[Cite as Ferrell v. Ohio State Hwy. Patrol, 2016-Ohio-5223.]




BENJAMIN W. FERRELL                                     Case No. 2015-01041

        Plaintiff                                       Judge Patrick M. McGrath

        v.                                              DECISION

OHIO STATE HIGHWAY PATROL

        Defendant



        {¶1} Before the court for determination are three motions: (1) motion for judgment
on the pleadings filed by defendant Ohio State Highway Patrol (OSHP) on March 21,
2016; (2) a motion to allow depositions filed by plaintiff Benjamin W. Ferrell on March
31, 2016; and (3) an unopposed motion for leave to file a reply to “Defendant’s
Memorandum Contra Plaintiff’s Motion to Allow Depositions” filed by Ferrell on April 29,
2016 with a reply tendered with Ferrell’s motion for leave.
        {¶2} Upon review, the court grants OSHP’s March 21, 2016 motion for judgment
on the pleadings, denies Ferrell’s March 31, 2016 motion to allow depositions, grants
Ferrell’s unopposed April 29, 2016 motion for leave to file a reply to OSHP’s
memorandum contra plaintiff’s motion to allow depositions, and accepts the reply filed
by Ferrell on April 29, 2016.

    I. Background
        {¶3} Plaintiff Benjamin Ferrell sues OSHP, asserting that state troopers acted
negligently with respect to him when they investigated a multi-vehicle collision.
According to Ferrell, on December 20, 2014 at about 6:15 p.m., he was traveling
southbound on Interstate 71 (I-71) in Ashland County, Ohio, when another driver—
Dantoine Wright—pulled on to the interstate and the vehicle driven by Ferrell—a
Chevrolet Equinox—struck Wright’s vehicle. (First Amended Complaint at ¶ 7-9, 16.)
Case No. 2015-01041                         -2-                                 DECISION


Ferrell maintains that another collision occurred moments later that involved his vehicle
and other vehicles. (First Amended Complaint at ¶ 11.) According to Ferrell, after the
collisions “the Ohio State Police responded, including, but not limited to, Officer Paul
Green, Sergeants Bittinger and Bishop, and Troopers Marshall and Rawson,” with
Sgt. Bittinger arriving at about 6:22 p.m., and Trooper Rawson arriving at about
6:23 p.m. (First Amended Complaint at ¶ 12, 14).
       {¶4} Ferrell contends that during the period when the troopers arrived at the
scene until the scene was cleared at about 8:24 p.m., troopers “did not perform a
physical inspection of the interstate area” to determine his location, despite the fact that
a trooper discovered Ferrell’s driver’s license and wallet in the vehicle that he was
operating. (First Amended Complaint at ¶ 13, 15-16.)
       {¶5} Ferrell alleges that only after Sgt. Bishop and two other troopers returned to
the highway patrol post “was a coordinated effort initiated to track down [him] after
concerns were expressed by his girlfriend and family members.”             (First Amended
Complaint at ¶ 17.) Ferrell maintains that according to a traffic crash report, Sgt. Bishop
instructed Troopers Rawson and Marshall to return to the collision scene “to do a
search and sweep of the collision scene looking for Mr. Ferrell.”          (First Amended
Complaint at ¶ 19.) Ferrell asserts that, after returning to the scene at about 11:26 p.m.,
Trooper Rawson “approached the bridge north of the mile post 186 exit, climbed over a
concrete abutment and down onto the rock pile beneath the bridge overpass” and, while
he looked under the bridge, Trooper Rawson heard a groan and called out, asking if
someone was there. (First Amended Complaint at ¶ 21-22.) After hearing another
groan, Trooper Rawson shined his flashlight beneath the bridge, found Ferrell lying in
mud and water, and lifted him from behind to remove him. (First Amended Complaint at
¶ 23-24.) Ferrell claims that EMS personnel responded to the scene at 11:45 p.m. and
transported him to a hospital shortly after midnight on December 21, 2014.            (First
Amended Complaint at ¶ 27.)
Case No. 2015-01041                        -3-                                 DECISION


