Maternal Grandmother v. Hamilton Cty. Dept. of Job & Family Servs. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

Maternal Grandmother v. Hamilton Cty. Dept. of Job & Family Servs., Slip Opinion No. 2021-

Ohio-4096.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2021-OHIO-4096

MATERNAL GRANDMOTHER, ADMR., APPELLANT,

v.

HAMILTON COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES ET AL.,

APPELLEES.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Maternal Grandmother v. Hamilton Cty. Dept. of Job & Family

Servs., Slip Opinion No. 2021-Ohio-4096.]

Civil law—Civ.R. 12(C)—R.C. 2744.03(A)(6)(b)—Immunity for employees of

political subdivision—When complaint invokes exception to government

employee’s immunity under R.C. 2744.03(A)(6)(b), notice pleading suffices

and plaintiff may not be held to heightened pleading standard—Court of

appeals’ judgment reversed in part and cause remanded to trial court.

(No. 2020-0705—Submitted April 28, 2021—Decided November 23, 2021.)

APPEAL from the Court of Appeals for Hamilton County,

No. C-180662, 2020-Ohio-1580.

__________________

SUPREME COURT OF OHIO

FISCHER, J.

{¶ 1} In this case, we are asked to decide whether claims invoking the

exception under R.C. 2744.03(A)(6)(b) to the immunity afforded to employees of

a political subdivision are subject to a heightened pleading standard. For the

reasons that follow, we hold that they are not. Instead, we conclude that such claims

are subject to Ohio’s regular notice-pleading rules, and we reverse in part the

judgment of the First District Court of Appeals.

I. BACKGROUND

{¶ 2} G.B. died when she was just two years old. According to her maternal

grandmother, appellant, Desena Bradley, G.B. was living with cruel, violent, and

abusive parents at the time.

{¶ 3} As a result of this tragic—and perhaps preventable—incident,

Bradley filed suit against appellees, Hamilton County, the county’s commissioners,

the Hamilton County Department of Job and Family Services (“HCJFS”)

(collectively the “county defendants”), and the individual HCJFS caseworkers

involved in her granddaughter’s case.

{¶ 4} In response to that complaint, the county defendants and the

caseworkers all filed motions for judgment on the pleadings, arguing that they were

statutorily immune from such lawsuits. The trial court agreed with the county

defendants and the caseworkers and granted their respective motions, dismissing

Bradley’s claims with prejudice.

{¶ 5} On appeal, the First District affirmed. That decision, however, was

not unanimous in all respects. While the panel below agreed that the county

defendants were entitled to immunity as a matter of law, 2020-Ohio-1580, 154

N.E.3d 225, ¶ 16; id. at ¶ 35 (Crouse, J., concurring in part and dissenting in part),

there was a split over whether the claims against the caseworkers could move

forward. On that issue, the panel’s majority concluded that Bradley’s complaint

contained unsupported legal conclusions and did not set forth sufficient facts to

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show that the caseworkers’ conduct amounted to bad faith or willful, wanton, or

reckless misconduct, such that it would overcome the presumption of immunity

afforded to the caseworkers under R.C. 2744.03(A)(6). Id. at ¶ 29-33. In her partial

dissent, Judge Crouse disagreed with the other members of the panel, finding the

complaint to be sufficient with respect to the claims against the caseworkers. Id. at

¶ 45 (Crouse, J., concurring in part and dissenting in part).

{¶ 6} Following the First District’s split decision on the immunity issue,

Bradley appealed the First District’s judgment to this court and we accepted her

appeal for review. See 159 Ohio St.3d 1475, 2020-Ohio-4045, 150 N.E.3d 966.

II. ANALYSIS

{¶ 7} Ohio law generally provides political subdivisions and their

employees with immunity from lawsuits and liability. R.C. 2744.02(A)(1) and

2744.03(A)(6). That immunity is not absolute, however. In fact, as relevant here,

Ohio law permits plaintiffs to sue and hold liable employees of a political

subdivision if the employees’ acts or omissions during the course and scope of their

employment were wanton or reckless. R.C. 2744.03(A)(6)(b).

