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The Estate of Jillian Marie Graves v. The City of Circleville et al., Case no. 2009-0014
4th District Court of Appeals (Ross County)
Osnaburg Township Zoning Inspector v. Eslich Environmental Inc. v. Osnaburg Township et al., Case no. 2009-0228
5th District Court of Appeals (Stark County)
State of Ohio v. Lynn Roberts, Case no. 2009-0299
1st District Court of Appeals (Hamilton County)
State of Ohio v. Darnell Jones, Case no. 2009-0364
2nd District Court of Appeals (Montgomery County)
Does Intent of Police Officer Affect Immunity From Civil Liability for Failure to Perform a ‘Public Duty?’
The Estate of Jillian Marie Graves v. The City of Circleville et al., Case no. 2009-0014
4th District Court of Appeals (Ross County)
ISSUE: When a police officer is sued by an injured party for failing to follow a statutory requirement in the performance of his job duties, is the officer exempt from personal liability if he can show that the act he failed to perform was a “public duty” owed to all citizens collectively, as opposed to an individualized duty owed specifically to the injured party?
BACKGROUND: The estate of Jillian Graves sued the city of Circleville and police officers Peter Shaw, William Eversole and Benjamin Carpenter as individuals, seeking damages for Graves’ wrongful death. The suit alleged that the officers failed to prevent Cornelius Copley from retrieving his vehicle from a police impound lot on the day after his arrest for DUI despite a state law requiring that Copley’s car and license plates remain impounded until after his initial court appearance on the DUI charge. One day later, while again driving intoxicated, Copley caused a head-on crash on U.S. 23 in Ross County in which both he and Graves were killed.
The officers filed a motion for summary judgment dismissing the estate’s claims against them as individuals under R.C. 2744.03, a provision of state law granting general immunity from civil liability to political subdivisions and their employees for injuries to others arising from the performance of an employee’s official duties. The trial court denied the summary judgment motion. The officers appealed that ruling.
On review, the 4th District Court of Appeals voted 2-1 to affirm the trial court’s decision and remanded the case for further proceedings on the estate’s claims against the officers. The appellate majority acknowledged the officers’ argument that a 1988 Supreme Court of Ohio decision, Sawicki v. Ottawa Hills, established a common law exemption from civil liability for injuries that are caused by a public employee’s breach of a “public duty,” i.e., a general duty owed to all citizens rather than an individualized duty owed to a specific injured party. The 4th District held, however, that the legislature’s enactment of R.C. Chapter 2744.03(A)(6) after Sawicki was decided showed legislative intent to bar application of the “public duty” exemption from liability in cases where a public employee’s act or omission that caused injury was “wanton or reckless” in nature. In this case, the 4th District held, the officers were not entitled to summary judgment because it was possible that a reasonable judge or jury could conclude that the officers’ acts or omissions that enabled Copley to prematurely regain access to his car were wanton or reckless, which would defeat the officers’ claim of immunity and entitle the estate to recover on its claims against them.
The officers sought and were granted Supreme Court review of the 4th District’s ruling.
Attorneys for officers Shaw, Eversole and Carpenter argue that the court of appeals majority erred in failing to recognize that the “public duty” doctrine set forth in Sawicki and subsequent Ohio court cases was not superseded or limited by the enactment of R.C. Chapter 2744. They contend that in cases where a plaintiff asserts individual claims against a public employee based on a failure to properly perform his or her job duties, the trial court must determine as a threshold matter whether the defendant owed a personal duty to the injured party or if the duty that the employee is alleged to have breached was a general duty owed to all members of the public.
If the duty breached was a “public duty,” rather than a private one, they assert, the defendant is entitled to immediate dismissal of the plaintiff’s claim because all tort claims require as an essential element that the defendant owed a particularized duty of care to the injured party. In the absence of a finding that the officers owed an individualized duty to protect Graves, they argue, there can be no finding of liability against the officers and analysis of whether their acts or omissions were “wanton or reckless” under provisions of R.C. 2744.02 is immaterial.