   II. Relevant Procedural History
      {¶6} On December 18, 2015, Ferrell filed a complaint in this court against OSHP.
Three days later—on December 21, 2015—Ferrell filed an amended complaint in
this court,   presenting     two    causes       of   action:   (1)   “Count    I”–“Gross
Negligence/Wanton/Reckless Conduct of Defendant,” (2) “Count II”—“Negligence of
Defendant.” (First Amended Complaint at 6, 7.) With this first amended complaint,
Ferrell appended two exhibits (Exhibits A and B)—OSHP traffic crash reports
concerning the events of December 20, 2014.           In his amended complaint, Ferrell
maintains that OSHP’s failure to properly investigate his location in a timely manner
constituted negligence and gross negligence and reckless and wanton misconduct.
(First Amended Complaint at ¶ 32, 38.) He contends that OSHP owed common law
duties to him—i.e., among other things, to properly and thoroughly investigate the
collision scene and timely locate his whereabouts. (First Amended Complaint at ¶ 33,
39.) Ferrell asserts that he sustained injuries, including but not limited to, an epidural
hematoma requiring a right craniotomy for hematoma evaluation, hypothermia,
traumatic brain injury, various bone fractures, and deficits resulting from the incident.
(First Amended Complaint at ¶ 29-30.) Ferrell seeks damages for lost wages in excess
of $10,000, and medical expenses in excess of $58,000. Ferrell also seeks damages of
$4,000,000 for “pain and suffering, past, present, and future,” court costs and attorney
fees, pre and post-judgment interest, and other relief for which the court determines that
he may be entitled.
      {¶7} Defendant OSHP has answered Ferrell’s first amended complaint, denying
his claims of negligence and gross negligence. On March 21, 2016, OSHP moved the
court for judgment on the pleadings in accordance with Civ.R. 12(C). On March 31,
2016, in a combined filing, Ferrell responded to OSHP’s Civ.R. 12(C) motion and moved
the court to allow depositions. In response to Ferrell’s motion to allow depositions,
OSHP filed a memorandum in opposition. On April 29, 2016, Ferrell moved for leave to
Case No. 2015-01041                          -4-                                 DECISION


file a reply to OSHP’s memorandum in opposition to Ferrell’s motion to allow
depositions. OSHP has not opposed Ferrell’s motion for leave to file a reply.

   III. Ohio State Highway Patrol’s Civ.R. 12(C) Motion for Judgment on the
       Pleading and Ferrell’s Response in Opposition
       {¶8} In its Civ.R. 12(C) motion for judgment on the pleadings, OSHP urges that
Ferrell’s claims should be dismissed on the basis of public-duty immunity contained in
R.C. 2743.02(A).     OSHP asserts that, absent the existence of a statutorily-defined
“special relationship,” Ferrell may not surmount a defense to the application of public-
duty immunity, which OSHP maintains includes, among other things, any action or
omission of the state involving a law enforcement activity or emergency activity. OSHP
contends that, based on the facts alleged in Ferrell’s complaint, Ferrell cannot
demonstrate a “special relationship” because he does not satisfy the requirements
contained in R.C. 2743.02(A)(3)(b)(iii) (some form of direct contact between the state’s
agents and an injured party) and (iv) (an injured party’s justifiable reliance on the state’s
affirmative undertaking). OSHP states, “It is clear from the facts alleged in the amended
complaint that no employee of OSHP had contact with Ferrell; thus, as a matter of law
he cannot establish the third element of the ‘special relationship’ exception to immunity.
Furthermore, since Ferrell had no contact with troopers, he cannot demonstrate his
reliance on any purported affirmative undertaking of the troopers. Thus, Ferrell cannot
prove as a matter of law the fourth element of the ‘special relationship’ exception to
immunity.” (Defendant’s Civ.R 12(C) Motion at 5.) OSHP maintains that Ferrell’s first
amended complaint should be dismissed in its entirety.
       {¶9} In a filing that combines a response to OSHP’s motion for judgment on the
pleadings and a motion to allow depositions, Ferrell asserts that OSHP’s Civ.R. 12(C)
motion is improper and premature. He contends that he has requested depositions and
discovery and he is within the statute of limitations to amend his pleadings in the future.
Ferrell maintains that OSHP is not immune from liability, urging that OSHP’s argument
Case No. 2015-01041                        -5-                                DECISION


