Reed v. Multi-Cty. Juvenile Sys.

[Cite as Reed v. Multi-Cty. Juvenile Sys., 2010-Ohio-6602.]

STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

KELLY REED, )

) CASE NO. 09 CO 27

PLAINTIFF-APPELLEE/ )

CROSS-APPELLANT, )

)

- VS - ) OPINION

)

MULTI-COUNTY JUVENILE SYSTEMS,)

et al., )

)

DEFENDANTS-APPELLANTS/ )

CROSS-APPELLEES. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas

Court, Case No. 08 CV 269.

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee/

Cross-Appellant: Attorney Richard Abrams

Attorney Richard T. Bush

Attorney Charles W. Oldfield

Green, Haines, Sgambati, Co., LPA

P.O. Box 849

16 Wick Avenue, Suite 400

Youngstown, OH 44501

For Defendants-Appellants/

Cross-Appellees: Attorney Michael Zirpolo

Suite 206 Belden Village Tower

Canton, OH 44718

JUDGES:

Hon. Mary DeGenaro

Hon. Joseph J. Vukovich

Hon. Gene Donofrio

Dated: December 30, 2010

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DeGenaro, J.

{¶1} Defendants/Appellants/Cross-Appellees, Multi-County Juvenile Attention

System and individual employees of MCJAS timely appeal the July 13, 2009 decision of

the Columbiana County Court of Common Pleas, denying their motion for summary

judgment regarding Plaintiff/Appellee/Cross-Appellant Reed's state tort claims against the

employees. The employees argue that they did not fail to raise the affirmative defense of

statutory immunity in their answer, and that the trial court erred in finding that they had

waived the defense. Reed filed a cross-appeal from the same order, which granted

MCJAS's motion for summary judgment regarding her federal claims. Reed argues that

the trial court erred in finding that MCJAS and its employees were entitled to qualified

immunity from Reed's Section 1983 claims. Both parties raised conditional assignments

of error.

{¶2} Reed's complaint arose from allegations of sexual assault committed

against Reed by Howell, who was an MCJAS employee, and is not a party to the appeal.

In the combined answer for both MCJAS and its employees, the affirmative defense of

statutory immunity was raised only by MCJAS, and thus was waived by the employees.

Regarding Reed’s 1983 claim, there was nothing presented to indicate that MCJAS or its

employees had acted with deliberate indifference regarding the risk posed by Howell. For

these reasons, the parties’ respective arguments are meritless. Because their

assignments of error are meritless, their respective conditional assignments of error are

moot. Accordingly, the trial court's decision is affirmed.

Facts and Procedural History

{¶3} On March 5, 2008, Reed filed a complaint, naming MCJAS, the Board of

Trustees of MCJAS, Howell and other individual employees of MCJAS as defendants.

Reed alleged that she had been confined at MCJAS's facility, the Louis Tobin Center,

during the spring and fall of 2005, when she was sixteen years old, and that Howell, an

employee at the Tobin Center at that time, had repeatedly sexually assaulted her.

{¶4} In addition to her claims against Howell, Reed also asserted state and

federal claims against MCJAS and its employees. Specifically, Reed alleged that the

MCJAS and its employees breached their duties to protect Reed in a wanton or reckless

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manner. Reed also alleged that MCJAS and its employees, while acting under color of

law, were deliberately indifferent to Reed's safety by disregarding the substantial risk of

serious harm posed by Howell

{¶5} Howell answered Reed's complaint separately, as he was no longer an

employee of MCJAS. MCJAS and all other defendants filed an answer, stating the

following affirmative defenses:

{¶6} "1. MCJAS is a political subdivision engaging in a government function, to-

wit: the operation of places of juvenile detention, as defined by Section 2744.01(C)(1)(h)

of the Ohio Revised Code, and such [sic] has governmental immunity pursuant to Section

2744.02(A)(1) of the Ohio Revised Code.

{¶7} "2. Plaintiff's claims are barred by the applicable statutes of limitations.

{¶8} "3. Plaintiff's complaint fails to state any claims against MCJAS and the

other answering Defendants, on which relief can be granted."

{¶9} Upon receiving leave from the trial court, Reed filed an amended complaint ,

and MCJAS and its employees filed an amended answer stating the following:

{¶10} "1. Answering Defendants, including the Defendants who are newly named

in the first amended complaint, hereby restate in its entirety, the answer filed first in this

cause.

{¶11} "2. Answering Defendants are shielded from liability relative to the various

claims Plaintiff has made under 42 U.S.C.A. §1983 and the Eight [sic] Amendment to the

Constitution of the United States by qualified immunity, as that term has been defined by

federal law."

{¶12} MCJAS and its employees filed a motion for summary judgment supported

by depositions of Reed and 10 employees arguing: 1) MCJAS was a political subdivision

and therefore MCJAS and its employees were entitled to statutory immunity and shielded

from liability from Reed's state law claims, and 2) they were entitled to qualified immunity

from Reed's Section 1983 claims, due to the lack of evidence indicating that any of them

had known that there was a substantial risk that Howell was sexually assaulting Reed or

that they had failed to take reasonable measures to stop Howell's actions.

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Deposition Testimony Filed with Summary Judgment Motion

{¶13} Reed had been sent to Tobin for 45 days, starting in April of 2005, after she

was expelled from school for hitting a teacher. In September of 2005, Reed was returned

to Tobin after she drove her mother's car without a license and was in an accident.

Around that time, Reed had an incident with her probation officer, where she became

angry at him and unbuttoned her pants, apparently threatening to accuse him of

misconduct if he did not allow her to speak with her mother. Two or three weeks after

Reed had returned to Tobin, Howell began to hit on her. During the following weeks,

Reed and Howell had sexual intercourse approximately 5 times, and Reed performed oral

sex on Howell approximately 19 or 20 times. All of these incidents occurred in the Tobin

kitchen walk-in refrigerator, save for one incident in the kitchen storage area. Howell also

attempted sexual conduct with Reed at one point in a movie storage room, but Reed

refused because she was afraid that another employee would catch them. Reed was

alone with Howell during the incidents because she was the only Youth Aide at Tobin for

a time. A resident achieves the status of Youth Aide through good behavior, and the

status allowed privileges such as being able to stay up one hour later than the other

residents, and helping employees with various tasks. Reed did not tell anyone at Tobin

about the incidents with Howell. While at Tobin, Reed wrote a letter to her mother about

her relationship with Howell, but believed that her mother did not think that Reed was

serious. After Reed had been transferred to a residential treatment center in November,

she divulged her interactions with Howell to a fellow resident, who reported the

information to a treatment center employee, Rebecca Olihan.

