Douglass v. Salem Community Hospital

DeGenaro, Judge,

dissenting.

{¶ 79} I must disagree with the majority’s resolution of this case because its conclusion regarding appellants’ first and second assignments of error ignores a fundamental premise of negligence law. More specifically, it fails to recognize that because there is no genuine issue as to whether Wagner’s acts were foreseeable to the hospital, the trial court properly granted summary judgment to the hospital on all of appellants’ claims. Instead, the majority concludes that the hospital was not entitled to summary judgment on appellants’ common-law negligence claims because a genuine issue exists regarding whether the hospital was in a special relationship with appellants and therefore had a duty to warn appellants about Wagner when S.K’s mother called Williams regarding the children’s visit to Wagner’s residence. I find it unnecessary either to agree or disagree with this conclusion, since appellants have failed to demonstrate for the purposes of summary judgment that Wagner’s acts were foreseeable to the hospital, and I would affirm the trial court’s decision.

{¶ 80} The majority’s opinion fails to mention that the existence of common-law duties generally depends upon the foreseeability of the injury.

Estates of Morgan v. Fairfield Family Counseling Ctr.

(1997), 77 Ohio St.3d 284, 293 , 673 N.E.2d 1311 . If the injury is not foreseeable, then whether a special relationship existed between the parties is immaterial because there would still be no duty to protect. Foreseeability is defined as whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. Id. If a person can foresee neither any danger of direct injury nor any risk from an intervening cause resulting from his or her actions, then that person is simply not negligent.

Westfield Ins. Co. v. HULS Am., Inc.

(1998), 128 Ohio App.3d 270, 287 , 714 N.E.2d 934 . Thus, even if appellants establish a special relationship between themselves and the hospital, their claim against the hospital would fail if the injury is not foreseeable.

{¶ 81} In this case, appellants were injured by the criminal conduct of a third party. Generally, courts will not require the prudent person to expect the

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criminal activity of others.

Fed. Steel & Wire Corp. v. Ruhlin Constr. Co.

(1989), 45 Ohio St.3d 171, 174 , 543 N.E.2d 769 . But courts will hold a party liable for a third person’s criminal conduct when the totality of the circumstances are “somewhat overwhelming” that the criminal conduct is foreseeable. See

Evans v. Ohio State Univ.

(1996), 112 Ohio App.3d 724, 742 , 680 N.E.2d 161 ;

Reitz v. May Co. Dept. Stores

(1990), 66 Ohio App.3d 188, 193-194 , 583 N.E.2d 1071 . The foreseeability of a criminal act depends on the knowledge of the defendant, which must be determined by the totality of the circumstances. Evans, 112 Ohio App.3d at 742 , 680 N.E.2d 161 .

{¶ 82}

Evans

best illustrates the degree to which a third party’s criminal act must be foreseeable before a defendant will be held liable. In

Evans ,

a man, Waites, had been convicted of gross sexual imposition and corruption of a minor. After his release from prison, a county 4-H board hired him as a goat expert to be a speaker at pre-fair clinics and a judge at the 4-H fair. The state 4-H organization learned of his criminal history and informed the county 4-H board of its concerns. The county 4-H board continued to have Waites as a speaker after learning of the state organization’s concerns but used him for the last time in the spring of 1991.

{¶ 83} In November 1991, the plaintiffs daughter joined 4-H. The daughter asked one of her 4-H advisors to recommend a person who could assist her with her goats and that advisor suggested Waites. When the advisor recommended Waites, the child had already seen him at two 4-H club meetings. That advisor did not know of Waites’s previous convictions.

{¶ 84} During the spring of 1992, Waites would come over to the child’s house “every so often” to help her with her goats. One day, Waites offered to take the child to get a goat. When he and the child reached his house, he molested her. He was subsequently tried and convicted of various counts of kidnapping, corruption of a minor, rape, and felonious sexual assault involving four minors.

{¶ 85} After she was molested, the child’s mother proceeded to file a complaint against the county and state 4-H organizations, claiming failure to warn, negligent hiring, negligent retention, and negligent supervision. After a trial, the trial court entered judgment for the defendants. The appellate court affirmed that decision, finding that the totality of the circumstances demonstrated that Waites’s actions were not foreseeable. It reasoned that Waites’s duties as a judge and speaker and his degree of contact with children were limited, that the incident occurred over one year after Waites stopped working for the county 4-H organization, and that the assault did not occur at a 4-H event. “[W]e are unable to conclude that a duty of care extended to every member of 4-H who Waites may have come in contact with following his fair and clinic employment.” Id. at 743 , 680 N.E.2d 161 . Thus, even though the county 4-H organization knew that

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Waites had been convicted of gross sexual imposition and corruption of a minor, his actions were not foreseeable and the defendant could not be held liable under any theories of recovery. Id. at 749 , 680 N.E.2d 161 .

{¶ 86} This case presents this court with a situation in which it is even more difficult to conclude that the third party’s conduct was somewhat overwhelmingly foreseeable than it was in

Evans .