{¶ 8} As we have stated before, though, wanton misconduct and reckless

conduct are not synonymous with negligence, for which an employee of a political

subdivision is immune from liability. Anderson v. Massillon, 134 Ohio St.3d 380,

2012-Ohio-5711, 983 N.E.2d 266, ¶ 23. Wanton misconduct is the “failure to

exercise any care toward those to whom a duty of care is owed in circumstances in

which there is great probability that harm will result.” Id. at ¶ 33. Reckless conduct

is “the conscious disregard of or indifference to a known or obvious risk of harm to

another that is unreasonable under the circumstances.” Id. at ¶ 34. Wanton

misconduct and reckless conduct thus involve “something more than mere

negligence.” See O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889

N.E.2d 505, paragraph three of the syllabus.

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{¶ 9} The issue here is whether that requirement—that “something more”

than negligence be proved—results in a heightened pleading standard in a case

involving R.C. 2744.03(A)(6)(b)’s exception to immunity for wanton or reckless

behavior. We hold that it does not.

{¶ 10} Ohio is a notice-pleading state. Wells Fargo Bank N.A. v. Horn, 142

Ohio St.3d 416, 2015-Ohio-1484, 31 N.E.3d 637, ¶ 13. This means that outside of

a few specific circumstances, such as claims involving fraud or mistake, see Civ.R.

9(B), a party will not be expected to plead a claim with particularity. Rather, “a

short and plain statement of the claim” will typically do. Civ.R. 8(A).

{¶ 11} In this context, i.e., a case in which an employee’s allegedly wanton

or reckless behavior is at issue, these general pleading rules still apply. See

Civ.R 9(B) (“Malice, intent, knowledge, and other condition of mind of a person

may be averred generally”). Accordingly, we hold that when a complaint invokes

the exception to a government employee’s immunity under R.C. 2744.03(A)(6)(b),

notice pleading suffices and the plaintiff may not be held to a heightened pleading

standard or expected to plead the factual circumstances surrounding an allegation

of wanton or reckless behavior with particularity. Accord Parmertor v. Chardon

Local Schools, 2016-Ohio-761, 47 N.E.3d 942, ¶ 49-51 (11th Dist.); Thompson v.

Buckeye Joint Vocational School Dist., 2016-Ohio-2804, 55 N.E.3d 1, ¶ 31 (5th

Dist.); see also York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144-145, 573

N.E.2d 1063 (1991).

{¶ 12} With that in mind, we must now address whether Bradley’s

complaint against the caseworkers involved in her granddaughter’s case was

sufficient to survive a motion for judgment on the pleadings.

{¶ 13} Our review of a lower court’s decision granting judgment on the

pleadings under Civ.R.12(C) is de novo. New Riegel Local School Dist. Bd. of Edn.

v. Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851,

133 N.E.3d 482, ¶ 8. “Dismissal is appropriate under Civ.R. 12(C) when (1) the

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court construes as true, and in favor of the nonmoving party, the material allegations

in the complaint and all reasonable inferences to be drawn from those allegations

and (2) it appears beyond doubt that the plaintiff can prove no set of facts that would

entitle him or her to relief.” Reister v. Gardner, 164 Ohio St.3d 546, 2020-Ohio-

5484, 174 N.E.3d 713, ¶ 17, citing State ex rel. Midwest Pride IV, Inc. v. Pontious,

75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996).

{¶ 14} In her complaint, which asserts claims for wrongful death and

survivorship, Bradley alleges that the caseworkers involved in G.B.’s case

performed their duties in a wanton or reckless manner. She also alleges that the

caseworkers ignored G.B.’s mother’s history of abusing her other children, failed

to properly investigate a report of neglect or abuse of G.B. from the doctors and

staff at Cincinnati Children’s Hospital Medical Center, and overlooked what were

or should have been clear signs of abuse during a home visit that occurred less than

a month before G.B.’s death. In other words, Bradley’s complaint essentially

alleges that the caseworkers disregarded or were indifferent to a known or obvious

risk of harm to G.B. that was unreasonable under the circumstances. See Anderson,

134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, at ¶ 34.

{¶ 15} Consequently, while Bradley’s complaint could perhaps have been

more clearly written, we conclude that it did all that was required at the pleading

stage by putting the caseworkers on notice of the claims against them and raising

the possibility that the exception to their statutory immunity under R.C.

