[Cite as Boske v. Massillon City School Dist., 2011-Ohio-580.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                                 JUDGES:
MICHAEL BOSKE, ET AL                                  :          Hon. W. Scott Gwin, P.J.
                                                      :          Hon. Sheila G. Farmer, J.
Plaintiffs-Appellees/Cross-Appellants                 :          Hon. John W. Wise, J.
                                                      :
-vs-                                                  :
                                                      :          Case No. 2010-CA-00120
MASSILLON CITY SCHOOL                                 :
DISTRICT, ET AL                                       :
                                                      :          OPINION
Defendant

GARY MCPHERSON, ET AL

Defendants-Appellants/Cross-Appellees



CHARACTER OF PROCEEDING:                                  Civil appeal from the Stark County Court of
                                                          Common Pleas, Case No. 2009CV03537


JUDGMENT:                                                 Affirmed in part; Reversed in part and
                                                          Remanded


DATE OF JUDGMENT ENTRY:                                   February 7, 2011




APPEARANCES:

For Plaintiffs-Appellees                                  For Defendants-Appellants

BRIAN L. ZIMMERMAN                                        KRISTA KEIM
STACIE L. ROTH                                            SHERRIE C. MASSEY
Schulman, Zimmerman & Associates                          KATHRYN I. PERRICO
236 Third Street S.W.                                     Britton, Smith, Peters & Kalail Co., LPA
Canton, OH 44702                                          3 Summit Park Drive, Ste. 400
                                                          Cleveland, OH 44131-2582
[Cite as Boske v. Massillon City School Dist., 2011-Ohio-580.]


Gwin, P.J.

        {¶1}     Defendants-appellants Gary McPherson, individually and in his capacity

as a principal in the Massillon City School District; Joe Andaloro, individually and in his

official capacity as principal of Massillon City School District; Joi Letcavits, individually

and in her official capacity as a guidance counselor in the Massillon City School District;

and Fred Blosser in his official capacity as Superintendent of the Massillon City School

District appeal a judgment of the Court of Common Pleas of Stark County, Ohio, which

found they were not entitled to immunity as employees of a political subdivision

pursuant to R.C. 2744.02. Appellants assign a single error to the trial court:

        {¶2}     “I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANTS’

MOTION FOR JUDGMENT ON THE PLEADINGS, DENYING THE INDIVIDUAL

DEFENDANTS FRED BLOSSER, GARY MCPHERSON, JOSEPH ANDALORO, AND

JOI LETCAVITS STATUTORY IMMUNITY FROM LIABILITY ON PLAINTIFF’S CLAIMS

UNDER OHIO REVISED CODED SECTION 2744.03(A)(6).”

        {¶3}     Appellees-cross-appellants are Michael Boske as guardian ad litem of

Jane Doe, a minor, and Jennie Doe, the natural mother of Jane Doe. They assign a

single error in cross:

        {¶4}     “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S CAUSE

OF ACTION AGAINST APPELLEES FOR FAILING TO REPORT CHILD ABUSE.”

        {¶5}     On September 15, 2009, Boske and Jennie Doe filed a complaint against

the above appellants, and the Massillon City School District, the Board of Education of

the Massillon City School District, and the individual members of the Massillon City

School District Board of Education. The complaint alleged appellant McPherson was
Stark County, Case No. 2010-CA-00120                                                     3


the principal of the Massillon City School District and appellant Andaloro was the eighth

grade principal in the Massillon City School District. The complaint alleged in February

2007, Jane Doe was a student enrolled in the eighth grade class in the Massillon City

School District. Jane was experiencing problems, and her parents met with appellants

Andaloro and McPherson on separate occasions to inform them Jane was experiencing

an interest in or an attraction toward older males. The parents asked Andaloro and

McPherson to contact them should the school personnel notice any of these problems

arising in the school.

       {¶6}    Sometime thereafter Jane began having an inappropriate relationship

with a male teacher, Frank Page, whose classroom was located across from the

principal’s office. The complaint alleges the relationship between Jane and Page began

earlier in the school year, but from February 2007 through May 2007, Jane would visit

Page every day in his classroom, even though he was not her teacher, and he would

shut and lock the door. The complaint alleged during these encounters, Page and Jane

would engage in extensive hugging, kissing and caressing. In late February or early

March 2007, appellant Joi Lecavits, the guidance counselor, and appellant Andaloro

met with Jane to question her about rumors she had spent the night with Page and was

pregnant with his child. Appellants Andaloro and/or McPherson also questioned Page

on a number of occasions about the rumors and instructed him to stay away from Jane.