In

Evans ,

Waites had actually been convicted of gross sexual imposition and corruption of a minor before the local 4-H organization hired him as a speaker and a judge. See, also,

Doe v. Beach House Dev. Co.

(2000), 136 Ohio App.3d 573 , 737 N.E.2d 141 (It was not foreseeable that a boy with an extensive history of delinquent conduct would sexually assault a younger boy);

Doe v. Blaney

(Dec. 29, 1995), 1st Dist. No. C-950093, 1995 WL 763623 (It was not foreseeable that a man with a history of alcohol problems who had been imprisoned for unspecified sexual contact with a seven-year-old female would molest a seven-year-old boy). Here, there had been allegations that Wagner had exposed himself and molested children and a police investigation into those allegations, but no conviction. Those allegations were made in 1987, eight years before S.K’s mother called Williams. In that eight-year period, no one had made similar allegations against Wagner.

{¶ 87} Given the state of the law in Ohio, it is difficult to see how any court could find it somewhat overwhelmingly foreseeable that any person who is alleged to have molested children will do so in the future. This is best demonstrated by an examination of child custody and sexual predator law.

{¶ 88} Some parties have sought a change of custody based on allegations of sexual abuse in child custody cases. For example, in

Stover v. Plumley

(1996), 113 Ohio App.3d 839 , 682 N.E.2d 683 , a former husband sought custody of children from his former wife due to alleged sexual molestation by the former wife’s current husband. The appellate court held that the unsubstantiated allegations of sexual abuse did not alone warrant a change of custody. Id. at 843 , 682 N.E.2d 683 . They are merely a factor a court could consider when deciding whether to change custody. Id.

Stover'

s rationale is significant in this case because of its rejection of the idea that allegations of sexual abuse toward children automatically mean that the alleged offender may be treated differently under the law. If an allegation of sexual abuse alone is not sufficient to keep a child away from ah alleged offender, then how is it somewhat overwhelmingly foreseeable that someone will commit a criminal act in the future when they have only been the subject of a police investigation?

{¶ 89} This principle is most clearly demonstrated in Ohio’s sexual predator laws. A sexual predator is defined as someone who has been

convicted

of a sexually oriented offense and is likely to engage.in the future in one or more sexually oriented offenses. R.C. 2950.01(E) and 2950.09(B)(3). A sexual preda

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tor classification must be based on more than the fact that the offender has been convicted of a sexually oriented offense.

State v. Eppinger

(2001), 91 Ohio St.3d 158 , 743 N.E.2d 881 . Thus, Ohio has rejected the idea that it is likely that an offender is likely to commit a second sexually oriented offense merely because they have been convicted of a first sexually oriented offense. If a conviction for a sexually oriented offense does not mean that the offender is likely to commit another sexually oriented offense in the future, then how can we hold that the hospital could foresee that Wagner would commit a sexually oriented offense because there were allegations that he had committed these sexually oriented offenses in the past? Accordingly, I would hold that a medical facility does not owe a duty to protect the public or its former patients from the criminal acts of former employees when it had only heard of allegations that the former employee had engaged in similar criminal acts in the past without additional facts and circumstances demonstrating that it was somewhat overwhelmingly foreseeable that the former employee would engage in those criminal acts.

{¶ 90} Given this conclusion, it is unnecessary to determine whether a special relationship existed between the hospital and appellants. Even if the hospital did have the type of special relationship with appellants necessary to create a duty to protect, since Wagner’s criminal acts were not foreseeable the hospital could not have violated that duty. See

HULS Am.,

supra (if a person cannot foresee any danger of direct injury, then that person is simply not negligent). The majority ignores this fact when concluding that a duty to protect existed in this situation. It states that a special relationship existed and, therefore, the hospital had the duty to give its advice in a non-negligent manner. But the majority fails to explain how the evidence was somewhat overwhelming that Wagner’s criminal conduct was foreseeable. Because the existence of a duty depends upon the foreseeability of the injury and Wagner’s criminal conduct was not foreseeable, it is immaterial whether a special relationship existed between the hospital and appellants.

{¶ 91} I recognize the grievousness of the injuries appellants have suffered and understand their frustration with the hospital. But I cannot let the fact that appellants have suffered such severe injuries determine whether the hospital should be held liable for those injuries. In January 1992, it learned that Wagner was accused of some sexual misconduct in 1987, and soon thereafter Wagner no longer worked for the hospital. Wagner was never accused of any other sexual misconduct between 1987 and July 1995, when S.K’s mother talked to Williams. Ohio law recognizes that an allegation of sexual misconduct does not mean that it is somewhat overwhelmingly foreseeable that someone will commit a criminal act conforming with those allegations. Because this type of criminal conduct is not foreseeable under these facts, the hospital did not owe appellants a duty to

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protect them from Wagner. Because the hospital did not owe a duty to appellants, the trial court properly granted summary judgment to the hospital. Accordingly, I would find that appellants’ assignments of error are all meritless and would affirm the trial court’s judgment.