus foresaw the risk. Hopkins himself foresaw the risk but, rather than protecting 4-H members by removing Waites from the list of fair judges, preventing Waites from participating in any 4-H event, and warning 4-H club advisors of Waites's conviction, Hopkins filed away the warning missive from Jodi Black and withheld the critical information from club advisors, parents, and Waites's next set of victims. *Page 767
OSU also argues that any negligence was not the proximate cause of Stephanie's injury because Waites never abused Stephanie at a 4-H event. OSU relies on Hopkins's assertion that he allowed Waites to judge fair competitions and run goat clinics only because the circumstances of the competitions and clinics were such that it would be unlikely that Waites would be alone with 4-H members. Although Hopkins recognized the danger that Waites posed, he unreasonably concluded that hiring Waites for the limited purpose of serving as a fair judge and a clinic instructor was an adequate safeguard against the admitted risk.
The law does not support OSU's argument that its liability should be limited to sexual assaults committed at 4-H events. Child molestation is not usually committed in plain view. Unless Waites was to be kept under constant surveillance during clinics and competitions, the likelihood existed that he could seduce a child into a clandestine location either during or after the 4-H events. The greater danger, however, was that Waites would use the institutional endorsement associated with being the 4-H judge and goat expert to lure children, their parents, and unsuspecting 4-H advisors into trusting a man they would not otherwise trust. That danger was realized: The All-County Kids club had eight or nine members during the 1991-1992 term, and Waites molested three members plus the sister of one of the members.
Waites's history of child molestation made it all but inevitable that he would molest a child again if placed in a position of leadership, authority, or responsibility in 4-H. The trial court's finding that Waites's abuse of Stephanie was not proximately caused by 4-H's negligence in failing to inform the Ashtabula County club advisors and 4-H's negligence in hiring Waites to serve as a fair judge and 4-H clinic instructor is contrary to the manifest weight of the evidence. To some extent the law imposes on each citizen the risk of being victimized by recidivist criminals. However, the law should not fail to address the risk of individual children being victimized by a recidivist child molester when that risk is created by a youth organization that has knowingly placed the child molester in its midst and promoted him as a teacher, a judge, and a role model. Plaintiff's third assignment of error should be sustained.
By their fourth assignment of error, plaintiffs correctly assert that the trial court erred in finding that Waites's sexual assault on Stephanie was an intervening event precluding the liability of the state. A finding of liability in this case is not precluded by the doctrine of the superseding cause. Waites's tortious conduct cannot be a superseding event, because that conduct was the very risk that gave rise to OSU's duty. SeeFed. Steel Wire Corp., supra, 45 Ohio St.3d at 176-177,543 N.E.2d at 774-776; Knor v. Parking Co. of Am. (1991), 73 Ohio App. 3d 177,190, 596 N.E.2d 1059, 1067 ("The defendant cannot now argue that the actions of the kidnappers were a superseding cause of the plaintiff's injuries, *Page 768 when it breached its duty to protect against the very type of criminal act that occurred."). An alleged superseding cause does not cut off liability when it is itself foreseeable. Cascone v.Herb Kay Co. (1983), 6 Ohio St. 3d 155, 6 OBR 209,451 N.E.2d 815, paragraph one of the syllabus; Taylor v. Webster (1967),12 Ohio St. 2d 53, 56, 41 O.O.2d 274, 275-276, 231 N.E.2d 870,872-873; Mouse v. Cent. Sav. Trust Co. (1929), 120 Ohio St. 599,606, 167 N.E. 868, 870; Turner v. Children's Hosp., Inc. (1991), 76 Ohio App. 3d 541, 558, 602 N.E.2d 423, 433-434. Appellants' fourth assignment of error should be sustained.
By their first assignment of error, plaintiffs argue that the trial court erred in finding that OSU is entitled to statutory immunity for Hopkins's failure to inform all of the club advisors and members of the small animal committee of Waites's conviction. I agree with plaintiffs.12
In Reynolds v. State (1984), 14 Ohio St. 3d 68, 14 OBR 506,471 N.E.2d 776, the Supreme Court of Ohio held that the state was immune from liability arising from "basic policy decisions" requiring exercise of discretion but could be liable for negligence in the performance of activities implementing those decisions. In Crawford v. Ohio Div. of Parole Community Serv. (1991), 57 Ohio St. 3d 184, 187-188, 566 N.E.2d 1233, 1236-1237, the court held that the decision to send one particular inmate to an outside Alcoholics Anonymous meeting was not a "basic policy decision" within the meaning of Reynolds.
"* * * The determination to send one particular individual to outside A.A. meetings cannot be said to be a `basic policy decision' within the meaning of Reynolds, supra. Likewise, as demonstrated above, the determination is not characterized by the exercise of a high degree of official judgment or discretion. Rather, it is a decision that is operational in nature, relating to the day-to-day business of the [Columbus Reintegration] Center. As such, it is analogous to a ministerial act for which the state may be held liable. * * *" (Emphasissic.) Id. at 187, 566 N.E.2d at 1237.
