COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72283 ERICA HODGE, ET AL., Plaintiffs-appellants JOURNAL ENTRY vs. AND CITY OF CLEVELAND, ET AL., OPINION Defendants-appellees DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-314029 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiffs-appellants: JOHN T. CASTELE 75 Public Square Cleveland, Ohio 44113-2096 For defendants-appellees: SHARON SOBOL JORDAN Director of Law DONNA M. ANDREW LISA HERBERT Assistant Law Directors Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 ELISE HARA The Root-McBridge Building 1240 West 6th Street, 6th Floor Cleveland, Ohio 44113 -2- KARPINSKI, J.: This case arises from a rape at a municipal recreation center. Plaintiffs-appellants Erica Hodge and her mother and next friend Bennedetta Ayers recovered a judgment against the rapist. They further seek to impose liability for compensatory and punitive damages against defendants-appellees the City of Cleveland and Tim Isaac, one of its employees. Plaintiffs' original complaint was filed against the rapist, Jesse McShan, and the City of Cleveland, Cuyahoga County, Ohio. The complaint alleged that McShan committed a series of intentional malicious criminal acts. Specifically, plaintiffs' complaint alleged that McShan kidnaped, assaulted, and forcibly raped Hodge in the Kovasic [sic] Center ( Center ), a recreation center *** owned and operated by Cleveland. The complaint further alleged that McShan was a volunteer employee of the Center and committed these crimes intentionally, willfully, wantonly and maliciously. The complaint argued that Cleveland had a duty to protect Hodge and was negligent by allowing McShan access to the Center without adequate supervision and by hiring or allowing him to work as a volunteer employee. The complaint did not allege that McShan had a record of prior sexual crimes or misconduct, that the City had a duty to or failed to check his past record, or that the City otherwise knew or should have known of any prior incident or predisposition toward such activity. McShan, who had by this time already been convicted and sentenced to two terms of life imprisonment following his criminal -3- trial, did not answer the complaint.1 Cleveland responded to the complaint by filing a motion to dismiss the negligence claims against it on grounds that it was immune under the political subdivision tort liability act. R.C. Chapter 2744. Plaintiffs thereafter sought to amend their complaint to defeat the asserted statutory immunity. Plaintiff's amended complaint added municipal employees Isaac and John Doe. The only substantive change to the complaint, however, was to insert throughout the original allegations the phrase City and/or its employees and the term negligent and/or reckless, respectively in place of the terms City and negligent. The amended complaint did not make any specific allegations against Isaac or John Doe and no complaint was served on John Doe. 2 Cleveland and Isaac filed a joint motion to dismiss the amended complaint. Cleveland renewed the R.C. 2744 arguments and added a defense under the recreational user statute. R.C. 1533.18 et seq. Isaac argued that the amended complaint did not state a claim against him or identify or refer to any act or omission by him. Specifically, the complaint did not even allege that Isaac was an employee at the recreation center, that he had any management responsibility for hiring or supervising employees of 1 This court affirmed McShan's conviction and sentence of life imprisonment on two counts of rape in State v. McShan (Aug. 28, 1997), Cuyahoga App. No. 71139, unreported. 2 Because no complaint was ever properly served no action was ever commenced against John Doe. See Burgess v. Doe (1996), 116 Ohio App.3d 61, 64; Harris v. Plain Dealer Pub. Co. (1988), 40 Ohio App.3d 127, 129. -4- Cleveland or the Center, or that he had the responsibility at any time for hiring or supervising McShan. The trial court thereafter dismissed the complaint against Cleveland and Isaac. Following this dismissal, plaintiffs sought leave to file a second amended complaint, this time to state that the reference in their (first) amended complaint to City employees was meant to include Isaac and John Doe. The proposed second amended complaint offered no other changes and contained no specific allegations against Isaac or John Doe. The trial court denied further leave to amend the complaint a second time and subsequently granted a default judgment against McShan