[Cite as Burchard v. Ashland Cty. Bd. of Dev. Disabilities, 2018-Ohio-4408.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 COLLIN BURCHARD, ET AL.                                :    JUDGES:
                                                        :
                                                        :    Hon. W. Scott Gwin, P.J.
        Plaintiffs-Appellees                            :    Hon. William B. Hoffman, J.
                                                        :    Hon. Patricia A. Delaney, J.
 -vs-                                                   :
                                                        :    Case No. 17-COA-041
                                                        :
 ASHLAND COUNTY BOARD OF                                :
 DEVELOPMENTAL DISABILITIES,                            :
 ET AL.                                                 :
    Defendants-Appellants                               :    OPINION


CHARACTER OF PROCEEDING:                                    Appeal from the Ashland County Court
                                                            of Common Pleas, Case No. 17-CIV-
                                                            117



JUDGMENT:                                                   REVERSED




DATE OF JUDGMENT ENTRY:                                     October 29, 2018




APPEARANCES:

 For Plaintiffs-Appellees:                                   For Defendants-Appellants:

 BRIAN GARVINE                                               FRANK H. SCIALDONE
 5 East Long Street, Suite 1100                              DAVID M. SMITH
 Columbus, OH 43215                                          Mazanec, Raskin & Ryder Co., L.P.A.
                                                             100 Franklin’s Row
                                                             34305 Solon Road
                                                             Cleveland, OH 44139
Ashland County, Case No. 17-COA-041                                                       2

Delaney, J.

       {¶1} Defendants-appellants        Ashland    County    Board    of   Developmental

Disabilities (“Board”) appeals from the November 8, 2017 Judgment Entry of the Ashland

County Court of Common Pleas overruling the Board’s motion to dismiss. Plaintiffs-

appellees are Collin and Catherine Burchard.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are as alleged in appellees’ amended complaint filed

September 6, 2017.

       {¶3} The Board operates Dale Roy School in Ashland, Ohio, a school for

disabled individuals from age 3 to age 22.

       {¶4} Collin Burchard is 19 years old, developmentally disabled, and was a

student at Dale Roy School. Collin has a history of seizures, strokes, and an inability to

regulate body heat. Appellees contend Dale Roy School was aware of these issues.

       {¶5} On or around August 25, 2016, the temperature was 90 degrees with high

humidity. In gym class, Collin participated in “activities which caused substantial injuries

due to overexposure to heat and exertion.” Although an aide “noted something was wrong

with Collin,” the aide did not seek medical attention. Collin’s participation in gym class

and performance of the activities which led to over-exposure to heat were contrary to his

Individualized Education Plan (“IEP”).

       {¶6} At the end of the school day, Collin was transported home by Dale Roy in a

vehicle with no air conditioning. The bus aide noted Collin’s eyes appeared glassed over

and Collin was unusually quiet. At home, Collin’s mother’s fiancé observed Collin in
Ashland County, Case No. 17-COA-041                                                      3


distress and called 911. Collin was transported to Wooster Memorial Hospital and then

to the Cleveland Clinic for treatment.

          {¶7} The former Director of Education for Dale Roy directed that Collin’s IEP be

kept in the school file and it was not accessible to departments including the nursing and

transportation departments.      The former Director of Education resigned during an

investigation into this matter by the Ohio Department of Developmental Disabilities

(“DODD”).

          {¶8}   Collin’s IEP included a “transportation section” which was used to address

special needs a student may require while being transported on a bus. In Collin’s case,

no special needs were identified or forwarded to the transportation department.

          {¶9} Under the direction of the former Director of Education, teachers at Dale

Roy were to complete a “Focus Form” containing information about each student. The

Focus Form contained detailed information about Collin’s medical conditions and how to

prevent him from becoming overheated during the school day.             The Focus Form

completed by Collin’s teacher the previous year was not forwarded to his current teacher

until this incident occurred.

          {¶10} In January 2016 the school nurse was given Collin’s medical information,

including his history of seizures and stroke. The nurse was present for discussion about

Collin’s inability to regulate body heat. No Emergency Care Plan was developed for

Collin.

          {¶11} Before this incident occurred, Dale Roy teachers, including the gym

teacher, reviewed Collin’s IEP and discussed his need for restrictions with his mother,

Catherine. Collin’s doctor required his gym class to be restricted.
Ashland County, Case No. 17-COA-041                                                           4


       {¶12} Before the incident, during multiple meetings with Dale Roy personnel,

Catherine and Collin stressed Collin’s inability to regulate body temperature which had in

the past resulted in a stroke.