{¶14} David Vanderwall, Director of Detention Services for MCJAS, oversees a

number of facilities, including Tobin. His main contact was with the Tobin Administrator,

Denna Bryan. Vanderwall's role in disciplinary proceedings was to perform investigations

and hearings, and to provide a report to the Superintendant, Donald Thernes, who would

decide on any disciplinary actions. Vanderwall described the disciplinary proceedings

regarding Howell for breaking a cabinet, one incident of horseplay with a male resident,

and one incident of unnecessarily physically restraining a noncompliant male resident.

He had heard from Bryan that Howell had had difficulty adjusting after returning from Iraq,

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and was developing a drinking problem. Bryan had gotten this information from general

concern voiced by co-workers, but there was no evidence that it was affecting his work.

There were usually three or four staff members working with the 18 or 19 kids at any one

time at Tobin. The incidents between Reed and Howell occurred at a time in the evening

when the other staff members were occupied with helping the residents prepare for bed.

Video cameras were placed at Tobin to have proof in the event of any incidents or

allegations, but they are not used for real-time monitoring, and there is no rule or

procedure for regularly reviewing them. The cameras are also used so that supervisors

can check that the night-shift workers performed their tasks. Tobin had a rule against

male employees entering any all-female wing without being accompanied by a female

employee, and vice-versa, but there was no rule forbidding employees from ever being

alone with residents of the opposite sex. Vanderwall stated that the references he made

to Howell regarding such a rule was about accountability, not putting himself in a

compromising situation, especially with Reed given her history of false allegations.

{¶15} Vanderwall conducted a pre-disciplinary report on Howell after Olihan

reported Reed's allegations. Upon review of the security cameras, the videos showed

Reed and Howell going into the kitchen and out of camera view on eight instances over

thirty days, for a total of 33 minutes of time off-camera. Vanderwall did not see any

concrete evidence of sexual activity in the videos, but he did find that Howell's actions

evidenced poor judgment at the very least. Vanderwall interviewed employees during his

investigation, and none of them felt that anything improper might be going on between

Howell and any female resident. They did not notice whether Howell regularly selected

Reed to help in the kitchen. Various employees used Reed's help in the kitchen, and she

had the choice to do so as a Youth Aide. Thus, her being in the kitchen with Howell did

not by itself indicate that something inappropriate was happening. No one had noticed

Howell and Reed entering the kitchen with the lights off.

{¶16} Although Vanderwall was aware of Reed's prior threat of false allegations,

he found her story of the present events to be very consistent. He found Reed to be

persuasive, and although he was not sure if her allegations were true, the policy of zero

tolerance for questionable behavior led him to decide not to take any chances.

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Vanderwall concluded in his letter that Bryan's allegation that Howell's actions were

unacceptably suspicious was true.

{¶17} Denna Bryan, Administrator of the Tobin facility, allowed Howell to transfer

to a position at Tobin, and noted he had good job performance evaluations at his prior

MCJAS facility. It had been reported that Howell was talking with other employees about

his sexual history, which was inappropriate due to the potential that residents may

overhear. Bryan recommended counseling to Howell when he returned to work after Iraq,

because a parent had died right beforehand, Howell was struggling, and had started

drinking. Bryan was concerned with Howell's discipline issues, but none raised the

suspicion of possible sexual misconduct.

{¶18} In addition to the disciplinary proceedings described by Vanderwall, Bryan

noted that she started an investigation against Howell for an alcohol-related car accident

on October 24, 2005. Although Howell was not at work, Tobin's policy is to investigate

any inappropriate behavior outside employment that is related to alcohol or drugs. Bryan

then began an investigation of Reed's allegation. From Bryan's interviews with the

employees, some staff had found Reed in the kitchen with Howell on a few occasions, but

did not find that suspicious, as it was common for Reed to help various employees in the

kitchen. Bryan remembered one employee, Emily Mitchell, reporting that she had

overheard male residents commenting on Howell and Reed being in the kitchen together.

During Emily Mitchell's deposition, she stated that she did not hear male residents talking

about Howell and Reed, but she did report an incident when a male resident had reported

to her that Howell had claimed that all of the female staff "wanted him."

{¶19} There was no official policy against employees being alone with residents of

the opposite sex, but Bryan did tell Howell he should not be alone with female residents,

as a part of maintaining proper boundaries, avoiding compromising situations, and

avoiding putting all parties at risk by going off-camera. In general, it was acceptable for

employees to be alone in a room with residents, but it was not acceptable to repeatedly

spend time out of camera view. Bryan concluded from reviewing the video recordings

that Howell had gone out of camera view with Reed for an excessive amount of time.

Bryan noted that the cameras were used to protect both the residents and the staff, and

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that they were not monitored in real time. Bryan did not see any sexual misconduct

occurring, but she found that the amount of time off-camera was too much of an

opportunity for misbehavior, and there was no excuse for Howell turning the lights off in

the kitchen on two occasions.

{¶20} Charles Collier, Afternoon Supervisor at Tobin during the fall of 2005,

supervised Howell, and only vaguely remembered Reed. There is a no-touch policy that

applies to both the staff and the residents, but there is no policy that prohibits staff

members from being alone with individual residents. Collier did not remember discipline

against Howell for the prior incidents described by Vanderwall. Staff members might

often be alone with residents for short periods of time, which is normal and acceptable.

Howell would necessarily go into the kitchen alone with various individual residents to

perform certain tasks. However, had anyone noticed Howell going into the kitchen alone

with a resident and turning the lights off, there would have been a problem. The purpose

of the cameras is to generally know what is going on in the building, for general safety

purposes, but no one is assigned to monitor the security videos full-time. Collier would

not have been at the security video monitor while Howell was doing kitchen cleanup,

because Collier would have been elsewhere in the building on shower duty. Collier did

not recall a specific time when Howell went into the kitchen area alone with Reed, and

noted that Howell would have done that numerous times with various Tobin residents.

{¶21} Lori Williams, Day Shift Supervisor at Tobin during the fall of 2005, did not

remember Reed and somewhat remembered Howell, but did not often work with him.

Williams stated that it would not be a problem for a staff member to be alone with a

resident, and that MCJAS does not have any policy forbidding male staff members to be

alone with female residents. Williams was not aware of any disciplinary actions taken

against Howell.

