[Cite as Clark v. Campbell, 2020-Ohio-3333.]




                         IN THE COURT OF APPEALS OF OHIO
                            FOURTH APPELLATE DISTRICT
                                  ROSS COUNTY

CHRISTOPHER A. CLARK,            :
                                 :
     Plaintiff-Appellee,         :   Case No. 19CA3673
                                 :
     vs.                         :
                                 :   DECISION AND JUDGMENT
TERRI D. CAMPBELL, ET AL.,       :   ENTRY
                                 :
    Defendants-Appellants.       :
                                 :
_____________________________________________________________
                           APPEARANCES:

Josh L. Schoenberger, Williams & Schoenberger Co. LLC, Columbus, Ohio,
for Appellants.

Michael D. O’Neill, Gary F. Franke, Gary F. Franke Co. L.P.A., Cincinnati,
Ohio, for Appellee.

Timothy McKay, Cincinnati, Ohio, for Defendant The Standard Fire
Insurance Company.1
_____________________________________________________________

Smith, P.J.

           {¶1} Terri D. Campbell (“Appellant Campbell”) and the Ross County

Board of Developmental Disabilities (“Appellant Ross County”) appeal the

trial court’s February 4, 2019 judgment which overruled their joint motion

for summary judgment. Both Appellants sought summary judgment on the


1
    The Standard Fire Insurance Company has not participated in this appeal.
Ross App. No. 19CA3673                                                         2

basis of their entitlement to sovereign immunity pursuant to Chapter 2744

and, in the alternative, immunity pursuant to the Workers’ Compensation

Chapter 4123. As will be discussed below, we conclude that the trial court

erred in denying summary judgment to Appellants. Accordingly, we sustain

the third assignment of error and need not consider the first and second

assignments of error as those have become moot. We hereby reverse the

judgment of the trial court.

            FACTUAL AND PROCEDURAL BACKGROUND

      {¶2} On October 20, 2015, Christopher Clark (“Appellee”) and

Appellant Campbell were involved in a motor vehicle collision in Ross

County, Ohio. Appellee was operating an all-terrain vehicle (ATV).

Appellant Campbell was operating a Dodge caravan owned by Appellant

Ross County. Appellant Ross County provides services to individuals with

developmental disabilities.

      {¶3} Appellant Campbell is the transportation coordinator for

Appellant Ross County. On the date of the accident, Appellant Campbell

had been assisting in searching for a child missing from the Pioneer Center.

The Pioneer Center is a school for special needs individuals ages 5-21.

      {¶4} On January 17, 2017, Appellee filed suit alleging personal

injuries and medical expenses against both appellants and The Standard Fire
Ross App. No. 19CA3673                                                        3

Insurance Company, alleging that Appellant Clark was negligent. Further,

Appellee alleged that Appellant Campbell was in the course and scope with

her employment with Appellant Ross County. Appellee also asserted a

claim for respondeat superior/wrongful entrustment against Appellant Ross

County. Appellee’s claim against the insurance company was for

uninsured/underinsured motorist coverage.

      {¶5} The defendants filed answers denying liability. Particularly,

Appellant Ross County asserted that it is not sui juris and is not a proper

party defendant. Appellant Ross County further asserted that both appellants

are statutorily immune from tort liability for negligence under R.C. 2744.

Appellant Ross County also asserted that Appellee’s claims against

Appellant Campbell are barred by the exclusivity of the workers’

compensation remedy under R.C. 4123.741, and Appellee’s claims against

Appellant Ross County are barred by the exclusivity of the workers’

compensation remedy available under R.C. 4123.74.

      {¶6} The parties engaged in written discovery. The record indicates

the parties deposed Appellee. The parties also deposed Leia Snyder and

Appellant Campbell. Leia Snyder is superintendent of Ross DD. At the time

of the accident, Snyder was employed as assistant superintendent.
Ross App. No. 19CA3673                                                         4

      {¶7} Snyder testified that she assists in drafting policies and

procedures and oversees implementation of the policies and procedures. The

situation involving the missing child was considered an MUI (Major

Unusual Incident.) On the date of the accident general policies and

procedures were established; however, Snyder is not sure if there was

anything specific as to missing children.

      {¶8} On October 20, 2017, Snyder received a phone call in the

afternoon and learned that a child was missing. Snyder immediately

instructed the administrative secretary with regard to requests for

information. She also notified other management team members and left the

building to assist in the search. Snyder testified Appellant Campbell’s job

duties involved handling the logistics of transportation and scheduling and

overseeing transportation employees. Snyder testified Appellant Campbell’s

job duties did not involve searching for missing children.

