Campbell v. Burton

Douglas, J.

This case is before the court for the purpose of resolving a conflict among the courts of appeals for the Second, Fifth, Sixth, and Ninth District Courts of Appeals with regard to whether, within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421 expressly imposes liability for failure to perform the duty to report known or suspected child abuse.

Amber Campbell was an eighth-grade student at Baker Junior High, Fairborn City Schools (“Fairborn”), during the 1995 to 1996 school year. During the same time period Fairborn conducted a peer mediation program. The peer mediation program involved students as mediators and was designed to resolve disputes between students. Debra Mallonee was a teacher working for Fairborn from 1977 to 1997. In addition to teaching, Mallonee was the peer mediation coordinator.

From January to August 1996, Mallonee was on sabbatical pursuing her Ph.D. at Ohio State University. During her sabbatical, Mallonee was authorized by the school to conduct mediations requested by teachers and administration.

In March 1996, Campbell participated in two mediations as a disputant with another student, Amanda Adkins, regarding a disagreement over a male classmate. In the first mediation, Campbell, Adkins, and Mallonee were present. The mediation concluded with Campbell and Adkins entering into a written *338agreement. When their dispute resumed shortly thereafter, Adkins sought another mediation with Campbell.

According to Campbell, during the second mediation she told Mallonee that there was a male friend of the family, David Burton, who hugged her and made her feel uncomfortable. Relating an incident in which Burton picked her up from Saturday school in his car, Campbell stated, “[H]e told me to kiss him and slapped me on the butt and touched my necklace and went down to my breasts and crotch area.” Campbell described another incident in which Campbell sat on Burton’s lap while sledding. In addition, Campbell stated in her deposition that she told Mallonee that Burton would call her and ask her to go over to his house when no one else was home. Specifically, Mallonee recounted in her deposition that Campbell told her that Burton would try to touch her and kiss her and that this made her uncomfortable.1

In addition to the information regarding Burton, Campbell said she also told Mallonee a story about Campbell having sex with the brother of one of her friends. Campbell claimed that Mallonee did not pay attention to what she had said about Burton, so Campbell made up the story about having sex with the friend’s brother in order to get Mallonee’s attention. Mallonee recalled the incident differently, stating that Campbell first told the story about having sex with the brother of a friend and then described the incidents with Burton. Mallonee believed that the story about Burton was simply an attempt by Campbell to change the subject from the initial discussion about having sex with the brother of her friend.

At the close of the mediation, Mallonee instructed Campbell to tell her mother about Burton arid to stay away from him if he made her feel uncomfortable. Mallonee did not report Campbell’s concerns regarding Burton to anyone. Campbell alleges that after her conversation with Mallonee, Burton continued to hug her, touch her buttocks, and on one occasion “french kissed” her.

On March 21, 1997, Campbell, through her mother and next friend, Sharon Campbell, and father, Carl W. Campbell, appellants, filed an action against Steven Clifton, who is the Superintendent of Fairborn City Schools, and the Board of Education of the Fairborn City Schools (also “Fairborn”), appellees, and Burton. On March 23, 1998, appellants filed an action against Mallonee, who is also an appellee. The two complaints allege that appellees failed to report, pursuant to R.C. 2151.421, the alleged abuse. As a result of Mallonee’s failure to report Campbell’s concerns, appellants contend, Campbell suffered psychological and other permanent injury. The court consolidated the two eases.

*339On January 27, 1999, the trial court granted summary judgment in favor of Clifton and Mallonee on the basis that they were immune from liability pursuant to R.C. 2744.03(A)(6). The trial court also granted summary judgment in favor of Fairborn on the grounds that it was immune from liability pursuant to R.C. 2744.02(A)(1).