disregards R.C. 2744.03 (defenses or immunities of a political subdivision and
employee). Relying on Estate of Graves v. Circleville, 124 Ohio St.3d 339, 2010-Ohio-
168, 922 N.E.2d 201 (public-duty rule is not applicable in civil actions brought against
employees of political subdivisions for wanton or reckless conduct), Ferrell asserts that
OSHP is not immune from liability as the “allegations in Plaintiff’s Complaint, along with
the attached Exhibits incorporated therein, clearly set forth Plaintiff’s case that the
State’s employees acted in a wanton and reckless manner during its investigation of the
collision scene.” (Response at 6.)
       {¶10} According to Ferrell, OSHP’s argument concerning R.C. 2743.02 is flawed.
Ferrell maintains that R.C. 2744.03 pre-dates R.C. 2743.02 and “it is clear in
R.C. 2744.03(A)(6)(b) the State had consented to be sued in situations when ‘[t]he
employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton
and reckless manner.’” (Emphasis omitted.) (Response at 7.) Ferrell reasons that
“since the State had previously consented to be sued, the portion of R.C. 2743.02 relied
upon by Defendant has no applicability to this case.”          (Response at 8.)      See
R.C. 2743.02(A)(1) (“To the extent that the state has previously consented to be sued,
this chapter has no applicability”).
       {¶11} Ferrell also challenges OSHP’s application of R.C. 2743.02(A)(3)(b)
(special relationship requirement) maintaining that the “wanton and reckless conduct
exception is independent of any purported ‘special relationship’ requirement.”
(Response at 8.) Ferrell urges that agents of OSHP “had direct contact and control of
just about every item in Plaintiff’s possession, except his body. The State Police had
direct contact with Plaintiff’s vehicle, girlfriend, wallet, driver’s license, insurance
information, money and cell phone number.” (Response at 9.)
       {¶12} In a reply memorandum, Ferrell clarifies contentions made in his response,
stating: “Although Plaintiff did cite to Chapter 2744 and the case of Estate of Graves v.
Circleville, (2010), 124 Ohio St.2d 339,345, 922 N.E. 2d 201, as the only published case
Case No. 2015-01041                          -6-                                DECISION


addressing public duty in the context of wanton and reckless conduct, Plaintiff also
clearly relied on the waiver of immunity provisions R.C. Chapter 2743 [sic].
R.C. 2743.02 expressly provides that an action against an officer alleging the officer
acted outside the scope of his employment, acted with malicious purpose, in bad bath
or in a wanton or reckless manner must first be filed in the Court of Claims for an
immunity determination and a determination whether the Courts of Common Pleas have
jurisdiction over the civil action. R.C. 2743.02(F).” (Reply at 2.)
   {¶13} Thus, based on the motions before the court, at issue are (1) whether, as a
matter of law, OSHP is entitled to judgment on the pleadings based on public-duty
immunity, and (2) whether discovery should proceed such that Ferrell may be permitted
to depose OSHP employees.
          Discussion
          A. Standard for Determining Civ.R. 12(C) Motion
       {¶14} Civ.R. 12(C) permits motions for judgment on the pleadings, providing:
“After the pleadings are closed but within such times as not to delay the trial, any party
may move for judgment on the pleadings.” In State ex rel. Midwest Pride IV, Inc. v.
Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996), the Supreme Court of Ohio
discussed the standard for determining a Civ.R. 12(C) motion for judgment on the
pleadings, stating: “Civ.R. 12(C) motions are specifically for resolving questions of law,
Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, 166, 63 Ohio Op. 2d 262, 264, 297
N.E.2d 113, 117.” Pontious states at 570:
          a. Under Civ. R. 12(C), dismissal is appropriate where a court (1)
             construes the material allegations in the complaint, with all
             reasonable inferences to be drawn therefrom, in favor of the
             nonmoving party as true, and (2) finds beyond doubt, that the
             plaintiff could prove no set of facts in support of his claim that would
             entitle him to relief. * * * Thus, Civ.R. 12(C) requires a
             determination that no material factual issues exist and that the
             movant is entitled to judgment as a matter of law.
Case No. 2015-01041                          -7-                             DECISION


