Rudd v. Ohio State Hwy. Patrol

[Cite as Rudd v. Ohio State Hwy. Patrol, 2016-Ohio-8263.]

THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

William Joseph Rudd et al., :

Plaintiffs-Appellants, : No. 15AP-869

(Ct. of Cl. No. 2015-00357)

v. :

(REGULAR CALENDAR)

Ohio State Highway Patrol, :

Defendant-Appellee. :

D E C I S I O N

Rendered on December 20, 2016

On brief: Bieser, Greer & Landis, LLP, James P. Fleisher,

and Christina M. Flanagan, for appellants. Argued:

Christina M. Flanagan.

On brief: Michael Dewine, Attorney General, Velda K.

Hofacker, and Eric A. Walker, for appellee. Argued:

Velda K. Hofacker.

APPEAL from the Court of Claims of Ohio

BROWN, J.

{¶ 1} Plaintiffs-appellants William Joseph Rudd, Zane Daniel Rudd, Patricia Ann

Rudd, and Danny Rudd, appeal from a judgment of the Court of Claims of Ohio

dismissing their complaint for failure to state a claim.

{¶ 2} Appellants filed their amended complaint in the Court of Claims naming

the Ohio State Highway Patrol as a defendant. The complaint states that two highway

patrol employees, Dispatcher Matthew Prachar and Sergeant Jeffrey Shane, acted

negligently in various ways and failed to apprehend two fugitive murderers, Devonere

No. 15AP-869 2

Simmonds and Nathaniel Brunner, and that as a result Simmonds and Brunner were left

at large to shoot and seriously injure William Rudd.

{¶ 3} Specifically, the complaint alleges that in the early morning hours of

July 27, 2013, Simmonds and Brunner were already fugitives wanted in connection with a

violent crime spree in Columbus, during which they shot and killed three persons in three

separate incidents. Police investigators acquired and disseminated information

establishing that Simmonds and Brunner were traveling in a specifically identified stolen

vehicle, for which a description and license plate were provided.

{¶ 4} Simmonds and Brunner abandoned a stolen vehicle on U.S. Route 40,

proceeding along the highway on foot. At 1:24 a.m., Prachar notified Sergeant Shane to

investigate a disabled vehicle on Interstate 70 near milepost 77. Prachar further informed

Sergeant Shane that two males in dark clothing were walking eastbound approximately

one-half mile from the disabled vehicle. Sergeant Shane did not leave his location on

Route 40 until 34 minutes after the dispatch call. At approximately 2:06 a.m., Sergeant

Shane located the abandoned vehicle and radioed the license plate number to the

dispatcher. Prachar, however, entered an incorrect license plate number in his database

search, and as a result did not discover and notify Sergeant Shane that the vehicle was not

only stolen, but likely in possession of two violent fugitives.

{¶ 5} The complaint further alleges that Sergeant Shane eventually found

Simmonds and Brunner walking on the exit ramp from Interstate 70 eastbound to U.S.

Route 42 at approximately 2:12 a.m. The pair informed Sergeant Shane that they had

borrowed the vehicle and it had run out of gas. Sergeant Shane granted the pairs request

for transportation to a nearby TravelCenters of America truck stop to make a phone call.

Sergeant Shane did not obtain identification from the pair, nor did he search them for

weapons prior to placing them in the backseat of the cruiser for transportation to the

truck stop. After dropping the pair off at the truck stop, Sergeant Shane remained in the

general vicinity to relay his disposition of the dispatch call.

{¶ 6} Approximately 12 minutes later, Sergeant Shane commenced to leave the

parking lot but noticed the pair still loitering outside the front door, where they waived

him down. Simmonds and Brunner told Sergeant Shane they had been unable to

complete their phone call. Sergeant Shane then obtained a phone number from the pair

No. 15AP-869 3

and radioed it to Prachar with instructions to call the number furnished. The call again

obtained no answer. Sergeant Shane then departed the truck stop, leaving Simmonds and

Brunner behind.

