[Cite as Rose v. Ohio Rehab. Servs. Comm., 2010-Ohio-852.]

                                                       Court of Claims of Ohio
                                                                                The Ohio Judicial Center
                                                                        65 South Front Street, Third Floor
                                                                                   Columbus, OH 43215
                                                                         614.387.9800 or 1.800.824.8263
                                                                                    www.cco.state.oh.us




CARL J. ROSE

       Plaintiff

       v.

OHIO REHABILITATION SERVICES COMMISSION

       Defendant
       Case No. 2007-01509

Judge Joseph T. Clark

DECISION




        {¶ 1} Plaintiff brought this action alleging negligence. The issues of liability and
damages were not bifurcated and the case proceeded to trial on both issues.
        {¶ 2} Defendant is a state agency that is composed of three bureaus: 1) the
bureau of vocational rehabilitation (BVR), which provides vocational rehabilitation
services to individuals with nonvisual disabilities; 2) the bureau of services for the
visually impaired (BSVI), which provides such services to individuals who are legally
blind and/or visually impaired; and 3) the bureau of disability determination (BDD),
which makes determinations on all claims for social security disability insurance benefits
and supplemental security income payments.1
        {¶ 3} Plaintiff first contacted BSVI in 1998, when he began to lose sight in his



        1
         Defendant is the sole state agency designated to administer the plan under the Rehabilitation
Act of 1973, 87 Stat. 355.29 U.S.C. 701, as amended. See Ohio Admin.Code 3304-1-01.
right eye.2    Initially, plaintiff sought assistance to remain employed as a chemical
engineer for Columbia Gas. He was assigned to caseworker Meredith Brown. Plaintiff
subsequently suffered additional health problems and eventually left his employment
with Columbia Gas. In 1999, plaintiff successfully underwent a kidney and pancreas
transplant. After his recovery, plaintiff decided to enroll in law school.                      During law
school, plaintiff remained on Brown’s caseload and she helped him obtain both reading
assistants and transportation.
       {¶ 4} In November 2004, plaintiff began the private practice of law in an office
that he shared with one other attorney. In February 2005, his office assistant resigned.
Plaintiff contacted Brown and informed her that he needed to hire an assistant for his
law office who would have the special skills required to assist a blind person.
       {¶ 5} Brown consulted with her co-worker, Melissa Walsh, who stated that one
of the clients on her BVR caseload might be a good fit for the assistant position. Walsh
informed plaintiff that an individual named Nancy Haylor had experience working with
the blind.    Walsh gave plaintiff Haylor’s contact information and the names of her
references. Plaintiff interviewed Haylor and hired her shortly thereafter. As part of her
duties, Haylor was authorized by plaintiff to write checks from his law office account.
       {¶ 6} In November 2006, plaintiff discovered that Haylor had embezzled
approximately $22,000 from his law office account. At that time, he also learned that
Haylor had been convicted of theft from her prior employer, Holiday Inn, before she
began to work for him.
       {¶ 7} Plaintiff asserts that defendant breached its duty of care to him when it
recommended Haylor for employment but had not conducted a criminal background
check on her. Plaintiff asserts that defendant knew or should have known that the
position that Haylor applied for was a position of trust and would include writing checks
and having access to his bank account.
       {¶ 8} Defendant asserts that it owed no duty to plaintiff to conduct a criminal
background check on Haylor; that it made no representation that it had or would
conduct such a check; and that it was plaintiff’s duty to thoroughly check Haylor’s
references and conduct a criminal background check before he hired her and gave her

       2
       At trial, plaintiff testified that he has no sight in his right eye and that he has 20/600 vision in his
unrestricted access to his bank account.
        {¶ 9} Plaintiff testified that when he spoke to Walsh, she told him that Haylor
had worked as an assistant for Heather Reich, a professor who was blind. Plaintiff
stated that before he interviewed Haylor he was aware that she had once worked for the
local Holiday Inn.
        {¶ 10} Prior to the interview, plaintiff contacted Haylor, who informed him that she
had some accounting experience.              Plaintiff also contacted Chuck Reich, Heather’s
widower, who simply stated that Haylor was late to work sometimes. Plaintiff testified
that he did not conduct a criminal background check on Haylor and that he did not
contact the Holiday Inn about her previous employment. Plaintiff stated that Haylor was
a good worker and that he relied on her good references, including a pastor who stated
that Haylor was in charge of the Meals for the Homeless program at his church. Plaintiff
testified, in that defendant had recommended her, there did not seem to be any reason
for him to conduct a criminal background check on Haylor.
        {¶ 11} Plaintiff further stated that he allowed Haylor to write checks for him; that
he did not independently review the activity in his bank account or have anyone else
review it during the 18 months that Haylor worked for him; and that he discovered the
theft when his accountant reviewed his financial data for tax purposes. Plaintiff further
testified that it took him “two minutes” to find the record of Haylor’s theft conviction on
the common pleas court docket. Plaintiff testified that he has sustained $22,478 in
financial losses from Haylor’s theft.
        {¶ 12} Plaintiff admitted that he never discussed with either Walsh or Brown
whether defendant would conduct or had conducted a criminal background check on
Haylor.
        {¶ 13} Brown testified that it was her duty as a vocational rehabilitation counselor
to assist clients in obtaining competitive employment, and that she usually worked with
non-profit agencies such as Goodwill Industries to achieve that. Brown testified that
defendant is not an employment agency, but that sometimes it becomes aware of
available jobs.