{¶22} Shane Franks was a Youth Leader III at Tobin during the fall of 2005 with

some supervisory capacity. Franks did not remember Reed beyond her name. Tobin did

not have a policy against staff and residents being alone in an area together, unless the

staff had no reason to ever be in a particular area, such as a male staff member in a

female resident's private room. Residents in good standing often were allowed to help

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staff members with evening kitchen cleanup and provision of evening snacks. Franks had

never noticed Howell and Reed going into the kitchen with the lights off, but he would

have been suspicious had he noticed. No one had ever said anything to Franks

regarding anything occurring between Howell and Reed. Franks had not ever disciplined

Howell, but did remember prompting Howell to act more professionally at some point,

particularly in the way he talked. Any incident of Howell violating the no-touch policy was

related to horseplay with the male residents only. After the November 7, 2005 report

against Howell, Franks reviewed the kitchen security videos from October with Bryan, and

saw one or two times when Howell and Reed entered the kitchen area with the lights off.

Franks stated that had he noticed such suspicious activity at the time, he would have

immediately gone to the kitchen to check on them. Franks also noted that, if anyone

were to notice such activity, it would be unacceptable to do nothing.

{¶23} The depositions of the Youth Leaders Angela Burson, Rachel Morrow, Tara

Stein, Heather Slaughter, and Emily Mitchell largely repeated statements by the other

deponents: that there was a no-touch policy for all residents and employees, a rule

against male employees being unaccompanied in the all-female wing of the facility, and a

general policy for employees to avoid inappropriate situations with residents, but no policy

against employees being alone with residents of the opposite sex in common areas.

Most of them knew little of Howell's disciplinary history, but had heard or knew of Howell

bragging about the number of women he had slept with. Some of them had known of

instances when Howell and Reed were together in the kitchen, and others had not, but

they all thought that it was not unusual for a staff member to be alone in the kitchen with a

resident to complete evening tasks.

{¶24} With their motion for summary judgment, appellants also attached a copy of

a letter from Reed to her mother, dated October 19, 2005, an affidavit of Vanderwall

regarding Tobin's policies and procedures with outgoing residents' mail, a copy of Tobin's

resident correspondence policy, a copy of a "Student Handbook" with guidelines and

rules that Tobin residents are expected to follow, a copy of the Tobin employee schedule

from September 22 to November 2, 2005, a copy of the sign-in sheet for Reed's visitors

for September and October of 2005, an affidavit of Denna Bryan explaining her

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investigation procedure subsequent to the November 7, 2005 report of Reed's allegations

against Howell, an affidavit of Rebecca Olihan, a Unit Manager at another MCJAS facility

where Reed's allegations against Howell were first reported, and a copy of Olihan's

November 7, 2005 Incident Report, which included a written statement by Reed.

{¶25} Reed opposed summary judgment, arguing that the employees failed to

raise the affirmative defense of statutory immunity in their answers, and failed to argue it

properly in their motion for summary judgment, because the defendants only referred to

immunity under R.C. 2744.02(A)(1), which only provides immunity to political

subdivisions, and not R.C. 2744.03(A)(6), which provides immunity to employees. Reed

further argued that the actions of the appellants rose to the level of wantonness or

recklessness, and also to the level of deliberate indifference, leaving a genuine issue of

material fact for both the state and federal claims. Specifically, Reed argued that Tobin

staff members knew that Howell had been alone with Reed in the kitchen storage area on

numerous occasions, and that staff should have taken action, regardless of whether there

was or was not any specific policy forbidding male staff members from being alone with

female residents. Reed noted that the defendants had 12 security cameras in the facility,

and argued that the Administrator should have done more than occasionally "spot check"

the monitors when time permitted. Reed argued that Howell's discipline history at MCJAS

was a clear warning sign that the defendants ignored. Finally, Reed noted that she had

mailed a letter discussing her relationship with Howell, and argued that the defendants

should have intercepted her outgoing mail and read that letter. In support, Reed filed an

affidavit regarding her understanding of the Tobin policy on outgoing resident mail, and a

copy of the October 19, 2005 letter from Reed to her mother, in which Reed referenced

her relationship with Howell. Reed's responsive motion references a transcript of Howell's

deposition, although it was not filed with the trial court.

{¶26} Reed also filed a Civ.R. 41(A)(2) motion to dismiss her state law claims

against MCJAS. Reed specified that she did not intend the motion to apply to her state

law claims against any of the MCJAS employees or any other defendant, or against her

federal law claims against all parties, including MCJAS. The trial court granted the motion

and dismissed any state claims that applied to the political subdivision.

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{¶27} The trial court granted MCJAS's motion dismissing Reed’s Section 1983

claims against all parties, finding that there was no evidence in the record to indicate that

the actions of the defendants rose to the level of wantonness or recklessness, or to the

level of deliberate indifference. The trial court also denied MCJAS's motion regarding

Reed's state claims against the employees, allowing Reed to proceed on the state tort

claims, finding that the employees failed to raise immunity pursuant to R.C. 2744.03(A)(6)

in the answer, and thus waived the defense.

{¶28} Pursuant to R.C. 2744.02(C), the trial court's denial of the MCJAS

employees' immunity from liability constituted a final appealable order. The MCJAS

employees filed a notice of appeal and Reed filed a notice of cross-appeal.

Standard of Review

{¶29} The trial court addressed the issues before it through summary judgment. A

motion for summary judgment is properly granted if the court, upon viewing the evidence

in a light most favorable to the party against whom the motion is made, determines that:

(1) there are no genuine issues as to any material facts; (2) the movant is entitled to a

judgment as a matter of law; and (3) the evidence is such that reasonable minds can

come to but one conclusion and that conclusion is adverse to the opposing party. Civ.R.

56(C); Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, at ¶10. Only

the substantive law applicable to a case will identify what constitutes a material issue, and

only the disagreements "over facts that might affect the outcome of the suit under the

governing law" will prevent summary judgment. Byrd at ¶12, quoting Anderson v. Liberty

Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. An appellate

court reviews a trial court's summary judgment decision de novo, applying the same

standard used by the trial court. Ohio Govt. Risk Mgt. Plan v. Harrison, 115 Ohio St.3d

241, 2007-Ohio-4948, 874 N.E.2d 1155, at ¶5.

