Fabrey v. McDonald Police Dept. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
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Fabrey et al., Appellants, v. McDonald Village Police
Department et al., Appellees.
[Cite as Fabrey v. McDonald Police Dept. (1994), Ohio
St.3d .]
Political subdivisions -- Tort liability -- R.C. 2744.02(B)(4)
is constitutional.
1. R.C. 2744.02(B)(4) does not violate the guarantees of
equal protection of the Ohio or United States
Constitutions.
2. R.C. 2744.02(B)(4) does not violate the due process
provisions of the Ohio or United States Constitutions.
3. R.C. 2744.02(B)(4) does not violate Section 16, Article I
of the Ohio Constitution.
(No. 93-731 -- Submitted April 6, 1994 -- Decided
September 28, 1994.)
Appeal from the Court of Appeals for Trumbull County, No.
92-T-4691.
On April 23, 1990, plaintiff-appellant, Robert J. Fabrey,
a police officer with the Brookfield Police Department,
arrested Aubrey M. Riddle as a result of an altercation at a
bar. Upon learning that the Brookfield jail was too crowded to
accommodate Riddle, Fabrey contacted the McDonald Village
Police Department and learned that the McDonald jail would take
Riddle. Upon arriving at the McDonald jail, two McDonald
police officers helped Fabrey place Riddle in a holding cell.
While Fabrey was still in the office area of the jail, the
officers noticed smoke coming from under the cell block door;
however, no fire alarm sounded. Fabrey entered the cell block
to rescue Riddle, and suffered injuries.
Investigators concluded that Riddle had apparently started
the fire by igniting a mattress with a cigarette lighter. The
source of the lighter was unknown, but Fabrey alleged that he
searched Riddle prior to placing him in the police cruiser.
Fabrey and his wife, appellants, filed suit against the
village of McDonald, the McDonald Village Police Department and
Police Chief Jerry Tyree, appellees, to recover for his
personal injuries and her loss of consortium. The trial court
granted defendants' motion for summary judgment on the basis

that they were immune from liability pursuant to R.C.
2744.02(B)(4) and 2744.03(A)(6). The court of appeals affirmed.
The cause is now before this court pursuant to the
allowance of a motion to certify the record.

Richard D. Goldberg, for appellants.
Buckingham, Doolittle & Burroughs and Frank G. Mazgaj; and
William M. Roux, for appellees.

Moyer, C.J. Appellants challenge the constitutionality of
R.C. 2744.02(B)(4)1 under the due process and equal protection
provisions of the Ohio and United States Constitutions, and the
right to remedy provision of the Ohio Constitution. We
conclude that the statute is constitutional and affirm the
court of appeals.
Statutes are presumed to be constitutional unless shown
beyond a reasonable doubt to violate a constitutional
provision. State ex rel. Dickman v Defenbacher (1955), 164
Ohio St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the
syllabus.
Appellants argue that R.C. 2744.02(B)(4) violates the Ohio
and federal constitutional guarantees of equal protection under
the law. The standard for determining violations of equal
protection is essentially the same under state and federal
law. Beatty v. Akron City Hosp. (1981), 67 Ohio St.2d 483,
491, 21 O.O.3d 302, 307, 424 N.E.2d 586, 591-592, quoting
Kinney v. Kaiser Aluminum & Chem. Corp. (1975), 41 Ohio St.2d
120, 70 O.O.2d 206, 322 N.E.2d 880. Where neither a
fundamental right nor a suspect class is involved, a
legislative classification passes muster if the state can show
a rational basis for the unequal treatment of different
groups. Id., 67 Ohio St.2d at 492, 21 O.O.3d at 307, 424
N.E.2d at 592. The Supreme Court of the Unites States has
articulated the test thus: "A statutory discrimination will
not be set aside if any state of facts reasonably may be
conceived of to justify it." McGowan v Maryland (1961), 366
U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399. The
court has alternately stated that in the absence of a suspect
class or fundamental right, legislative distinctions are
invalid only if they bear no relation to the state's goals and
no ground can be conceived to justify them. Clements v.
Fashing (1982), 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73
L.Ed.2d 508, 515.
R.C. 2744.02(B)(4) involves neither a fundamental right
nor a suspect class. No authority of which we are aware has
held the right to sue a political subdivision for the
negligence of its employees to be a fundamental right. To the
contrary, the traditional rule has been the doctrine of
sovereign immunity, which historically has negated the right to
sue the state without its permission.
Nor does the statute burden a suspect class. The
distinction it makes is between negligent acts that occur in
public buildings such as courthouses and office buildings, and
negligent acts that take place in detention facilities. The
basis of the distinction is the location of the victim, not his
or her identity. The statute applies evenly across every
personal classification that has evinced heightened scrutiny,