left eye; he cannot read a computer screen or any printed material.
       {¶ 14} Brown stated that defendant had no policy in place that required a criminal
background check on BVR clients, but that she was allowed to conduct one if a
placement required it; however, she described the need to conduct a criminal
background check as a “rare occurrence.” Brown stated that at the time Haylor’s name
was referred to plaintiff, she was not aware that Haylor had been convicted of theft.
       {¶ 15} Walsh testified that she did not know that Haylor had been convicted of
theft, and that if she had known, she would not have recommended her to plaintiff.
Walsh further stated that if it were a “best practice” or procedure of defendant to
conduct criminal background checks, she would have conducted one on Haylor.
       {¶ 16} In order for plaintiff to prevail upon his claim of negligence, he must prove
by a preponderance of the evidence that defendant owed him a duty, that defendant’s
acts or omissions resulted in a breach of that duty, and that the breach proximately
caused his injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio St.3d 79, 81, 2003-
Ohio-2573, citing Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 77.
       {¶ 17} Plaintiff asserts that defendant’s duty of care is set forth in Ohio
Adm.Code 3304-2-55(A), which states:               “RSC staff shall provide counseling and
guidance, including information and support services to assist an individual in exercising
informed choice. It includes personal adjustment counseling and vocational counseling,
to maintain a counseling relationship throughout the rehabilitation process. RSC shall
provide referral to other programs when necessary to help the person secure needed
services from other agencies.”
       {¶ 18} The court finds that no provision in the Ohio Administrative Code requires
defendant to perform criminal background checks on its consumers. Therefore, the
court finds that defendant had no duty to perform a criminal background check on
Haylor.3
       {¶ 19} Furthermore, the court finds that defendant exercised ordinary care when
it recommended Haylor to plaintiff for an employment interview, and that it was plaintiff


       3
          The court notes that there was no employment relationship between Haylor and defendant.
However, even when claims for negligent hiring and retention are asserted, there exists no duty under
Ohio law for an employer to conduct a criminal background check on a potential employee. See Rozzi v.
Star Personnel Services Inc., Butler App. No. CA2006-07-162, 2007-Ohio-2555, ¶11. (Additional citations
omitted.)
who failed to exercise such care when he did not fully investigate Haylor’s employment
references prior to hiring her. The court notes that plaintiff knew that Haylor had worked
for the local Holiday Inn, but that he did not contact anyone at the Holiday Inn for the
purpose of getting a recommendation. Assuming, arguendo, that defendant breached
any duty of care it owed to plaintiff, the court finds that plaintiff’s failure of ordinary care
when hiring Haylor exceeded any failure on defendant’s part.
         {¶ 20} Finally, plaintiff does not allege that Brown or Walsh advised him that they
had or would conduct a criminal background check on Haylor, or that it was defendant’s
policy to do so.         Thus, to the extent that plaintiff alleges a claim of negligent
misrepresentation, the court finds that plaintiff has failed to establish a prima facie
case.4
         {¶ 21} For the foregoing reasons, the court finds that plaintiff has failed to prove
any of his claims by a preponderance of the evidence and, accordingly, judgment shall
be rendered in favor of defendant.




                                                       Court of Claims of Ohio
                                                                                     The Ohio Judicial Center
                                                                             65 South Front Street, Third Floor
                                                                                        Columbus, OH 43215
                                                                              614.387.9800 or 1.800.824.8263
                                                                                         www.cco.state.oh.us




CARL J. ROSE

         Plaintiff

         v.


         4
           To state a claim for negligent misrepresentation, a plaintiff must show that: “‘one, who in the
course of his business, profession or employment, * * * supplies false information for the guidance of
others in their business transactions, is subject to liability for pecuniary loss caused to them by their
justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining
or communicating the information.’” (Emphasis added.) Brothers v. Morrone-O’Keefe Development Co.,
Franklin App. No. 05AP-161, 2006-Ohio-1160, ¶18, quoting Section 552 of the Restatement of the Law
2d, Torts (1965).
OHIO REHABILITATION SERVICES COMMISSION

        Defendant
        Case No. 2007-01509

Judge Joseph T. Clark

JUDGMENT ENTRY




          This case was tried to the court on the issues of liability and damages. The court
has considered the evidence and, for the reasons set forth in the decision filed
concurrently herewith, judgment is rendered in favor of defendant. Court costs are
assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.



                                            _____________________________________
                                            JOSEPH T. CLARK
                                            Judge

cc:


Stephanie D. Pestello-Sharf                    William P. Lang
Assistant Attorney General                     1300 West Ninth Street, #1301
150 East Gay Street, 18th Floor                Cleveland, Ohio 44113
Columbus, Ohio 43215-3130

HTS/cmd
Filed February 5, 2010
To S.C. reporter March 3, 2010