Attorneys for the Graves estate urge the Court to affirm the trial and appellate court rulings denying summary judgment to the officers and allowing the lawsuit against them to move forward. They argue that under the defendants’ interpretation of the law, police officers and other public employees would have blanket immunity from any personal liability for their on-the-job actions, regardless of how wanton or reckless, so long as the law or rule they failed to follow imposed only a general duty to protect the public at large. They assert that, in enacting R.C. 2744.02(A)(6), which specifically excepts wanton and reckless acts or omissions from the general immunity of public employees, the legislature intended to allow injured parties to seek recovery from individual officers when it can be shown that they acted contrary to law and established procedures, and without reasonable regard for the danger to others that was likely to result from their improper conduct.
[Note: Multiple amicus curiae (friend of the court) briefs supporting the position of the police officers have been filed by organizations including the Ohio Patrolmen’s Benevolent Association, Ohio Township Association, County Commissioners Association of Ohio, Ohio School Boards Association and Ohio Association of Civil Trial Attorneys. An amicus brief supporting the position of the Graves estate has been filed by the Ohio Association for Justice.]
Contacts
John T. McLandrich, 440.248.7906, for officers Peter Shaw, William Eversole and Benjamin Carpenter.
Rex H. Elliott, 614.481.6000, for the Estate of Jillian Graves.
Does State Regulatory Scheme for Construction Landfills Preempt Township From Enforcing Local Zoning Code?
Osnaburg Township Zoning Inspector v. Eslich Environmental Inc. v. Osnaburg Township et al., Case no. 2009-0228
5th District Court of Appeals (Stark County)
ISSUE: In determining whether there is a conflict between a township’s zoning code and the state law regulating construction and demolition debris (C&DD) landfills, should a reviewing court consider only the local zoning ordinance applicable to the specific location where a proposed landfill would be sited or expanded, or examine the entire zoning code to determine if landfills are permitted but limited to differently zoned areas of the township?
BACKGROUND: In 1989, Eslich Environmental Inc. purchased a 175-acre parcel of land located in Osnaburg Township in Stark County for the purpose of operating a C&DD landfill. The parcel was located in an area zoned for single family residences, in which landfill operation is not a permitted use, but in March 1990, the township’s board of zoning appeals granted a certificate of nonconforming use authorizing the operation of a landfill on the Eslich property. Under Article X of the township zoning code, any property owner wishing to later expand the portion of its property previously approved for a nonconforming use was required to obtain prior approval of the board of zoning appeals.
In July 1990, the state legislature enacted R.C. Chapter 3714 which established a uniform statewide regulatory scheme for the licensing, location and operation of construction and demolition debris landfills. The statutory scheme granted jurisdiction to the Ohio Environmental Protection Agency and local boards of health to administer a licensing and permit system for landfill operators and to prescribe administrative rules for the safe operation of such facilities. Eslich obtained a license from the Stark County Board of Health approving the use of 20.2 acres of its property as a “licensed active disposal” area and another 8.5 acres as an “inactive licensed disposal area.” That license was renewed annually by Eslich from 1991 through 1996, and by Stark C & D, a lessee who took over operation of the landfill from 1996 to the present.
In 2006, Stark C & D applied to the health department for an increase in the area of the property licensed as “inactive disposal area” from 8.5 to 95.5 acres. Eslich did not notify the township zoning board about the application or seek the board’s approval of the expansion of a nonconforming use of the land pursuant to Article X of the zoning code. The township zoning inspector filed suit in the Stark County Court of Common Pleas seeking a restraining order to prevent expansion of the landfill until and unless the property owner obtained approval from the zoning board. Eslich filed a counter-claim, seeking summary judgment that Article X of the township zoning code was void and unenforceable because it was in conflict with and therefore preempted by the provisions of R.C. Chapter 3714 giving the Ohio EPA and local health departments exclusive authority to regulate C&DD landfills. The trial court granted summary judgment on the preemption issue in favor of Eslich.
The township and zoning inspector appealed that ruling. On review, the 5th District Court of Appeals affirmed the decision of the trial court. The appellate panel found that because the county health department had licensed the landfill in its present location pursuant to R.C. Chapter 3714, while the township zoning ordinance limited use of that land to single-family residences, the ordinance was in conflict with the state law, and the state law took precedence. The township and zoning inspector sought and were granted Supreme Court review of the lower court rulings.
