Campbell v. Burton

Cook, J.,

dissenting. By virtue of R.C. 2151.99’s criminal penalty for a failure to report suspected child abuse, the majority holds that R.C. 2151.421 “expressly imposes” civil liability on political subdivisions and their employees within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c). Because the majority strains to so interpret these statutes, I respectfully dissent.

Fairborn City Schools (“Fairborn”) is a political subdivision, as defined in R.C. 2744.01(F), and is therefore entitled to immunity from tort liability as provided in R.C. Chapter 2744. R.C. 2744.02(A)(1) cloaks a political subdivision with a general grant of immunity, subject to the exceptions enumerated in R.C. 2744.02(B). See Greene Cty. Agricultural Soc. v. Liming (2000), 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141, 1146. The exception relevant here, R.C. 2744.02(B)(5), states:

“[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, including, but not limited to, sections 2743.02 and 5591.37 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 or be sued.” (Emphasis added.)

As individual employees of Fairborn, Mallonee and Clifton were also entitled to qualified immunity under R.C. 2744.03(A)(6). Much like the immunity granted to political subdivisions, R.C. 2744.03(A)(6) generally immunizes employees from liability so long as none of the enumerated exceptions applies. The exception relevant here,. R.C. 2744.03(A)(6)(c), removes an employee’s immunity if liability “is expressly imposed upon the employee by a section of the Revised Code.”

When interpreting statutes, we must give words their ordinary and natural meaning unless a different intention appears in the statute. Layman v. Woo (1997), 78 Ohio St.3d 485, 487, 678 N.E.2d 1217, 1218. The ordinary definition of *345“expressly” is “in direct or unmistakable terms * * *: explicitly, definitely, directly.” (Emphasis added.) Webster’s Third New International Dictionary (1971) 803. Thus, the relevant inquiry is whether R.C. 2151.421 unmistakably and explicitly states that a political subdivision or its employee will be liable in tort for a failure to report suspected child abuse.

As the majority notes, R.C. 2151.421(A) requires “that certain persons report known or suspected child abuse.” The statute does not, however, explicitly declare “in direct or unmistakable terms” that either a political subdivision or its employee will be liable for failure to comply with R.C. 2151.421(A).7 Without an explicit statement that liability will follow from an employee’s failure to report abuse, we are left to infer the existence of liability for the employee’s breach of the statutory duty. That we must infer liability necessarily means that the statute does not expressly impose it. Because it contains no explicit declaration that the political subdivision or its employee can be held liable in a civil action for damages, R.C. 2151.421, standing alone, cannot trigger the R.C. 2744.02(B)(5) and 2744.03(A)(6)(c) exceptions to immunity. See Colling v. Franklin Cty. Children Serv. (1993), 89 Ohio App.3d 245, 253, 624 N.E.2d 230, 236 (noting that courts should not stretch statutes beyond their ordinary meaning in order to impose liability under R.C. 2744.02[B][5]), citing Farra v. Dayton (1989), 62 Ohio App.3d 487, 496, 576 N.E.2d 807, 812-813.8

The majority solves this analytic problem by invoking R.C. 2151.99, which imposes criminal liability on any person who fails to comply with his or her reporting duty under R.C. 2151.421(A). Because any person who fails to report known or suspected child abuse as required by R.C. 2151.421 is guilty of a fourth-degree misdemeanor, the majority concludes that R.C. 2151.421 expressly impos*346es liability within the meaning of R.C. 2744.02(B)(5) and 2744.03(A)(6)(c). In other words, the majority has determined that R.C. 2151.99’s criminal penalty transforms R.C. 2151.421(A)’s duty to report into an express imposition of liability on both the political subdivision and its employee.

As applied to Fairborn’s potential liability, however, the majority’s interpretation is at odds with the plain language of R.C. 2744.02(B)(5). By its very terms, the R.C. 2744.02(B)(5) immunity exception applies only when “liability is expressly imposed upon the political subdivision by a section of the Revised Code.” (Emphasis added.) Neither R.C. 2151.421 nor 2151.99, whether read individually or together, does this. The only persons who may be guilty of a fourth-degree misdemeanor under R.C. 2151.99 are those specified in R.C. 2151.421(A) as having a duty to report. Nowhere in R.C. 2151.421(A), however, does it say that a political subdivision has a duty to report. And nowhere in R.C. 2151.99 does it say that a political subdivision, or any other entity for that matter, may be held criminally responsible for an employee’s failure to report suspected child abuse.

I therefore cannot agree with the majority’s holding that R.C. 2151.421, by virtue of R.C. 2151.99’s criminal penalty, expressly imposes liability upon Fair-born within the meaning of the R.C. 2744.02(B)(5) immunity exception. The majority’s holding not only opens the door to civil liability but is also tantamount to a decree that a political subdivision can be criminally prosecuted for a person’s failure to report suspected abuse. This is a remarkable proposition for which there is no statutory support, and one that would surely come as a surprise to the myriad political subdivisions that employ persons to whom the R.C. 2151.421(A) reporting duty applies.