      {¶15} In Marok v. Ohio State Univ., 10th Dist. Franklin No. 07AP-921, 2008-Ohio-
3170, ¶ 10, the Tenth District Court of Appeals observed, “A Civ.R. 12(C) motion for
judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion
for failure to state a claim upon which relief can be granted.” And in S.E.A. Inc. v.
Dunning-Lathrop & Assocs., 10th Dist. Franklin Nos. 03AP-1051, 03AP-1052, 2004
Ohio App. LEXIS 3734, at *11-12 (Aug. 5, 2004), the Tenth District Court of Appeals
stated, “The Ohio Supreme Court has made it abundantly clear that a court’s review of a
Civ.R. 12(C) motion is limited exclusively to the allegations contained in the complaint
and answer, and any writings properly attached to such and that a trial court may not
consider any other evidentiary materials.”
      {¶16} Thus, as Ferrell has filed a first amended complaint and OSHP has
answered this complaint, the court finds that OSHP’s Civ.R. 12(C) motion is properly
before the court. The court further finds that in accordance with S.E.A. Incorporated it
may consider the allegations in Ferrell’s first amended complaint and the exhibits that
Ferrell appended to this complaint when determining OSHP’s Civ.R. 12(C) motion for
judgment on the pleadings.

          B. Immunity for Government Officials and Employees
      {¶17} In Conley v. Shearer, 64 Ohio St.3d 284, 285, 595 N.E.2d 862 (1992), the
Supreme Court of Ohio discussed the concept of immunity for government officials and
employees, stating: “Historically, immunity for government officials and employees was
derived from the legal fiction that ‘[t]he King could do no wrong, so any mistake in
judgment on the part of the King’s officials was an act for which the government would
take no responsibility.’ Civil Actions Against State Government, Its Divisions, Agencies
and Officers (Winborne Ed.1982) 230, Section 6.2.”         Conley notes that the Ohio
Supreme Court held many years ago that the state and its officers were immune from
tort and other liability for wrongs committed by agents of the state when acting in their
official capacity. Id. Conley explains that in 1912 in Section 16, Article I of the Ohio
Case No. 2015-01041                        -8-                                  DECISION


Constitution, the state constitution was amended to allow actions to be brought against
the state, but this provision “was ‘not self-executing,’ and constituted only an
authorization for subsequent statutes in which the General Assembly could grant its
specific consent to be sued.” Id.
      {¶18} As stated in Conley, “In 1975, the General Assembly enacted legislation
creating the Court of Claims and specifying the forum and manner in which actions may
be brought against the state and its officers and employees.” Id. at 286. However, it
was not until after 1975 that the General Assembly enacted provisions in R.C. Chapter
2744, which concerns actions brought against political subdivisions. See Am.Sub.H.B.
No. 176, 141 Ohio Laws, Part I, 1699 (enacting R.C. 2744.01 to 2744.09) (effective
November 20, 1985). Compare Am.Sub.H.B. No. 800, 135 Ohio Laws, Part II, 869
(enacting R.C. 2743.01 to 2743.20) (effective January 1, 1975). Ferrell’s contention that
“R.C. 2744.03 pre-dated R.C. 2743.02 and it is clear in R.C. 2744.03(A)(6)(b) the State
had consented to be sued in situations when ‘[t]he employee’s acts or omissions were
with malicious purpose, in bad faith, or in wanton and reckless manner’” (emphasis
omitted) (Ferrell’s Response to Judgment on the Pleadings at 7) is not persuasive.
      {¶19} Additionally, Ferrell’s reliance on R.C. 2744.03 and Estate of Graves v.
Circleville is not persuasive as R.C. 2744.03 applies to a political subdivision—not the
state—and Graves interprets the public-duty rule in civil actions brought against
employees of a political subdivision for wanton or reckless conduct. See Estate of
Graves, syllabus (“The public-duty rule adopted by this court in Sawicki v. Ottawa Hills
(1988), 37 Ohio St.3d 222, 525 N.E.2d 468, is not applicable in civil actions brought
against employees of political subdivisions for wanton or reckless conduct”).
      {¶20} In his response, Ferrell draws this court’s attention to R.C. 2743.02(F),
which provides:
          b. A civil action against an officer or employee, as defined in section
             109.36 of the Revised Code, that alleges that the officer’s or
             employee’s conduct was manifestly outside the scope of the
Case No. 2015-01041                         -9-                                  DECISION


              officer’s or employee’s employment or official responsibilities, or
              that the officer or employee acted with malicious purpose, in bad
              faith, or in a wanton or reckless manner shall first be filed against
              the state in the court of claims that has exclusive, original
              jurisdiction to determine, initially, whether the officer or employee is
              entitled to personal immunity under section 9.86 of the Revised
              Code and whether the courts of common pleas have jurisdiction
              over the civil action. * * *.