Attorneys for the township and zoning inspector argue that the court of appeals based it decision on a misreading of this Court’s 1999 ruling in Sheffield v. Rowland. In that case, they say, the Supreme Court found a conflict between R.C. Chapter 3714 and a township ordinance that completely barred the operation of a C&DD landfill anywhere in the township. They note that the Osnaburg zoning code does not bar landfills, but permissibly restricts such land use to parcels that are zoned as industrial. They argue that both the trial and appellate courts erred by comparing the state law only to the ordinance addressing single-family zoning, and assert that when the state landfill licensing law is compared with the full text of the township zoning code, there is no conflict because the code does provide a local zoning option for a construction landfill.
Attorneys for Eslich urge the Court to affirm the 5th District’s holding that there is a conflict between the township’s zoning code and R.C. Chapter 3744 because the state law authorizes the EPA and local health department to make final decisions about the appropriate location, operation and expansion of construction landfills, while the Osnaburg township zoning ordinances prohibit such activity on 99 percent of the land within the township, and place extensive limitations on the ability of the landfill operator to use its property despite having obtained approval for nonconforming use of the entire 175-acre site.
Contacts
Amy A. Sabino, 330.451.7897, for Osnaburg Township Trustees and Board of Zoning Appeals.
Michael A. Cyphert, 216.781.1212, for Eslich Environmental Inc.
Did Corrections Department Error Subject Offender to Reimprisonment After Earning Early Release?
State of Ohio v. Lynn Roberts, Case no. 2009-0299
1st District Court of Appeals (Hamilton County)
ISSUE: When the Ohio Department of Rehabilitation and Corrections (ODRC) offers an eligible prisoner the option of participating in an Intensive Prison Program (IPP) through which he can earn early release, and the prisoner has successfully completed the program and been released from prison, does the subsequent discovery of a procedural error by ODRC staff in failing to properly notify the sentencing judge about the IPP offer void the grant of early release and give the sentencing court jurisdiction to resentence the offender and return him to prison?
BACKGROUND: Lynn Roberts of Cincinnati was convicted in 2006 on separate counts of possession of heroin and trafficking in heroin, and sentenced to five years’ imprisonment for trafficking and 18 months for possession, with the sentences to be served concurrently. Roberts appealed his convictions, alleging that the guilty verdicts were contrary to the weight of the evidence.
While his appeal was pending, Roberts began serving his prison term. As part of its intake procedures, the ODRC assessed Roberts’ eligibility for assignment to an Intensive Prison Program. Such facilities, provided for in R.C. Section 5130.032, are restricted to certain non-violent, non-repeat offenders who are assessed to be amenable to rapid rehabilitation through an intensive program involving substance abuse treatment, educational skills enhancement, vocational training, public service work or a combination of these and other regimens. The statute authorizes DRC to grant early release to IPP inmates who successfully complete the intensive rehabilitation program to which they are assigned, subject to continuing supervision during a term of post-release control.
After assessing Roberts to be eligible for assignment to IPP, an ODRC classification specialist attempted to contact Judge Fred Cartolano, the judge who presided at Roberts’ trial and whose name appeared on the judgment entry recording his convictions, in order to comply with a statutory requirement that the “sentencing court” must be notified about the proposed placement of an offender in an IPP and given a 10-day window within which to veto the placement. The statute specifies that if no reply is received from the sentencing court within 10 days of notification, ODRC may proceed with the IPP placement. The judgment entry did not indicate that Roberts’ case had been officially assigned to the docket of Judge Ralph Winkler, who had then transferred it to Judge Cartolano to hear as a visiting judge.
When she was unable to find Judge Cartolano in a judicial directory, the ODRC employee called the Hamilton County Clerk of Courts office and was told that Judge Cartolano had retired, and cases left over from his docket had been assigned to his successor, Judge Fred Nelson. The employee faxed a notice of Roberts’ proposed IPP assignment to a number provided by the clerk’s office for Judge Nelson’s office, and obtained a printout indicating that the fax had been successfully transmitted. When no reply from the court was received after 10 days, Roberts was admitted to the IPP program.
