# Campbell v. Burton

> Ohio Supreme Court · July 25, 2001 · 92 Ohio St. 3d 336

URL: https://www.frixlaw.com/law-library/cases/11152377

## Case

- **Court:** Ohio Supreme Court
- **Decided:** July 25, 2001
- **Citations:** 92 Ohio St. 3d 336; 2001 Ohio 206
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Douglas, J.
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded by statute, as recognized in Estate of Ridley v. Hamilton County Board of Mental Retardation.
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11152377

## How later opinions describe it (automated extraction)

- discussing prior version of R.C. 2744.02(B)(5)

## Opinion text

[This decision has been published in Ohio Official Reports at 92 Ohio St.3d 336.]

CAMPBELL ET AL., APPELLANTS, v. BURTON; CLIFTON ET AL., APPELLEES.
[Cite as Campbell v. Burton, 2001-Ohio-206.]
Juvenile law—Child abuse—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 duty to report known or suspected child abuse—Political
subdivision may be held liable for failure to perform duty expressly
imposed on its employee by R.C. 2151.421—Employee of political
subdivision may be held liable for failure to perform duty expressly
imposed by R.C. 2151.421.
(Nos. 99-1838 and 99-2106—Submitted September 12, 2000—Decided July 25,
2001.)
APPEAL from and CERTIFIED by the Court of Appeals for Greene County, No.
99CA12.
__________________
SYLLABUS OF THE COURT
1. 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.
2. Pursuant to R.C. 2744.02(B)(5), a political subdivision may be held liable for
failure to perform a duty expressly imposed by R.C. 2151.421.
3. Pursuant to R.C. 2744.03(A)(6)(c), an employee of a political subdivision may
be held liable for failure to perform a duty expressly imposed by R.C.
2151.421.
__________________
SUPREME COURT OF OHIO

DOUGLAS, J.
{¶ 1} 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.
{¶ 2} 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.
{¶ 3} 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.
{¶ 4} 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 agreement. When their dispute resumed shortly thereafter, Adkins sought
another mediation with Campbell.
{¶ 5} 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

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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
{¶ 6} 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.
{¶ 7} At the close of the mediation, Mallonee instructed Campbell to tell
her mother about Burton and 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.
{¶ 8} 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.

1. 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.

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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 cases.
{¶ 9} On 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).
{¶ 10} 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).
{¶ 11} 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?”
{¶ 12} 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

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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.
{¶ 13} 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
allegedly caused by any act or omission of the political subdivision or an employee
of the political subdivision * * *.”
{¶ 14} 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

2. 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.

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upon a political subdivision or because of a general authorization that a political
subdivision may sue and be sued.”
{¶ 15} 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 “[l]iability is expressly imposed upon the employee by a section of
the Revised Code.”
{¶ 16} 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).
{¶ 17} 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, developmentally disabled, or
physically impaired 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

3. 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 versions 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.

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immediately report that knowledge or suspicion to the public children services
agency or a municipal or county peace officer * * *.”
{¶ 18} 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.
{¶ 19} 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.
{¶ 20} 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

4. 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 Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468, did not
apply.

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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.
{¶ 21} 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 Columbus-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.
{¶ 22} 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.”

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{¶ 23} 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 civil 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
can imagine no stronger intent than to actually impose liability through R.C.
2151.99, as the General Assembly has done.
{¶ 24} 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
{¶ 25} 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 R.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.
{¶ 26} 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

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

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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.
{¶ 27} 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.
{¶ 28} 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
{¶ 29} 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 “[l]iability is expressly imposed upon the employee by a
section of the Revised Code.”
{¶ 30} 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 liable for failure to perform a
duty expressly imposed by R.C. 2151.421.
{¶ 31} While we hold that liability may be imposed, we make no
determination of appellees’ liability. The only determination we make is that the

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claim of sovereign immunity6 is not available to appellees. The evidence provided
by appellants 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.
{¶ 32} 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.
__________________
COOK, J., dissenting.
{¶ 33} 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.
{¶ 34} 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

6. 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, ___ N.E.2d ___, and Butler v.
Jordan (2001), 92 Ohio St.3d 354, ___ N.E.2d ___.

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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.)
{¶ 35} 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.”
{¶ 36} 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 “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.
{¶ 37} 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

7. 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

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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
{¶ 38} 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 imposes
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.

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).

8. 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 “[f]ailure
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.

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{¶ 39} 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.
{¶ 40} 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 Fairborn 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.
{¶ 41} 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.

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January Term, 2001

{¶ 42} 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.
{¶ 43} 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.)
{¶ 44} 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 * * * [l]iability 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

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SUPREME COURT OF OHIO

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.
{¶ 45} 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.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
dissenting opinion.
__________________
Gary J. Leppla and Jennifer L. Hill, for appellants.
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.
__________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11152377. Public record. Not legal advice.