for $150,000. Plaintiffs timely appeal raising the following sole assignment of error: THE LOWER COURT ERRED IN GRANTING DEFENDANT CITY OF CLEVELAND'S AND DEFENDANTS TIMOTHY ISAAC'S AND JOHN DOE'S MOTION TO DISMISS. This assignment lacks merit. Plaintiffs argue that they sufficiently stated a claim upon which relief can be granted against Cleveland and Isaac for the rape. They contend that neither Cleveland nor Isaac is immune from suit under the R.C. 2744 political subdivision tort liability act. We note at the outset that their brief on appeal, like their original papers filed in the trial court, is remarkably general and bereft of citation to relevant authority.3 3 Because we find that Cleveland is immune under R.C. Chapter 2744, we need not address its claim to immunity under the recreational user statute. R.C. 1533.18. See Mills v. Cleveland (June 15, 1995), Cuyahoga App. No. 67665, unreported at p.6. -5- The standard governing motions to dismiss for failure to state a claim under Civ.R. 12(B)(6) is well established. Fahnbulleh v. Strahan(1995), 73 Ohio St.3d 666, 667; Rich v. Erie Cty. Dept. Of Human Resources (1995), 106 Ohio App.3d 88. This court has summarized the standard governing the dismissal of claims in the context of governmental immunity as follows: A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 605 N.E.2d 378. It is well settled that when a party files a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the non-moving party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, 565 N.E.2d 584, 589, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756. However, while the factual allegations of the complaint are taken as true, the same cannot be said about unsupported conclusions. Unsupported conclusions of a complaint are not considered admitted, *** and are not sufficient to withstand a motion to dismiss.*** (Citations omitted.) State ex rel. Hickman v. Capots (1989), 45 Ohio St.3d 324, 544 N.E.2d 639. In resolving a Civ.R. 12(B)(6) motion, courts are confined to the averments set forth in the complaint and cannot consider outside evidentiary materials unless the motion is converted, with appropriate notice, into one for summary judgment under Civ.R. 56. State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 563 N.E.2d 713. In order for a court to grant a motion to dismiss for failure to state a claim, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245, 71 O.O.2d 223, 224, 327 N.E.2d 753, 755. (Citations omitted in the original.) Inghram v. City of Sheffield Lake, et al. (Mar. 7, 1996), Cuyahoga App. No. 69302, unreported at pp. 5-6 (quoting Thompson v. Cent. Ohio Cellular, Inc. (1994), 93 Ohio App. 3d 530, 538; emphasis added). -6- Reviewing the case at bar in compliance with this standard, we conclude that plaintiffs' complaint fails by its own terms to state a claim for relief against Cleveland or Isaac for the rapist's intentional malicious criminal acts. The complaint reveals that immunity principles preclude recovery against Cleveland, a political subdivision, and Isaac, an employee, for injuries arising from the operation of a municipal recreation center. It is well established that political subdivisions and their employees are immune from civil tort actions under Ohio common law except as provided by statute. They may be held liable only if an exception to immunity applies and no statutory defense bars the claim. Under these principles, the claims asserted in this case face many obstacles to recovery because they arise from the operation of a governmental function, involve discretionary official action, and resulted from criminal conduct by a third- party. We analyze the immunity of Cleveland and Isaac seriatim. City of Cleveland R.C. 2744.01(F) specifically includes municipal corporations such as Cleveland under the definition of political subdivisions. Furthermore, R.C. 2744.02(A)(1) expressly provides that political subdivisions are immune from civil tort actions. This statute, in pertinent part, follows: Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function. -7- Subdivision (B) in turn provides five exceptions to the grant o complete immunity. These exceptions are subject to various additional defenses or immunities in R.C. 2744.03 and damage limitations in R.C. 2744.05. Plaintiffs contend alternately that two of these five exemptions apply in this case.4 R.C. 2744.02(B)(2) provides an exception to immunity for certain claims involving proprietary functions, as distinct from afgovernmental function. 