[Cite as Fitzgerald v. Cuyahoga Cty., 2011-Ohio-3476.]




          Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96333




                           ARNETTA FITZGERALD
                                                  PLAINTIFF-APPELLANT

                                                     vs.

                  COUNTY OF CUYAHOGA, ET AL.
                                                  DEFENDANTS-APPELLEES




                                          JUDGMENT:
                                           AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-738363
         BEFORE:        Blackmon, J., Kilbane, A.J., and Cooney, J.

      RELEASED AND JOURNALIZED: July 14, 2011
ATTORNEY FOR APPELLANT

Paul M. Kaufman
801 Terminal Tower
50 Public Square
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

William D. Mason
Cuyahoga County Prosecutor

Steven W. Ritz
Assistant County Prosecutor
3955 Euclid Avenue, Room 305E
Cleveland, Ohio 44115




PATRICIA ANN BLACKMON, J.:

      {¶ 1} Appellant Arnetta Fitzgerald appeals the trial court’s dismissal of

her complaint and assigns the following error for our review:

      “I. The trial court erred in granting defendants-appellees’
      motion to dismiss. (A) Sovereign immunity violates the
      United States Constitution and the Ohio Constitution and
      should be judicially abolished.”
      {¶ 2} Having reviewed the record and pertinent law, we affirm the trial

court’s decision. The apposite facts follow.

      {¶ 3} The instant matter arises out of the October 24, 2009 death of

Fitzgerald’s grandson, Arshon Baker, who died as a result of being beaten by

his mother, Angel Glass. On October 5, 2010, Fitzgerald, as administrator

of her grandson’s estate, filed a complaint against Cuyahoga County

Department of Children and Family Services (“CCDCFS”) for negligence and

wrongful death.

      {¶ 4} According to the complaint, Fitzgerald alleged that Baker was

under the care and supervision of CCDCFS’s social workers, supervisors, and

related staff. Fitzgerald alleged that CCDCFS failed to provide Baker with

safe and acceptable social services care.      Fitzgerald specifically alleged that

as a result of CCDCFS’s negligent acts and/or omissions, Baker sustained

injuries, which resulted in his death.

      {¶ 5} On December 3, 2010, CCDCFS filed a motion to dismiss

Fitzgerald’s complaint on the basis of sovereign or governmental immunity.

In response to CCDCFS’s motion, Fitzgerald argued that governmental

immunity as applied to the case was unconstitutional.           On December 29,

2010, the trial court granted CCDCFS’s motion to dismiss the complaint.

                         Governmental Immunity
      {¶ 6} In the sole assigned error, Fitzgerald argues the trial court erred

in granting CCDCFS’s motion to dismiss. We disagree.

      {¶ 7} We review an order granting a Civ.R. 12(B)(6) motion to dismiss

de novo. Silver v. Krulak, Cuyahoga App. No. 93285, 2011-Ohio-1666. We

afford no deference to the trial court’s decision and independently review the

record to determine whether the dismissal was appropriate.           Hollins v.

Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637.

      {¶ 8} During   oral   argument,    Fitgerald’s   counsel   conceded   that

CCDCFS is immune under R.C. 2744, which provides for governmental

immunity, and acknowledged that willful, wanton, or reckless conduct was

not alleged in Fitzgerald’s complaint.    Fitzgerald’s only issue is that R.C.

2744 is unconstitutional.

      {¶ 9} However, the Ohio Supreme Court in O’Toole v. Denihan, 118

Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, refused to revisit the

constitutionality of R.C. Chapter 2744, and stated: “In reviewing our

precedent and that of numerous appellate courts, we conclude that this issue

is one that is settled and need not be discussed any further in this case.” Id.,

see, also, Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 670, 1995-Ohio-295, 653

N.E.2d 1186, (“[w]e hold that R.C. 2744.02(B)(1) is a constitutional exercise of

legislative authority which does not violate the guarantees of equal protection
of the Ohio and United States Constitutions because its grant of limited

immunity of political subdivisions is rationally related to legitimate state

interest”).

      {¶ 10} As such, Fitzgerald’s constitutional challenge is without merit.

Given that Fitzgerald is unable to prove any set of facts entitling her to relief,

the trial court did not err in granting CCDCFS’s motion to dismiss the

complaint. Accordingly, we overrule the sole assigned error.

      Judgment affirmed.

      It is ordered that appellees recover from appellant their costs herein

taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, A.J., and
COLLEEN CONWAY COONEY, J., CONCUR