Boske and Doe allege the appellants made no further investigation and did not notify

any authorities, such as the Children’s Services Board or the local police department.

       {¶7}    On or about May 29, 2007, Jane’s father received a call from the

Massillon Police Department informing him Jane had been missing from school for
Stark County, Case No. 2010-CA-00120                                                     4


approximately 35 minutes. The parents met with appellants, who informed them Jane

had been in Page’s classroom. Appellants also informed the parents surveillance had

captured Jane’s presence in Page’s room on six different occasions in a two-week

period.

      {¶8}   Incorporating the above allegations, Boske and Doe brought five causes

of action: (1) Failure to report child abuse by McPherson, Andaloro, and/or Letcavits; (2)

Intention infliction of emotional distress by McPherson, Andaloro, and Letcavits; (3)

Reckless retention of Page by the Massillon City School District, the School District

Board of Education, McPherson, Andaloro, and Blosser; (4) Reckless supervision of

Page by the Massillon City School District, City School District Board of Education,

McPherson, Andaloro and Blosser; and (5) Punitive damages.

      {¶9}   The various defendants filed a motion for judgment on the pleadings, and

the court found as to the individual employee defendants, the complaint alleged

sufficient facts, which, if proven, excluded them from immunity. The trial court dismissed

the Massillon City School District, finding that it was not a legal entity capable of being

sued. The court also dismissed the Board of Education and the individual members.

These are not parties to this appeal.

      {¶10} The court also determined the version of R.C. 2151.281(B) in effect in

2007 did not provide for civil liability for failure to report child abuse.     The court

dismissed that portion of the complaint.

      {¶11} We will address the appeal first.

      {¶12} In ruling on a motion for judgment on the pleadings, the trial court must

construe the material allegations in the complaint and any reasonable inferences drawn
Stark County, Case No. 2010-CA-00120                                                            5


therefrom in favor of the plaintiff. If it finds the plaintiff can prove no set of facts entitling

the plaintiff to relief, then the court must sustain a motion for judgment on the pleadings.

Hester v. Dwivedi, 89 Ohio St. 3d 575, 2000 -Ohio- 230, 733 N.E.2d 1161. However,

the complaint must allege sufficient facts to support any conclusions, and unsupported

conclusions are not presumed to be true. Barnsville Education Association v. Barnsville

Exempted Village School District Board of Education, 7th District App. No. 06BE32,

2007-Ohio-1109, citations deleted.

       {¶13} In Sullivan v. Anderson Township, 122 Ohio St. 3d 83, 2009-Ohio-1971,

909 N.E.2d 88, the Supreme Court found an order overruling a political entity or its

employees’ motion for judgment on the pleadings is a final appealable order, even if it is

granted only in part. This court must review the trial court’s decision regarding political

subdivision’s immunity de novo. Moss v. Lorain County Board of Mental Retardation,

185 Ohio App.3d 395, 2009-Ohio-6931 924 N.E.2d 401.                     This means we must

independently review the record and draw our own conclusions without giving deference

to the trial court’s determination.

       {¶14} Appellants urge that while Ohio only requires notice pleading, a complaint

must still set forth operative facts and contain more than legal conclusions. They cite us

to Gallo v. Westfield National Insurance Company, 8th App. Dist., 2009-Ohio-1094. The

Gallo court relied on the United States Supreme Court’s recent case of Bell Atlantic

Corporation v. Twombly (2007), 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929. The

Twombly case held a plaintiff can defeat a motion to dismiss if there is a set of facts

consistent with the complaint that would allow the plaintiff to recover.              The mere

incantation of an abstract legal standard is insufficient, and, the claims set forth in the
Stark County, Case No. 2010-CA-00120                                                       6


complaint must be plausible rather than merely conceivable. The plaintiff has an

obligation to set out the grounds for the claim for relief using more than labels or

conclusions, and a mere recitation of the elements of the cause of action is insufficient.

The U.S. Supreme Court found the factual allegations must be sufficient to raise the

right to relief above a speculative level.

       {¶15} The U.S. Supreme Court enlarged on the Twombly standard in Ashcroft v.

Iqbal (2009), 129 S. Ct. 1937, 173 L. Ed. 2d 868. In Iqbal, the Supreme Court found

notice pleading required more than a mere allegation of harm, but somewhat less than

detailed factual allegations. If there are factual allegations, the trial court should assume

the veracity and determine whether it is plausible that the plaintiff is entitled to relief.