Appellants appealed the trial court’s decision to the Greene County Court of Appeals. The court of appeals affirmed, holding that within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421 did not expressly impose liability. Appellants then moved the court of appeals to certify a conflict in this case. The court of appeals granted the motion with respect to the following cases: Rich v. Erie Cty. Dept. of Human Resources (1995), 106 Ohio App.3d 88, 665 N.E.2d 278; Crago v. Lorain Cty. Commrs. (1990), 69 Ohio App.3d 24, 590 N.E.2d 15; Sprouse v. Lucas Cty. Bd. of Edn. (Mar. 12, 1999), Lucas App. No. L-98-1098, unreported, 1999 WL 128636; Reed v. Perry Cty. Children’s Serv. (June 29, 1993), Perry App. No. CA-429, unreported, 1993 WL 274299. This cause is now before this court upon our determination that a conflict exists (case No. 99-2106), and pursuant to the allowance of a discretionary appeal (case No. 99-1838).

The certified question presented to this court on appeal from the Second Appellate district is:

“For the purposes of the immunity exceptions in R.C. 2744.02(B)(5) and R.C. 2744.03(A)(6)(c), does R.C. 2151.421 expressly impose liability on political subdivisions and their employees for failure to report child abuse?”

We answer the certified question in the affirmative. R.C. 2151.421, through its penalty statute, R.C. 2151.99, expressly imposes liability, within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), on political subdivisions and their employees for failure to report suspected child abuse. Accordingly, we reverse the judgment of the court of appeals and remand this matter to the trial court for further proceedings consistent with this opinion.

The issues raised by the parties concern sovereign immunity pursuant to the Political Subdivision Tort Liability Act and the exceptions to immunity set forth in R.C. 2744.02 and 2744.03.2 In order to determine immunities set forth in the chapter, a three-tiered analysis of R.C. Chapter 2744 is required. Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610, 614. First, we analyze R.C. 2744.02(A)(1), which provides:

“Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property *340allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision * * *."

Second, we analyze R.C. 2744.02(B), which provides: “[S]ubject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees * * * as follows.” These exceptions to immunity are set forth in R.C. 2744.02(B)(1) through (5). For the purposes of the present case, only R.C. 2744.02(B)(5) applies. It provides:

“In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to persons or property when liability is expressly imposed upon the political subdivision by a section of the Revised Code * * *. Liability shall not be construed to exist under another section of the Revised Code merely because a responsibility is imposed upon a political subdivision or because of a general authorization that a political subdivision may sue and be sued.”

The third and final tier of analysis requires review of R.C. 2744.03 and 2744.05. R.C. 2744.05, which restricts damage awards, is not applicable here. R.C. 2744.03, which provides defenses and immunities to political subdivisions, is applicable. For the purposes of our review, only R.C. 2744.03(A)(6) applies. It provides immunity to an employee of a political subdivision unless an exception found within R.C. 2744.03(A)(6)(a) through (c) applies. Only R.C. 2744.03(A)(6)(c) is pertinent. R.C. 2744.03(A)(6)(c) provides that an employee may be liable if “[liability is expressly imposed upon the employee by a section of the Revised Code.”

As stated in the exceptions to immunity set forth in R.C. 2744.02(B)(5) and R.C. 2744.03(A)(6)(c), an express imposition of liability in another section of the Revised Code negates immunity. Accordingly, we direct our attention to R.C. 2151.421, which mandates the reporting of known or suspected child abuse. We must further determine whether R.C. 2151.421 expressly imposes liability within the meaning of R.C. 2744.02(B)(5) and R.C. 2744.03(A)(6)(c).

R.C. 2151.421(A)(1)(a)3 states:

“No person described in division (A)(1)(b) of this section who is acting in an official or professional capacity and knows or suspects that a child under eighteen years of age or a- mentally retarded, developmental^ disabled, or physically *341impaired child under twenty-one years of age has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child, shall fail to immediately report that knowledge or suspicion to the public children services agency or a municipal or county peace officer * * *."

R.C. 2151.421(A)(1)(b) lists “school teacher; school employee; school authority” and other professionals as persons required to report any known or suspected abuse or neglect. In Brodie v. Summit Cty. Children Serv. Bd. (1990), 51 Ohio St.3d 112, 119, 554 N.E.2d 1301, 1308, we found that the General Assembly enacted R.C. 2151.421 to safeguard children from abuse. In many instances, only the state and its political subdivisions can protect children from abuse. Id. Additionally, we found that children services agencies must protect children from abuse and eliminate the source of any such abuse. Id.4 Thus, it is clear that the concern of the General Assembly in enacting R.C. 2151.421 was not political subdivisions or their employees, but the protection of children from abuse and neglect.