Roberts successfully completed his IPP program in July 2007, and was subsequently released from prison by ODRC subject to a term of post release control. Meanwhile, his appeal remained pending before the 1st District Court of Appeals.
In September 2007, the 1st District rejected all of Roberts’ assignments of error, but remanded his case to the trial court for resentencing based on an intervening ruling by the Supreme Court that drug possession and drug trafficking are “allied offenses of similar import” that by law must be combined into a single conviction subject to a single sentence. The remand order was delivered to Judge Winkler, who directed that a notice of a resentencing hearing be served on Roberts in prison. ODRC responded by informing the court that Roberts had been released. After reviewing ODRC’s account of its actions and finding no record that a prior notification about Roberts’ IPP assignment had been properly delivered to him, to Judge Cartolano or to Judge Nelson, Judge Winkler ordered Roberts to appear before his court for resentencing pursuant to the court of appeals’ ruling.
Roberts unsuccessfully sought a writ of prohibition barring his resentencing, and then filed a pretrial motion in the resentencing proceeding seeking dismissal on the ground that the trial court lacked jurisdiction to resentence him because he had already completed his sentence. Judge Winkler denied the motion to dismiss on the basis that Roberts IPP placement and resulting early release were contrary to law because ODRC had failed to comply with the mandatory requirement that it notify the “sentencing court,” and allow the judge the opportunity to allow or disallow that placement. The judge then consolidated Roberts’ drug possession and trafficking counts into a single conviction for trafficking, and sentenced Roberts to five years on that count, with credit for the time he had already served.
Roberts appealed his resentencing. In a 2-1 decision, the court of appeals upheld the trial court’s action, holding that because ODRC failed to comply with the mandatory notification requirement of R.C. 5130.032, its early release of Roberts based on his completion of the IPP program was void and unenforceable. Roberts now asks the Supreme Court to vacate his sentence based on prior court decisions holding that, once a prisoner has been duly released from custody, a trial court no longer has jurisdiction to resentence him based on the same conviction. His attorneys also urge the Court to vacate his resentencing based on the legal principle of “promissory estoppel,” which states that when a party can show that it acted to its own expense or detriment in reliance on the promise of another party to act or abstain from acting in a specified way, the party making the promise is legally bound to comply with the terms of its promise. In this case, they say, the state through the ODRC promised that Roberts’ successful completion of his IPP program would result in his early release, and Roberts did everything the state demanded in earning that benefit. They also point out that Roberts had no control over the acts or omissions of the ODRC in notifying the correct court or judge, and argue that it is manifestly unjust that he be punished by being returned to prison as a result of clerical mistakes the state made in processing his case.
The state, represented by the Hamilton County prosecutor’s office, responds that ODRC had no authority to assign Roberts to an IPP program without first complying with the mandatory procedures for obtaining judicial consent, and say that the department’s failure to notify any judge at the Hamilton County Court of Common Pleas about the proposed IPP assignment by either certified mail or email rendered any subsequent actions or promises by the Department void from the beginning. They point out that Roberts could have dismissed his appeal to the 1st District at any time after filing it but did not, and it was not any action initiated by the state but rather the court of appeals ruling on his own appeal that resulted in his resentencing. They also note that the theory of promissory estoppel has traditionally been applied only in disputes between private parties, and has not been recognized in civil or criminal cases in which the state is a party.
Contacts
Scott M. Heenan, 513.946.3227, for the state and Hamilton County prosecutor’s office.
Robert R. Hastings Jr., 513.946.3700, for Lynn Roberts.
Does Owner Have ‘Expectation of Privacy’ in Closed Shopping Bag Inside Motel Room?
State of Ohio v. Darnell Jones, Case no. 2009-0364
2nd District Court of Appeals (Montgomery County)
ISSUE: Under circumstances where police may constitutionally conduct a warrantless search of a motel room, does an occupant who is not under arrest and has a key to the room have a “reasonable expectation of privacy” in the contents of a closed container in that room that bars police from opening and searching the container without a warrant?