{¶ 7} The complaint then alleges that at approximately 4:49 a.m., William Rudd

arrived at the truck stop to purchase gasoline. Simmonds and Brunner approached Rudd

at the gas pump and immediately shot him in the face. The pair then stole Rudd's vehicle

and drove away from the truck stop.

{¶ 8} The complaint generally presents the theory that Prachar's failure to

correctly enter the vehicle's license plate number in the computer system deprived

Sergeant Shane of the opportunity to apprehend the two wanted murderers. The

complaint further alleges that Sergeant Shane's negligent failure to search the pair, as

allegedly required by highway patrol procedures before admitting them to his vehicle,

caused him to fail to discover the handgun carried by one of the two and discover that

Simmonds was a juvenile, either of which would have required Sergeant Shane to detain

the pair even if he lacked the information that they were the object of an active police

manhunt. The complaint finally alleges that Sergeant Shane abandoned the pair at a

truck stop, free to commit further crimes against truck stop staff or patrons, all of whom

were foreseeable victims under the circumstances.

{¶ 9} The Court of Claims granted the state's motion to dismiss for failure to state

a claim. The Court of Claims found that Prachar and Sergeant Shane, the alleged

negligent state employees, were clearly engaged in the performance of a public duty for

which the state was immune from liability. The Court of Claims further found that the

complaint did not state any facts from which a special relationship could be inferred,

pursuant to R.C. 2743.02(A)(3)(b), between the state actors and Rudd. The Court of

Claims accordingly granted judgment dismissing the complaint.

{¶ 10} Appellants bring the following assignments of error on appeal:

[I.] The trial court erred to the prejudice of Plaintiffs-

Appellants by failing to consider the special relationship that

existed between Trooper Jeffrey Shane and the perpetrators,

which gave rise to a duty to control the perpetrators.

[II.] The trial court erred to the prejudice of Plaintiffs-

Appellants by failing to consider that, by undertaking to

No. 15AP-869 4

provide information, Dispatcher Matthew Prachar had a duty

to provide reasonably accurate information.

[III.] The trial court erred to the prejudice of Plaintiffs-

Appellants by concluding that Plaintiffs-Appellants could

prove no set of facts to establish a special relationship

between Trooper Jeffrey Shane and Dispatcher Matthew

Prachar and the employees and patrons of the TravelCenters

of America truck stop.

Appellants' three assignments of error present similar legal issues and will be discussed

together.

{¶ 11} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for

failure to state a claim upon which relief can be granted, an appellate court's standard of

review is de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5.

A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be

granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.

Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992), citing Assn. for Defense of

Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). In considering the

motion to dismiss, a trial court may not rely on allegations or evidence outside the

complaint. State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997). Rather, the

trial court may review only the complaint and may dismiss the case only if it appears

beyond a doubt that the plaintiff can prove no set of facts entitling the plaintiff to recover.

O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus.

{¶ 12} A trial court must presume all factual allegations contained in the

complaint to be true and must make all reasonable inferences in favor of the non-

moving party. Jones v. Greyhound Lines, Inc., 10th Dist. No. 11AP-518, 2012-Ohio-

4409, ¶ 31, citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988). "[A]s long as

there is a set of facts, consistent with the plaintiff's complaint, which would allow the

plaintiff to recover, the court may not grant a defendant's motion to dismiss." York v.

Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145 (1991). The court need not, however,

accept as true any unsupported and conclusory legal propositions advanced in the

complaint. Morrow v. Reminger & Reminger Co., LPA, 183 Ohio App.3d 40, 2009-

Ohio-2665, ¶ 7 (10th Dist.).

No. 15AP-869 5

{¶ 13} The State of Ohio is not liable in a civil action for negligence based on the

performance or non-performance of a "public duty." R.C. 2743.02(A)(3)(a). The statute

defines public duty to include law enforcement or emergency response activity. R.C.

2743.01(E)(1)(a). An exception to the public duty doctrine allows recovery, however,

where a "special relationship," as defined by meeting all elements of a four-part test, is

established between the state and the injured party.

