[Cite as Fediaczko v. Mahoning Cty. Children Servs., 2012-Ohio-6095.]

                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


W. GORDON FEDIACZKO, ADM. OF                      )
THE ESTATE OF J.H.,                               )       CASE NO.      11 MA 199
                                                  )
        PLAINTIFF-APPELLANT,                      )
                                                  )
VS.                                               )       OPINION
                                                  )
MAHONING COUNTY CHILDREN                          )
SERVICES, et al.,                                 )
                                                  )
        DEFENDANTS-APPELLEES.                     )


CHARACTER OF PROCEEDINGS:                                 Civil Appeal from Common Pleas Court,
                                                          Case No. 09CV1929.


JUDGMENT:                                                 Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                                  Attorney Shirley Smith
                                                          1399 East Western Reserve Rd., Suite 2
                                                          Poland, Ohio 44514

For Defendants-Appellees:                                 Attorney Daniel Downey
                                                          Attorney J. Quinn Dorgan
                                                          10 West Broad Street, Suite 2400
                                                          Columbus, Ohio 43215


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro


                                                          Dated: December 20, 2012
[Cite as Fediaczko v. Mahoning Cty. Children Servs., 2012-Ohio-6095.]
VUKOVICH, J.


        {¶1}    Plaintiff-appellant W. Gordon Fediaczko, the administrator of the child’s
estate, appeals the decision of the Mahoning County Common Pleas Court granting
immunity to Mahoning County Children’s Services and the Mahoning County
Children’s Services Board. The child’s estate argues that there is an exception to
statutory immunity here, alleging that civil liability is expressly imposed under another
statute outlining an exception to state immunity where a special relationship can be
established between the state and the injured party.
        {¶2}    However, the definition sections of the relevant statutes differentiate
between the state and a political subdivision. The statute lifting immunity where there
is a special relationship deals only with the State of Ohio’s waiver of immunity and
does not apply to a political subdivision such as the county, its agencies, and its
boards. Therefore, the argument presented by the child’s estate is without merit. For
the reasons expressed below, the judgment of the trial court is hereby affirmed.
                                  STATEMENT OF THE CASE
        {¶3}    J.H. was born in December of 1985. When his parents divorced in
1991, his mother received custody. The child lived with his mother in her native
country of Japan for some time. She later had troubles with the child and sent him
back to Youngstown to live with his father. Citing multiple behavioral problems, the
father stated that he could not care for the child. At the recommendation of the
agency, temporary custody was granted to a friend of the mother in March of 2000.
This custodian informally relinquished custody in August of 2000.
        {¶4}    The father again refused custody, and the child began living with
Jennifer Snyder, who was a relative of the father through marriage, and David
Sharpe, who was Jennifer Snyder’s boyfriend. Caseworker Erin Davis began a home
study and investigation in regards to Jennifer Snyder and David Sharpe. She filed
her report and recommended Jennifer Snyder as custodian. In October of 2000, the
juvenile court granted legal custody of the child to both Jennifer Snyder and David
Sharpe, and the agency closed its case.
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       {¶5}   In December of 2000, an anonymous caller reported to the agency that
David Sharpe used drugs and that the child had been frightened when a drug dealer
came to the house demanding money. An agency worker interviewed David Sharpe
and the child, and he found no evidence of abuse or neglect.
       {¶6}   On June 14, 2001, the agency was informed by a caller that David
Sharpe had been arrested two days before for abusing Jennifer Snyder and the child.
Someone from the agency contacted the responding police officers and learned that
the offense did not involve the child.
       {¶7}   On June 18, 2001, the former temporary custodian called the agency to
report that the child was being abused by David Sharpe, that he had been locking the
child in the basement, and that the mother was concerned as she had not been able
to contact the child. Caseworker Kim Vechiarelli was assigned to the case. On
August 6, 2001, she reported that she conducted a face-to-face interview with the
child and the custodians and claimed that the child said he was happy and well-
treated. It was not discovered until 2007 that this report was false and that she had
never interviewed any of the parties.
       {¶8}   According to Jennifer Snyder’s 2007 recollection, David Sharpe had
killed the child on June 15 or 16, 2001. Both Jennifer Snyder and David Sharpe were
then indicted for various offenses.      Thereafter, Jennifer Snyder pled guilty to
endangering a child (lowered from permitting abuse of child) and gross abuse of a
corpse. David Sharpe pled to reckless homicide (lowered from murder), gross abuse
of a corpse, and attempted tampering with evidence.
       {¶9}   The child’s estate filed an action against the agency, the board, a
supervisor no longer at issue, Executive Director Denise Stewart, and Caseworkers
Erin Davis and Kim Vechiarelli. Jennifer Snyder and David Sharpe were also named
as defendants.      The complaint alleged vicarious liability, improper screening,
placement, and monitoring, falsification of reports, negligence per se, negligent hiring
and supervision, misrepresentation and detrimental reliance, and wrongful death.
       {¶10} The county and its employees moved for summary judgment asserting
statutory immunity. On November 2, 2011, the trial court granted summary judgment
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in favor of the agency and the board on the grounds of immunity, granted summary
judgment for the aforementioned supervisor on grounds that no liability was
established, and refused to grant summary judgment for the executive director and
the two caseworkers on their immunity claim, finding that genuine issues of material
fact remained as to whether they acted recklessly.
       {¶11} The executive director and two caseworkers filed an appeal from the
denial of immunity, which was appealable under R.C. 2744.02(C).            Said appeal
resulted in 7th Dist. Case No. 11MA186. At that point, the child’s estate filed an
appeal from the grant of immunity to the agency and board, which resulted in the
appeal at bar. This court found the grant of immunity final and appealable after the
child’s estate was successful in petitioning the trial court to add “no just reason for
delay” language to its judgment entry. See Civ.R. 54(B) (when more than one claim
for relief is presented or when multiple parties are involved, the court may enter final
judgment as to one or more but fewer than all of the claims or parties only upon an
express determination that there is no just reason for delay). See also Winsintainer
v. Edcen Power Strut Co., 67 Ohio St.3d 352, 617 N.E.2d 1136 (1993) (if all of the
causes of actions between appellant and one of the parties are resolved by the
summary judgment, then the trial court can use discretion to determine if judicial
economy is served by appeal of that summary judgment).
                              ASSIGNMENT OF ERROR
       {¶12} Appellant’s sole assignment of error provides:
       {¶13} “The trial court abused its discretion and held against the manifest
weight of the evidence in granting the motion for summary judgment filed by the
Mahoning County Children Services Agency and the MCCS Board. The trial court
did not give proper consideration to the exemptions to the immunity statute including
but not limited to the ‘special relationship’ exemption defined in O.R.C.
2743.02(A)(3)(b), under which it is clear that immunity does not apply, and further
disregarded the numerous issues of material fact remaining to be litigated regarding
said special relationship.”
                                                                                        -4-