      {¶9} Appellant Campbell testified she began working for the Ross

County Board of Developmental Disabilities in 2009 as a substitute bus

driver. In 2015, she became transportation coordinator. Appellant Campbell

has a CDL-Class B. She drives on all the field trips, approves trips, and

coordinates routes with other school districts. Appellant Campbell is also a

certified OBI (On-board Instructor.) She schedules trainings and actually
Ross App. No. 19CA3673                                                         5

trains others to drive a school bus and school van. Appellant Campbell has a

driving restriction for her vision. She has never received EMT or search and

rescue training relating to her job with Appellant Ross County. Her daily

work day begins at 8:00 a.m. and ends at 3:00 p.m.

      {¶10} Appellant Campbell testified that around 2:30 p.m. she learned

a child was missing from the Pioneer Center. Appellant Campbell

immediately got into the van owned by the board of developmental

disabilities and went to assist in the search. Her testimony was there was no

formal search policy on that date: “they just really said like all-hands—you

know, everyone to look.”

      {¶11} Appellant Campbell first searched near the Pioneer Center.

Then she went to a nearby golf course. Other staff were at the golf course

searching. Appellant Campbell thereafter received information that the child

was near Veterans Parkway.

      {¶12} The Veterans Parkway has two lanes of travel going opposite

directions. There is no turn lane. The speed limit is 55-miles per hour. The

Triangle Bike Path runs parallel to the Veterans Parkway. The Triangle

Bike Path is for bicycles and pedestrians and is approximately five feet wide,

with no lane markings and no speed limit markers.
Ross App. No. 19CA3673                                                        6

      {¶13} Appellant Campbell immediately drove to the parkway. She

was stopped at a red light. Shortly after arrival at the Veterans Parkway

area, Appellant Campbell received a phone call advising her that the missing

child had been located.

      {¶14} At this point, Appellant Campbell testified that she turned onto

Veterans Parkway and pulled into a turnaround spot in a private drive. She

talked with a couple of other Appellant Ross County employees and advised

them that the child was found. The other employees left. Appellant

Campbell proceeded to turn the van to leave. She testified that in order to

exit the Veterans Parkway one has to cross the bike path, and that the

turnaround area is approximately five feet wide and paved.

      {¶15} Appellant Campbell testified she looked both ways. The nose

of her vehicle was heading back onto the bike path when she incurred a hard

impact on the passenger side of the van from Appellee’s ATV. At the time

of impact, Appellant Campbell was talking on her cell phone to a secretary

at Pioneer Center, confirming that the child was found. Appellant Campbell

denied seeing Appellee prior to the impact. The collision happened around

3:30 p.m.

      {¶16} Appellant Campbell testified she exited the van and went to

Appellee. She held his head. She learned he was also looking for the child.
Ross App. No. 19CA3673                                                                                   7

        {¶17} Both deponents testified there was a cell phone policy in place.

Generally, one was not to use the cell phone while operating a work motor

vehicle.

        {¶18} On August 1, 2018, Appellants jointly filed a motion for

summary judgment. The Ross County Common Pleas Court docket sheet

also reveals that on that date the depositions of Terri Campbell and Leia

Snyder were filed with the court. The docket does not reflect that the

deposition of Christopher Clark has ever been filed in this matter. 2

        {¶19} Appellee filed a Memorandum in Opposition to Defendants’

Motion for Summary Judgment. Appellants jointly filed a reply. On

February 4, 2019, the trial court entered its order finding that there exist

genuine issues of material fact and overruling the motion for summary

judgment. This timely appeal followed. Additional pertinent facts will be set

forth below.

                                ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING ROSS COUNTY DD IMMUNITY FROM LIABILITY TO
CLARK AS R.C.4123.74 REQUIRES MAKING THE FEBRUARY 4, 2019
ORDER IMMEDIATELY APPEALABLE UNDER R.C. 2744.02(C).”

“II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING CAMPBELL IMMUNITY FROM LIABILITY AS TO CLARK

2
 A telephone call from the appellate court to the Ross County Clerk of Court’s confirmed that only the
depositions of Campbell and Snyder were filed.
Ross App. No. 19CA3673                                                         8

AS R.C. 4123.741 REQUIRES MAKING THE FEBRUARY 4, 2019
ORDER IMMEDIATELY APPEALABLE UNDER R.C.2744.02(C)”

“III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
DENYING CAMPBELL IMMUNITY FROM LIABILITY TO CLARK AS
R.C.2744.03(A)(6).”