       {¶13} DODD substantiated neglect based upon Dale Roy School’s acts and

omissions on August 25, 2016 regarding Collin’s exposure to heat. As a result of DODD’s

investigation, Dale Roy School was given eleven recommendations to correct its “multiple

errors” during this incident.

       {¶14} The Burchards filed an amended complaint against the Board and Ashland

County as defendants, asserting negligence/negligent retention and supervision;

intentional infliction of serious emotional distress – Collin; intentional infliction of serious

emotional distress – Catherine; and loss of consortium.1

       {¶15} Defendants filed a motion to dismiss, asserting the Board is entitled to

immunity pursuant to Chapter 2744 of the Ohio Revised Code and that Ashland County

is not sui juris. The trial court granted the motion to dismiss Ashland County. The trial

court further found, however, that the Board failed to address the Burchards’ second and

third claims for relief and therefore overruled the motion to dismiss the Board.

       {¶16} The Board now appeals from the trial court’s Judgment Entry of November

8, 2017. The Board raises one assignment of error:

                                 ASSIGNMENT OF ERROR

       {¶17} “THE        TRIAL        COURT         ERRED         WHEN         IT     DENIED

DEFENDANT/APPELLANT ASHLAND COUNTY BOARD OF DEVELOPMENTAL



1Plaintiffs’ first complaint named Dale Roy School as a defendant and the school filed a
motion to dismiss. Plaintiffs then filed the amended complaint omitting Dale Roy School
and naming the Board and Ashland County as defendants.
Ashland County, Case No. 17-COA-041                                                             5


DISABILITIES THE BENEFIT OF IMMUNITY UNDER REVISED CODE CHAPTER

2744.”

                                          ANALYSIS

         {¶18} The Board argues the trial court should have dismissed appellees’

complaint on all counts on the basis of sovereign immunity. We agree.

         {¶19} Our standard of review on a Civil Rule 12(B) motion to dismiss is de

novo. Huntsman v. State, 5th Dist. Stark No. 2016CA00206, 2017–Ohio–2622, ¶ 20,

citing Greeley v. Miami Valley Maintenance Contractors Inc., 49 Ohio St.3d 228, 551

N.E.2d 981 (1990). The Board argued appellees’ complaint should be dismissed for

failure to state a claim. A 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 County Bd. of Commissioners, 65 Ohio St.3d 545, 605 N.E.2d 378

(1992). Under a de novo analysis, we must accept all factual allegations of the complaint

as true and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd

v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991). In order to dismiss a complaint

pursuant to Civil Rule 12(B)(6), it must appear beyond doubt that the plaintiff can prove

no set of facts in support of the claim that would entitle plaintiff to relief. York v. Ohio State

Highway Patrol, 60 Ohio St.3d 143, 573 N.E.2d 1063 (1991).

         {¶20} In the instant case, appellees allege that Collin was injured due to

negligence, and the negligent retention and supervision of employees of Dale Roy School

leading to the episode of overheating in gym class. Appellees further allege intentional

infliction of emotional distress upon Collin and his mother, and his mother alleges loss of

consortium.
Ashland County, Case No. 17-COA-041                                                              6


       {¶21} The Political Subdivision Tort Liability Act affords political subdivisions

immunity from certain types of actions. Determining whether a political subdivision is

immune from liability involves a three-tiered analysis. Thompson v. Buckeye Joint

Vocational School Dist., 2016-Ohio-2804, 55 N.E.3d 1, ¶ 16 (5th Dist.), citing Cater v.

Cleveland, 83 Ohio St.3d 24, 28-29, 697 N.E.2d 610 (1998), abrogated on other grounds,

M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261. In the

first tier, R.C. 2744.02(A)(1) provides broad immunity to political subdivisions and states

in pertinent part, “a political subdivision is not liable for damages in a civil action for injury,

death or loss to person or property allegedly caused by any act or omission of the political

subdivision or an employee of the political subdivision in connection with a governmental

or proprietary function.” In the second tier of the analysis, R.C. 2744.02(B) provides five

exceptions that may lift the broad immunity provided for in R.C. 2744.02(A)(1). In the third

tier, immunity may be reinstated if the political subdivision can demonstrate the

applicability of one of the defenses found in R.C. 2744.03(A)(1) through (5). See, e.g.,

Cramer v. Auglaize Acres, 113 Ohio St.3d 266, 270, 2007-Ohio-1946, 865 N.E.2d 9, at ¶

16.