Appellees argue that R.C. 2151.421 does not expressly impose liability. We disagree. R.C. 2151.421(A) requires that certain persons report known or suspected child abuse. R.C. 2151.99 provides, “Whoever violates * * * division (A)(1) * * * of section 2151.421 of the Revised Code is guilty of a misdemeanor of the fourth degree.” Thus, anyone who is required by R.C. 2151.421 to report known or suspected child abuse but fails to report such abuse is guilty of a fourth-degree misdemeanor.

Appellees argue that a criminal sanction is not an express imposition of liability within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c). Interestingly, appellees cite a definition of “liability” that states, “The quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment.” Black’s Law Dictionary (7 Ed.1999) 925. We find this definition compelling.

In R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), the term “liability” is not modified by the words “civil” or “criminal.” Therefore, by its very definition, “liability” refers to either a criminal or civil penalty. In reviewing these provisions of the statute “it is the duty of this court to give effect to the words used, not to delete words used or insert words not used.” Cleveland Elec. Illum. Co. v. Cleveland (1988), 37 Ohio St.3d 50, 524 N.E.2d 441, paragraph three of the syllabus, citing *342Columbus-Suburban Coach Lines v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 127, 49 O.O.2d 445, 446, 254 N.E.2d 8, 9.

Appellees also contend that the word “liability” as used in R.C. 2744.02(B)(5) and 2744.03(A)(6)(c) can only be interpreted as referring to civil liability, since the general immunity provision of R.C. 2744.02(A)(1) provides for civil immunity: Contrary to appellees’ arguments, the term “liability” as set forth in R.C. 2744.02(B)(5) means liability that “is expressly imposed upon the political subdivision by a section of the Revised Code.” It is evident from a plain reading of R.C. 2744.02(B)(5) that the legislature is using the term “liability” as set forth in other chapters of the Revised Code, and not within the context of R.C. 2744.02(A)(1). In addition, it is instructive to compare and contrast the actual language of each section of the code. Specifically, R.C. 2744.02(A)(1) provides for immunity from civil liability. In contrast, R.C. 2744.02(B)(5) is not as narrowly drawn. All it requires is express imposition of “liability” by another section of the Revised Code. When that- exists the exception to immunity is satisfied. Accordingly, had the legislature intended to restrict the exception to immunity in R.C. 2744.02(B)(5) to civil liability, it certainly knew how to do so. See, also, R.C. 2151.421(G)(1), where the General Assembly used both the words “civil” and “criminal” in conjunction with the word “liability.”

The General Assembly enacted R.C. 2151.421 to provide special protection to children from abuse and neglect. In order to achieve this goal, the General Assembly had to encourage those with special relationships with children, such as doctors and teachers, to report known or suspected child abuse. R.C. 2151.99 imposes a criminal penalty for failure to report. Furthermore, the General Assembly encouraged reporting by providing immunity from, both civfi and criminal liability to the persons whose duty it is to report. R.C. 2151.421(G)(1).5 Thus, the General Assembly clearly encouraged reporting and specifically discouraged the failure to report by imposing a criminal penalty pursuant to R.C. 2151.99. We disagree with appellees’ contention that in the absence of the word “liability” from R.C. 2151.99 they are entitled to immunity. To the contrary, we ean imagine no stronger intent than to actually impose liability through R.C. 2151.99, as the General Assembly has done.

Accordingly, we hold that within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c), R.C. 2151.421 expressly imposes liability for failure to perform the duty to report known or suspected child abuse.

I. Liability of Fairborn

In order to determine the potential liability of Fairborn, we now apply the three-tiered analysis of R.C. Chapter 2744 as set forth above. Again, pursuant to *343R.C. 2744.02(A)(1), a political subdivision is immune from liability for its acts or omissions or the acts or omissions of its employees, unless one of the exceptions set forth in R.C. 2744.02(B) applies. Accordingly, under the first tier of analysis, Fairborn is generally immune for Mallonee’s alleged failure to report.