such as race, national origin, religion, and sex. Prisoners,
employees, and other visitors to detention facilities are all
treated alike under the statute.
A primary purpose of R.C. Chapter 2744 is to preserve the
fiscal resources of political subdivisions. Menefee v. Queen
City Metro (1990), 49 Ohio St.3d 27, 29, 550 N.E.2d 181, 182.
The Supreme Court of the United States has declared that the
preservation of fiscal integrity is a valid state interest.
Shapiro v. Thompson (1969), 394 U.S. 618, 633, 89 S.Ct. 1322,
1330, 22 L.Ed.2d 600, 614. We must then consider whether the
there is a rational relationship between conserving fiscal
integrity and the classification created by the statute.
By their very nature, detention facilities are more
dangerous than other types of government buildings. They house
people who have committed antisocial and illegal acts. As this
case illustrates, those acts do not always cease when the
person is in detention. Detainees often create dangers to
themselves and to others. The General Assembly has clearly
established the policy of the law to be that political
subdivisions cannot afford the costs of defending tort suits
when incidents occur at these facilities. Our equal protection
review does not require us to conclude that the state has
chosen the best means of serving a legitimate interest, only
that it has chosen a rational one. We hold that there is a
rational basis for the unequal treatment here, and that R.C.
2744.02(B)(4) does not violate the guarantees of equal
protection of the Ohio or United States Constitutions.
Appellants argue also that R.C. 2744.02(B)(4) violates the
Due Process Clauses of the Ohio and United States
Constitutions. Under the Ohio Constitution, an enactment
comports with due process "if it bears a real and substantial
relation to the public health, safety, morals or general
welfare of the public and if it is not unreasonable or
arbitrary." Benjamin v. Columbus (1957), 167 Ohio St. 103,
110, 4 O.O.2d 113, 117, 146 N.E.2d 854, 860, citing Piqua v
Zimmerlin (1880), 35 Ohio St. 507, 511. Federal due process is
satisfied if there is a rational relationship between a statute
and its purpose. Martinez v. California (1980), 444 U.S. 277,
283, 100 S.Ct. 553, 558, 62 L.Ed.2d 481, 488. Applying this
standard, the Supreme Court held constitutional a state statute
that provided immunity to the state and its parole officers
from liability stemming from determinations of whether to grant
parole. Id. In Martinez, a parolee murdered an innocent third
party after the parole board, having failed to observe certain
procedures, released him. The Supreme Court reasoned that the
grant of immunity to the state and the parole officers
satisfies due process because it "rationally furthers a policy
that reasonable lawmakers may favor." Id. The court's
analysis in Martinez, and our analysis under the equal
protection law, supra, compel us to hold that R.C.
2744.02(B)(4) does not violate the due process provisions of
the Ohio or United States Constitutions.
Appellants argue finally that R.C. 2744.02(B)(4) violates
Section 16, Article I of the Constitution of Ohio. Section 16,
Article I states: "All courts shall be open, and every person,
for an injury done him in his land, goods, person, or
reputation, shall have remedy by due course of law, and shall

