Hurst v. Ohio Dept. of Rehab. & Corr.

[This opinion has been published in Ohio Official Reports at 72 Ohio St.3d 325.]

HURST, EXR., APPELLEE, v. OHIO DEPARTMENT OF REHABILITATION AND

CORRECTION, APPELLANT.

[Cite as Hurst v. Ohio Dept. of Rehab. & Corr., 1995-Ohio-68.]

Torts—Wrongful death, negligence and negligence per se—Parole violator

participate in beating death of a person—Ohio Department of

Rehabilitation and Correction not guilty of negligence per se, when—Public

duty rule applies to bar liability on part of Adult Parole Authority, when.

(No. 93-2385—Submitted February 8, 1995—Decided June 21, 1995.)

APPEAL from the Court of Appeals for Franklin County, No. 93AP-672.

__________________

{¶ 1} Gary E. Smith was paroled from the Lebanon Correctional Institution

on January 21, 1991. He was ordered to reside in the Toledo Volunteers of America

("VOA") halfway house and was assigned to a parole officer. On March 10, 1991,

Smith failed to return to the VOA and was declared absent without leave. The

following day, the parole officer filed an arrest report with the Toledo Police

Department. The effect of this report was to alert the local police of Smith's AWOL

status and to place on file an arrest order. This information was not disseminated

beyond the Toledo Police Department.

{¶ 2} Pursuant to the policy of appellant, Ohio Department of

Rehabilitation and Correction, the parole officer waited thirty days before drafting

a parole violator at-large ("PVAL") report on April 10, 1992. Thereafter he

discussed the situation with his supervisor, who approved the PVAL report with

minor modifications. There is some confusion as to what happened to the PVAL

report next. The supervisor believes that two reports were forwarded to Columbus,

one on April 16 or 17 and a second one on April 30. However, elsewhere the record

SUPREME COURT OF OHIO

indicates that the next step in the process did not occur until May 2, 1991, when an

Adult Parole Authority case analyst validated the report for factual accuracy.

{¶ 3} After completing his duties, the case analyst passed the PVAL report

to a secretary, who prepared special minutes for the signature of the Chief of the

Adult Parole Authority. On May 8, 1991, the PVAL report was forwarded to

another person to be entered into two computer networks, the National Crime

Information Center and the Law Enforcement Automated Data System. However,

the data was never entered, apparently because Smith was arrested that same day

for his participation in the beating death of Della W. Hawkins.

{¶ 4} In the interim, on April 14, as a result of the delay in processing the

PVAL report and the failure to enter Smith's at-large status into the computer

networks, the department had missed an opportunity to hold him. Smith was

arrested in Allen County on a charge of driving under the influence. He was

sentenced on the charge and was incarcerated in Allen County from April 14 to

May 4.

{¶ 5} Appellee Minnie Ruth Hurst, executor of the estate of Ms. Hawkins,

filed suit in the Court of Claims against the Ohio Department of Rehabilitation and

Correction. The complaint alleged wrongful death, negligence and negligence per

se against the department for its delay in processing the Smith PVAL report. The

Court of Claims granted summary judgment for the department. The court of

appeals reversed, holding that the Court of Claims erred by applying the public duty

doctrine and not a rule of negligence per se to the conduct of the representatives of

the authority.

{¶ 6} The matter is now before this court pursuant to the allowance of a

discretionary appeal.

__________________

Gooding, Huffman, Kelley & Becker and Matthew C. Huffman, for appellee.

2

January Term, 1995

Betty D. Montgomery, Attorney General, and Eric A. Walker, Assistant

Attorney General, for appellant.

__________________

MOYER, C.J.

{¶ 7} By its sole proposition of law, the department argues that it is immune

from liability by operation of the public duty rule and that the court of appeals

incorrectly concluded that the department could be found to be negligent per se.

For the reasons that follow, we reverse the judgment of the court of appeals.

{¶ 8} The public duty rule was adopted by this court in Sawicki v. Ottawa

Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468. In paragraph two of the syllabus,

we held, "[w]hen a duty which the law imposes upon a public official is a duty to

the public, a failure to perform it, or an inadequate or erroneous performance, it is

generally a public and not an individual injury." Conversely, recovery for negligent

conduct may be awarded if the conduct of the public official falls within a so-called

special duty exception. A special duty may be found if there is "(1) an assumption

by the [governmental entity], through promises or actions, of an affirmative duty to

act on behalf of the party who was injured; (2) knowledge on the part of the

[entity's] agents that inaction could lead to harm; (3) some form of direct contact

between the [entity's] agents and the injured party; and (4) that party's justifiable

reliance on the [entity's] affirmative undertaking." Sawicki, paragraph four of the

syllabus.

{¶ 9} In reversing the Court of Claims' application of the public duty

doctrine, the court of appeals expressed reservations concerning the continued

vitality of the public duty rule in light of our decisions in Reynolds v. State (1984),

14 Ohio St.3d 68, 14 ORB 506, 471 N.E.2d 776, and Crawford v. Ohio Div. of

Parole & Community Serv. (1991), 57 Ohio St.3d 184, 566 N.E.2d 1233. However,

Reynolds and Crawford are clearly distinguishable from Sawicki and from this case.