5 However, as noted above, plaintiffs alleged that their claims involved a recreation center. Moreover, R.C. 2744.01(C)(2)(u) specifically defines maintenance, and operation of any *** indoor recreational facility as a governmental function. Plaintiffs' contention that the recreation center in this case constitutes a civic or social center, classified by R.C. 2744.01(G)(2)(e) as a proprietary function, is unpersuasive. R.C. 2744.01(G)(1)(a) expressly defines the term proprietary function, contrary to plaintiffs' argument, as one that is not 4 Plaintiffs do not contend that the exceptions governing motor vehicles, public ways, or liability expressly imposed by statute apply in this case. See R.C. 2744.02(B)(1), (3) and (5), respectively. 5 R.C. 2744.02(B)(2) provides as follows: Political subdivisions are liable for injury, death, or loss to persons or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions. -8- already specified as a governmental function. McCloud v. Nimmer 6 Plaintiffs' specific allegation that the incident occurred at a recreation center, which a statute expressly classifies as a governmental function, precludes any argument that the Center qualifies under the proprietary function exception. We note that even after Cleveland filed two motions to dismiss, plaintiffs did not amend this allegation to alter the alleged nature of the facility, which we must accept as true for purposes of ruling on the motion to dismiss. Accordingly, the exception to immunity in R.C. 2744.02(B)(2) does not apply to plaintiffs' allegations in this case. Plaintiffs alternatively contend that the exception to immunity concerning certain government buildings set forth in R.C. 2744.02(B)(4) 91), 72 Ohio App.3d 533, 538. applies here. Courts have adopted at least three different theories, however, why this exception would not apply under the circumstances of this case. One is that this exception simply does not apply to recreational facilities because the 6 R.C. 2744.01(G)(1)(a) specifically excludes from the definition of proprietary function functions that are specified in division (C)(2) of this section, including indoor recreational facilities under R.C. 2744.01(C)(2)(u). 7 R.C. 2744.02(B)(4) provides as follows: 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. -9- General Assembly intended them to constitute immune governmental fun 8 Another is that this exception for negligence in buildings used for governmental functions is limited by its own terms to governmental buildings similar to office buildings and courthouses. McCloud v. Nimmer, supra at 539. Finally, several courts have construed this exception to apply only to claims that the premises of the governmental buildings were negligently maintained.9In the case at bar plaintiffs never alleged negligent maintenance. The Ohio Supreme Court may clarify the scope of this exception in a pending case;10 however, any of these theories would preclude recovery by plaintiffs in this case. We note that the Eleventh District Court of Appeals has specifically declined to apply this exception in a strikingly similar case when it affirmed the dismissal of claims against a school board following the sexual assault of a student by a substitute teacher. Doe v. Jefferson 8 v. Cleveland .ctions.Mills 67665, unreported (swimming pools); but see d Bd. Of Ed. (Mar. 11, 1993), Cuyahoga App. No. 61808, unreported (ice skating rink). 9 E.g., Doe v. Jefferson Area Local School Dist. (1994), 97Mackulin v. Ohio App.3d 11, 13; Cook v. Hubbard Exempted Village Bd. Of Ed. (1996), 116 Ohio App.3d 564, 570; Hall v. Fort Frye Local School Dist. Bd. Of Ed. (1996), 111 Ohio App.3d 609, 696; but see e.g., Marcum v. Talawanda City Schools (1996), 108 Ohio App.3d 412, 416; Williams v. Columbus Bd. Of Ed. (1992), 82 Ohio App.3d 18, 22. 10 Cater v. Cleveland (1997), 79 Ohio St.3d 1488 and 79 Ohio St. 3d 1490. Just before the decision in the case at bar was issued, the Ohio Supreme Court rendered its decision in Cater. The Court held that the exception to immunity in R.C. 2744.02(B)(4) does not apply to indoor municipal swimming pools defined as governmental functions under R.C. 2744.01(C)(2)(u). Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28. -10- Area Local School Dist., supra at 13. Because Cleveland is immune under R.C. 2744.02(A)(1) and plaintiffs' allegations reveal that no exceptions to immunity under R.C. 2744.02(B) apply, the trial court properly dismissed the claims against Cleveland. Plaintiffs' allegations of intentional or reckless employee misconduct do not alter this conclusion. It is well established that to state a claim for relief against a political subdivision, the claimant must first demonstrate that an exception to statutory immunity applies. Feitshans v. Darke County (1996), 116 Ohio App.3d 14, 22; Farra v. Dayton (1989), 62 Ohio App.3d 487, 496-497. Because plaintiffs have failed to do so in this case, the inquiry is at an end. Plaintiffs' argument to the contrary ignores this threshold requirement. As noted above, R.C. 2744.03 provides various additional defenses which are not triggered or relevant until after an exception to immunity has been established. R.C. 2744.02(B). Citing R.C. 2744.03(A)(6)(b),11 plaintiffs' seek to turn a particular additional defense--available to employees of a municipal subdivision--on its head and transform it into an additional source of substantive liability against the political subdivision. 11 R.C. 2744.03(A)(6)(b) provides as follows: In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division, the employee is immune from liability unless one of the following applies: *** (b) His acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner. -11- However, the Ohio Supreme Court recognized that when no exception to immunity applies *** with respect to governmental functions, political subdivisions retain their cloak of immunity from lawsuits stemming from employees' negligent or reckless acts. There are no exceptions to immunity for the intentional torts***. Wilson v. Stark Cty. Dept. Of Human Serv. (1994), 70 Ohio St.3d 450, 452. Finally, we note that even if an exception to immunity applied under R.C. 2744.02(B)(2) or (B)(4) contrary to the authority cited above, the Supreme Court has also specifically rejected plaintiff's argument seeking to mutate R.C. 2744.03(A)(6)(b) to create liability against a municipality: 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 [the political subdivision.] Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 356. Inghram v. City of Sheffield Lake, et al., supra; Nungester v. Cincinnati (1995), 100 Ohio App.3d 561, 566. It has long been established, contrary to plaintiffs' argument, that municipalities are not liable for intentional torts committed by their employees. Schulman v. Cleveland (1972), 30 Ohio St.2d 196. Plaintiffs have not cited a single case holding a municipality liable for an intentional criminal act based on negligent and/or reckless hiring or supervision. Not surprisingly, even private employers are not liable for sexual -12- assaults committed by employees as alleged in this case. E.g., Taylor v. Doctors Hospital (1985), 21 Ohio App.3d 154, 156.12 One additional defect in plaintiffs' complaint against Cleveland merits comment. It is well established that political subdivisions are not liable for punitive damages. R.C. 2744.05(A); Spires v. Lancaster (1986), 28 Ohio St.3d 76, Ranells v. Cleveland (1975), 41 Ohio St.2d 1. As noted above, any exception to immunity under the political subdivision tort liability act is expressly subject to this limitation on damages. R.C. 2744.02(B). Even if Cleveland were not a municipal corporation entitled to statutory immunity from such claims, however, plaintiffs' complaint failed to sufficiently state a claim against it for punitive damages. Plaintiffs' complaint does not allege that Cleveland authorized, ratified, or participated in any alleged malicious conduct. Such an allegation is required to recover punitive damages vicariously for the acts of others under R.C. 2315.21. See former R.C. 2315.21(B)(1), now R.C. 2315.21(C)(1). Moreover, it should be noted that punitive damages are not recoverable under Ohio law for mere recklessness. Motorists Mut. Ins. Co. v. Said (1992), 63 Ohio St.3d 690. Finally, political subdivisions are not liable for punitive damages even if they are awarded against one of their employees. R.C. 2744.07(A)(2). 