R.C. 2743.02(A)(3) states:

(b) The state immunity provided in division (A)(3)(a) of this

section does not apply to any action of the state under

circumstances in which a special relationship can be

established between the state and an injured party. A special

relationship under this division is demonstrated if all of the

following elements exist:

(i) An assumption by the state, by means of promises or

actions, of an affirmative duty to act on behalf of the party

who was allegedly injured;

(ii) Knowledge on the part of the state's agents that inaction of

the state could lead to harm;

(iii) Some form of direct contact between the state's agents

and the injured party;

(iv) The injured party's justifiable reliance on the state's

affirmative undertaking.

{¶ 14} For purposes of the appeal, we assume that the facts in the complaint are

correct and that Prachar and Sergeant Shane were negligent in their conduct. We may

further assume, for purposes of Civ.R. 12(B)(6) analysis, that any negligence was the

proximate cause of Rudd's injuries. Nowhere in the complaint, however, are there

sufficient factual allegations to support the existence of any of the elements of the "special

relationship" exception to immunity.

{¶ 15} We first note that obviously there was no direct contact between the state's

agents and the injured party as required by R.C. 2743.02(A)(3)(b)(iii). Based on the facts

alleged in the complaint, over two hours lapsed between Sergeant Shane's departure from

the truck stop and Rudd's arrival. The failure to meet this element alone would support

dismissal.

No. 15AP-869 6

{¶ 16} Furthermore, any duty owed to the employees and patrons of the truck stop

was a public duty owed generally to the public at large, rather than an assumption by the

state by means of promises or actions to specifically act on behalf of the party who was

allegedly injured, as required by R.C. 2743.02(A)(3)(b)(i).

{¶ 17} Similarly, any knowledge on the part of the highway patrol employees that

inaction or negligence could lead to harm, and any reliance by Rudd on the general

effectiveness of police action in Ohio, reflect merely a generalized public duty rather than

the specific assumption of a duty and reliance required under R.C. 2743.02(A)(3)(b)(ii)

and (iv). In a pre-statute case, the Supreme Court of Ohio recognized that " 'a

municipality's duty to provide police protection is ordinarily one owed to the public at

large and not to any particular individual or class of individuals.' " Sawicki v. Ottawa

Hills, 37 Ohio St.3d 222, 231 (1988), quoting Cuffy v. New York, 69 N.Y.2d 255, 260

(1987). In Sawicki, the Supreme Court adopted the four-part special duty test applied in

New York and other states and later codified in R.C. 2743.02(A)(3)(b). The court

recognized that public policy rationales justify immunity on the basis that the duty to

protect is owed to the public at large and not to any particular person who might be

injured. Id., citing Prosser & Keeton, Law of Torts at 1049-50 (1984).

{¶ 18} Appellants rely heavily on our recent decision in Connor v. Wright State

Univ., 10th Dist. No. 13AP-116, 2013-Ohio-5701, in which we extensively addressed each

of the statutory elements of R.C. 2743.02(A)(3)(b). Connor does not support appellants'

case. Despite the fact that the injured party in Connor, a university student who

committed suicide after intervention by university police, had extensive contact with

officers as part of a university effort to monitor the student's behavior and avert self-

harm, we held that no special relationship existed because the student had not justifiably

relied on an affirmative undertaking by the university to act on his behalf. In the present

case, although the dispatcher and the patrol sergeant both could be charged with the

general knowledge that failure to efficiently and effectively conduct their police duties

might result in harm to the public, the special relationship must be with the injured party.

Here, the patrol employees could not have known that Rudd personally would be at risk

from the fugitives' criminal conduct. Appellants' three assignments of error are overruled.

No. 15AP-869 7

{¶ 19} We accordingly find that the Court of Claims did not err in finding that the

amended complaint in this case fails to state a claim upon which relief can be granted, and

properly granted dismissal pursuant to Civ.R. 12(B)(6). The judgment of the Court of

Claims of Ohio is affirmed.

Judgment affirmed.

KLATT and BRUNNER, JJ., concur.

___________________