[Cite as Doe v. Bath Local School Dist., 2014-Ohio-4992.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




JANE DOE, MOTHER AND
NATURAL GUARDIAN OF
JOAN DOE,
                                                            CASE NO. 1-14-12
        PLAINTIFF-APPELLANT,

        v.

BATH LOCAL SCHOOL DISTRICT,
BOARD OF EDUCATION, ET AL.,                                 OPINION

        DEFENDANTS-APPELLEES.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CV 2013 0846

                                      Judgment Affirmed

                          Date of Decision: November 10, 2014




APPEARANCES:

        Lawrence A. Huffman for Appellant

        Gregory B. Scott for Appellee, Bath Local School District
Case No. 1-14-12


WILLAMOWSKI, P.J.

       {¶1} Plaintiff-appellant, Jane Doe (“Jane”), mother and natural guardian of

Joan Doe (“Joan”), brings this appeal from the judgment of the Court of Common

Pleas of Allen County, Ohio, dismissing her complaint against Defendant-

appellee, Bath Local School District Board of Education (“Bath Local”). For the

reasons that follow, we affirm the trial court’s judgment.

       {¶2} On December 10, 2013, Jane filed a complaint for personal injury

against Bath Local and Jon Roe (“Roe”), alleging injuries to her minor daughter

Joan, which occurred when Joan was a student enrolled in Bath Local’s program.

Jane contended that Roe sexually assaulted Joan, while the two were passengers

on a school bus operated by Bath Local. Jane alleged three causes of action,

including sexual assault, negligent or intentional infliction of emotional distress,

and negligence. On December 26, 2013, Bath Local filed a Civ.R. 12(B)(6)

motion to dismiss for failure to state a claim upon which relief could be granted,

asserting immunity pursuant to R.C. 2744.02(A)(1). The trial court conducted a

hearing on the motion to dismiss on April 3, 2014. Subsequently, the trial court

granted Bath Local’s motion, finding that the school district is immune from tort

liability under R.C. 2744.02(A)(1) and under the authority of the Ohio Supreme

Court’s decision in Doe v. Marlington Local School Dist. Bd. of Edn., 122 Ohio

St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, which was decided on “strikingly

similar” facts. (R. at 17, J. Entry at 4, Apr. 10, 2014.)
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Case No. 1-14-12


           {¶3} Jane now appeals the trial court’s decision raising one assignment of

error for our review.1

           THE TRIAL COURT ERRED IN FINDING THAT
           DEFENDANT’S NEGLIGENCE DID NOT INVOLVE
           OPERATION OF A MOTOR VEHICLE AND FURTHER
           ERRED IN GRANTING DEFENDANT’S MOTION TO
           DISMISS ON THE GROUNDS THEY WERE IMMUNE
           FROM LIABLITY

           {¶4} Jane asserts that the trial court improperly dismissed her case. An

appellate court reviews de novo the trial court’s decision to grant or deny a Civ.R.

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

granted. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814

N.E.2d 44, ¶ 5. In reviewing the trial court’s decision on a motion to dismiss, we

must accept all factual allegations in the complaint as if they were true. Id.

Additionally, we must construe any reasonable inferences in favor of the party

opposing the motion to dismiss. Arnett v. Precision Strip, Inc., 2012-Ohio-2693,

972 N.E.2d 168, ¶ 9 (3d Dist.). We will affirm the trial court’s order granting the

12(B)(6) motion to dismiss if it appears “beyond doubt that the plaintiff can prove

no set of facts in support of the claim that would entitle the plaintiff to relief.”

LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, 872

N.E.2d 254, ¶ 14.




1
    The trial court certified its order as a final appealable order under Civ.R. 54.

                                                        -3-
Case No. 1-14-12


      {¶5} The facts of the complaint, which we construe as true, are very

disturbing. Jane alleged that Bath Local, knowing of Jon Roe’s propensities for

dangerous behavior toward other students on the bus, placed the seventeen-year-

old Roe on a school bus with elementary school children, including the five-year-

old Joan.   Bath Local instructed the assigned bus driver to ensure that Roe

remained in the front seat alone. This protocol was not followed and Joan was

seated in a seat with Roe. During the bus rides Roe sexually molested Joan at

least four times before Jane discovered the abuse. Although the incidents were

recorded by the video surveillance system on the school bus, Bath Local did not

discover them until after being notified about them by Jane.

      {¶6} It is undisputed that Bath Local is a political subdivision of the State

of Ohio (R. at 1, Compl.), and that “transportation of students to and from school

on school buses is a governmental function.” See Marlington, 122 Ohio St.3d 12,

2009-Ohio-1360, 907 N.E.2d 706, at ¶ 11. Bath Local’s motion to dismiss was

thus based on R.C. 2744.02, which provides immunity to political subdivisions

from liability 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.

R.C. 2744.02(A)(1).




                                       -4-
Case No. 1-14-12


       {¶7} Jane opposed the motion, alleging an exception from the immunity

based on another subdivision of R.C. 2744.02, which states:

       (B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a
       political subdivision is liable in damages in a civil action for injury,
       death, or loss to person or property allegedly caused by an act or
       omission of the political subdivision or of any of its employees in
       connection with a governmental or proprietary function, as follows:

       (1) Except as otherwise provided in this division, political
       subdivisions are liable for injury, death, or loss to person or property
       caused by the negligent operation of any motor vehicle by their
       employees when the employees are engaged within the scope of
       their employment and authority. * * *

R.C. 2744.02(B)(1). Jane claimed that the bus driver, who is a Bath Local’s

employee, was engaged in a negligent operation of a motor vehicle when he or she

failed to properly supervise Roe on the bus.

       {¶8} While we are deeply concerned about Bath Local’s alleged failure to

ensure the safety of the students on the bus, we cannot agree with an assertion that

the “school bus driver’s negligent failure to supervise and control obvious

misbehavior by students on the school bus constitutes ‘negligent operation’ of the

school bus for purposes of R.C. 2744.02(B)(1),” because this proposition of law

has already been rejected by the Ohio Supreme Court in Marlington. See 122

Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, ¶ 8-9.

       {¶9} Although Jane attempts to distinguish Marlington on the facts,

asserting that Bath Local’s “conscious decision to place the seventeen-year-old

boy with behavioral problems on a bus full of elementary school children” created
                                        -5-
Case No. 1-14-12


the danger (see App’t Br. at 3), the issue addressed by the Ohio Supreme Court

was exactly the same:

       whether a school bus driver’s supervision of the conduct of children
       passengers on a school bus amounts to operation of a motor vehicle
       within the statutory exception to political subdivision immunity
       under R.C. 2744.02(B)(1).

Marlington at ¶ 9. The Ohio Supreme Court answered in the negative and we will

follow its holding. See Kaufman v. Village of Paulding, 92 Ohio App. 169, 178-

79, 109 N.E.2d 531 (3d Dist.1951); Sherman v. Millhon, 10th Dist. Franklin No.

92AP-89, 1992 WL 142368, *1 (June 16, 1992; Battig v. Forshey, 7 Ohio App.3d

72, 454 N.E.2d 168 (4th Dist.1982), paragraph three of the syllabus.

       {¶10} Accordingly, for the reasons stated, we overrule the assignment of

error and affirm the trial court’s judgment dismissing Jane’s Complaint against

Bath Local.


                                   Conclusion

       {¶11} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgment of the Court of Common Pleas of Allen County, Ohio is

therefore affirmed.

                                                              Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr

                                       -6-