       {¶21} Notably, R.C. 2743.02(F) pertains to this court’s jurisdiction. As the Ohio
Supreme Court explained in Ries v. Ohio State Univ. Med. Ctr., 137 Ohio St.3d 151,
2013-Ohio-4545, 998 N.E.2d 461, ¶ 20, “R.C. 2743.02(F) vests the Court of Claims with
exclusive jurisdiction to determine whether a state employee is immune from personal
liability in a civil action allowed by R.C. 9.86.”          See L.C.C.R. 4.1 (immunity
determinations).   In this case neither party through their motions challenges the
jurisdiction of this court to adjudicate whether an employee of OSHP should be afforded
immunity from personal liability.      Neither have the parties sought an immunity
determination in accordance with this court’s local rule.

          C. Public Duty Doctrine
       {¶22} In Wallace v. Ohio Dep’t of Commerce, 96 Ohio St.3d 266, 2002-Ohio-
4210, 773 N.E.2d 1018, ¶ 13, the Supreme Court of Ohio explained that the public-duty
doctrine originated at English common law and “precludes a private party from
sustaining a cause of action against a public officer for breach of a public duty. * * * In
other words, a public entity owes a duty only to the general public when performing
its functions and is therefore not liable for torts committed against an individual absent a
special duty owed to the injured person.”         In Wallace, the Ohio Supreme Court
examined the applicability of the public-duty rule to actions against the state and its
agencies in this court. Wallace at ¶ 12. Wallace holds paragraph one of the syllabus:
“The public-duty rule is incompatible with R.C. 2743.02(A)(1)’s express language
requiring that the state’s liability in the Court of Claims be determined ‘in accordance
Case No. 2015-01041                         -10-                                DECISION


with the same rules of law applicable to suits between private parties.’ In negligence
suits against the state, the Court of Claims must determine the existence of a legal duty
using conventional tort principles that would be applicable if the defendant were a
private individual or entity.”
       {¶23} After Wallace, the General Assembly amended R.C. 2743.01 and 2743.02,
adding divisions (3)(a) and (b) to R.C. 2743.02. Sub.H.B. No. 316, 150 Ohio Laws,
Part IV, 5438, 5445-5446 (effective March 31, 2005). In accordance with the current
version of R.C. 2743.02, the state generally enjoys immunity from civil liability with
respect to the performance or nonperformance of a public duty.                   See R.C.
2743.02(A)(3). As used in R.C. Chapter 2743, a public duty “includes, but is not limited
to, any statutory, regulatory, or assumed duty concerning any action or omission of the
state involving any of the following: (a) Permitting, certifying, licensing, inspecting,
investigating, supervising, regulating, auditing, monitoring, law enforcement, or
emergency response activity * * *.” (Emphasis added.) R.C. 2743.01(E)(1).
           c. R.C. 2743.02(A)(3) provides:
                    (a) Except as provided in division (A)(3)(b) of this section, the
                        state is immune from liability in any civil action or
                        proceeding involving the performance or nonperformance
                        of a public duty, including the performance or
                        nonperformance of a public duty that is owed by the state
                        in relation to any action of an individual who is committed
                        to the custody of the state.

                    (b) The state immunity provided in division (A)(3)(a) of this
                        section does not apply to any action of the state under
                        circumstances in which a special relationship can be
                        established between the state and an injured party. A
                        special relationship under this division is demonstrated if
                        all of the following elements exist:

           d. An assumption by the state, by means of promises or actions, of an
              affirmative duty to act on behalf of the party who was allegedly
              injured;
Case No. 2015-01041                       -11-                                 DECISION



          e. Knowledge on the part of the state’s agents that inaction of the
             state could lead to harm;

          f. Some form of direct contact between the state’s agents and the
             injured party;

          g. The injured party’s justifiable reliance on the state’s affirmative
             undertaking.

(Emphasis added.)

