[Cite as Gilliam v. Crowe, 2017-Ohio-5494.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
MARK GILLIAM :
:
Plaintiff-Appellant : Appellate Case No. 27352
:
v. : Trial Court Case No. 2016-CV-1414
:
BRIAN CROWE, et al. : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 23rd day of June, 2017.
...........
AARON DURDEN, Atty. Reg. No. 0039862, 10 W. Monument Avenue, Dayton, Ohio
45402
Attorney for Plaintiff-Appellant
CHRISTOPHER CARRIGG, Atty. Reg. No. 0023947 and LISA HESSE, Atty. Reg. No.
0042120, 1 S. Main Street, Suite 1800, Dayton, Ohio 45402
Attorneys for Defendant-Appellee Busy Bee Auto Parts & Towing, Inc.
JOSEPH SAKS, Atty. Reg. No. 0088082, ANNE JAGIELSKI, Atty. Reg. No. 0093047,
and BENJAMIN MAZER, Atty. Reg. No. 0087756, 301 W. Third Street, 5th Floor, Dayton,
Ohio 45422
Attorneys for Defendants-Appellees Brian Crowe and Montgomery County Sheriff
Phil Plummer
.............
-2-
HALL, P.J.
{¶ 1} Mark Gilliam appeals from the judgment of the trial court denying him leave
to amend his complaint and dismissing the complaint under Civ.R. 12(B)(6). The court
determined that the amendments would be futile. And the court concluded that
Defendant-Appellees Montgomery County Sheriff Phil Plummer and Deputy Brian Crowe
are immune from liability under R.C. 2744.03. We find that the trial court erred by
overruling the motion to amend the complaint but did not err by dismissing the claims
against the Montgomery County Sheriff’s Department employees. Therefore, the
judgment is reversed in part, affirmed in part, and remanded.
I. Background
{¶ 2} In March 2016, Gilliam filed suit in the common pleas court against Sheriff
Plummer, Deputy Crowe, and Busy Bee Auto Parts & Towing, Inc. The complaint alleges
that around 3 a.m. on January 1, 2015, Deputy Crowe responded to the scene of a single-
car accident involving Gilliam’s car and a utility pole. Power lines fell across the vehicle
and apparently there was some delay in access to and the towing of the vehicle. Busy
Bee was called, and it towed the car back to its business location. All the while Gilliam
remained in the car. Six hours later a Busy Bee employee discovered him. Gilliam was
taken to a hospital where he was treated for his injuries.
{¶ 3} The complaint sets forth claims under both 42 U.S.C. 1983 and Ohio law.
Count I alleges that Deputy Crowe was negligent, grossly negligent, or reckless for failing
to notice that Gilliam was still inside the car. Count II alleges that Sheriff Plummer
negligently trained and supervised Crowe, and Count III alleges that Plummer’s failure to
properly train, supervise, and control Crowe’s conduct constituted negligence, gross
-3-
negligence, and recklessness. And Count IV alleges that Busy Bee was negligent for
failing to ensure that no one was inside the car before towing it.
{¶ 4} Crowe and Plummer removed the action to federal district court. Busy Bee
moved the district court to dismiss the negligence claim against it. Gilliam opposed and
alternatively sought leave to amend his complaint. The district court, citing the federal
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) standard
that a complaint must provide sufficient factual matter to state a claim “that is plausible
on its face,” id., granted Busy Bee’s motion and dismissed the claim against it. The district
court concluded that the complaint did not “plausibly support an inference that Busy Bee
had reason to believe that a person might still be inside the crashed car.” Entry and Order,
filed June 22, 2016. The court also denied Gilliam’s motion to amend because he had
failed to proffer a proposed amended complaint or to describe the amendments. But the
court granted Gilliam leave to file a second motion to amend that included the proposed
amendments. Gilliam filed a second motion to amend that included a proposed amended
complaint. Crowe and Plummer moved the district court to dismiss Gilliam’s claims
against them under Fed.R.Civ.P. 12(b)(6) for failing to state a claim. The court granted
the motion in part, dismissing the claims under 42 U.S.C. 1983 against Crowe and
Plummer in their individual and official capacities. The court remanded to the common
pleas court the remaining state-law claims against them, along with consideration of
Gilliam’s second motion to amend his complaint.