                          STANDARD OF REVIEW

        {¶20} Appellate review of summary judgment decisions is de novo,

governed by the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio

St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19; Citibank v. Hine, 130

N.E.3d 924, 2019-Ohio-464 (4th Dist.) at ¶27. Summary judgment is

appropriate if the party moving for summary judgment establishes that (1)

there is no genuine issue of material fact, (2) reasonable minds can come to

but one conclusion, which is adverse to the party against whom the motion is

made and (3) the moving party is entitled to judgment as a matter of law.

Capital One Bank (USA) N.A. v. Rose, 4th Dist. Ross No. 18CA3628, 2018-

Ohio-2209, at ¶ 23; Civ.R. 56; New Destiny Treatment Ctr., Inc. v. Wheeler,

129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24; Chase Home

Finance, LLC v. Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484,

¶ 26.

        {¶21} The moving party has the initial burden of informing the trial

court of the basis for the motion by pointing to summary judgment evidence

and identifying parts of the record that demonstrate the absence of a genuine
   Ross App. No. 19CA3673                                                          9

   issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St.3d

   280, 293, 662 N.E.2d 264 (1996); Chase Home Finance at ¶ 27; Hine at

   ¶ 28. Once the moving party meets this initial burden, the non-moving party

   has the reciprocal burden under Civ.R. 56(E) to set forth specific facts

   showing that there is a genuine issue remaining for trial. Dresher at 293, 75

   Ohio St.3d 280, 662 N.E.2d 264. See also Rose, supra, at ¶ 24. In ruling on

   a motion for summary judgment, the court must construe the record and all

   inferences therefrom in the nonmoving party's favor. Civ.R. 56(C). State ex

   rel Deem v. Pomeroy, 2018-Ohio-1120, 109 N.E.3d 30 (4th Dist.), at ¶ 19.

                                LEGAL ANALYSIS

1. Is this a final appealable order?

         In this case, the trial court overruled Appellants’ joint motion for

   summary judgment. The record indicates that the claims against The

   Standard Fire Insurance Company remain pending. The trial court’s order

   does not contain a Civ.R. 54(B) certification.

         {¶22} R.C. 2744.02(C) provides:

         “An order that denies a political subdivision or an employee of a

   political subdivision the benefit of an alleged immunity from liability as

   provided in this chapter or any other provision of the law is a final order.”

   “When a trial court denies a motion in which a political
Ross App. No. 19CA3673                                                        10

subdivision or its employee seeks immunity under R.C. Chapter 2744, that

order denies the benefit of an alleged immunity and thus is a final,

appealable order pursuant to R.C. 2744.02(C).” Wright v. Village of

Williamsport, 4th Dist. Pickaway No. 18CA14, 2019-Ohio-2682, at fn.1,

quoting Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d

878, ¶ 27. In Sullivan v. Anderson Twp., 122 Ohio S.3d 83, 2009-Ohio-

1971, 909 N.E.2d 88, the Supreme Court of Ohio considered the

appealability of the trial court's order which denied the township the benefit

of an alleged immunity in a multiparty, multiclaim lawsuit, but did not

include the language required by Civ.R. 54(B), that “there is no just reason

for delay.” The Court concluded that such an order is a final, appealable

order. The Court observed at ¶ 10:

      In this case, we need not apply the general rules for determining

      whether an order is final, and appealable. The general rules

      regarding final appealable orders in multiparty and/or

      multiclaim cases involve the tandem of R.C. 2505.02(B) for

      substance and Civ.R. 54(B) for procedure.

      Noble v. Colwell, 44 Ohio St.3d 92, 97, 540 N.E.2d 1381(1989).

Under the general rules, a court first applies R.C. 2505.02(B) to determine

whether the order “affects a substantial right and whether it in effect
Ross App. No. 19CA3673                                                           11

determines an action and prevents a judgment.” Wisintainer v. Elcen Power

Strut Co., 67 Ohio St.3d 352, 354, 617 N.E.2d 1136 (1993). If the court of

appeals determines that the trial court order is final under R.C. 2505.02, the

next step is to determine whether the trial court certified the order with the

language of Civ.R. 54(B)—“there is no just reason for delay.” Wisintainer,

67 Ohio St.3d at 354-355, 617 N.E.2d 1136; Noble, 44 Ohio St.3d at 97, 540

N.E.2d 1381. The use of Civ.R. 54(B) certification by a trial court is

discretionary. Id. at 96-97, 540 N.E.2d 1381, and fn. 7.