have justice administered without denial or delay.
"Suits may be brought against the state, in such courts
and in such manner, as may be provided by law."
Appellants argue that Section 16, Article I endows them
with a fundamental right to sue a political subdivision for
damages for the negligence of its employees. We do not agree.
This court has held that the clause permitting suits to be
brought against the state is not self-executing, and that the
state of Ohio is not subject to suits in tort without the
consent of the General Assembly. Krause v. State (1972), 31
Ohio St.2d 132, 60 O.O.2d 100, 285 N.E.2d 736, paragraphs one
and three of the syllabus, overruled in part, Schenkolewski v.
Cleveland Metroparks Sys. (1981), 67 Ohio St.2d 31, 21 O.O. 3d
19, 426 N.E.2d 784 (holding that abrogation of sovereign
immunity could be achieved judicially as well as statutorily).
Even when this court abrogated the doctrine of sovereign
immunity of political subdivisions for acts of negligence, our
holding applied only in the absence of a statute providing
immunity. Haverlack v. Portage Homes, Inc. (1982), 2 Ohio
St.3d 26, 2 OBR 572, 442 N.E.2d 749, paragraph two of the
syllabus. In Haverlack, we recognized that the doctrine of
sovereign immunity was a creature of common law, and thus an
appropriate subject also for legislative action. The General
Assembly in enacting R.C. Chapter 2744 has used that power to
create a scheme for immunity and liability of political
subdivisions. Because the General Assembly has the power to
define the contours of the state's liability, within the
constraints of equal protection and due process, the right to
sue the state is not fundamental.
The ambient common-law rights that existed at the time a
constitutional provision came into being provide guidance in
interpreting the scope of the constitutional right. Thus, in
Sorrell v. Thevenir (1994), 69 Ohio St.3d 415, 633 N.E.2d 504,
we held that Section 5, Article I of the Ohio Constitution does
not provide for a jury trial in all cases, but only in those
for which the right existed at common law. As we have already
noted, and the Krause, Schenkolewski, and Haverlack cases
recognized, at the time of the passage of the second paragraph
of Section 16, Article I, the ability of citizens to sue the
state was a proper subject for action by the General Assembly.
Cases in which we have invalidated statutes and rules on
the basis of Section 16, Article I have involved the serious
infringement of a clearly preexisting right to bring suit.
See, e.g., Burgess v. Eli Lilly & Co. (1993), 66 Ohio St.3d 59,
609 N.E.2d 140 (invalidating provision that triggers
limitations period when victim knows there "may" be causation
between defendant's product and plaintiff's injuries); Hardy v
VerMeulen (1987), 32 Ohio St.3d 45, 512 N.E.2d 626 (holding
invalid four-year statute of limitations for malpractice claims
where victim did not know or should have known of injury);
State ex rel. Christian v. Barry (1931), 123 Ohio St. 458, 175
N.E. 855, paragraph one of the syllabus (invalidating police
department rule requiring officer to receive permission from
superior officer before filing suit for personal injuries).
The immunity of the defendants in this case is not such an
infringement of a preexisting right. It is, rather, in accord
with a traditional common-law principle. We hold, therefore,