12 Even if an exception to immunity applied and plaintiffs sought to invoke R.C. 2744.03(A)(5)(b), which applies to political subdivisions rather than R.C. 2744.03(A)(6)(b), which applies to their employees, their complaint fails to state a claim upon which relief can be granted for the same reasons that it fails to state a claim against their employees, as discussed later. -13- Accordingly, the trial court properly dismissed plaintiffs' complaint against Cleveland. Personal Liability of Public Employees Plaintiffs' brief on appeal contains only a passing reference in three sentences to their claims against municipal employee Tim Isaac. It is well established that employees of political sub- divisions are protected by statutory immunity from personal liability in civil actions for claims arising from their official acts. R.C. 2744.03(A)(6) recognizes only three exceptions to employee immunity. A public employee is personally liable for conduct manifestly outside the scope of his employment or official responsibilities, undertaken with malicious purpose, in bad faith, or in a wanton or reckless manner, or when liability is expressly imposed by statute. See R.C. 2744.03(A)(6)(a), (b) and (c), respectively. Plaintiffs' amended complaint sought to impose personal liability against Isaac for the rape and kidnapping at the recreation center by alleging that Cleveland and/or its employees were negligent and/or reckless. As noted above, however, the amended complaint did not allege any operative facts whatsoever concerning Isaac: for example, it did not even allege that he had a position or any responsibility for hiring or supervising employees of Cleveland, did not assert that he was an employee at the recreation center, and did not identify or refer to any act or omission by him. -14- Plaintiffs apparently sought to invoke the exception to public employee immunity set forth in 2744.03(A)(6)(b) simply by using the magic word reckless. We note at the outset that such a maneuver would clearly not, by its own terms, preclude dismissal of the claims against Isaac based on negligence. More importantly, however, plaintiffs fail to provide any operative factual basis for their allegation of recklessness. As noted above, the complaint in this case seeks to recover for intentional, willful, wanton, malicious criminal acts of kidnap, assault and forcible rape committed by a third-party. The question is whether the naked use of the term reckless, asserted against a public employee for the first time in an amended complaint otherwise devoid of operative factual allegations of any kind concerning the employee, is sufficient to state a claim for personal liability against the employee. This court has previously held that such allegations were insufficient under strikingly similar circumstances in Keller v. City of East Cleveland, et al. (Aug. 10, 1989), Cuyahoga App. No. 55773, unreported. Keller sought to recover for injuries suffered from an assault by an escaped prisoner. The prisoner had been arrested for committing crimes against her and returned after his escape from custody to throw her out a third story window. She raised claims against a municipality and alleged that its mayor and safety director, its police chief, and two police officers acted in a wanton and/or reckless manner by allowing the prisoner to escape and by failing to properly supervise the police officers. -15- Affirming the dismissal of her complaint against all defendants, this court stated as follows: *** Appellant's complaint fails to allege a sufficiently stated claim of wanton and/or reckless acts and misconduct on the part of the appellees. In fact, no operative facts are contained in the complaint to state with any specificity a claim of wanton and/or reckless conduct against the appellees. A mere allegation of wanton and/or reckless misconduct is not sufficient to survive a motion to dismiss in the context of sovereign immunity and R.C. Chapter 2744. Id. at p. 4. The complaint in the case at bar was similarly deficient. Moreover, unlike the complaint in Keller, the complaint herein did not even allege the capacity of Isaac to take any action or that anything occurred before the attack to provide forewarning. As noted above, the Ohio Supreme Court likewise recently affirmed the dismissal of a complaint against a municipal employee on the grounds that the complaint contained no factual allegations that would remove appellees from the protection of R.C. 2744.03. Fahnbulleh v. Strahan, supra at 667. As a result, because the tortfeasors were immune from liability, the plaintiff was denied any recovery from the municipality, the employee, or his own uninsured motorist carrier after his vehicle was struck by a fire truck making an improper left turn. The Ohio Supreme Court has recognized that dismissal of conclusory allegations is warranted even in cases when no question of employee or governmental immunity arose. E.g., Byrd v. Faber, supra; Mitchell v. Lawson Milk Co., supra. It is well established that the obligation to accept factual allegations in a complaint as true does not extend to unsupported legal conclusions. -16- Simplified pleading under Rule 8 does not mean that the pleader may ignore the operative grounds underlying a claim for relief. Staff Notes to Civ.R. 8(A). Ohio courts frequently cite cases involving the dismissal of claims under the Federal Rules of Civil Procedure, because the relevant provisions are substantively identical to the Ohio Civil Rules and provided the model for them. E.g. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, citing Conley v. Gibson (1957), 355 U.S. 41. Federal courts require more than vague conclusory allegations to state federal claims against federal officials or public employees of state political subdivisions. E.g. Butz v. Economou (1978), 438 U.S. 478, 508; GJR Investments, Inc. v. County of Escambia, Fla. (11th Cir. 1998), 132 F.3d 1359. Federal courts continue to apply this reasoning to federal civil rights claims against state employees. E.g., Jordan v. Jackson (4th Cir. 1994), 15 F.3d 336, 339 n.5; Badd v. Dorman (5thCir. 1994), 35 F.3d 472, 477; Veney v. Hogan (6th Cir. 1995), 70 F.3d 917, 921; Eddington v. Missouri Dept. Of Corrections (8th Cir. 1995), 52 F.3d 777, 779 n.3; Branch v. Turrell (9th Cir. 1994), 14 F.3d 449. Plaintiffs had an opportunity in the case at bar to amend their complaint to sufficiently state a claim upon which relief could be granted. However, they simply added the name of Isaac and did not make any specific allegations against him or even identify or refer to any action or omission by him. The amended complaint does not even allege that Isaac was an employee at the recreation -17- center or that he had any management responsibility for hiring or supervising employees of Cleveland or the recreation center. Nor is there any allegation that McShan had a criminal record or previously committed such an offense, that Isaac had a duty to make a record check or otherwise knew or should have known of McShan's predisposition toward such activity. Ohio courts have routinely rejected attempts to cure deficient complaints, as in this case, by pleading legal conclusions against public employees without any supporting factual basis to defeat statutory immunity. E.g., Fish v. Coffey (1986), 33 Ohio App.3d 129, 131-132 (an amendment to add the phrase wilful or wanton conduct to defeat immunity under former R.C. 701.02 was insufficient to defeat statutory immunity, without new allegations of any operative facts which might establish wilful or wanton conduct. ) Accord Solowitch v. Bennett (1982), 8 Ohio App.3d 115 (in which this court held the same regarding amendments to allege wanton and reckless manner without operative facts to defeat immunity under R.C. 9.86). Under the circumstances, the trial court properly declined this expedient to circumvent a public employee's statutory immunity for the criminal rape committed by McShan in this case. Statutory immunity granted public employees would have little meaning if those granted immunity were forced to litigate claims against them arising out of criminal acts by third parties whenever the simple phrase reckless manner is uttered in a complaint without any supporting operative facts. -18- The concurring and dissenting opinion asserts a position that could be termed respondeat inferior : a municipal employer may be dismissed, but not the employee who is sued in his personal capacity on the same claim with no specific allegation against him. In support of this distinction, the dissent argues there is no controlling legal authority and ignores this Court's unreported opinion to the contrary in Keller--a case precisely on point. However, the same rule the dissent cites also provides that unpublished opinions, such as Keller, shall be considered persuasive authority. Rep R 2(G)(2) We are persuaded, even if not controlled, by Keller and the other case law cited above. The dissent purports to follow, instead, York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, which it finds controlling. Unlike the case at bar, however, York did not involve a naked allegation of recklessness: The allegation was that patrolmen needlessly, willfully and maliciously pursued the decedent and used excessive force. Id. at pp. 143 and 145. Moreover, again unlike the case at bar, the claim in York was against the state, not an employee in his personal capacity, and it did not arise from a crime committed by a third-party. Nothing in York suggests, let alone mandates, that