{¶ 5} On remand in the common pleas court, Gilliam filed the second motion for
leave to amend his complaint that he had filed in the district court. And Crowe and
Plummer filed the motion to dismiss that they had filed in the district court. The trial court
-4-
considered both motions under Ohio law and on November 1, 2016, denied the motion to
amend and granted the motion to dismiss. The court determined that amending the
complaint would be futile because the amendments do not cure the problem with the
original complaint—the Amended Complaint also fails to state a claim against Busy Bee.
And the court concluded that Deputy Crowe and Sheriff Plummer were immune from
liability under R.C. Chapter 2744 in both their individual and official capacities.
Consequently the trial court dismissed the complaint.
{¶ 6} Gilliam appealed.
II. Analysis
{¶ 7} Gilliam assigns two errors to the trial court. The first challenges the denial of
his motion to amend. And the second challenges the granting of the motion to dismiss.
A. The motion to amend the complaint
{¶ 8} The first assignment of error alleges that the trial court erred by denying
Gilliam’s motion to amend his complaint. “To the extent that this decision of the trial court
involves a discretionary call, we review that decision on an abuse-of-discretion standard.”
Cruz v. Kettering Health Network, 2d Dist. Montgomery No. 24465, 2012-Ohio-24, ¶ 34.
“Where, however, the trial court’s denial of the motion for leave to amend ‘can fairly be
read to have been based on a determination that the amended complaint * * * would not
withstand a motion to dismiss, the denial is a legal question that is reviewed de novo.’ ”
Marx v. Ohio State Univ. College of Dentistry, 10th Dist. Franklin No. 95APE07-872, 1996
WL 87462, *3 (Feb. 27, 1996), quoting Rainer v. Westinghouse Elec. Corp., 65 F.3d 169,
1995 WL 510050, *2 (6th Cir.1995); Hollinghead v. Bey, 6th Dist. Lucas No. L-99-1351,
2000 WL 1005205, *8 (July 21, 2000) (quoting the same).
-5-
{¶ 9} Here, both the district court and the common pleas court determined that the
problem with Gilliam’s complaint is that it fails to state a claim for negligence against Busy
Bee because it does not allege facts showing that Busy Bee had a duty to inspect the
inside of Gilliam’s car before towing it. This means that it cannot withstand a motion to
dismiss under Fed.R.Civ.P. 12(b)(6) or Ohio’s Civ.R. 12(B)(6).
{¶ 10} Generally, “the existence of a duty depends upon the foreseeability of harm:
if a reasonably prudent person would have anticipated that an injury was likely to result
from a particular act, the court could find that the duty element of negligence is satisfied.”
(Citations omitted.) Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-
4210, 773 N.E.2d 1018, ¶ 23. “[T]he duty element of negligence may be established by
common law, by legislative enactment, or by the particular circumstances of a given
case.” (Citations omitted.) Id. We have scoured both Ohio law and the case law of
jurisdictions across the country and have found no authority suggesting that a tow-truck
driver who has been called by police to tow a vehicle has a general duty to inspect the
inside of the vehicle before towing it. This isn’t to say that a duty to inspect cannot exist
in certain situations. In our opinion, there may be particular circumstances in which a duty
to inspect does exists. It could be that the driver had in fact observed that Gilliam was still
in the car, or that the driver was informed there was someone in the car.
{¶ 11} We acknowledge that the complaint contains no allegations as to what Busy
Bee or the tow-truck driver knew, or where Gilliam was located in the car, or whether the
tow-truck driver should have seen him. The same is true of the proposed amended
complaint. The relevant amendments merely add that Busy Bee “arrived at the accident
scene per the request of the Defendant, Montgomery County Sheriff’s Department,”
-6-
(Amended Complaint, ¶ 13); that Busy Bee “proceeded to remove the vehicle from the
accident scene, yet did not inspect the contents and its surroundings prior to commencing
the tow,” (Id. at ¶ 14); and that Busy Bee “knew, or should have known, that towing a
vehicle with a person inside [incomplete in the amended complaint],” (Id. at ¶ 16). But we
are unable to conclude the amendments to the complaint would necessarily be futile.