      {¶23} The Supreme Court also noted that in the ordinary case, Civ.R.

54(B) certification demonstrates that the trial court has determined that an

order, albeit interlocutory, should be immediately appealable, in order to

further the efficient administration of justice and to avoid piecemeal

litigation or injustice attributable to delayed appeals. Anderson, supra, at

¶ 11; Wisintainer, 67 Ohio St.3d at 356-357, 617 N.E.2d 1136; Noble, 44

Ohio St.3d at 96, 540 N.E.2d 1381. However, the Anderson court reasoned

at ¶ 12:

      No such determination [Civ.R. 54(B) by the trial court is

      necessary; the General Assembly has expressly made that

      determination with the enactment of R.C. 2744.02(C), which

      makes final an order denying a political subdivision the benefit
   Ross App. No. 19CA3673                                                       12

         of an alleged immunity from liability. Hubbell, 115 Ohio St.3d

         77, 2007-Ohio-4839, 873 N.E.2d 878, at ¶ 27. Therefore, there

         is no reason for a trial court to certify under Civ.R. 54(B) that

         “there is no just cause for delay.” When the denial of political-

         subdivision immunity is concerned, the trial court has no

         discretion to determine whether to separate claims or parties

         and permit an interlocutory appeal. See generally, Mynes v.

         Brooks, 124 Ohio St. 3d 13, 2009-Ohio-5946, 918 N.E.2d 511,

         at ¶ 10.

         {¶24} In this case, the claim against The Standard Fire Insurance

   Company is still pending. There is no Civ.R. 54(B) certification. However,

   based upon the above authority, we proceed to consideration of Appellants’

   arguments.

2. Is Campbell entitled to immunity pursuant to R.C. 2744.03(A)(6)?

         {¶25} For ease of analysis, we begin with Appellants’ third

   assignment of error. Whether a political subdivision or its employee may

   invoke statutory immunity under R.C. Chapter 2744 generally presents a

   question of law. Hoffman v. Gallia County Sheriff’s Department, 2017-

   Ohio-9192, 103 N.E.3d 1, (4th Dist.), at ¶ 38. E.g., Nease v. Med. College

   Hosp., 64 Ohio St.3d 396, 400, 596 N.E.2d 432 (1992), quoting Roe v.
Ross App. No. 19CA3673                                                      13

Hamilton Cty. Dept. Of Human Servs., 53 Ohio App.3d 120, 126, 560

N.E.2d 238 (1st Dist. 1988) (citations omitted) (“ ‘Whether immunity may

be invoked is a purely legal issue, properly determined by the court prior to

trial, and preferably on a motion for summary judgment’ ”); Conley v.

Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992) (same); accord

Williams v. Glouster, 4th Dist. No. 10CA58, 2012-Ohio-1283, 2012 WL

1029470, ¶ 15; Long v. Hanging Rock, 4th Dist. Lawrence No. 09CA30,

2011-Ohio-5137, 2011 WL 4584930, ¶ 17.

      {¶26} Here, it is argued that the trial court erred by denying Appellant

Campbell immunity from liability to Appellee, pursuant to R.C.

2744.03(A)(6). R.C. 2744.03(A)(6) provides in pertinent part:

      (A) In a civil action brought against a political subdivision or an

      employee of a political subdivision to recover damages for

      injury, death, or loss to person or property allegedly caused by

      any act or omission in connection with a governmental or

      proprietary function, the following defenses or immunities may

      be asserted to establish nonliability:

             ***

             (6) In addition to any immunity or defense referred to in

      division (A)(7) of this section and in circumstances not covered
Ross App. No. 19CA3673                                                     14

      by that division or sections 3314.07 and 3746.24 of the Revised

      Code, the employee is immune from liability unless one of the

      following applies:

             (a) The employee's acts or omissions were manifestly

      outside the scope of the employee's employment or official

      responsibilities;

             (b) The employee's acts or omissions were with

      malicious purpose, in bad faith, or in a wanton or reckless

      manner;

             (c) Civil liability is expressly imposed upon the

      employee by a section of the Revised Code. Civil liability shall

      not be construed to exist under another section of the Revised

      Code merely because that section imposes a responsibility or

      mandatory duty upon an employee, because that section

      provides for a criminal penalty, because of a general

      authorization in that section that an employee may sue and be

      sued, or because the section uses the term “shall” in a provision

      pertaining to an employee.

