[Cite as McConnell v. Dudley, 2018-Ohio-3099.]



            IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                MAHONING COUNTY

                                 RENEE McCONNELL, et al.,

                                       Plaintiffs-Appellees,

                                                 v.

                             DONALD C. DUDLEY, JR., et al.,

                                    Defendants-Appellants.


                         OPINION AND JUDGMENT ENTRY
                                Case No. 17 MA 0045


                                     Motion to Certify a Conflict

                                           BEFORE:
                            Cheryl L. Waite, Gene Donofrio, Judges.


                                             JUDGMENT:
                                               Denied

Atty. Ryan J. Melewski and
Atty. Mark A. Rafidi, Rafidi, Pallante & Melewski, LLC, 105 N. Broad Street, Canfield,
Ohio 44406
Atty. Paul W. Flowers, Paul W. Flowers Co., L.P.A., Terminal Tower, Suite 1910, 50
Public Square, Cleveland, Ohio 44113, for Plaintiffs-Appellees

Atty. Gregory A. Beck, and
Atty. Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street,
North Canton, Ohio 44720, for Defendants-Appellants.


                                        Dated: July 25, 2018
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PER CURIAM.

      {¶1}   On January 26, 2018 we released our Opinion in McConnell v. Dudley, 7th

Dist. No. 17 MA 0045, 2017-Ohio-5704, -- N.E.3d --. Appellants have filed a motion to

certify a conflict, arguing that our decision conflicts with cases arising from the Eighth

and Tenth Districts. See McCloud v. Nimmer, 72 Ohio App.3d 533 (8th Dist.1991); Hall-

Pearson v. S. Euclid, 8th Dist. No. 73429, 1998 WL 703390 (Oct. 8, 1998); DiGiorgio v.

City of Cleveland, 8th Dist. No. 95945, 2011-Ohio-5878; Wingfield v. City of Cleveland,

8th Dist. No. 100589, 2014-Ohio-2772; Glenn v. City of Columbus, 10th Dist. No. 16AP-

15, 2016-Ohio-7011.

      {¶2}   Motions to certify a conflict are governed by Article IV, Section 3(B)(4) of

the Ohio Constitution. It provides: “Whenever the judges of a court of appeals find that

a judgment upon which they have agreed is in conflict with a judgment pronounced

upon the same question by any other court of appeals of the state, the judges shall

certify the record of the case to the Supreme Court for review and final determination.”

      {¶3}   Under Ohio law, “there must be an actual conflict between appellate

judicial districts on a rule of law before certification of a case to the Supreme Court for

review and final determination is proper.” Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d

594, 613 N.E.2d 1032 (1993), paragraph one of the syllabus. We have adopted the

following requirements from the Supreme Court:

      [A]t least three conditions must be met before and during the certification

      of a case to this court pursuant to Section 3(B)(4), Article IV of the Ohio

      Constitution. First, the certifying court must find that its judgment is in

      conflict with the judgment of a court of appeals of another district and the




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        asserted conflict must be “upon the same question.” Second, the alleged

        conflict must be on a rule of law─not facts. Third, the journal entry or

        opinion of the certifying court must clearly set forth that rule of law which

        the certifying court contends is in conflict with the judgment on the same

        question by other district courts of appeals. (Emphasis in original.)


Id. at 596.

        {¶4}   Appellants argue that the Eighth and Tenth Districts have held that no

independent cause of action exists within R.C. 2744.02(B) imposing liability for the

negligent training or hiring of police officers. As such, Appellants urge that our decision,

finding that a genuine issue of material fact exists as to whether Appellants were

negligent in hiring and training Officer Donald C. Dudley, Jr. is in conflict with these

districts.

        {¶5}   In response, Appellees contend that they have not asserted an

independent cause of action for negligent training or hiring of Officer Dudley. Instead,

these claims are intended to serve as evidence that the Coitsville Police Department

and Coitsville Township acted in a willful and wanton manner. Appellees point out that

R.C. 2744.02(B)(1) provides an exception to a political subdivision’s immunity where the

plaintiff can successfully demonstrate that the political subdivision negligently operated

a motor vehicle. Evidence of negligent training or hiring can be used to support this

claim in accordance with Wagner v. Heavlin, 136 Ohio App.3d 719, 737 N.E.2d 989 (7th

Dist.2000) and Adams v. Ward, 7th Dist. No. 09 MA 25, 2010-Ohio-4851.

        {¶6}   Appellants have misinterpreted our Opinion. We were clear in our Opinion

that Appellees’ complaint asserted one claim based on R.C. 2744.02(B)(1), and that



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while Appellees also attempted to raise allegations against Officer Dudley as an

individual, they failed to properly do so. Appellees did assert in their complaint that

Officer Dudley was negligently hired or trained, however, these allegations were not

construed as an independent cause of action.           Instead, we stated 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.”

McConnell at ¶ 30, citing Wagner, supra. Because this is true, we treated Appellees’

assertions in this regard as one claim, not separate, independent claims. Accordingly,

we merged the assignments of error related to allegations under R.C. 2744.01(B)(1) of

willful and wanton misconduct and negligent hiring and training into one analysis. Our

Opinion comports with the two cases we relied on, Wagner v. Heavlin, 136 Ohio App.3d

719, 737 N.E.2d 989 (7th Dist.2000) and Adams v. Ward, 7th Dist. No. 09 MA 25, 2010-

Ohio-4851.

      {¶7}   In Wagner, a police officer crashed into a third-party vehicle while

pursuing a suspect. We reviewed whether the officer’s conduct was willful and wanton

pursuant to R.C. 2744.02(B)(1), the same provision at issue in the instant case. We

determined that there was a genuine issue of material fact as to whether the officer

acted in a willful and wanton manner. We also reviewed the plaintiff’s claim that the

township was liable for negligently hiring and training the officer. We found that there

was also a genuine issue of material fact as to the negligent hiring and training of the

officer. We recognized that a claim regarding negligent hiring and training does not

state an independent cause of action. Nonetheless, a genuine issue of material fact

existed as to whether the village was negligent in hiring and training. We explained that




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although the allegation of negligent entrustment and failure to train would not serve as a

basis for an independent action, they were relevant to an R.C. 2744.02(B)(1) analysis

as evidence of willful and wanton misconduct.

       {¶8}    Similarly, in Adams, we reviewed the issue of whether an officer acted in a

willful and wanton manner in causing a crash while pursuing a suspect. The plaintiff in

that case also claimed that the city was negligent in hiring and training the officers. We

held that, in accordance with Adams, negligent hiring and training of a police officer

does not form the basis for an independent claim but rather, could serve as evidence of

wanton or willful behavior on the part of the government.

       {¶9}    Neither Wagner nor Adams is inconsistent with our Opinion in the instant

matter. Similarly, our Opinion is consistent with cases cited by Appellants. In Wingfield,

the Eighth District held that while negligent training and hiring of an officer is not an

independent claim, it can be used as evidence of willful and wanton misconduct. See

Wingfield, fn. 1. Our Opinion also does not conflict with the remaining cases cited by

Appellants, each of which held that allegations of negligent entrustment and failure to

train are not, themselves, independent claims. For these reasons, Appellants’ motion to

certify a conflict is denied.



JUDGE CHERYL L. WAITE


JUDGE GENE DONOFRIO




Case No. 17 MA 0045
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                             NOTICE TO COUNSEL

      This document constitutes a final judgment entry.




Case No. 17 MA 0045