Appellants argue Boske and Doe’s complaint against them is nothing more than generic

labels and legal conclusions, and the court erred in not sustaining their motion for

judgment on the pleadings.

       {¶16} R.C. 2744.03 grants school administrators and staff immunity from liability

for personal injury unless one of the following applies: (a) the employee’s acts or

omissions were manifestly outside of 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; or (c) civil liability is expressly

imposed upon the employee by a section of the Revised Code. School employees are

not liable for mere negligence, but are liable if they show a wanton, reckless or

malicious act or an act done in bad faith. Winkle v. Zettler Funeral Homes, Inc., 182

Ohio App. 3d 195, 2009-Ohio-1724, 912 N.E. 2d 151.
Stark County, Case No. 2010-CA-00120                                                     7


       {¶17} The trial court found Boske and Doe alleged the individual employee

defendants acted in a wanton or reckless manner when they failed to exercise

supervision and control over Page. The court found in construing the allegations in a

light most favorable to Boske and Doe, there were sufficient facts alleged which, if

proven, would exclude appellants McPherson, and Andaloro, Letcavits, and/or Blosser

from immunity. We agree in part.

       {¶18} The complaint alleges specific acts and omissions of McPherson,

Andaloro, and Letcavits. However, the complaint does not allege any acts or omissions

on the part of Blosser. Although Blosser is responsible for supervising, hiring, and

retaining teachers, the only allegation as to Blosser is that he breached his duty by

employing and retaining Page when he knew or should have known Page had a

propensity to engage in improper sexual contact with students. We find the allegations

are insufficient to state a cause of action against Blosser.

       {¶19} The assignment of error is sustained in part, as to appellant Blosser, and

overruled in part as to McPherson, Andaloro and Letcavits.

       {¶20} Next, we address the cross-appeal, which alleges the trial court erred in

finding Boske and Doe had no cause of action against any of the defendants for failing

to report child abuse. The trial court found R.C. 2151.281 does not impose civil liability

for persons who are statutorily required to report child abuse. The court noted R.C.

2151.421 (M), which was effective April 7, 2009, now imposes civil liability on anyone

who violates a duty to report child abuse. Prior to this addition, the Code did not provide

for civil penalties.
Stark County, Case No. 2010-CA-00120                                                         8


       {¶21} We conclude the court correctly found it could not apply the statute

retroactively. Roe v. Planned Parenthood, 122 Ohio St. 3d 399, 2009-Ohio-2973, 912

N.E.2d 61, syllabus 2 by the court. The court further stated “***former R.C. 2151.421 is

silent as to any damages. We cannot insert words into a statute. Instead, we must give

effect only to the words used. Rice, [v. CertainTeed Corp.] 84 Ohio St.3d at 419, 704

N.E.2d 1217. The General Assembly did not include a provision for civil damages in the

former version of the statute, much less punitive damages. Without express authority for

such an award, we are constrained by the statutory language. O'Toole v. Denihan, 118

Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 67.” Planned Parenthood, supra, at

paragraph 42.

       {¶22} We agree with the trial court the law in effect at the time the allegations

occurred did not provide for civil liability for failing to report child abuse or neglect.

       {¶23} The cross-assignment of error is overruled.
Stark County, Case No. 2010-CA-00120                                                    9


      {¶24} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed in part and reversed in part, as to appellant Blosser, and

the cause is remanded to the court for further proceedings in accord with law.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur




                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. SHEILA G. FARMER

                                             _________________________________
                                             HON. JOHN W. WISE




WSG:clw 0121
[Cite as Boske v. Massillon City School Dist., 2011-Ohio-580.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


MICHAEL BOSKE, ET AL                                    :
                                                        :
Plaintiffs-Appellees/Cross-Appellants                   :
                                                        :
                                                        :
-vs-                                                    :        JUDGMENT ENTRY
                                                        :
MASSILLON CITY SCHOOL                                   :
DISTRICT, ET AL                                         :
                                                        :
                                                        :
Defendant                                               :
                                                        :
GARY MCPHERSON, ET AL                                   :        CASE NO. 2010-CA-00120

Defendants-Appellants/Cross-Appellees


       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is affirmed in part and reversed in

part, as to appellant Blosser, and the cause is remanded to the court for further

proceedings in accord with law and consistent with this opinion.                Costs to be split

between the parties.




                                                            _________________________________
                                                            HON. W. SCOTT GWIN

                                                            _________________________________
                                                            HON. SHEILA G. FARMER

                                                            _________________________________
                                                            HON. JOHN W. WISE