      {¶27} As indicated, R.C. 2744.03(A)(6) grants employees of political

subdivisions immunity from liability, unless any of three exceptions to that
Ross App. No. 19CA3673                                                          15

immunity apply. Strayer v. Barnett, 2017-Ohio-5617, 94 N.3d 156

(2dDist.), at ¶ 37; Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-

5711, 983 N.E.2d 266, ¶ 21.

      {¶28} Appellee’s complaint alleges that at the time of the accident,

Appellant Campbell negligently operated her vehicle while in the course and

scope of her employment with Appellant Ross County. Both appellants

admitted those allegations and have emphasized this admission in their brief.

In Strayer, supra, the appellate court observed that of the three exceptions to

immunity, only the second one, where the employee’s acts or omissions

were with malicious purpose, in bad faith, or in a wanton or reckless

manner, were at issue. Upon review of the record, the Strayer court

observed:

[T]here is no allegation, or any facts to support, that the CCDD employees'

actions were manifestly outside the scope of their employment or official

responsibilities or that they acted with a malicious purpose or in bad faith.

there is no allegation, or any facts to support, that her actions were

manifestly outside the scope of her employment or official responsibilities or

that she acted with a malicious purpose or in bad faith.

The Strayer court, therefore, confined its discussion as to whether the CCDD

employees’ conduct was wanton or reckless. Similarly, in this case, we
Ross App. No. 19CA3673                                                         16

confine our discussion to whether Appellant Ross County’s employee

Appellant Campbell was wanton or reckless;

         {¶29} In Strayer, the appellate court discussed the legal definition of

the terms “wanton” and “reckless.” The terms “wanton” and “reckless”

describe different and distinct degrees of care and are not interchangeable.

Strayer, supra, at ¶ 38; Anderson v. Massillon, 134 Ohio St.3d 380, 2012-

Ohio-5711, 983 N.E.2d 266, paragraph one of the syllabus. They are

sometimes described “as being on a continuum, i.e., willful conduct is more

culpable than wanton, and wanton conduct is more culpable than reckless.”

Id. at ¶ 42 (Lanzinger, J., concurring in judgment in part and dissenting in

part).

         {¶30} Both “wanton” and “reckless” represent “rigorous standards

that will in most circumstances be difficult to establish.” Strayer, supra, at

¶ 39, quoting, Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75

N.E.3d 161, ¶ 8. “Wanton conduct” has been defined as “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.”

(Emphasis added.) Anderson at paragraph three of the syllabus; Argabrite at

¶ 8. “Reckless conduct is characterized by the conscious disregard of or

indifference to a known or obvious risk of harm to another that is
Ross App. No. 19CA3673                                                        17

unreasonable under the circumstances and is substantially greater than

negligent conduct.” Anderson at ¶ 34, adopting 2 Restatement of the Law

2d, Torts, Section 500 (1965); Argabrite at ¶ 8.

      {¶31} The Strayer court observed at ¶40:

Mere negligence in the performance of an employee's duties is insufficient

to meet this high standard. See O'Toole v. Denihan, 118 Ohio St.3d 374,

2008-Ohio-2574, 889 N.E.2d 505, ¶ 74. As stated by the Ohio Supreme

Court, an individual's conduct “ ‘is in reckless disregard of the safety of

others if * * * such risk is substantially greater than that which is necessary

to make his conduct negligent.’ ” Fabrey v. McDonald Village Police Dept.,

70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994), quoting 2 Restatement of the

Law 2d, Torts, Section 500, at 587 (1965).

      {¶32} We have previously observed that:

      [W]hether an individual acted manifestly outside the scope of

employment, and whether the employee acted with malicious purpose, in

bad faith, or in a wanton or reckless manner generally are questions of fact.