Next we determine whether one of the R.C. 2744.02(B) exceptions applies. The only pertinent exception is found in R.C. 2744.02(B)(5), which states that “a political subdivision is liable * * * when liability is expressly imposed upon the political subdivision by a section of the Revised Code * * As explained above, R.C. 2151.421 expressly imposes liability for the failure to report known or suspected child abuse. Thus, if Fairborn had a duty to report, then immunity pursuant to R.C. 2744.02(B)(5) is not available to Fairborn.

Finally, we are required to review R.C. 2744.03, which gives defenses and immunities to subdivisions and subdivision employees, and R.C. 2744.05, which limits damages. It is clear that nothing in R.C. 2744.03 or 2744.05 applies in the case before us. Therefore, we hold that, pursuant to R.C. 2744.02(B)(5), Fairborn is not immune from liability.

Based upon the foregoing analysis, we find that pursuant to R.C. 2744.02(B)(5), a political subdivision may be held liable for failure to perform a duty expressly imposed on its employee by R.C. 2151.421.

II. Liability of Clifton and Mallonee

Clifton and Mallonee claim immunity pursuant to R.C. 2744.03(A)(6). However, the immunity provided to employees of a political subdivision by R.C. 2744.03(A)(6) is subject to exceptions provided by subsections (a) through (c). R.C. 2744.03(A)(6)(c) tracks the language of R.C. 2744.02(B)(5) and denies immunity if “[ljiability is expressly imposed upon the employee by a section of the Revised Code.”

Since R.C. 2744.03(A)(6)(c), like R.C. 2744.02(B)(5), provides an exception to immunity where a section of the Revised Code expressly imposes liability, we reach the same conclusion with respect to the liability of Clifton and Mallonee as we did with Fairborn. We hold that pursuant to R.C. 2744.03(A)(6)(c), an employee of a political subdivision may be held hable for failure to perform a duty expressly imposed by R.C. 2151.421.

While we hold that liability may be imposed, we make no determination of appellees’ liability. The only determination we make is that the claim of sovereign immunity6 is not available to appellees. The evidence provided by *344appellants at trial may or may not be sufficient to support the contention that appellees should have reported Campbell’s concerns pursuant to R.C. 2151.421.

The judgment of the court of appeals is reversed, and this cause is remanded to the trial court.

Judgment reversed and cause remanded.

Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent.

. While there is considerable disagreement in the testimony regarding the detail of the information that was provided by Campbell to Mallonee, the testimony of the parties is consistent on the fact that Burton at least tried to touch and kiss Campbell and made her feel uncomfortable.

. This case is governed by R.C. 2744.02 and 2744.03 as amended by Am.Sub.S.B. No. 221, 145 Ohio Laws, Part II, 2211, 2215-2218, eff. Sept. 28, 1994.

. Both parties cite the current version of R.C. 2151.421, which was not in effect at the time of Mallonee’s alleged failure to report the suspected abuse. However, for the purposes of this cause of action there is no substantive difference between the current and former version^ of the statute, and, accordingly, there is no need to distinguish the two versions. See Am.Sub.H.B. No. 154, 144 Ohio Laws, Part II, 3198, 3213.

. In Brodie v. Summit Cty. Children Serv. Bd. (1990), 51 Ohio St.3d 112, 554 N.E.2d 1301, paragraph two of the syllabus, we held with respect to alleged failure to report pursuant to R.C. 2151.421, known or suspected child abuse, that the public-duty doctrine may not be raised as a defense for failure of an agency to comply with such statutory requirements. We specifically stated that the analysis of Saivicki v. Ottawa Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468, did not apply.

. R.C. 2151.421(G)(1), now R.C. 2151.421(G)(1)(a).

. For comparison to statutes that impose a duty but do not expressly impose liability, see Marshall v. Montgomery Cty. Children Serv. Bd. (2001), 92 Ohio St.3d 348, 750 N.E.2d 549, and Butler v. Jordan (2001), 92 Ohio St.3d 354, 750 N.E.2d 354.