Preservation of Affirmative Defense

{¶30} Appellants assert in their assignment of error:

{¶31} "The finding by the trial court that the defendant employees of defendant

Multi-County Juvenile Attention System except Jeffrey L. Howell have waived their right to

assert the defense of governmental immunity pursuant to Chapter 2744 of the Revised

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Code is erroneous as a matter of law."

{¶32} In this case, the affirmative defenses raised in the appellants' joint answer,

and included by reference in their amended answer, are as follows:

{¶33} "1. MCJAS is a political subdivision engaging in a government function, to-

wit: the operation of places of juvenile detention, as defined by Section 2744.01(C)(1)(h)

of the Ohio Revised Code, and such [sic] has governmental immunity pursuant to Section

2744.02(A)(1) of the Ohio Revised Code.

{¶34} "2. Plaintiff's claims are barred by the applicable statutes of limitations.

{¶35} "3. Plaintiff's complaint fails to state any claims against MCJAS and the

other answering Defendants, on which relief can be granted."

{¶36} The narrow issue here is whether the specific wording used by the

appellants in their responsive pleading was adequate to raise the affirmative defense of

statutory immunity for both MCJAS and the MCJAS employees.

{¶37} MCJAS argues that the trial court's finding that the MCJAS employees failed

to raise the affirmative defense in their answer is erroneous as a matter of law, because

the legal support used by the trial court to support the finding of waiver is distinguishable

from the case at hand. The trial court cited three cases to support the notion that the

failure to timely raise an affirmative defense waives that defense. Turner v. Cent. Local

School Dist. (1999), 85 Ohio St.3d 95, 97, 98-99, 706 N.E.2d 1261(defense waived where

district failed to assert in original answer, raising for first time after being reversed in an

intervening appeal on another issue); Spence v. Liberty Twp. Trustees (1996), 109 Ohio

App.3d 357, 359, 365, 672 N.E.2d 213 (defense waived where raised for first time in

motion for directed verdict; Civ.R. 12(B)(6) defense does not preserve immunity defense);

Mitchel v. Borton (1990), 70 Ohio App.3d 141, 143, 145, 590 N.E.2d 832 (defense waived

as to employee who raised for first time in motion for judgment notwithstanding the

verdict, unlike city which raised in answer; Civ.R. 12(B)(6) defense does not preserve

immunity defense).

{¶38} Here, both MCJAS and the employees jointly filed an answer and an

amended answer. In the defendants' answer, the defense of statutory immunity was

explicitly raised in the section entitled "Affirmative Defenses." The MCJAS employees do

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not argue that their separate Civ.R. 12(B)(6) defense acted to raise the affirmative

defense of statutory immunity. Thus, although the general principle of waiver for failure to

timely raise an affirmative defense applies here, the facts and resulting holdings of

Turner, Spence and Mitchel are distinguishable from the case at hand. Moreover, it

appears that the trial court cited these cases for the proposition that the concept of waiver

with respect to statutory immunity of governmental entities and their employees is well

established.

{¶39} Reed does argue that the defense of statutory immunity, although raised in

the parties' combined answer, was only pleaded by MCJAS and not by the employees.

Reed's main argument in support of her position is that the reference to statutory

immunity in the parties' combined answer only cited to R.C. 2744.02(A)(1) and not to R.C.

2744.03(A)(6). The MCJAS employees argue that they satisfied the minimal notice-

pleading standards of Ohio by clearly referencing the defense of statutory immunity in

their answer, and did not have to be more specific in order to preserve the defense. The

MCJAS employees also argue that the defense of statutory immunity applied to both

MCJAS and the employees by the very nature of the jointly-filed answer.

{¶40} Pertinent to this appeal is Civ.R. 8(C), which provides that a party must

affirmatively set forth any affirmative defenses in its responsive pleadings. Any

affirmative defense, apart from those listed in Civ.R. 12(B), must be raised in the

pleadings or in an amendment to the pleadings, or else the defense is waived. Jim's

Steak House, Inc. v. City of Cleveland (1998), 81 Ohio St.3d 18, 20, 688 N.E.2d 506.

{¶41} The principle of waiver of an affirmative defense is to be considered within

the context of the overarching principles of The Ohio Rules of Civil Procedure, which

"shall be construed and applied to effect just results by eliminating delay, unnecessary

expense and all other impediments to the expeditious administration of justice." Civ.R.

1(B). In the context of Civ.R. 15 motions to amend pleadings, the Ohio Supreme Court

explained that one of the purposes of the Civil Rules is to allow cases to be resolved

"upon their merits, not upon pleading deficiencies." Peterson v. Teodosio (1973), 34 Ohio

St.2d 161, 175, 63 O.O.2d 262, 297 N.E.2d 113.

{¶42} The purpose for requiring the timely pleading of affirmative defenses is to

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avoid surprise at trial. Thayer v. Diver, 6th Dist. No. L-07-1415, 2009-Ohio-2053, at ¶29;

Chandler v. Gen. Motors Acceptance Corp. (1980), 68 Ohio App.2d 30, 31, 22 O.O.3d 18,

426 N.E.2d 521, quoting McCormac, Ohio Civil Rules Practice (1970), Section 7.14, at

page 159. Additionally, Civ.R. 8(F) states that the pleadings of the parties are to be

"construed as to do substantial justice," which further supports the notion that pleadings

should be construed in order to dispose of cases on their merits rather than technicalities.

{¶43} Reed is correct that political subdivisions generally evoke R.C.

2744.02(A)(1) to indicate that they are entitled to immunity from tort liability, and that

employees of political subdivisions generally evoke R.C. 2744.03(A)(6) to indicate their

immunity from tort liability. However, because the employee's immunity is only vicariously

derived from the employer's status as a political subdivision, R.C. 2744.03(A)(6) is not the

only portion of Chapter 2744 that would apply to the employee. Additionally, none of the

cases cited by Reed support the proposition that a failure to cite the more applicable

statutory subsection is fatal to a defendant's affirmative defense, with the possible

exception of Saunders v. McFaul (1990), 71 Ohio App.3d 46, 593 N.E.2d 24.

{¶44} In Saunders, an inmate in a jail was severely beaten by another inmate. Id.

at 49. He filed a complaint against the corrections officer on duty during the beating, and

against the county sheriff. Id. The opinion of Saunders does not state whether the

defendants raised statutory immunity in their answer, or why the trial court granted

summary judgment in their favor. The language in the appellate opinion appears to

indicate that the corrections officer did not raise the defense of political subdivision

employee statutory immunity, and that the sheriff somehow only addressed his liability

through the lens of vicarious liability. Id. at 50-51. The sheriff apparently argued that he

had immunity from any negligent harm caused by his employee pursuant to R.C. 2744.02

because he qualified as a political subdivision. Id. at 51.