Similarly, because the decisions made by OSU agents regarding Waites's involvement with 4-H were decisions concerning only one person, Waites, and because these decisions were operational in nature, relating to the day-to-day business of county- and club-level 4-H administration, these decisions were not "basic policy decisions" protected by sovereign immunity. Therefore, OSU may be vicariously liable for the negligent decisions of its agents at issue here. Appellants' first assignment of error should be sustained.
Because I would reverse the decision of the trial court and enter judgment in favor of plaintiffs on the basis of the first four assignments of error, I would not *Page 769 reach the sixth, seventh, and eighth assignments of error. Because the evidence supports the trial court's finding that Owen, Maruschak, and Hopkins were not guilty of wanton misconduct, I concur in the majority's judgment regarding the fifth assignment of error.
For these reasons, I would sustain the first, second, third and fourth assignments of error, overrule the fifth assignment of error, and reverse the judgment of the Court of Claims of Ohio and remand this cause to that court with instructions to enter judgment in favor of plaintiffs on the issue of liability and proceed to trial on the issue of damages.
4 In this case, OSU both (1) allowed a convicted child molester to work directly with the children as a judge and instructor, and (2) failed to warn club advisors or parents of the conviction. Therefore, I express no opinion on the questions of whether it is ever reasonable and nonnegligent for a youth organization (1) to utilize a convicted child molester in any capacity, or (2) to allow a convicted child molester to work with children after warning parents.
5 Ashtabula County 4-H promoted its May 27, 1989 goat clinic with a press release published locally announcing: "The instructor at the clinic will be Mr. James Waites who will also serve as the judge at this year's Junior Fair Goat Show." The May 5, 1990 and April 13, 1991 goat clinics were promoted with fliers featuring Waites's name that were distributed to the members of the All County Kids club. The 1990 flier read:
"BRING YOUR GOAT TO THIS CLINIC.
"YOU WILL BE PRACTICING SHOWMANSHIP.
"OUR SPEAKER FOR THE CLINIC IS: MR. JAMES WAITES from PERRY, OHIO
"MR. WAITES WILL ALSO BE OUR JUDGE FOR THE COUNTY FAIR SO THIS WILL BE A GOOD OPPORTUNITY TO FIND OUT JUST WHAT HE WILL BE EXPECTING AT JUDGING."
6 One example is R.C. 3319.20 and 3319.52, which require prosecutors to inform the employing board of education when school employees are convicted of certain offenses. Another example is Bowman v. Parma Bd. of Edn. (1988), 44 Ohio App. 3d 169, 542 N.E.2d 663. In Bowman, the court affirmed summary judgment in favor of the defendant school board and against the administrator of the estate of a teacher who had committed suicide after public revelation of his pedophilia. The teacher had agreed to resign pursuant to a settlement agreement in which the board agreed: "`No further references or other statements related to Ginebaugh's employment will be given unless required by Court order.'" Id. at 171, 542 N.E.2d at 665. Less than a month later, however, a member of the Parma School Board informed a member of the school board that hired the decedent of the decedent's pedophilia. The court held that, as to disclosures of pedophilia, the nondisclosure clause of the settlement agreement was unenforceable. The Bowman court's rationale aptly explains my rationale for holding that Hopkins owed a duty to warn of Waites's pedophilia:
"The evidence implicating Phillip Ginebaugh as a man entirely unsuited for the teaching profession is clear. * * * Phillip Ginebaugh's decision to remain in the teaching profession undermines any validity the non-disclosure clause might otherwise have possessed. This court will not countenance an action for breach of such a clause upon such unchallenged facts as those in the instant case, for to do so would be to expose our most vulnerable citizens to a completely unacceptable risk of physical, mental and emotional harm." Id. at 172,542 N.E.2d at 666.
7 The mission of 4-H is to provide learning experiences for children between the ages of five and eighteen. Ohio 4-H Program Agent's Handbook (3d rev. 1994), 1.1.
8 Hopkins speculated that the secretary at the meeting may have excluded the committee's discussion of Waites's conviction because the secretary may have considered it "insensitive to include names and talk about those kinds of discussions in the set of minutes, * * * knowing that these [minutes] are going to be distributed to homes by mail * * *."
9 Maddox Cook became a club advisor in 1991. She testified that she could not remember whether Waites ever attended a club meeting. At oral argument, counsel for OSU conceded that Waites attended and drove members to and from club meetings.
10 "The legislature finds that sex offenders pose a high risk of engaging in sex offenses even after being released from incarceration * * *." 1994 Wn. Laws ch. 3, Section 117, reprinted in Historical and Statutory Notes to Wash.Rev. Code Ann. 4.24.550 (West Supp. 1996).
"The legislature finds that sex offenders present a high risk of reoffense and that efforts of law enforcement agencies to protect their communities, conduct investigations and quickly apprehend offenders who commit sex offenses are impaired by the lack of information available about individuals who have pled guilty to or have been found guilty of sex offenses who live within their jurisdiction." Idaho Code 18-8302 (Supp. 1995).
11 Hopkins owed a duty to inform at least the club advisors. Because Hopkins warned neither the advisors nor the parents, it is not necessary to decide whether he owed a duty to inform the parents.
12 The majority ruled the first assignment of error moot based on its holding that OSU owed no duty to Stephanie.