The opinion
Boggins, Judge,
dissenting.
{¶ 50} I respectfully dissent from the majority opinion.
{¶ 51} In its judgment entry, the trial court acknowledged that failure to report known or suspected child abuse, pursuant to R.C. 2151.421, is a criminal offense. Judgment Entry, Feb. 28, 2002, at 4. Therefore, under R.C. 2744.02(B)(5), sovereign immunity does not apply because criminal liability is liability imposed by statute.
{¶ 52} The trial court found that the problem with applying the above law to the case sub judice is that the abuse that was not reported involved a different child several years prior to the incident with Ashley. Id. at 5. Dick promptly reported the abuse of Ashley to the police. Id. Thus, the trial court concluded:
{¶ 53} “The liability imposed is criminal liability for failure to report the [Amanda] * * * incident, not failure to report the plaintiff Yates incident. There is no statutory liability imposed for the Yates incident. The court consequently concludes that the Board is entitled to sovereign immunity because neither of the exceptions cited by the plaintiffs apply.” Id. at 5.
{¶ 54} I must disagree with this conclusion.
{¶ 55} R.C. 2744.03(A)(2) provides immunity for conduct required by law of its employees but provides an exception if such conduct was negligent.
{¶ 56} Also, such Section (A)(6)(c) provides that immunity is not a defense if liability is expressly imposed upon the employee by a section of the Revised Code.
{¶ 57} R.C. 2151.421(A)(1)(b) requires the reporting by a school authority of a claim of sexual abuse not only suffered by a child under 18 but also requires notification if a child
faces a threat of suffering.
{¶ 58}
Campbell v. Burton
(2001), 92 Ohio St.3d 336 , 750 N.E.2d 539 , contains the following West headnotes:
{¶ 59} “Concern of the General Assembly in enacting the statute mandating the reporting of known or suspected child abuse was not the protection of political subdivisions or their employees from claims for damages, but the protection of children from abuse and neglect.” (West headnote 1.)
*251
{¶ 60} “Statute mandating the reporting of known or suspected child abuse, through its criminal penalty for failure to report, ‘expressly imposes liability,’ within meaning of Political Subdivision Tort Liability Act provisions creating exceptions from sovereign immunity of political subdivisions and their employees if the Revised Code expressly imposes liability. R.C. §§ 2151.99, 2151.421(A)(l)(a, b), 2744.02(B)(5), 2744.03(A)(6)(c).” (West headnote 2.)
{¶ 61} “ ‘Liability,’ within meaning of Political Subdivision Tort Liability Act provisions creating exceptions from sovereign immunity of political subdivisions and their employees if the Revised Code expressly imposes liability, refers not only to civil liability, but also to criminal liability. R.C. §§ 2744.02(B)(5), 2744.03(A)(6)(c).” (West headnote 3.)
{¶ 62} “* * *
{¶ 63} “A political subdivision may be held liable for its employee’s failure to perform a duty expressly imposed by the statute mandating the reporting of known or suspected child abuse. R.C. §§ 2151.421, 2744.02(B)(5).” (West headnote 6.)
{¶ 64} The Supreme Court stated as follows in
Campbell:
{¶ 65} “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.
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.
{¶ 66} “* * *
{¶ 67} “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 .
{¶ 68} “* * *
*252
{¶ 69} “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.” (Emphasis added and footnote omitted.) Id., 92 Ohio St.3d at 341-342 , 750 N.E.2d 539 .
{¶ 70} The question of failure to report in
Brodie
dealt with a specific child and is different from that raised in the case sub judice.
{¶ 71} The issue before us is whether the failure to report the prior alleged incident as to Amanda to the authorities trained to conduct an appropriate investigation resulted in negligent retention of the teacher in question and thereby constituted a threat to Ashley Yates.
{¶ 72} As stated in
Campbell v. Burton,
the General Assembly by enacting R.C. 2151.421
intended to protect children, not a child.
{¶ 73} I find therefore that a material disputed fact subject to jury determination was presented. I do not, however, determine that sufficient facts necessarily existed as to Amanda to require termination after an appropriate investigation as such is also within the province of the jury.
{¶ 74} I therefore would sustain both the first and second assignments of error, reverse the trial court’s judgment, and remand this cause for further proceedings consistent herewith.