27044.03(A)(6)(b) might apply. Given that determination and our inability to say

at this juncture that there is no set of facts that would entitle Bradley to relief after

taking the material allegations in her complaint as true, see Reister at ¶ 17,

judgment on the pleadings was inappropriate and the case against the caseworkers

should proceed on remand.

{¶ 16} On remand, of course, nothing in this decision should be construed

as passing judgment on the merits of this case. In order to prevail, Bradley will still

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need to prove her claims and demonstrate that the caseworkers’ conduct really was

wanton or reckless. See, e.g., O’Toole, 118 Ohio St.3d 374, 2008-Ohio-2574, 889

N.E.2d 505, at ¶ 75; Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351,

356, 639 N.E.2d 31 (1994). Our decision today simply clarifies that Ohio law does

not put Bradley or similar plaintiffs to that burden at the pleading stage. York, 60

Ohio St.3d at 144-145, 573 N.E.2d 1063 (“a plaintiff is not required to prove his or

her case at the pleading stage”).

III. CONCLUSION

{¶ 17} For the reasons stated above, we hold that when a complaint invokes

an exception to a government employee’s immunity under R.C. 2744.03(A)(6)(b),

notice pleading suffices and the plaintiff may not be held to a heightened pleading

standard. Because the complaint in this case meets the applicable notice-pleading

standard, we reverse the First District’s judgment in part and remand this matter to

the trial court for further proceedings.

Judgment reversed in part

and cause remanded.

O’CONNOR, C.J., and DONNELLY, STEWART, and BRUNNER, JJ., concur.

DEWINE, J., concurs in judgment only, with an opinion joined by

KENNEDY, J.

_________________

DEWINE, J., concurring in judgment only.

{¶ 18} I agree with the majority that under Ohio’s notice-pleading standard,

the complaint contains sufficient allegations to survive a motion for judgment on

the pleadings. I write separately to offer a more complete discussion of Ohio’s

pleading standard.

The Question Before Us

{¶ 19} The majority frames the issue before us as whether claims invoking

the statutory exception “to the immunity afforded to employees of a political

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subdivision are subject to a heightened pleading standard?” Majority opinion at

¶ 1. But this is something of a straw man. The First District Court of Appeals did

not apply a heightened pleading standard. See 2020-Ohio-1580, 154 N.E.3d 225,

¶ 11. And the caseworkers who are defendants in this action have always asserted

that they are entitled to judgment in their favor based on Ohio’s notice-pleading

standard. The idea of a heightened pleading standard arises only because the

plaintiff, in seeking review by this court, presented a proposition of law suggesting

that the court of appeals erred by applying a heightened pleading standard.

{¶ 20} Because the court of appeals did not apply a heightened pleading

standard, and because no one advocated for one below, the issue of a heightened

pleading standard is not before us. The question we must answer is whether the

court of appeals erred in concluding that under Ohio’s existing pleading standard,

Desena Bradley failed to state a claim against the caseworkers.

Ohio’s Notice-Pleading Standard

{¶ 21} Civ.R. 8(A) requires a complaint to contain “a short and plain

statement of the claim showing that the party is entitled to relief.” Typically

referred to as “notice pleading,” this standard does not require a plaintiff to prove

her case at the pleading stage, but merely requires factual allegations that if proved

would entitle the plaintiff to relief. Illinois Controls, Inc. v. Langham, 70 Ohio

St.3d 512, 526, 639 N.E.2d 771 (1994). In applying this standard, we credit all

factual allegations in the complaint and give the nonmoving party all reasonable

inferences. See Sherman v. Ohio Pub. Emps. Retirement Sys., 163 Ohio St.3d 258,

2020-Ohio-4960, 169 N.E.3d 602, ¶ 17.

{¶ 22} We “incorporate[d]” the notice-pleading standard from the Federal

Rules of Civil Procedure as our own. See York v. Ohio State Hwy. Patrol, 60 Ohio

St.3d 143, 144, 573 N.E.2d 1063 (1991). We have often recited that standard by

quoting the United States Supreme Court’s decision in Conley v. Gibson, 355 U.S.

41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957): to dismiss a complaint at the pleading

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stage, it must appear “ ‘beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.’ ” York at 144, quoting

Conley at 45. The majority employs that formulation today.