       {¶14} As the county points out, the standard for reviewing the trial court’s
grant of summary judgment is de novo, not abuse of discretion or manifest weight of
the evidence as the text of the assignment of error suggests. Bonacorsi v. Wheeling
& Lake Erie Ry. Co., 95 Ohio St.3d 314, 767 N.E.2d 707, 2002-Ohio-2220, ¶ 24.
Summary judgment is properly granted when: (1) there is no genuine issue as to any
material fact; (2) the moving party is entitled to judgment as a matter of law; and (3)
reasonable minds can come to but one conclusion, and that conclusion is adverse to
the party against whom the motion for summary judgment is made. Civ.R. 56(C).
We are presented with a threshold question of statutory interpretation that is purely a
matter of law.
       {¶15} The general rule regarding political subdivision immunity is that the
political subdivision is not liable in damages in a civil action for injury, death, or loss
to person or property allegedly caused by any act or omission of the political
subdivision or its employee in connection with a government or proprietary function.
R.C. 2744.02(A).      Only five exceptions to the general immunity of a political
subdivision are provided. R.C. 2744.02(B)(1)-(5).
       {¶16} The sole exception claimed to be applicable here is (B)(5).              This
exception provides in pertinent part that a political subdivision is liable for injury,
death, or loss to person or property when civil liability is expressly imposed upon the
political subdivision by a statutory section including but not limited to R.C. 2743.02.
R.C. 2744.02(B)(5).
       {¶17} The child’s estate focuses on this statutory reference to R.C. 2743.02
and urges that R.C. 2743.02 expressly imposes civil liability on the political
subdivision. This statute begins by declaring: “The state hereby waives its immunity
from liability * * * and consents to be sued, and have its liability determined, in the
court of claims created in this chapter * * * except as provided in division (A)(2) or
(A)(3) of this section.” (Emphasis added). R.C. 2743.02(A). The child’s estate then
moves to division (A)(3), which provides:
       {¶18} “(3)(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
                                                                                      -5-