{¶45} The Eighth District held that a sheriff did not constitute a political

subdivision, and concluded that the sheriff therefore was not entitled to immunity. Id. at

51-52. For some unexplained reason, the appellate court did not address the fact that

even in his supervisory role over employees, the sheriff himself was an employee of the

political subdivision, not some separate administrative body as implied by the appellees'

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argument.

{¶46} Reed would have this Court infer that the Eighth District did not address the

issue of the sheriff's status as a government employee because the sheriff had waived

the issue by failing to raise it. However, such a statement is not found anywhere in the

opinion. The Tenth District appears to have interpreted the Eighth District's holding to

imply that R.C. Chapter 2744 did not apply to the sheriff at all, and concluded that this

portion of the Eighth District's opinion was erroneous, noting that the duties of a sheriff fall

under police services, which is clearly a governmental function. Williams v. Franklin Cty.,

Ohio Sheriff's Dept. (1992), 84 Ohio App.3d 826, 830, 619 N.E.2d 23. Moreover,

regardless of what the persuasive value of Saunders may be, it still does not resolve the

question of whether the failure to accurately cite a statute is fatal to an affirmative defense

raised in a party's responsive pleadings.

{¶47} Pursuant to the liberal pleading requirements of Civ.R. 8, the pleadings of

the parties to an action need only be in general terms. A defendant's answer is subject to

the same notice-pleading standards as a plaintiff's complaint, and an affirmative defense

is generally adequate as long as the plaintiff receives fair notice of the defense. Civ.R.

8(C), 1970 staff notes. If a party raises a "generic" defense in its answer, it is acceptable

to make fair interpolations of more specific defenses that might naturally be included in

that defense. Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427,

432-433, 659 N.E.2d 1232. However, it is unacceptable to extrapolate from a defendant's

affirmative defenses to include something that is simply not stated in the pleadings.

Thayer at ¶33; Carmen v. Link (1997), 119 Ohio App.3d 244, 249, 695 N.E.2d 28.

{¶48} Thus, we reject Reed’s argument that the failure to cite a specific statute

constitutes waiver of a defense contained in that statute. Waiver for that reason alone

would dispose of the case on a technicality rather than on its merits.

{¶49} However, when looking at the appellants' defenses together, the citation to

R.C. 2744.02(A)(1) with no mention of R.C. 2744.03(A)(6) does support the argument

that only MCJAS intended to raise the defense of statutory immunity. The first defense in

the joint answer only identifies MCJAS as raising the immunity defense, and does not

mention "employees" or "other answering defendants." However, the third defense,

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failure to state a claim, identifies both MCJAS and "the other answering Defendants." By

explicitly including the employees in the third defense and failing to include them in the

first defense, along with a citation to the specific portion of R.C. Chapter 2744 that

provides immunity for political subdivisions instead of a more inclusive manner of citation,

the answer has indicated that only MCJAS intended to raise the affirmative defense of

statutory immunity.

{¶50} The same conclusion was reached on similar facts in Krieger v. Cleveland

Indians Baseball Co., 176 Ohio App.3d 410, 2008-Ohio-2183, 892 N.E.2d 461 (reversed

on other grounds). In Krieger, the appellees commenced an action against the City of

Cleveland, Police Detective Peachman, and other defendants, alleging false

imprisonment, malicious prosecution, slander, negligence, and intentional infliction of

emotional distress, stemming from the appellees' arrest for alleged involvement in an

explosion that occurred at a baseball park. Id. at ¶18. The city and Peachman filed

separate answers, both raising the affirmative defense of statutory immunity. Id. at ¶26.

Later in the proceedings, the city and Peachman jointly filed an amended answer, which

stated that Peachman claimed immunity pursuant to R.C. Chapter 2744, but did not state

elsewhere that the city also claimed statutory immunity. Id. at ¶28.

{¶51} The Eighth District held that the city waived the defense of statutory

immunity. Id. at ¶33, citing Turner at 98. ("It was perfectly reasonable for appellants to

assume that in the absence of [appellee's] failure to assert this defense, and its failure to

argue this issue in its first motion for summary judgment, it intended to waive the

defense."). Thus, even in a jointly filed answer, if only one of the defendants is named

regarding a particular defense, it is reasonable to assume that the unnamed defendant

did not intend to raise the defense. See also, O’Brien v. Olmsted Falls, 8th Dist. Nos.

89966, 09336, 2008-Ohio-2658, at ¶13 (Under Civ.R. 8(C) defendant required to set forth

affirmative defenses which would effectively preclude liability, and failure to do so waives

the defense, including immunity).

{¶52} The MCJAS employees were not entitled to summary judgment based on

their statutory immunity, as they waived the defense by failing to raise it in the amended

answer. Accordingly, Appellants' first assignment of error is meritless.

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{¶53} In their conditional assignment of error, Appellants assert:

{¶54} "The trial court's failure to grant summary judgment in favor of the

defendant employees of the Multi-County Juvenile Attention System is erroneous as a

matter of law."

{¶55} Because we have held that Appellants’ assignment of error is meritless, this

issue is moot.

Qualified Immunity from Section 1983 Claims – Deliberate Indifference

{¶56} Turning to Reed's cross-assignment of error, she asserts:

{¶57} "The trial court erred when it found MCJAS and Appellants were entitled to

qualified immunity on Reed's federal claims."

{¶58} Reed argues that the trial court should not have granted summary judgment

against her Section 1983 claim against both MCJAS and the employees, because there

remained a question of fact as to whether any of them acted with deliberate indifference

to Reed's safety and well being.

{¶59} The pertinent part of Section 1983, Title 42, U.S. Code states:

{¶60} "Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State * * *, subjects, or causes to be subjected, any citizen of

the United States * * * to the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress * * *."

{¶61} A Section 1983 action can be brought against government officials. Jett v.

Dallas Indep. School Dist. (1989), 491 U.S. 701, 723-724, 109 S.Ct. 2702, 105 L.Ed.2d

598. States and their instrumentalities are not "persons" within the meaning of Section

1983 and are immune from suit. Burkey v. Southern Ohio Correctional Facility (1988), 38

Ohio App.3d 170, 171, 528 N.E.2d 607. However, a local government may be found

liable under Section 1983 when the execution of one of its policies or customs inflicts

injury by violating an individual's rights. Monell v. Dept. of Soc. Serv. of City of N.Y.