3

SUPREME COURT OF OHIO

{¶ 10} In both Reynolds and Crawford we held that the state was negligent

per se for failing to confine a furloughed prisoner during nonworking hours. We

reasoned that the decision to furlough a prisoner was an executive decision, but

once the decision was made, R.C. 2967.26(B) imposed a specific, affirmative duty

to confine the prisoner during nonworking hours. At the time pertinent to this case,

R.C. 2967.26(B) imposed a specific, affirmative duty to confine the prisoner during

nonworking hours. At the time pertinent to this case, R.C. 2967.26(B) provided

that a prisoner "who is granted a furlough pursuant to this section *** shall be

confined during any period of time that he is not actually working at this approved

employment *** or engaged in other activities approved by the department." 142

Ohio Laws, Part 1, 287. We have held that [w]here there exists a legislative

enactment commanding or prohibiting for the safety of others the doing of a specific

act and there is a violation of such enactment solely by one whose duty it is to obey

it, such violation constitutes negligence per se." Eisenhuth v. Moneyhon (1954),

161 Ohio St. 367, 53 O.O. 274, 119 N.E.2d 440, paragraph three of the syllabus.

{¶ 11} However, where the duty is defined "only in abstract or general

terms, leaving to the jury the ascertainment and determination of reasonableness

and correctness of acts and conduct under the proven conditions and circumstances,

the phrase negligence per se has no application." Swoboda v. Brown (1935), 129

Ohio St.512, 523, 2 O.O. 516, 521, 196 N.E. 274, 279. In Eisenhuth we further

explained that where the duty prescribed by the enactment is so specific that the

only determination necessary by the jury is to find but a single fact, a violation of

the statute, then there is negligence per se. Conversely, if the jury must determine

negligence from a consideration of several facts and circumstances, then negligence

per se is inapplicable. Id., 161 Ohio St. at 373-374, 53 O.O. at 277-278, 119 N.E.2d

at 444.

{¶ 12} Accordingly, in Reynolds and Crawford we held that the statutory

language "shall be confined" imposed a specific, affirmative duty upon the state,

4

January Term, 1995

the violation of which constituted negligence per se. The statutes pertaining to

paroled prisoners are not identical in nature or degree to those relating to furloughed

prisoners.

{¶ 13} R.C. 5149.04(A) provides that "[p]ersons paroled *** shall be under

jurisdiction of the adult parole authority and shall be supervised *** in such manner

as to insure as nearly as possible the parolee's rehabilitation which at the same time

providing maximum protection to the general public." Additionally, former R.C.

2967.15 stated that "a prisoner who has been paroled, who in the judgment of the

adult parole authority, has violated the conditions of his *** parole shall be declared

a violator.

"Whenever any parole officer has reasonable cause to believe that any

parolee under the supervision of the authority has violated the terms or conditions

of his *** parole, such parole officer may arrest such parolee ***.

"***

"In the event such parolee is declared to be a parole violator the

superintendent shall within a reasonable time, order his return to the institution from

which he was paroled.

"***

"In the event a parolee absconds from supervision such fact shall be reported

by the superintendent to the authority, in writing, and the authority shall enter an

order upon its official minutes declaring such parolee to be a parole violator at large.

***" 130 Ohio Laws, Part II, 154-155.

{¶ 14} Finally, Ohio Adm. Code 5120:1-1-16 provides:

"(A) Whenever a releasee absconds from supervision, such fact shall be

reported at the earliest practicable time by the Unit Supervisor, or other supervisor

of the releasee, to the Chief of the Adult Parole Authority, or his designee, in

writing.

5

SUPREME COURT OF OHIO

"(B) Upon receipt of such report by the Adult Parole Authority, the releasee

may be declared a violator-at-large and such declaration entered into its official

minutes or such decision may be delayed pending further investigation."

{¶ 15} The duties imposed upon the department regarding parolees are

significantly different from those involving furloughed prisoners. A furloughed

prisoner remains incarcerated, whereas a paroled prisoner has been given a

conditional release from prison. The only affirmative duty imposed is to report the

status of a parole violator as at-large and to enter this fact into the official minutes

of the Adult Parole Authority. The parties agree this was done. The dispute centers

on whether the act was performed timely. However, the duty to advise the authority

is described in terms of reasonableness. Furthermore, the parties have failed to

bring to our attention, nor has our research discovered, a statute or rule that imposes

a specific, affirmative duty of the authority to enter the violator's name on any

computer network.

{¶ 16} It is the failure to respond in a timely fashion or to enter the violator's

name into a computer network that is alleged to be negligence; however, both

require a determination of reasonableness and discretion. Since the finder of fact

must determine the issue of liability by deciding more than whether a specific safety

statute was violated, negligence per se is inapplicable. It follows that ordinary

principles of negligence, including the public duty rule, apply to the conduct of the

Adult Parole Authority.