{¶ 23} Although the “no set of facts” language is often parroted, it has not

been strictly applied by this court or other courts in this state. Such a formulation

is in tension with Civ.R. 8’s requirement of a statement “showing that the party is

entitled to relief.” Indeed, if “no set of facts” were truly the standard, even the most

cursory complaint could survive dismissal.

{¶ 24} Imagine a complaint that reads simply: “Jones committed a tort

against plaintiff.” Certainly some “set of facts” could establish this bare claim as

actionable, but such a claim would not provide notice to the defendant and would

surely be subject to dismissal. For this reason, this court has often sanctioned

dismissal of a complaint in circumstances in which one would be hard-pressed to

call it “beyond doubt” that the plaintiff could not ultimately establish facts to make

a colorable claim. See, e.g., Estate of Ridley v. Hamilton Cty. Bd. of Mental

Retardation & Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629, 809

N.E.2d 2, ¶ 16, 29 (affirming the dismissal of a wrongful-death claim because the

complaint failed to allege sufficient facts establishing the defendant’s awareness of

likely harm).

{¶ 25} Over a decade ago, the United States Supreme Court recognized that

this “no set of facts” standard was being routinely misapplied. See Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). As

the court explained, under a “literal” reading, the “no set of facts” formulation

would allow “a wholly conclusory statement [to survive dismissal] whenever the

pleadings left open the possibility” that a plaintiff might discover something

supporting recovery. Id. at 561. For this reason, “a good many judges and

commentators” had balked at applying the literal terms of the passage. Id. at 562-

563 (citing cases and commentaries).

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{¶ 26} The Twombly court explained that the conventional understanding

of the “no set of facts” standard took the language in Conley out of context.

Twombly at 562-563. It was more appropriate to understand that language “in light

of the opinion’s preceding summary of the complaint’s concrete allegations, which

the Court quite reasonably understood as amply stating a claim for relief.” Id.

Nonetheless, “after puzzling the [legal] profession for 50 years,” the Court

concluded that the phrase had “been questioned, criticized and explained away long

enough.” Id. Having “earned its retirement,” the Conley phrase was discarded by

the United States Supreme Court. Twombly at 563. We should consign the phrase

to a similar fate in Ohio jurisprudence.

{¶ 27} In addition to explaining that the “no set of facts” formulation had

been misunderstood, the Twombly court discussed the appropriate standard for

reviewing the sufficiency of a complaint. A complaint does not “need detailed

factual allegations,” but there must be more than “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action.” Id. at 555. “Factual

allegations must be enough to raise a right to relief above the speculative level.”

Id. Thus, to survive a motion to dismiss, a plaintiff need not engage in “heightened

fact pleading of specifics, but [must supply] enough facts to state a claim to relief

that is plausible on its face.” Id. at 570. “A claim has facial plausibility,” the court

later elaborated, “when the plaintiff pleads factual content” that presents “more than

a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

{¶ 28} In the years since Twombly and Iqbal were decided, this court has

never addressed the question whether we should apply a similar plausibility

standard for complaints. There are good reasons that we might want to do so, but

because this case does not squarely present the issue, our consideration must await

another day.

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{¶ 29} Although we have not explicitly addressed Twombly and Iqbal, we

have long followed the principle articulated in those cases that labels and bare legal

conclusions in a complaint are insufficient. We have made clear that unsupported

legal conclusions are not entitled to any presumption of truth and are not sufficient

to survive a motion to dismiss. See, e.g., Schulman v. Cleveland, 30 Ohio St.2d

196, 198, 283 N.E.2d 175 (1972); Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190,

193, 532 N.E.2d 753 (1988); State ex rel. Hickman v. Capots, 45 Ohio St.3d 324,

544 N.E.2d 639 (1989); State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio

St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 39. Similarly, Ohio courts have made

clear that mere speculation, unsupported by operative facts, is not enough to state a

claim. See, e.g., Sacksteder v. Senney, 2d Dist. Montgomery No. 24993, 2012-

Ohio-4452, ¶ 45 (“we have never construed Civ.R. 12(B)(6) as permitting either

speculation or complaints that are devoid of factual allegations supporting the legal

claims”).