(1978), 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611. The parties have not

contested that MCJAS constitutes a person within the meaning of Section 1983.

{¶62} The trial court held that the affirmative defense of qualified immunity barred

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Reed's Section 1983 claims against Appellants. Qualified immunity protects "government

officials performing discretionary functions * * * from civil damages liability as long as their

actions could reasonably have been thought consistent with the rights they are alleged to

have violated." Anderson v. Creighton (1987), 483 U.S. 635, 638, 107 S.Ct. 3034, 97

L.Ed.2d 523. To overcome the appellants' qualified-immunity defense, Reed must

establish that the appellants' conduct violated a constitutional right and that the right was

clearly established. Hope v. Pelzer (2002), 536 U.S. 730, 739, 122 S.Ct. 2508, 153

L.Ed.2d 666.

{¶63} Reed claimed that her rights under the Eighth and Fourteenth Amendments

were violated by the appellants' failure to protect Reed from Howell's sexual assaults.

The Eighth and Fourteenth Amendment protections from cruel and unusual punishment

require that prison officials "take reasonable measures to guarantee the safety of the

inmates." Farmer v. Brennan (1994), 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d

811. These constitutional claims are frequently raised in the context of prisons, but have

also been applied to juvenile detention facilities. See, e.g., Gregg v. Ohio Dept. of Youth

Services (S.D. Ohio 2009), 661 F.Supp.2d 842, 854-856; Little v. Corr. Corp. of

America (C.A.6 2004) 103 Fed.Appx. 898; Thacker v. Franklin Cty., Ohio (June 21, 1994),

10th Dist. No. 94APE01-10. Although prison officials are responsible for an inmate's

reasonable safety, a particular failure to prevent harm may only rise to the level of a

constitutional violation if the official was deliberately indifferent to a substantial risk of

serious harm to the inmate. Farmer at 834. Whether there was a substantial risk of harm

is an objective inquiry, and whether an actor was deliberately indifferent is a subjective

inquiry. Id.

{¶64} Appellants do not contest the objective component of Reed's claim, arguing

that Reed failed to show that any of Appellants were subjectively aware of the risk of

Howell's alleged sexual assaults against Reed. Thus, the focus of this appeal is whether

Reed has alleged facts that, when viewed in a light most favorable to her, could

conceivably support a finding that any of the Appellants had knowledge of the risk of the

alleged harm, inferred the risk, and disregarded it.

{¶65} The concept of deliberate indifference is comparable to the criminal mens

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rea of recklessness. Farmer at 839. The subjective portion of the inquiry has three steps.

First, it must be shown that the official subjectively perceived "facts from which the

inference could be drawn that a substantial risk of serious harm exists." Id. at 837.

Second, it must be shown that the official actually drew that inference, not merely that he

should have done so. Id. at 839. Third, it must be shown that the official consciously

disregarded the perceived risk. Id.

{¶66} Reed's allegations of deliberate indifference seem to fall into two categories.

The first category involves deliberate indifference at the individual level, by each

employee's failure to take action against the obvious risk of harm to Reed. The second

category involves deliberate indifference at the institutional level, by the failure to have

adequate rules or adequate supervision, allegedly creating the risk of harm.

{¶67} As for the first category, Reed argues that Howell's supervisors and fellow

employees were deliberately indifferent to Reed's rights by not monitoring her more

closely, by being aware of Howell's disciplinary history, by knowing that Howell was in the

kitchen alone with Reed on certain occasions, by knowing that their presence in the

kitchen was in violation of an MCJAS policy prohibiting employees from being alone with

residents of the opposite sex, and by knowing of the instructions to male staff not to be

alone specifically with Reed.

{¶68} Reed contends that her case is similar to Kahle v. Leonard (C.A.8, 2007),

477 F.3d 544, where qualified immunity was denied via summary judgment. In Kahle, a

jail supervisor, Malone, was directly in charge of a new correctional officer trainee,

Leonard, during his training at the jail where Kahle was detained. Malone was to watch

Leonard closely, and ensure that he did not do anything inappropriate. Id. at 547.

Malone was also in charge of the shift log in Kahle's cell block. If any cell door opened

after lockdown, a light at the cell block's work station would turn from green to red, and

whoever was at the work station was charged with noting that event in the shift log. Id. at

548. No one was supposed to enter an inmate's cell after lockdown. Id. at 552. On one

evening between 10:00 and 11:00 p.m., after lockdown, Leonard entered Kahle's cell

three times, for a few minutes at a time, and sexually assaulted her. Id. at 548. During

one of the assaults, Leonard's CB radio was set off. Id. Throughout that hour, Malone

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was sitting at the cell block work station. Id. Before each of the three assaults, Leonard

informed Malone that he was going to Kahle's cell. Id. The light for Kahle's cell, located

on a panel at the work station where Malone was sitting, would have shone red for the

entire length of each time that Leonard was in Kahle's cell. Id. Kahle, Leonard and the

County Sheriff all testified that Malone had a view of Kahle's cell from the work station.

Id. Kahle also testified that Malone looked up during Leonard's second assault, when

Leonard's CB radio was accidentally set off. Id.

{¶69} Malone claimed that he could not and did not see anything in Kahle's cell,

and that he did not see her cell light turn red as he was sitting at the work station. Id. at

548, 552. Malone claimed that he was not subjectively aware that Kahle was being

sexually assaulted. The court noted that Malone did not have to see the actual harm of

sexual assault being committed in order to meet the deliberate indifference standard, and

only had be aware of the conduct that could give rise to the risk of harm. Id. at 551-552.

The Eighth Circuit found that a jury could find that Malone was aware of a substantial risk

of serious harm to Kahle because he knew that there was no reason to go to Kahle's cell

after lockdown, he knew that Leonard was a new trainee, and he knew that Leonard went

to Kahle's cell three different times, for minutes at a time, and further, because Kahle

raised a genuine issue of material fact as to whether Malone noticed the red light at the

desk where he was sitting, and as to whether Malone looked up and saw Leonard in

Kahle's cell during the second assault. Id. at 552. The Eighth Circuit concluded that

Malone was not entitled to qualified immunity, and affirmed the summary judgment denial

of Malone's motion. Id. at 554.

{¶70} Kahle is distinguishable from the case at hand for a number of reasons.