BACKGROUND: Terry Taylor, Darnell Jones and a woman occupied a Dayton motel room overnight. The following morning when Taylor returned in a borrowed car to pick up Jones and the woman, he was followed into the motel lot by a police car and cited for making an illegal turn. When a computer check showed that he had no driver license, Taylor was placed under arrest. At that moment, Jones emerged from the room carrying a closed and rolled-up plastic shopping bag. Officers asked Jones if he had a valid driver license and could take charge of Taylor’s car. Jones said he did not, but the woman in the motel room did. He went back into the room and emerged a moment later with the woman but without the shopping bag. In checking the woman’s license, police found that there was an outstanding warrant for her arrest and also placed her in custody. When officers asked Jones for some form of identification, he said he only had a fake ID he used to get into clubs, but gave a social security number. After checking that number, officers doubted that it belonged to Jones because he appeared to be taller than the description they had of the person associated with that number.
When asked, Jones denied that the motel room was his, as did both Taylor and the woman. Noting that the door had not been completely closed, officers announced that they were going to search the room to determine if documents establishing Jones’ true identity were inside. They discovered the closed and rolled up shopping bag in a semi-concealed location between one of the beds and a bedside night stand. Officers opened and looked in the bag, and found both powdered and crack cocaine and drug paraphernalia.
Based on the evidence found in the shopping bag, Jones was arrested and charged with felony drug possession and possession of criminal tools. Jones filed a pretrial motion seeking suppression of all evidence discovered in the shopping bag, arguing that police had no probable cause to suspect that the motel room or shopping bag contained contraband and no right to conduct a search of either the room or a closed container within the room without first obtaining a search warrant. The trial court denied the motion to suppress, finding that by leaving the bag in the motel room and denying to officers that the room was his, Jones had in effect “abandoned” the bag and therefore had no reasonable expectation of privacy in either the bag or its contents.
After the suppression ruling, Jones accepted a plea bargain and was convicted on a single count of cocaine possession. He then appealed the trial court’s ruling denying suppression of the evidence from the motel room search. The 2nd District Court of Appeals held that because Jones had denied that the room was his and the door was left partially open, a warrantless search of the room itself was permissible. The court went on, however, to find that Jones had not abandoned his shopping bag by leaving it in a motel room in which he had stayed the preceding night and to which he still had a key, and that Jones therefore had a reasonable expectation of privacy in the closed container and its contents that barred police from opening or searching the bag without either a search warrant or probable cause to believe that it contained contraband. Based on that holding, the court of appeals vacated Jones’ conviction and remanded the case to the trial court with a directive that all evidence obtained through the unconstitutional search of the bag must be excluded. The state sought and was granted Supreme Court review of the 2nd District’s decision.
The Montgomery County prosecutor’s office urges the Court to overrule the court of appeals and affirm the trial court’s reasoning that by leaving his shopping bag in an open motel room that he denied was his, Jones had abandoned it and therefore also abandoned any expectation of privacy in the bag or its contents. They point to multiple prior court decisions holding that when a criminal defendant discards contraband while fleeing police or officers find materials including luggage or closed containers unattended on the ground, in a trash receptacle or in a public place, the owner has no expectation of privacy and police may open and search such materials without first obtaining a warrant. They also argue that the 2nd District erred in holding that a person who has no expectation of privacy in a location that may be searched without a warrant can still have an expectation of privacy in objects that are found during a lawful search of that location.
Attorneys for Jones argue that the court decisions cited by the state all addressed situations in which police found materials or containers lying on the ground or left unattended in public places where any passer-by could pick them up and look inside. They assert the that 2nd District correctly distinguished those cases from others in which courts have held that a guest or temporary occupant of a private residence or hotel room, even though not the owner or registered party, still has an expectation of privacy in his possessions when they are not left in plain sight, when the general public does not have access to the location and when the owner has not left the material unattended or disclaimed ownership. In this case, they say, the 2nd District correctly found that Jones did not abandon the shopping bag and therefore had an expectation of privacy in its contents because he still had access to the motel room by virtue of his key, the bag was placed where it was not in plain sight, and Jones had not denied ownership.
Contacts
Johnna M. Shia, 937.225.5600, for the state and Montgomery County prosecutor’s office.
Lucas W. Wilder, 937.232.6250, for Darnell Jones.
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.