       {¶24} It is manifest that according to R.C. 5503.01 the state highway patrol is a
division within the Ohio department of public safety and state highway patrol troopers
are authorized to investigate and report all motor vehicle accidents on all roads and
highways outside of municipal corporations. See R.C. 553.01 and 5503.02. Given that
the state highway patrol is a law enforcement entity and state troopers are authorized to
investigate motor vehicle accidents, the court finds that public-duty immunity as codified
in R.C. 2743.02(A)(3)(a) applies as Ferrell’s complaint presents allegations against
OSHP with respect to its troopers’ investigation of a multi-vehicle collision on I-71 in
Ashland County.
       {¶25} Having determined that public-duty immunity applies in this case, to
overcome public-duty immunity Ferrell is required pursuant to R.C. 2743.02(A)(3)(b) to
demonstrate that a “special relationship,” as defined in R.C. 2743.02(A)(3)(b), exists
based on the allegations in his first amended complaint and its attachments.
       {¶26} Upon review, after reviewing the first amended complaint and the
attachments thereto with reasonable inferences drawn in Ferrell’s favor, the court
concludes that Ferrell has not demonstrated the existence of a statutorily-defined
“special relationship.”   A review of Ferrell’s first amended complaint discloses no
allegation that he had any contact with agents of OSHP until he was located by Trooper
Rawson. See First Amended Complaint at ¶ 23. And a review of Exhibits A and B that
Case No. 2015-01041                        -12-                                DECISION


are appended to Ferrell’s first amended complaint supports a determination that state
troopers had no contact with Ferrell until Trooper Rawson located him. For example, in
the “Officer Narrative” section of a Traffic Crash Report contained in Exhibit A Trooper
Paul Green reports,
          h. I made contact with a female that was sitting in the driver’s seat of
             the Equinox. She stated that her boyfriend was driving when the
             crash occurred. The female in the driver’s seat of the Equinox
             identified herself as Amira S. Mabjish, D.O.B. * * *. Ms. Mabjish
             stated that she did not witness the crash because, she was asleep
             in the passenger seat with the dog on her lap when the crash
             occurred. While speaking with Mabjish, she advised me that her
             boyfriend Benjamin Farrell [sic] was no longer at the scene. I
             asked her where he went. Mabjish stated that she was not sure. I
             spoke with Mabjish later, and she stated that she thought
             Mr. Ferrell had left the scene with the gentleman that was driving a
             maroon SUV, because she had last seen the two gentleman [sic]
             speaking. Miss Mabjish stated that the gentleman in the maroon
             SUV said he had witnessed the crash, and asked Ferrell to come
             with him.

      {¶27} (Exhibit A at 7.) Trooper Green further notes, “I advised Wooster dispatch
that [Ferrell] was gone on arrival, as was reported to me by Miss Mabjish. * * * I asked
Wooster Dispatch to call Ashland Samaritan and see if Mr. Ferrell was there, being that
he was missing from the crash scene. * * * I attempted to contact Mr. Ferrell on his cell
phone by the number that Mabjish had provided. His phone went directly to voice mail.”
In his narrative Trooper Green indicated that he spoke by phone with Ferrell’s father
(Phillip Ferrell) and informed him that Mabjish had reported that his son had left the
scene “with a maroon SUV. Mr. Phillip Ferrell stated that gentleman in the maroon SUV
was taking Mr. Ferrell to complete a police report [sic]. I spoke with Mr. Ferrell a little
later. He stated that he wished to file a missing persons report for his son, being that
his son was missing.” The Narrative Section further states, “Sgt. Bishop contacted the
HUB regarding the incident and informed them of Benjamin Ferrell being missing.
Sgt. Bishop requested that two units check the area of the crash scene to ensure that
Case No. 2015-01041                         -13-                              DECISION