The supervisor in Kahle perceived a number of facts that indicated a substantial risk of

harm, and Kahle's evidence indicated that the supervisor knew that Leonard was actually

inside her cell for minutes at a time, and looked up to see Leonard in the cell during one

of those times. The fact that the supervisor may have had actual knowledge of Leonard's

actions, which, in that context, had no explanation, was strong circumstantial evidence

that the supervisor inferred the substantial risk and turned a blind eye. Unlike Kahle, in

this case there was no employee or supervisor who was stationed near the kitchen

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cooler, charged with monitoring every time the cooler was entered, to whom Howell

reported each time before going to the cooler with Reed. Additionally, in Kahle, there was

no reason for an employee to go to a prisoner's cell at night after lockdown, whereas

here, all parties testified that it was a normal task for an employee and a resident to enter

the kitchen cooler in the evening to prepare snacks or clean up. Because of the many

differences in the facts and circumstances, Kahle does not support Reed's argument.

{¶71} Reed's argument does not get past the first step of the inquiry. Reed points

out that the employees and supervisors did not notice Howell's activities on the video

monitors, and failed to read a letter that Reed sent to her mother. Reed argues that the

MCJAS employees should have noticed Howell's pattern of activity through closer

monitoring, but does not claim that any of the employees actually read Reed's letter or

witnessed all of the eight occasions during which Howell and Reed entered the kitchen

cooler together, or either of the two instances when they did so after turning the lights off

in the kitchen. Thus, it cannot be said that the employees actually perceived many of the

facts that might have indicated that Reed faced a substantial risk of harm.

{¶72} Additionally, Reed is supporting some of her factual statements in her brief

with citations to Howell's deposition which was not filed in the proceedings below and thus

is not a part of the record before this court. “An appellate court is limited to reviewing the

official record that was before the trial court. State v. Saltzer (1984), 14 Ohio App.3d 394,

395, 471 N.E.2d 872; App.R. 9. These documents were not presented to the trial court,

and will not be considered on appeal.” Wilhelm v. Foster, 7th Dist. No. 03 MA 29, 2004-

Ohio-5928, at ¶15.

{¶73} The facts alleged to have been perceived by various employees are: Reed

and Howell being alone in the kitchen cooler together, reports of Howell bragging to other

employees about the number of women he had slept with, and Howell being disciplined

for rude behavior during staff meetings, breaking a cabinet door, for a DUI, and for two

incidents of roughhousing with certain male juveniles. Reed also alleged that there was a

policy forbidding male employees from being alone with female residents at any time, and

thus that the employees knew that Howell was alone with Reed in violation of the policy.

{¶74} MCJAS did not have any written policy against employees being alone in

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any situation with a resident of the opposite sex. All of the MCJAS employees stated

during their depositions that there was no official policy, and that a policy of that sort only

existed in so far as the employees were to avoid any compromising situations with the

residents. However, the December 5, 2005 pre-disciplinary hearing report written by

Vanderwall implies the existence of some form of policy:

{¶75} "I questioned if Ms. Bryan the administrator had ever talked to the staff

including him concerning the need for accountability and the fact that a male staff should

never be alone with a female resident. [Howell] stated that this was discussed and that

this female resident was discussed in particular because she had made accusations in

the past. I questioned again why he would be alone with her knowing that male staff had

been instructed not to be alone with any female youth."

{¶76} Vanderwall explained that the above statement related to employees

being instructed not to put themselves in compromising situations, for their own safety,

not because there was an absolute rule forbidding male employees from being alone with

female residents. Vanderwall also explained that employees had been specifically

instructed to avoid such situations with Reed because she was believed to have made

and threatened to make false accusations of sexual misconduct in the past. Thus, the

specific instructions regarding Reed were only related to the risk of harm to the

employees, and not any risk of harm to Reed

{¶77} Irrespective of Vanderwall's explanation, it seems that the written

statement, when viewed in a light most favorable to Reed, could indicate that there was in

fact a policy prohibiting male employees from being alone with female residents.

However, all of the employees testified that they did not know of any official policy

prohibiting male employees from ever being alone with female employees. Thus, even if

there was some policy, none of the employees were subjectively aware of it. Moreover,

even if there was a policy being violated, it does not seem to follow that the existence or

disregard of a policy, in and of itself, would "establish an obvious risk that females left

alone with male guards are likely to be assaulted." Hovart v. Robinson (C.A.10 1993), 1

F.3d 1063, 1068. Without some kind of knowledge that Howell posed a sexual threat to

female residents, the only known risk would come from the mere fact that Howell is a

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male. See Id. "To find harm present in these circumstances would, in effect, require the

conclusion that every male guard is a risk to the bodily integrity of a female inmate

whenever the two are left alone." Id.

{¶78} Regardless of any policy, it could still be possible for the employees to

perceive a substantial risk of harm to Reed if they witnessed Howell engaging in a pattern

of activity that put Reed at such risk. However, none of the supervisors could recall any

particular time Howell and Reed were in the kitchen alone together, and the administrator

and director did not have any first hand awareness of Howell and Reed being alone in the

kitchen together. And they all stated that it would not have been unusual for an employee

and resident to work alone together in the kitchen, and that there was no policy against it.

{¶79} As for Howell's fellow employees, Tara Stein and Emily Mitchell did not

know of Howell and Reed being in the kitchen alone together. None of the employees

knew of Howell and Reed being together in the kitchen with the lights off. Heather

Slaughter remembered a few occasions when Howell and Reed were in the kitchen

together, cleaning or setting up, but did not remember anything significant about those

instances. Slaughter stated that, in general, employees and residents performed tasks

alone together in the kitchen as part of a nightly procedure. Rachel Morrow reported

knowing of one time that Howell and Reed were in the kitchen cooler together; she saw

them in the kitchen taking expired food out from the cooler and loading it onto a cart. She

assumed they were performing a routine task together, as it was normal to do things in

the kitchen, like sort out expired food, during that time of the evening. Angela Burson

reported knowing of one time that Howell and Reed were in the kitchen together; when

Burson was looking for Reed, she heard the sound of boxes being thrown down in the

kitchen, then found Howell and Reed walking up the hall in the kitchen, and assumed that

they had been stocking and putting things away in the kitchen.

{¶80} Given all of the evidence in the record, any knowledge by employees of

Howell being in the kitchen with Reed was accompanied by the inference that Howell and

Reed were performing routine tasks. Thus, no evidence was presented that indicated

that any of the employees actually drew the inference that there was a substantial risk of

harm to Reed due to Howell and Reed being in the kitchen together.