that R.C. 2744.02(B)(4) does not violate Section 16, Article I
of the Constitution of Ohio.
In their second proposition of law, appellants urge that
R.C. 2744.02(B)(4) does not protect a political subdivision
when the alleged action or inaction constitutes willful or
wanton conduct. Appellants cite to R.C. 2744.03(A)(6)(b),
which removes immunity from employees of political subdivisions
for acts that are committed "with malicious purpose, in bad
faith, or in a wanton or reckless manner[.]" While we agree
that individual employees may be held liable for their
malicious, bad faith, wanton or reckless acts, R.C.
2744.03(A)(6) by its very terms applies only to individual
employees and not to political subdivisions. It therefore has
no effect on the liability of defendants McDonald Village
Police Department and McDonald Village.
Defendant Chief Tyree, however, could be liable if his
acts or failures to act satisfy the standard of R.C.
2744.03(A)(6)(b). We agree with appellants that the issue of
wanton misconduct is normally a jury question. Matkovich v.
Penn Cent. Transp. Co. (1982), 69 Ohio St.2d 210, 23 O.O.3d
224, 431 N.E.2d 652. The standard for showing wanton
misconduct is, however, high. In Hawkins v. Ivy (1977), 50
Ohio St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus, we held
that wanton misconduct was the failure to exercise any care
whatsoever. In Roszman v. Sammett (1971), 26 Ohio St.2d 94,
96-97, 55 O.O.2d 165, 166, 269 N.E.2d 420, 422, we stated,
"mere negligence is not converted into wanton misconduct unless
the evidence establishes a disposition to perversity on the
part of the tortfeasor." Such perversity must be under such
conditions that the actor must be conscious that his conduct
will in all probability result in injury. Id. at 97, 55 O.O.2d
at 166, 269 N.E.2d at 423. In Thompson v. McNeil (1990), 53
Ohio St.3d 102, 559 N.E.2d 705, we employed the recklessness
standard as enunciated in 2 Restatement of the Law 2d, Torts
(1965), at 587, Section 500: "The actor's conduct is in
reckless disregard of the safety of others if *** such risk is
substantially greater than that which is necessary to make his
conduct negligent."
We approve and adopt the following analysis of the court
of appeals when it considered the claim against defendant Chief
Tyree:
"[A]ppellant argues that Chief Tyree acted in a willful
and wanton manner by knowingly failing to comply with the
minimum jail standards promulgated by the state Department of
Rehabilitation and Correction.
"*** There is no prohibition, in the standards, against
permitting prisoners who do not present a threat to themselves
or others to have smoking materials. Furthermore, appellee
Tyree set forth the departmental policy on smoking in his
deposition. Appellant has submitted no evidence as to how
Riddle obtained the lighter. Appellants do not allege that
Chief Tyree gave the ignition device to Riddle (arguably such
behavior could be considered willful and wanton conduct, given
Riddle's unstable condition at the time of incarceration). In
the absence of this type of behavior, rather than mere
allegations that Chief Tyree committed acts that could be
considered negligent per se, the trial court correctly

determined that summary judgment was appropriate on this
issue." (Emphasis added.)
Although appellants argue that Tyree's failure to maintain
certain safety devices in violation of the standards caused
Fabrey's injuries, a review of the record reveals that Tyree's
conduct, while arguably negligent, does not rise to the level
of wanton misconduct. Tyree apparently did not anticipate that
a prisoner, while locked in a cell, would intentionally set
fire to his own mattress. The General Assembly has declared
that Tyree's mere negligence in his official duties should not
give rise to personal liability. This was properly within its
authority.
For the above-stated reasons, we affirm the judgment of
the court of appeals.
Judgment affirmed.
A.W. Sweeney, Douglas, Wright, Resnick and F.E. Sweeney,
JJ., concur.
Pfeifer, J., dissents.

FOOTNOTE:
1 R.C. 2744.02(B)(4) provides:
"Subject to sections 2744.03 and 2744.05 of the Revised
Code, a political subdivision is liable in damages in a civil
action for injury, death, or loss to persons or property
allegedly caused by an act or omission of the political
subdivision or of any of its employees in connection with a
governmental or proprietary function, as follows:
"***
"(4) Political subdivisions are liable for injury, death,
or loss to persons or property that is caused by the negligence
of their employees and that occurs within or on the grounds of
buildings that are used in connection with the performance of a
governmental function, including, but not limited to, office
buildings and courthouses, but not including jails, places of
juvenile detention, workhouses, or any other detention
facility, as defined in section 2921.01 of the Revised Code."
Pfeifer, J., dissenting. For the reasons stated in my
concurrence in Garrett v. Sandusky (1993), 68 Ohio St.3d 139,
142, 624 N.E.2d 704, 707, it is contrary to Section 16, Article
I of the Ohio Constitution to hold that a governmental entity
is immune from suit simply by virtue of its status as sovereign.