       {¶22} Whether a political subdivision is entitled to this statutory immunity is a

question of law for a court's determination. Henney v. Shelby City School Dist., 5th Dist.

Richland No. 2005 CA 0064, 2006-Ohio-1382, ¶ 28, citing Conley v. Shearer, 64 Ohio

St.3d 284, 291, 595 N.E.2d 862 (1992). The trial court in the instant case denied the

Board immunity on the pleadings.

       {¶23} The Board is undisputedly a political subdivision pursuant to R.C.

2744.01(F) and is therefore presumptively immune. See, Strayer v. Barnett, 2017-Ohio-
Ashland County, Case No. 17-COA-041                                                          7


5617, 94 N.E.3d 156, ¶ 19 (2nd Dist.). If one of the exceptions outlined in R.C. 2744.02(B)

is applicable, the Board may be subject to civil liability.

       {¶24} The Board argues none of the exceptions listed in R.C. 2744.02(B) apply to

any of appellees’ claims. We will examine each in turn.

       {¶25} We agree with the Board as to the second and third counts of appellees’

complaint for intentional infliction of emotional distress. It is well-established there is no

exception to sovereign immunity for the intentional tort of intentional infliction of emotional

distress. Wilson v. Stark Cty. Dept. of Human Serv., 70 Ohio St.3d 450, 453, 1994-Ohio-

394, 639 N.E.2d 105; Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 451,

2002-Ohio-6718, 780 N.E.2d 543, ¶ 8; Miller v. City of Xenia, 2nd Dist. Greene No. 2001

CA 82, 2002-Ohio-1303, unreported, 2002 WL 441386 at *3; Griffits v. Newburgh Hts.,

8th Dist. Cuyahoga No. 91428, 2009-Ohio-493, ¶ 26; see also Maggio v. City of Warren,

Trumbull App. No.2006-T-0028, 2006-Ohio-6880. Therefore appellees’ second and third

counts should be dismissed.

       {¶26} Appellees argue that R.C. 2744.02(B)(2) applies to the first count of their

complaint, negligent retention and supervision. That section states: “Except as otherwise

provided in sections 3314.07 and 3746.24 of the Revised Code, political subdivisions are

liable for injury, death, or loss to person or property caused by the negligent performance

of acts by their employees with respect to proprietary functions of the political

subdivisions.” Appellants argue the supervising and retaining of employees by the Board

is a proprietary function.

       {¶27} The statutory definitions of “governmental function” and “proprietary

function” are mutually exclusive. Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d
Ashland County, Case No. 17-COA-041                                                           8


551, 557, 2000-Ohio-486, 733 N.E.2d 1141. R.C. 2744.01(C)(1) defines “governmental

function” as a function of a political subdivision that is specified in another division or that

satisfies any of the following: (a) A function that is imposed upon the state as an obligation

of sovereignty and that is performed by a political subdivision voluntarily or pursuant to

legislative requirement; (b) A function that is for the common good of all citizens of the

state; (c) A function that promotes or preserves the public peace, health, safety, or

welfare; that involves activities that are not engaged in or not customarily engaged in by

nongovernmental persons; and that is not specified in another section as a proprietary

function.

       {¶28} Applicable to the Board, we note that R.C. 2744.01(C)(2)(o) specifies that

a governmental function includes “[t]he operation of mental health facilities,

developmental disabilities facilities, alcohol treatment and control centers, and children's

homes or agencies.”

       {¶29} Appellees assert the Board’s hiring and retention of employees, though,

constitute a proprietary function separate from its governmental function.                 R.C.

2744.01(G)(1) defines a “proprietary function” as a function of a political subdivision that

is specified in another section or that satisfies both of the following: (a) The function is

not one described in division (C)(1)(a) or (b) of this section and is not one specified in

division (C)(2) of this section; and (b) The function is one that promotes or preserves the

public peace, health, safety, or welfare and that involves activities that are customarily

engaged in by nongovernmental persons.

       {¶30} Appellees cite Bucey v. Carlisle, 1st Dist. Hamilton No. C-090252, 2010-

Ohio-2262, as authority for their proposition that the Board’s supervision and retention of
Ashland County, Case No. 17-COA-041                                                        9

employees constitute proprietary functions. We find, though, that Bucey does not support

appellees’ argument that “supervision and retention of employees” is a separate

proprietary function distinct from the Board’s governmental function in operating Dale Roy

School. In Bucey, the First District Court of Appeals examined whether a claim for

negligent screening of potential employees fit within R.C. 2744.02(B)(2) as a proprietary

function of a school system. Id. at ¶ 15. The claim at issue was negligence in failing to

properly background-check a school administrator. The First District found that “’the

governmental function of providing a system of public education’ cannot be accomplished

without the activity at issue here, which we regard as simply the staffing of a public school

with an administrator. This activity is so fundamental to the provision of a system of public

education that it cannot be considered apart from the governmental function of ‘providing

a system of public education.’” Id. at ¶ 16.