Long v. Hanging Rock, 4th Dist. Lawrence No. 09CA30, 2011-Ohio-5137, at

¶17. See Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006–Ohio–

6208, 857 N.E.2d 573, ¶ 14; Fabrey v. McDonald Police Dept., 70 Ohio

St.3d 351, 356, 639 N.E.2d 31 (1994); (citation deleted.) Thus, a trial court
Ross App. No. 19CA3673                                                        18

may not grant summary judgment on the basis of R.C. 2744.03(A)(6)(a) or

(b) immunity unless reasonable minds can only conclude that (1) the

employee did not act outside the scope of his employment, or (2) the

employee did not act with malicious purpose, in bad faith, or in a wanton or

reckless manner. If reasonable minds could disagree on these issues, then a

court may not grant the employee summary judgment based upon statutory

immunity. Summary judgment in favor of a political subdivision's employee

is proper if the employee's actions “showed that he did not intend to cause

harm, * * * did not breach a known duty through an ulterior motive or ill

will, [and] did not have a dishonest purpose.” Hackathorn v. Preisse, 104

Ohio App.3d 768, 772, 663 N.E.2d 384 (9th Dist. 1995).

      {¶33} As the above case authority makes clear, whether a political

subdivision employee is entitled to immunity under R.C. 2744.03(A)(6)(b)

will ordinarily be a question of fact. Hanging Rock, supra, at ¶ 18.

Summary judgment is appropriate only when the facts are clear and fail to

rise to the level of conduct that could be construed as malicious, in bad faith,

or wanton and reckless.

      {¶34} Upon review of the evidence in this matter, and viewing the

evidence in the light most favorable to Appellee Clark, we find there are no

genuine issues of material fact. We find, upon the record before us and as a
Ross App. No. 19CA3673                                                         19

matter of law, Appellant Campbell’s conduct did not constitute reckless

disregard for the safety of others that is unreasonable under the

circumstances and substantially greater than negligent conduct.

         {¶35} The evidence in this matter demonstrates that Appellant

Campbell’s work schedule was from 8:00 a.m. to 3:00 p.m. She learned that

the child was missing around 2:30 p.m., while still within the course of her

usual work day. When she received this information, she got in her van to

assist in the search. While she testified there was no formal search policy,

her testimony indicates she was instructed to look for the missing child. She

testified: “They just really said like all-hands—you know, everyone to

look.”

         {¶36} Based on our review, we cannot find evidence that Appellant

Campbell was manifestly outside the scope of her employment. She had

been working for Appellant Ross County on the accident date. She learned

the child was missing during her regular working hours. Her testimony

indicates that, with no formal policy in place, her understanding was that

“everyone” was expected or encouraged to assist in the search.

         {¶37} Furthermore, Appellant Campbell’s testimony regarding the

motor vehicle collision itself, and the lack of evidence to the contrary,

suggest that Appellant Campbell did not act with reckless disregard for the
Ross App. No. 19CA3673                                                             20

safety of others. We emphasize the lack of evidence to the contrary due to

the fact that Appellee’s deposition was never filed with the trial court.

Because Appellee’s deposition was not properly part of the record below, it

is therefore, not in the record on appeal. Thus we cannot consider it. See

Civ.R. 56; App.R. 9(A). See also, Minix v. Collier, 4th Dist. Scioto No.

99CA2690, 2000 WL 1154055 (Aug. 4, 200), at *5. It is well-settled that

“[a]ppellate review is limited to the record as it existed at the time the trial

court rendered its judgment.” Bank of Am., N.A. v. Robledo, 10th Dist.

Franklin NO. 13AP278, 2014-Ohio-1185, at ¶ 33; Franks v. Rankin, 10th

Dist. No. 11AP-962, 2012-Ohio-1920, ¶ 73, citing Wiltz v. Clark Schaefer

Hackett & Co., 10th Dist. No. 11AP–64, 2011-Ohio-5616, ¶ 13. Nor can “

‘[a] reviewing court * * * add matter to the record before it, which was not a

part of the trial court's proceedings, and then decide the appeal on the basis

of the new matter.’ ” Id., quoting State v. Ishmail, 54 Ohio St.2d 402

(1978), paragraph one of the syllabus; see also, State v. Lowery, 4th Dist.

Ross No. 2016-Ohio-7701, at fn.

      {¶38} Regarding the collision, Appellant Campbell testified she was

in the Veterans Parkway area when she received a phone call that the

missing child had been located. When she turned her vehicle to leave the

area, she had moved only the nose of her van onto the bike path when she
Ross App. No. 19CA3673                                                        21

was struck by Appellee’s ATV. Appellant Campbell testified she looked

both ways prior to pulling out and sustaining the impact. There is no

evidence Appellant Campbell’s driving licensures were not in good

standing; no evidence that she was not wearing her glasses as required; no

evidence that Appellant Campbell was traveling at a high rate of speed at the

time of the impact; and no evidence of other negligence.