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{¶81} Finally, Reed alleges that the employees were aware of Howell's

disciplinary history for misconduct at Tobin, and that the instances of misconduct were

"clear warning signs." Although Reed stresses that Howell's disciplinary history should

have been a red flag that Howell did in fact pose a risk to Reed, Howell's history did not

include any incidents of sexual misconduct. Howell had been disciplined in the past for

breaking a cabinet door, one instance of horseplay with a male resident, one instance of

unnecessarily restraining a noncompliant male resident, and for an OVI arrest that

occurred while Howell was not working. A few employees stated that Howell did not

seem the same when he returned from active military duty in Iraq. Some stated that they

knew Howell had a problem with drinking outside of work, but that it did not affect his

work. Many stated that when the employees were together on break, Howell would brag

about his sexual conquests with women. Mitchell reported an instance where a male

resident told her that Howell had told him that all of the female employees at Tobin

"wanted him."

{¶82} The only thing sexual in nature are reports of Howell bragging to fellow

staff members on break that he had slept with a lot of women, and one known instance of

making inappropriate comments about female employees to a male resident. None of the

evidence presented indicates that any of the employees inferred that there was a

substantial risk that Howell would sexually assault Reed from the fact that Howell bragged

about his sexual prowess in regards to adult women.

{¶83} Looking at all of these facts in a light most favorable to Reed, she has not

alleged facts that could support the conclusion that any of the appellants actually knew of

facts that might indicate that Reed faced a substantial risk of harm, inferred that Reed

faced such a risk, and nonetheless disregarded it. Accordingly, this first part of Reed's

argument is meritless.

{¶84} As for the second category, counties, local governmental bodies, and

other policymakers cannot be liable under Section 1983 under the doctrine of respondeat

superior, and instead may only be found liable for their hand in creating a custom or

policy that caused the plaintiff's injury. Board of Cty Commrs. of Bryan Cty. v. Brown

(1997), 520 U.S. 397, 403-404, 117 S.Ct. 1382, 137 L.Ed.2d 626. "[I]it is not enough for

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a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The

plaintiff must also demonstrate that, through its deliberate conduct, the municipality was

the 'moving force' behind the injury alleged. That is, a plaintiff must show that the

municipal action was taken with the requisite degree of culpability and must demonstrate

a direct causal link between the municipal action and the deprivation of federal rights." Id.

at 404.

{¶85} Thus, institutional or policy-maker action or inaction must not only be done

in the face of an obvious risk of harm, but the action or inaction of the institution must

have had some causal relationship with the harm, in order for it to qualify as deliberate

indifference. Such deliberate indifference might be found in inadequate hiring, training, or

supervision in light of obvious consequences of those inadequacies. See City of Canton,

Ohio v. Harris (1989), 489 U.S. 378, 388-390, 109 S.Ct. 1197, 103 L.Ed.2d 412; Mize v.

Tedford (C.A.6 2010), 375 Fed.Appx 497, 500.

{¶86} Reed has not presented any argument to support the contention that

Howell was improperly hired or inadequately trained. Reed may be implying a claim of

inadequate supervision by stating that MCJAS failed to require that an employee regularly

monitor the surveillance cameras, failed to enforce an alleged policy of reviewing all

outgoing mail, and failed to require employees to closely supervise Howell in light of his

disciplinary history.

{¶87} In Mize, the appellant argued that the employee who had raped her might

not have had the opportunity to do so had he been more closely monitored. Mize at 501.

The Sixth Circuit agreed, but explained that "opportunity alone, without reason to suspect

that it will lead to a constitutional violation, does not establish deliberate indifference. At

best, it establishes negligence, which 'will not suffice.'" Id., quoting Brown at 407. A

higher standard than negligence is required, because "[i]n virtually every instance where a

person has had his or her constitutional rights violated by a city employee, a § 1983

plaintiff will be able to point to something the city 'could have done' to prevent the

unfortunate incident." City of Canton, at 392. Similarly here, Reed has only established

that closer supervision of Howell could have prevented the alleged sexual assaults. Reed

has not provided any causal link that would indicate MCJAS's liability, i.e. that MCJAS's

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failure to constantly monitor cameras, read all mail, and closely monitor employees with

disciplinary histories caused the predictable consequence of a resident being sexually

assaulted.

{¶88} As an additional argument, Reed also claims that MCJAS was deliberately

indifferent by failing to have an official policy that prohibited male staff from being alone

with female residents. Again, Reed has not provided any causal connection between this

policy and the harm that allegedly occurred. The failure to have this specific policy does

not constitute a "moving force" behind the harm alleged, especially in light of the

existence of MCJAS's other policies prohibiting abuse, touching, or any inappropriate

behavior towards residents. See Brown at 404.

{¶89} Looking at the facts in a light most favorable to Reed, it does not support a

finding that MCJAS or any defendants at the policy-making level enacted or failed to

enact any policies that foreseeably caused the alleged harm. Accordingly, the second

portion of Reed's argument is meritless.

{¶90} There is no evidence to indicate that the actions or inaction of MCJAS or

its employees constituted deliberate indifference to Reed's safety and well being. The

assaults allegedly committed by Howell were prohibited by MCJAS policy, and were not

otherwise encouraged or caused by any other MCJAS policy or custom. There is no

evidence that any of the employees knew of facts that indicated that Howell or any other

employee posed a substantial risk to Reed, let alone drew such an inference. Nor did any

of Howell's alleged assaults occur in such a blatant or open manner as to constitute

circumstantial evidence, as in Kahle, that any employee must have been aware of the

risk. Accordingly, Reed did not overcome the appellants' qualified immunity defense, and

Reed's first assignment of error is meritless.

{¶91} Reed asserts as a conditional assignment of error:

{¶92} "The trial court erred when it found that Reed failed to establish a genuine

issue of material fact as to whether Appellants acted recklessly or wantonly."

{¶93} As with appellants' conditional assignment of error, Reed's conditional

cross-assignment of error is moot because we have concluded the trial court correctly

found that the employees waived the immunity defense.

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{¶94} In conclusion, the MCJAS employees waived the immunity defense by

failing to properly raise it in their answer and amended answer. Further, there was no

genuine issue of material fact regarding the deliberate indifference of MCJAS or its

employees to the alleged sexual assaults committed by Howell. Accordingly, the

judgment of the trial court is affirmed.

Vukovich, P.J., concurs.

Donofrio, J., concurs.