{¶ 12} As the trial court noted, we have previously rejected the “plausibility”
requirement of pleading that has been adopted in our federal courts. Sacksteder v.
Senney, 2d Dist. Montgomery No. 24993, 2012-Ohio-4452. Ohio still follows the rule that
a complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.” O'Brien v.
Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).
All that is required is “a short and plain statement of the claim showing that the party is
entitled to relief.” Civ. R. 8(A). In this regard, the civil rules provide forms that “shall be
accepted for filing by the courts of this state.” Civ. R. 84. The sample form for a “Complaint
for negligence” merely states: “1. On _____, 20___, in a public highway called _____
Street in _____, Ohio, defendant negligently drove a motor vehicle against plaintiff who
was then crossing said highway.” The sample complaint then contains a second
paragraph indicating that as a result the plaintiff was injured, damaged, suffered, and
incurred medical costs. In our opinion the amended complaint here says more than what
is suggested by the civil rule sample form.
{¶ 13} A motion to amend may be denied “if the amendment of the complaint would
be futile.” Natl. City Bank v. Citizens Natl. Bank of Southwest Ohio, 2d Dist. Montgomery
No. 20323, 2004-Ohio-6060, ¶ 26; see also State ex rel. Brewer-Garrett Co. v.
-7-
MetroHealth Sys., 8th Dist. Cuyahoga No. 87365, 2006-Ohio-5244, ¶ 17 (saying that
“[w]here an amendment to the complaint would have been futile, the trial court * * * does
not abuse its discretion in denying the motion”). However, we have already determined
we are not able to conclude that the amendments to the complaint would have been futile
and therefore the amendments should have been permitted and the claim should not have
been dismissed.
{¶ 14} The first assignment of error is sustained.
B. Deputy Crowe and Sheriff Plummer’s motion to dismiss
{¶ 15} The second assignment of error alleges that the trial court erred by
sustaining Deputy Crowe and Sheriff Plummer’s motion to dismiss under Civ.R. 12(B)(6)
based on their immunity from liability under R.C. Chapter 2744. “We conduct a de novo
review of a dismissal under Civ.R. 12(B)(6).” (Citation omitted.) Sheldon v. Kettering
Health Network, 2015-Ohio-3268, 40 N.E.3d 661, ¶ 5 (2d Dist.).
{¶ 16} For a defendant to prevail on a motion to dismiss for failure to state a claim,
it must appear beyond doubt that the plaintiff can prove no set of facts entitling him to
relief. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988).
“Unsupported conclusions” in a complaint “are not taken as admitted by a motion to
dismiss and are not sufficient to withstand such a motion.” (Emphasis sic.) Id. at 193. A
complaint fails to state a claim, then, if there is no set of facts, consistent with the
complaint, that would allow the plaintiff to recover.
{¶ 17} The complaint here asserts claims against Deputy Crowe and Sheriff
Plummer in their official and individual capacities. The trial court concluded that Crowe
and Plummer are both entitled to immunity in both capacities. Gilliam’s argument on
-8-
appeal, though, focuses solely on the question of individual immunity. We assume their
official immunity and consider only their individual immunity.
{¶ 18} “R.C. Chapter 2744 sets out circumstances under which political
subdivisions and their employees are liable in tort in connection with governmental and
proprietary functions. Political-subdivision immunity is an affirmative defense.” (Citation
omitted.) Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161, ¶ 6.
R.C. 2744.03(A) “prescribes defenses or immunities that an employee of a political
subdivision may assert to establish nonliability in a civil action for damages allegedly
caused by an act or omission in connection with a governmental or proprietary function.”
Id. at ¶ 7. R.C. 2744.03(A)(6)(b) pertinently states that a political-subdivision employee
“is immune from liability unless the employee’s acts or omissions were ‘* * * in a wanton
or reckless manner.’ ” (Emphasis sic.) Id., quoting R.C. 2744.03(A)(6)(b). “This standard
applies to law-enforcement.” (Citation omitted.) Id.
{¶ 19} The focus here is on recklessness. “Reckless conduct” is “conduct
‘characterized by the conscious disregard of or indifference to a known or obvious risk of
harm to another that is unreasonable under the circumstances and is substantially greater
than negligent conduct.’ ” Id. at ¶ 8, quoting Anderson v. Massillon, 134 Ohio St.3d 380,
2012-Ohio-5711, 983 N.E.2d 266, paragraph four of the syllabus.