{¶ 17} The public duty rule comprises a defense independent of sovereign

immunity. Sawicki, supra, 37 Ohio St.3d 222, 525 N.E.2d 468, paragraph three of

the syllabus. The rule originated in English common law and survived the

abrogation of sovereign immunity. Id. at 229-230, 525 N.E.2d at 476-477. It is

used to determine the first element of negligence, the existence of a duty on the part

of the state. If the duty owed is general in nature, the wrong created by its breach

is to the public in general and, therefore, not individually actionable. Id. at 230,

6

January Term, 1995

525 N.E.2d at 477, citing 2 Cooley, Law of Torts (4 Ed. 1932) 385-386, Section

300.

{¶ 18} As the statutes relating to each indicate, parole and furlough are very

different in their purpose. So, too, are Reynolds and Crawford distinguishable

precedent. The statutes at issue herein do not establish specific affirmative duties

to any person. Rather, they prescribed a general procedure for granting parole from

prison and reporting violators of parole. Because appellee has failed to establish the

existence of a special duty owed the decedent by the state, the public duty rule

applies to bar liability on the part of the Adult Parole Authority.

{¶ 19} The judgment of the court of appeals is reversed.

Judgment reversed.

WRIGHT, RESNICK, F.E. SWEENEY and COOK, JJ., concur.

DOUGLAS, J., dissents and would affirm the judgment of the court of appeals

in all respects.

PFEIFER, J., dissents.

__________________

PFEIFER, J., dissenting.

{¶ 20} Della Hawkins is dead. Gary Smith was a parole violator at large

("PVAL") for over seven weeks when he killed Della. Just four days before Della's

murder, Smith finished a three-week stint in the Allen County Correctional Facility

for driving under the influence. Lacking the appropriate information on the

prisoner,. Allen County officials released him, since they had no idea they were

holding a PVAL.

{¶ 21} In the days when a federal marshal rode over his territory on

horseback and handed out wanted posters, a lack of communication between

jurisdictions was expected. It was understandable that outlaws would easily evade

detection when only trains connected most towns and electricity was still a

fascination. Incomplete information was even common when telephones had dials

7

SUPREME COURT OF OHIO

and documents actually traveled by mail. This, however, is the age of computers,

fax machines, and mobile phones—instantaneous communications—the

information age. Today we expect more, and the state has promised us more.

{¶ 22} The majority contends that the Department of Rehabilitation and

Correction cannot be negligent for losing Gary Smith, nor for allowing his parole

violation to go unreported. The majority states that "the duties imposed upon the

[Department of Rehabilitation and Correction] regarding parolees are significantly

different from those involving furloughed prisoners," and that, therefore, Della's

estate cannot pursue its claim as the plaintiffs had in Reynolds and Crawford.

{¶ 23} While the duties involved may differ, the key fact remains that the

state does have certain statutorily defined duties regarding paroled prisoners. It is

that existence of a statutory duty that took Crawford, and which should take this

case, out of the realm of Sawicki.

{¶ 24} Every negligence case has four factors: duty, a breach of that duty,

damage, and causation. Sawicki stands for the notion that the state owes the public

no general, actionable duty to exercise ordinary care. In Crawford, however, this

court held that the state does create an actionable duty to the public when it sets

certain specific statutory standards for itself. The plaintiff in Reynolds went on to

prove the breach of that duty and linked that breach to the injuries suffered.

{¶ 25} In this case, we are still at the first step, duty. The fact that the duty

the state statutorily defines for itself in this case is, in the majority's words,

"described in terms of reasonableness," is relevant to whether the duty was

breached, not to whether the duty exists. In Crawford, the question of breach

answered itself, since the statute required furloughees to be confined, and the

assailant in that case obviously was not. The plaintiffs in this case will have a

tougher row to hoe because of some leeway the state has created for itself -- the

statutory and Administrative Code sections require a PVAL's supervisor to report

that status to the Chief of the Adult Parole Authority "at the earliest practicable

8

January Term, 1995

time" (Ohio Adm. Code 5120:1-1-16[A]) and the superintendent of parole

supervision to order a PVAL returned to confinement "within a reasonable time"

(former R.C. 2967.15). However, the fact that it will be harder to prove a breach

of a duty does not mean that the duty does not exist. Therefore, the trial court

wrongly granted the state summary judgment.

{¶ 26} The state's duties regarding furloughed prisoners and paroled

prisoners are different. While the differences are legitimate, to hold that an injured

person may recover for the state's breach of duty regarding a furloughee but not for

its breach of duty regarding a parolee defies both logic and fairness. To summarily

excuse the state from liability in the death of Della Hawkins clings to the antiquated

and incorrect British notion that "the King can do no wrong."

{¶ 27} The trial court should allow a determination by the trier of fact on

the question of the state's breach of duty. If the delays in this case were not

reasonable in light of manpower demands, technology, and other factors, then the

state breached its duty. Whether that breach proximately caused Della's death is

another factual question.

{¶ 28} Della Hawkins will have no other days on earth, but her heirs should

have their day in court.

__________________

9