Mr. Ferrell was not located anywhere near it. Tpr. Rawson and Tpr. Marshall traveled to
check the area at approximately 2326 hours. Tpr. Rawson indicated over the radio that
he had located a gentleman. * * * Tpr. Rawson indicated that he had pulled Mr. Ferrell
out of the mud and onto the grassy bank.”
      {¶28} Additionally, a review of Trooper Rawson’s narrative in Exhibit A supports a
finding that until Trooper Rawson located Ferrell, agents of OSHP did not have contact
with Ferrell. The Officer Narrative Section in Exhibit B also supports a finding that
agents of OSHP did not have contact with Ferrell until Trooper Rawson located him.
See Exhibit B at 11.
      {¶29} Construing Ferrell’s first amended complaint and attachments thereto in
Ferrell’s favor, the court finds that until Trooper Rawson discovered Ferrell, Ferrell
did not have some form of direct contact between the state’s agents and him
as required by R.C. 2743.02(A)(3)(b)(iii) to establish a “special relationship” for
purposes of R.C. 2743.02(A)(3)(b).       And because, based on the first amended
complaint and attachments thereto Ferrell did not have some form of direct contact
with agents of OSHP before Trooper Rawson discovered him, it follows that
Ferrell could not have had a justifiable reliance on the state’s affirmative undertaking
as required by R.C. 2743.02(A)(3)(b)(iv).      And because Ferrell does not satisfy
R.C. 2743.02(A)(3)(b)(iii) and (iv), it further follows that Ferrell does not satisfy the
special relationship exception in R.C. 2743.02(A)(3)(b) as this provision provides that a
“special relationship under this division is demonstrated if all of the following elements
exist. ” (Emphasis added.)
      {¶30} Therefore, construing the material allegations in the complaint and
attachments appended thereto, with all reasonable inferences to be drawn therefrom in
favor of Ferrell, the court concludes that, as a matter of law, public-duty immunity
contained in R.C. 2743.02(A)(3)(a) applies in this case and judgment on the pleadings
in favor of OSHP is warranted.
Case No. 2015-01041                        -14-                               DECISION


       {¶31} Having determined that, as a matter of law, OSHP is protected by public-
duty immunity, the court determines that Ferrell’s motion to allow depositions is moot.
See Black’s Law Dictionary 1161 (10th Ed. 2014) (defining moot as “[h]aving no
practical significance; hypothetical or academic”). See also Wiles v. Miller, 2013-Ohio-
3625, 3 N.E.3d 226, ¶ 44 (10th Dist.) (noting that “courts have concluded that no
additional discovery is needed for a court to rule on a motion to dismiss or a motion for
judgment on the pleadings”); Lindow v. City of N. Royalton, 104 Ohio App.3d 152, 159,
661 N.E.2d 253 (8th Dist.1995) (“The completion of discovery is not relevant to the
granting of a motion to dismiss”).

   V. Conclusion
       {¶32} Wherefore, for reasons set forth above, the court determines that, based
on his first amended complaint and attachments thereto Ferrell can prove no set of facts
entitling him to relief beyond doubt after all factual allegations are presumed true and
reasonable inferences are made in his favor. The court shall grant defendant OSHP’s
motion for judgment on the pleadings filed on March 21, 2016 and shall dismiss
plaintiff’s first amended complaint with prejudice. The court DENIES plaintiff’s motion to
allow depositions filed on March 31, 2016. The court GRANTS plaintiff’s April 29, 2016
motion for leave to file a reply to OSHP’s memorandum contra plaintiff’s motion to allow
depositions and accepts Ferrell’s reply filed on April 29, 2016.




                                               PATRICK M. MCGRATH
                                               Judge
[Cite as Ferrell v. Ohio State Hwy. Patrol, 2016-Ohio-5223.]



BENJAMIN W. FERRELL                                     Case No. 2015-01041

        Plaintiff                                       Judge Patrick M. McGrath

        v.                                              JUDGMENT ENTRY

OHIO STATE HIGHWAY PATROL

        Defendant



        {¶33} For the reasons set forth in the decision filed concurrently herewith, the
court determines that, based on his first amended complaint and attachments thereto,
plaintiff can prove no set of facts entitling him to relief beyond doubt after all factual
allegations are presumed true and reasonable inferences are made in his favor. The
court GRANTS defendant’s motion for judgment on the pleadings filed on March 21,
2016, and DISMISSES plaintiff’s first amended complaint with prejudice. Judgment is
rendered in favor of defendant. All previously scheduled events are VACATED. 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.




                                                          PATRICK M. MCGRATH
                                                          Judge

cc:
Roger N. Braden                                         Eric A. Walker
7000 Houston Road, Suite 36                             Velda K. Hofacker
Florence, Kentucky 41042                                Assistant Attorneys General
                                                        150 East Gay Street, 18th Floor
                                                        Columbus, Ohio 43215-3130
Filed June 1, 2016
Sent to S.C. Reporter 8/3/16