1. Deputy Crowe
{¶ 20} The complaint alleges that Crowe “failed to locate Plaintiff as he remained
in the vehicle,” (Complaint, ¶ 11). Specifically, Count I alleges that
Defendant Crowe acted negligently, with gross negligence, and/or
recklessly, by failing to do the following[:]
-9-
a. properly inventory the vehicle;
b. follow normal and accepted practices and procedures of the
Montgomery County Sherriff’s Office;
c. remove Plaintiff from a position of peril;
d. provide adequate and proper emergency care and treatment; and
e. provide adequate and proper medical care and treatment.
(Id. at ¶ 18).
{¶ 21} These allegations are insufficient to conclude that Deputy Crowe’s conduct
was reckless. “A violation of departmental policy * * * does not equate to per se
recklessness.” (Citation omitted.) Argabrite, 149 Ohio St.3d 349, 2016-Ohio-8374, 75
N.E.3d 161, at ¶ 21. “Recklessness requires knowledge by the actor that his ‘conduct will
in all probability result in injury.’ ” Id., quoting O’Toole v. Denihan, 118 Ohio St.3d 374,
2008-Ohio-2574, 889 N.E.2d 505, paragraph three of the syllabus. None of the factual
allegations in the complaint here suggests that Crowe knew there was a risk of harm or
that a risk of harm was obvious. There are no allegations about what Crowe knew or
should have known. At most, the allegations suggest that Crowe was negligent, which is
not enough to impose liability. The complaint’s allegation that Crowe’s conduct was
reckless is merely a conclusory statement about his conduct that is unsupported by the
complaint’s factual allegations.1
2. Sheriff Plummer
{¶ 22} The complaint asserts two claims against Sheriff Plummer. Count II alleges
1 We note that the amended complaint does not add any factual allegations that would
change this conclusion.
-10-
that “Defendant Plummer negligently caused the above-described injuries to Plaintiff by
failing to properly train, supervise and control the conduct of Defendant Crowe,”
(Complaint, ¶ 23), and that “Defendant Plummer, Montgomery County Sheriff, as the
employer of Defendant Crowe, is liable under the doctrine of respondeat superior for the
tortious conduct of Defendant Crowe,” (Id. at ¶ 24). Count III alleges that “[t]he conduct
of Defendant Plummer, Montgomery County Sheriff, in failing to properly train, supervise
and control the conduct of Defendant Crowe, constitutes negligence, gross negligence,
and recklessness.” (Id. at ¶ 29).
{¶ 23} These allegations are bare conclusory statements with no supporting
factual allegations. There are no allegations about what training Plummer did or did not
provide to Crowe. There are no allegations as to anything that happened before Gilliam’s
accident. There are no allegations about Plummer’s supervision of Crowe on the date of
the accident. And there are no allegations relating to Plummer’s control of Crowe. In sum,
the complaint “consists of nothing more than unilateral legal conclusions framed as
allegations * * * [and] is devoid of factual allegations of recoverable conduct,” Amrhein v.
Telb, 6th Dist. Lucas No. L-06-1170, 2006-Ohio-5107, ¶ 16. Gilliam “simply presents the
outcome itself as evidence of malfeasance,” id. (affirming dismissal of the described
complaint under Civ.R. 12(C)).2
{¶ 24} Because Deputy Crowe and Sheriff Plummer are entitled to immunity as
political-subdivision employees, Gilliam’s claims against them in their individual capacity
fail as a matter of law. The trial court’s dismissal of them was proper.
2 The amended complaint does not add any factual allegations that would change this
conclusion either.
-11-
{¶ 25} The second assignment of error is overruled.
III. Conclusion
{¶ 26} We have sustained the first assignment of error and overruled the second
assignment of error. This case is affirmed in part and reversed in part and remanded for
proceedings consistent with this opinion.
.............
FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
Aaron Durden
Christopher Carrigg
Lisa Hesse
Benjamin Mazer
Joseph Saks
Anne Jagielski
Hon. Mary Lynn Wiseman