{¶ 30} I now turn to the application of Ohio’s pleading standard to

Bradley’s complaint.

Bradley’s Complaint Alleges Sufficient Facts to State a Claim

{¶ 31} Under Ohio’s notice-pleading standard, Bradley needed to allege

sufficient facts that if taken as true, and with all reasonable inferences in her favor,

would allow for recovery. Because the caseworkers could be held liable only if

their conduct was wanton or reckless, Bradley had to present factual allegations

supporting at least an inference of recklessness. See R.C. 2744.03(A)(6)(b).

{¶ 32} Much of Bradley’s complaint consisted of bare legal conclusions.

For example, Bradley asserted that the caseworkers “breached their duty to protect”

G.B. “from harm and to act in her best interest.” Similarly, Bradley alleged that

the caseworkers “engaged in reckless misconduct, willful misconduct and wanton

misconduct, which resulted in the death of the infant child.” She also asserted that

in December 2013 the Hamilton County Department of Job and Family Services

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ended protective supervision of G.B. and that “these actions were done in bad faith,

in a wanton and willful manner, and resulted in the deprivation of the civil rights

of the infant, * * * and ultimately in her wrongful death.” Allegations of this sort,

which are mere legal conclusions, do not suffice. See Schulman, 30 Ohio St.2d at

198, 283 N.E.2d 175.

{¶ 33} But I find one aspect of Bradley’s amended complaint that passes

muster. Bradley alleges the following facts: that G.B. was admitted to the hospital

in December 2014 with significant indicia of abuse, including severe

undernourishment and a host of other problems, and that the caseworkers were

notified of the possible abuse and called to the hospital to meet with G.B.’s parents.

“Allegedly,” the department of job and family services made a follow-up visit to

G.B.’s home on March 4, 2015, and found that everything was fine and that G.B.

was healthy and happy. Three weeks later, the two-year-old girl was found dead.

The coroner’s report identified over 100 injuries, including a hand-stitched gash on

G.B.’s forehead and other abrasions. The two-year-old girl weighed only 13

pounds when she died. According to the coroner, the cause of death was “Battered

Child Syndrome with Acute Chronic Intercranial Hemorrhages and Starvation,”

and the onset of the injuries was “months” before. The coroner opined that G.B.

had been abused “her entire pathetic, pathetically short life.”

{¶ 34} Drawing reasonable inferences in favor of Bradley and accepting her

pleaded facts as true, these allegations are sufficient to state a claim for relief. If

G.B.’s injuries at the time of her death were as pervasive and severe as alleged, one

can draw an inference that the injuries should have been noticeable to the

caseworkers at the home-visit three weeks earlier. And if the injuries would have

been evident, the most reasonable inferences are either (1) that no home-visit was

conducted or (2) that the home-visit was inadequate. Given the caseworkers’

awareness of the prior abuse, and with the benefit of discovery, Bradley might be

able to establish that the caseworkers were reckless in failing to adequately

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investigate G.B.’s situation after she was discharged from the hospital. (Of course,

it is the factfinder’s province to assess the merits of Bradley’s cause of action, and

nothing said here should be taken as commentary on whether Bradley will

ultimately be able to prove her claim.)

{¶ 35} For the reasons that I have explained, I concur only in the majority’s

judgment reversing the judgment of the First District Court of Appeals.

KENNEDY, J., concurs in the foregoing opinion.

_________________

Rachel S. Bloomekatz; and Robinson Law Firm, L.L.C., and Emmett E.

Robinson, for appellant, individually and as the administrator of the estate of G.B.,

a deceased minor.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Pamela J.

Sears and Michael G. Florez, Assistant Prosecuting Attorneys, for appellee Lumadi

Lavusa.

Laufman & Napolitano, L.L.C., and Paul M. Laufman; and Michael L.

Tranter, for appellee Shamara Stephens, a.k.a. Shamara Hooks-Ware.

Stephen J. Wenke, for appellee Kassie Setty.

The Gittes Law Group and Jeffrey P. Vardaro; and Marcia Lowry, Allison

Mahoney, and Tavi Unger, urging reversal for amicus curiae A Better Childhood.

Kimberly Payne Jordan, urging reversal for amicus curiae Justice for

Children Clinic.

_________________

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