      {¶39} Appellant Campbell acknowledged in her testimony that she

was using her cell phone at the time of the accident for the purpose of

confirming with a secretary at the Pioneer Center that the missing child had

been located. Common sense dictates that this was a necessary call and

nothing of a frivolous or personal nature. Appellant Campbell testified that

a missing child was an unusual occurrence and to her knowledge, there was

no policy in place in dealing with the situation. However, the allegations

against both appellants do not concern the handling of the missing child or

the search itself. It would appear that Appellant Campbell used common

sense in responding to an unfolding situation which arose in the course of

her work day. Considering the entirety of the evidence, we do not find

anything in the record creating a genuine issue of material fact about

Appellant Campbell’s operation of Appellant Ross County’s van or

suggesting that her operation of the van was characterized by conscious
   Ross App. No. 19CA3673                                                         22

   disregard or indifference to a known or obvious risk of harm to another that

   is unreasonable under the circumstances and would be substantially greater

   than negligent conduct.

         {¶40} For the foregoing reasons, we find no genuine issues of

   material fact and Appellant Campbell is entitled to immunity pursuant to

   R.C. 2744.03(A)(6) as a matter of law. There is no evidence in this record to

   suggest that Appellant Campbell intended to cause harm, breached a known

   duty through an ulterior motive or ill will, or that she had a dishonest

   purpose. Therefore, we find Appellants’ third assignment of error has merit

   and is hereby sustained. The judgment of the trial court denying Appellant

   Campbell the benefit of immunity is reversed.

         {¶41} Furthermore, in light of our finding that Appellant Campbell is

   entitled to immunity pursuant to R.C. 2744.03(A)(6), we need not consider

   the third assignment of error. There, Appellants argued that the trial court

   erred by denying Appellant Campbell immunity pursuant to the Workers’

   Compensation chapter, particularly R.C. 4123.741. However, based on our

   conclusion herein, the third assignment of error has become moot and we

   need not consider it.

3. Did the trial court err by denying immunity to Ross County DD pursuant to

   R.C. 4123.74?
Ross App. No. 19CA3673                                                                                23

           {¶42} In general, political subdivisions are immune from liability for

personal injuries caused by any act of the political subdivision or its

employees. R.C. 2744.02(A)(1). See Strayer v. Barnett, supra, at ¶ 19. See

also Burchard v. Ashland County Board of Developmental Disabilities,

2018-Ohio-4408, 122 N.E.3d 266 (5th Dist.), at ¶ 23.

           {¶43} We first address the board of developmental disabilities

contention that it is sui juris, i.e., it does not have full capacity and rights,

including the capacity to be sued, and therefore is not capable of being

sued.3 While a developmental disabilities board is not explicitly contained

in the Revised Code’s definition, R.C.2744.01(F) defines “political

subdivision” or “subdivision” as: “ a municipal corporation, township,

county, school district, or other body corporate and politic responsible for

governmental activities in a geographic area smaller than that of the state.”

Citing R.C. 2744.01(F), the second appellate district in Strayer found it to be

undisputed that the Clark County Board of Developmental Disabilities is a

political subdivision. Id. at ¶ 19. Citing Strayer, the fifth appellate district

court in Burchard, supra, also found that the Ashland County Board of

Developmental Disabilities is undisputedly a political subdivision. Id. at

¶ 23. Given that a board of developmental disabilities is not explicitly listed,


3
    See Mollette v. Portsmouth City Council, 169 Ohio App. 3d, 2006-Ohio-6289, 863 N.E. 2d 1092, at ¶14.
Ross App. No. 19CA3673                                                        24

the second and fifth appellate courts must have reasoned that a board of

developmental disabilities is a “body corporate and politic responsible for

governmental activities in a geographic area smaller than that of a state.” We

would agree therefore, that Appellant Ross County, is a political subdivision,

as defined by R.C. 2744.01(F), and is capable of being sued.