       {¶31} In the instant case, the Board’s supervision and retention of employees at

Dale Roy School is not distinct from its governmental function of operating facilities for

persons with developmental disabilities. See, Porter v. Probst, 7th Dist. No. 13 BE 36,

2014-Ohio-3789, 18 N.E.3d 824, ¶ 32 [operation of jail constitutes government function

and employment decisions made in exercise of government function fall within sovereign

immunity]; Campolieti v. Cleveland, 8th Dist. No. 92238, 184 Ohio App.3d 419, 2009-

Ohio-5224, 921 N.E.2d 286, ¶ 35-36 [marshaling and maintaining agency to protect public

from fire is specifically-designated governmental function and employment decisions

made within exercise of that function are within the protection of sovereign immunity];

Schmitt v. Educational Serv. Ctr. of Cuyahoga Cty., 8th Dist. Cuyahoga No. 97623, 2012-

Ohio-2210 [equitable and promissory estoppel inapplicable against political subdivision
Ashland County, Case No. 17-COA-041                                                          10


engaged in governmental function, provision of public education is governmental function,

and act of hiring personnel to staff public schools cannot be considered apart from

governmental function of ‘providing a system of public education’]; Wilson v. McCormack,

2017-Ohio-5510, 93 N.E.3d 102, ¶ 31 (11th Dist.) [hiring, retention, supervision of high

school basketball coach is inherent part of governmental function of providing public

education]; Perkins v. Columbus Bd. of Edn., 10th Dist. Franklin No. 13AP-803, 2014-

Ohio-2783, ¶ 12 [“governmental function” extends to most school activities and

administrative functions of educational process beyond classroom teaching].2

       {¶32} We therefore conclude that R.C. 2744.02(B)(2) does not exempt appellees’

first claim from the Board’s sovereign immunity.

       {¶33} Finally, appellee Catherine Bouchard’s claim for loss of consortium is a

derivative cause of action dependent upon the existence of a primary cause of action.

Messmore v. Monarch Machine Tool Co., 11 Ohio App.3d 67, 68-69, 463 N.E.2d 108 (9th

Dist.1983). Because we found the primary claims for negligent hiring and retention, and

intentional infliction of emotional distress, fail to survive the Board’s motion to dismiss, the




2We note that in McConnell v. Dudley, 2018-Ohio-341, 106 N.E.3d 180 (7th Dist.), appeal
allowed, 153 Ohio St.3d 1451, 2018-Ohio-3026, 103 N.E.3d 830, the Seventh District
Court of Appeals found that a genuine issue of material existed as to whether a township
was negligent in training and supervising an officer who ran a red light during a pursuit
and struck the plaintiff. The Seventh District relied upon its previous authority that “R.C.
2744.02(B)(1), which strips a political subdivision of immunity when an employee
negligently operates a motor vehicle, includes entrustment and failure to train claims.” Id.
at ¶ 31, citing Wagner v. Heavlin, 136 Ohio App.3d 719, 737 N.E.2d 989 (7th Dist.2000).
The Ohio Supreme Court accepted the township’s appeal on Proposition of Law No. One:
“A political subdivision is immune from allegations of negligent hiring, or failure to train or
supervise police officers, as such allegations do not fall within any of the exceptions found
within R.C. 2744.02(B)(1) through (B)(5).” The appeal remains pending before the Court.
Ashland County, Case No. 17-COA-041                                                     11

derivative cause of action, loss of consortium, fails as a matter of law. Miller v. City of

Xenia, 2nd Dist. Greene No. 2001 CA 82, 2002 WL 441386 at *3 (March 22, 2002).

       {¶34} Accordingly, we find the trial court erred in failing to grant judgment on the

pleadings to the Board as to the claims against them in the complaint. The Board’s sole

assignment of error is sustained.

                                     CONCLUSION

       {¶35} Upon our de novo review of appellees’ complaint, we find appellees failed

to plead any set of facts that, if proved, would establish liability against the Board.

Accordingly, we sustain the assignment of error and reverse the trial court's Judgment

Entry of November 8, 2017.

By: Delaney, J.,

Gwin, P.J. and

Hoffman, J., concur.