The majority’s rationale is more defensible as applied to the potential liability of Mallonee and Clifton. As school district employees, both are included among the persons required to report suspected child abuse under R.C. 2151.421(A). Thus, they were theoretically subject to criminal liability under R.C. 2151.99 if they failed to discharge a duty to report. But even as applied to these individual defendants, the majority’s analysis ultimately collapses under the weight of the statutory language.

Because neither R.C. 2744.02(B)(5) nor 2744.03(A)(6)(c) modifies the word “liability” with the word “civil” or “criminal,” the majority surmises that the term “liability” refers to either civil or criminal consequences. The majority thus equates R.C. 2151.99’s express imposition of criminal liability with the type of “expressly imposed” liability required by R.C. 2744.03(A)(6)(c)’s immunity exception. But this view takes the word “liability” out of context. When viewed in the proper context, it becomes evident that the term “liability” as used in R.C. 2744.03(A)(6)(c) refers to civil liability and nothing more.

Gary J. Leppla and Jennifer L. Hill, for appellants.

R.C. 2744.03(A)(1) through (A)(7) contain various “defenses or immunities” that political subdivisions or their employees may raise in a civil action for damages. R.C. 2744.03(A). The paragraph introducing these “defenses or immunities” states:

“In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages * * * caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability.” (Emphasis added.)

This introductory paragraph specifies that the “defenses or immunities” contained in R.C. 2744.03(A)(1) through (A)(7) are relevant in determining whether a political subdivision or its employee will be liable in a civil action for damages. Accordingly, when R.C. 2744.03(A)(6)(c) provides that a political subdivision employee “is immune from liability unless * * * [liability is expressly imposed upon the employee by a section of the Revised Code,” the statute means that the employee is immune from civil liability unless that liability is expressly imposed by another Revised Code section. This is the only interpretation that harmonizes the various references to “liability” throughout R.C. Chapter 2744. Cf. Sargi v. Kent City Bd. of Edn. (C.A.6, 1995), 70 F.3d 907, 913 (refusing to construe R.C. 4511.99’s criminal penalty as an express imposition of liability for violation of R.C. 4511.76). Accepting the majority’s interpretation would require us to conclude that the unmodified term “liability” in the clause granting immunity (i.e., “the employee is immune from liability unless one of the following applies”) means civil liability, whereas that same unmodified term “liability” in the clause providing an exception (i.e., “Liability is expressly imposed upon the employee by a section of the Revised Code”) means either civil or criminal liability. It seems highly unlikely, however, that the General Assembly intended the same word to have different meanings within the same division of a statute. Nonetheless, the majority adopts this doubtful interpretation despite the lack of statutory language to support it.

If the legislature had truly intended to subject a political subdivision and its employees to tort liability for a violation of R.C. 2151.421, it would have expressly done so. Absent an express imposition of liability, the trial court correctly granted summary judgment for Fairborn, Mallonee, and Clifton based on R.C. Chapter 2744 immunity. I would therefore affirm the judgment of the court of appeals.

Mover, C.J., and Lundberg Stratton, J., concur in the foregoing dissenting opinion. Law Offices of Nicholas E. Subashi, Nicholas E. Subashi and David J. Arens, for appellees. Issac, Brant, Ledman & Teetor, Mark Landes and Barbara Kozar Letcher, urging affirmance for amici curiae County Commissioners Association of Ohio and Public Children’s Service Association of Ohio. Cloppert, Portman, Sauter, Lantanick & Foley and Frederick G. Cloppert, Jr., urging affirmance for amicus curiae Ohio Education Association.

. R.C. 2744.02(B)(5) instructs us not to find liability to exist merely because another section of the Revised Code imposes a responsibility. Though R.C. 2744.03(A)(6)(c) does not include a similar statement, it does not follow that we must construe a statutory duty as an express imposition of liability under R.C. 2744.03(A)(6)(c). Liability does not automatically follow from the breach of a statutory duty. Agnew v. Porter (1970), 23 Ohio St.2d 18, 23, 52 O.O.2d 79, 81-82, 260 N.E.2d 830, 833. Even when a duty exists, an immunity defense (if applicable) is still available. See id. Cf. Sikora v. Wenzel (2000), 88 Ohio St.3d 493, 496-497, 727 N.E.2d 1277, 1281 (even if violation of specific statutory duty might be negligence per se, a valid excuse may nonetheless preclude liability).

. R.C. 2744.02(B)(5) is itself instructive concerning what will constitute an express imposition of liability. It cites R.C. 2743.02 and 5591.37 as examples of statutes that expressly impose liability upon a political subdivision. R.C. 2743.02(B) “waives the immunity from liability of all hospitals owned or operated by one or more political subdivisions and consents for them to be sued, and to have their liability determined.” (Emphasis added.) Similarly, R.C. 5591.37 provides that “[flailure to comply with section 5591.36 of the Revised Code shall render the county liable” for damages. (Emphasis added.) Unlike R.C. 2151.421, these statutes declare in no uncertain terms that a political subdivision will be liable in a civil action for damages.