In this case, the trial court overruled the motion for summary

judgment in a conclusory fashion. In the underlying complaint, Appellee

claimed Appellant Ross County was liable under a theory of respondeat

superior/wrongful entrustment, for Appellant Campbell’s actions. The

doctrine of respondeat superior is premised on agency principles which

impose liability upon an employer for the acts done by an employee in the

course and scope of employment. Friga v. E. Cleveland, 8th Dist. Cuyahoga

No. 88262, 2007-Ohio-1716, at ¶ 25. The theory behind liability is that the

employee's acts are imputed to the employer because the employee acting

within the course and scope of employment, is assumed to do only those acts

which benefit the employer. Id.

      {¶44} In Friga, plaintiffs-appellants Scott and Ann Friga, son and

mother, appealed from summary judgments entered against them on their

claims of malicious prosecution, emotional neglect, negligence and

consortium claims made against defendants-appellees the City of East
Ross App. No. 19CA3673                                                     25

Cleveland, the mayor and law director of the city of East Cleveland, and

officers of the city of East Cleveland Police Department. In Friga, the

appellate court observed the basis for holding the mayor of East Cleveland

liable appeared to be respondeat superior. In the brief in opposition to

summary judgment, appellant stated that he was:

“ * * * arrested and charged by an employee of the City of East Cleveland,

Officer Hicks. He was prosecuted by the City of East Cleveland Prosecutor.

All of the above-named individuals are supervised and reported to the safety

director/mayor of the City of East Cleveland.”

      {¶45} After setting forth the doctrine of respondeat superior, the Friga

court also observed that “when an employee commits an intentional tort, it is

assumed that the employee did not act within the course and scope of

employment, for intentional torts generally encompass bad acts which have

no place in the employment relation.” Id. at ¶ 25, quoting, Byrd v. Faber, 57

Ohio St.3d 56, 58, 565 N.E.2d 584 (1991). The Friga court further observed

at ¶ 26:

      In City of Greenfield v. Schluep, 4th Dist. Highland No. 95CA8,

      2006-Ohio-531, the Fourth District Court of Appeals stated at

      ¶ 20: “Traditional principles of agency are not applicable in

      considering a political subdivision's claim for immunity.
Ross App. No. 19CA3673                                                      26

     Woods v. Wellston, (Jun. 15, 2005), S.D. Ohio, Eastern

     Division, No. 2:02 CV 762. In Woods, the court held that the

     City of Wellston was entitled to summary judgment on the

     plaintiff's tort claims, including a claim of malicious

     prosecution, against the city for the actions of its alleged agents,

     various police officers and city officials.       The court held:

     ‘Common law agency principles, however, are clearly trumped

     by the Political Subdivision Tort Liability Act. See Reno v.

     City of Centerville, 2nd Dist. No. 20078, 2004 Ohio 781, at ¶ 53

     (“[a] political subdivision may not be held liable under a theory

     of respondeat superior unless one of the exceptions to the

     sovereign immunity listed in R.C. 2744.02(B) applies”).”

     {¶46} The Friga court held at ¶ 28:

     The same rationale applies in this case: the application of

     common law agency principles of respondeat superior cannot

     waive the city's immunity, and by direct implication, the

     mayor's immunity. The court did not err by granting the mayor

     summary judgment on grounds that she was immune from suit

     for actions undertaken by a city employee. Of course, this

     conclusion presupposes that there was liability in the first
Ross App. No. 19CA3673                                                       27

      instance. Our affirmation of the court's summary judgment in

      favor of [the officer] necessarily means that reasonable minds

      could not conclude [the officer] acted in a manner that would

      revoke his immunity for performing a governmental function.

      Since he did not lose immunity, there is no basis for applying

      respondeat superior [to the city of E. Cleveland.]

      {¶47} The same rationale as set forth in Friga is equally applicable

herein. As set forth above, we have concluded that Appellant Campbell is

entitled to immunity as a matter of law pursuant to R.C. 2744.03(A)(6).

Since we found that none of the three exceptions applied to remove

Appellant Campbell from the benefit of immunity, there is no basis for

applying respondeat superior to Appellant Ross County. Therefore,

Appellant Ross County is also entitled to judgment as a matter of law. Thus,

we need not consider Appellant Ross County’s arguments under the first

assignment of error as it has become moot.

                                      JUDGMENT REVERSED.
Ross App. No. 19CA3673                                                     28

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE REVERSED. Costs shall be
divided equally between the parties.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Ross County Common Pleas 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.

Abele, J. and Hess, J. concur in Judgment and Opinion.

                                For the Court,


                                __________________________________
                                Jason P. Smith
                                Presiding Judge


                         NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