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.
       {¶19} “(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:
(i) 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; (ii) Knowledge on the
part of the state's agents that inaction of the state could lead to harm; (iii) Some form
of direct contact between the state's agents and the injured party; (iv) The injured
party's justifiable reliance on the state's affirmative undertaking.” (Emphasis added).
R.C. 2743.02(A)(3).
       {¶20} The child’s estate argues that the county agency and county board
clearly had a special relationship with the child as all of the four elements are
satisfied. The child’s estate thus urges that “civil liability is expressly imposed upon
the political subdivision” by R.C. 2743.02(A)(3)(b) and thus the exception to immunity
in R.C. 2744.02(B)(5) applies.
       {¶21} The county responds that, regardless of any factual issues as to
whether a special relationship existed, R.C. 2743.02 only pertains to the State of
Ohio’s waiver of immunity for special relationship claims, and there is no similar
provision for political subdivisions such as the county and its agencies or boards.
       {¶22} As the county points out, the exception in R.C. 2744.02(B)(5) requires a
statute to expressly impose liability upon the political subdivision. To the contrary,
R.C. 2743.02(A)(1) and (A)(3) discuss the state’s waiver of immunity and the
exception to state immunity where there exists a special relationship. The definition
statute in Chapter 2743 specifically distinguishes a political subdivision from the state
as follows:
       {¶23} “(A) ‘State’ means the state of Ohio, including, but not limited to, the
general assembly, the supreme court, the offices of all elected state officers, and all
                                                                                           -6-

departments, boards, offices, commissions, agencies, institutions, and other
instrumentalities of the state. ‘State’ does not include political subdivisions.
       {¶24} “(B) ‘Political subdivisions’ means municipal corporations, townships,
counties, school districts, and all other bodies corporate and politic responsible for
governmental activities only in geographic areas smaller than that of the state to
which the sovereign immunity of the state attaches.” (Emphasis added).                    R.C.
2743.01(A), (B).
       {¶25} The definition statute in the political subdivision immunity chapter
reiterates this distinction between the statutory use of the label “state” and the use of
the label “political subdivision.”     R.C. 2744.01(F), (I).     Thus, civil liability is not
expressly imposed against the political subdivision by R.C. 2743.02(A)(3)(b) as such
statute does not involve a political subdivision but only applies to those entities falling
under the definition of “state.”
       {¶26} In response to a suggestion by appellant that there must be a reason
for the reference to R.C. 2743.02 within the political subdivision immunity exception
of R.C. 2744.02(B)(5), we point to division (B) of R.C. 2743.02.                This division
declares that the state waives immunity from liability of all hospitals owned or
operated by one or more political subdivisions and consents for them to be sued.
R.C. 2743.02(B).      This explains the reference to R.C. 2743.02 in the political
subdivision immunity statute. See id. In fact, the Supreme Court has explained the
exception in (B)(5) by stating that the political subdivision is liable when civil liability is
expressly imposed upon the political subdivision “by a section of the Revised Code,
including, but not limited to, sections 2743.02 [hospitals] and 5591.37 [guardrails] of
the Revised Code.” Moore v. Lorain Metro. Hsg. Auth., 121 Ohio St.3d 455, 2009-
Ohio-1250, 905 N.E.2d 606, ¶ 21.            By adding “hospitals” in braces after R.C.
2743.02, the Court recognized the portion of R.C. 2743.02 applicable to political
subdivisions. See id.
       {¶27} We also note here that the Supreme Court recently stated that a special
relationship is not an exception to a public children’s services immunity under R.C.
2744.02(B). Rankin v. Cuyahoga Dept. of Children & Family Servs., 118 Ohio St.3d
                                                                                       -7-

392, 889 N.E.2d 521, 2008-Ohio-2567, ¶ 32-33.             Although the Court did not
specifically refer to R.C. 2743.02, that statute is directly cited in R.C. 2744.02(B)(5),
which the Supreme Court did consider. Id. at ¶ 29.
       {¶28} In conclusion, the plain language of the statutes cited demonstrates that
the special relationship referred to in R.C. 2743.02(A)(3)(b) is relevant only to lift the
state’s immunity and is not relevant to lift a political subdivision’s immunity.
Consequently, summary judgment was properly granted to the county agency and
the county board as no exception to political immunity applied.
       {¶29} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Donofrio, J., concurs.
DeGenaro, J., concurs.