public employees be made vicariously responsible when their public employers are not. Requiring that some factual allegation be made against a public employee is no more burdensome than that required to state a claim for relief against any other person under any other circumstances. This is true even without considering the -19- statutory immunity granted public employees by the General Assembly as a matter of substantive law. It should be noted that persons seeking to recover under these circumstances are not without a remedy. If discovery of additional information, after completion of the criminal case, was necessary to state a claim for relief against a political subdivision or employee, an appropriate remedy is to file a complaint for discovery under R.C. 2317.48. An additional source of information is via the Ohio Public Records Act. R.C. 139.43. Even if substantive tort claims are barred by immunity principles, however, eligible persons are nevertheless entitled to recovery under the crime victim compensation program. R.C. 2743.51 et seq. Accordingly, plaintiffs' sole assignment of error is overruled. -20- Judgment affirmed. It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, J., CONCURS; TERRENCE O'D0NNELL, P.J., CONCURS AND DISSENTS (See Separate Opinion). DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72283 ERICA HODGE, ET AL. : : Plaintiffs-Appellants : CONCURRING : AND v. : DISSENTING : OPINION CITY OF CLEVELAND, ET AL. : : Defendants-Appellees : DATE: OCTOBER 22, 1998 JUDGE TERRENCE O'DONNELL CONCURRING AND DISSENTING: I concur with the majority's decision that the City of Cleveland is immune from liability in connection with the tragic events in this case, however, I respectfully dissent from the majority's conclusion that the complaint against Tim Isaac was deficient and therefore subject to dismissal. In York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, the Supreme Court addressed this precise issue in connection with a pleading containing allegations that police officers willfully and maliciously pursued a decedent in a high speed chase thereby causing his death, and stated in relevant part at 144-145: [The] standard for granting a motion to dismiss is in accord with the notice pleading regimen set up by the Federal Rules of Civil Procedure and incorporated into the Ohio Rules of Civil Procedure. Under these rules, a plaintiff is not required to prove his or her case at the pleading stage. Very often, the evidence necessary for a plaintiff to prevail is not obtained until the plaintiff is able to discover materials in the defendant's possession. If the plaintiff were required to prove his or her case in the complaint, many -2- valid claims would be dismissed because of the plaintiff's lack of access to relevant evidence. Consequently, as long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss. Here, appellants allege the following in count one of their amended complaint: 1. At all times relevant Plaintiffs were and remain residents of the City of Cleveland, Cuyahoga County, Ohio. 2. At all times relevant, Defendant, City of Cleveland ( City ), was and is located in the City of Cleveland, Cuyahoga County, Ohio. 3. At all times relevant Defendant Jesse McShan ( McShan ) was a resident of the City of Cleveland, Cuyahoga County, Ohio. 4. At all times relevant, Defendants, Tim Isaac and John Doe were employees of the City of Cleveland. 5. That on or about April 11, 1996 Plaintiff Erica Hodge, a minor of seven years of age, was at the Kovasic Center ( Center ), a recreation center located at 6250 St. Clair Avenue, Cleveland, Ohio, which was and is owned and operated by Defendant, City of Cleveland. 6. That while inside the Center, Erica Hodge was kidnapped, assaulted and forcibly raped by Defendant McShan, a volunteer employee of the Center. 7. That the City and its employees owed a duty to Erica Hodge to protect her from the vicious assault and forcible rape committed against her by Defendant McShan. 8. That as a direct and proximate result of the City's and/or its employees' negligence and/or recklessness, Erica Hodge suffered physical, emotional and psychological injuries from the kidnapping, assault and rape all which required treatment at Rainbow's Babies' and Childrens' Hospital. 9. Further, that as a result of being raped at the Center, Erica Hodge, through her mother, Plaintiff, Bennedetta Ayers, has incurred hospital and medical expenses and can expect to incur further expense for -3- continued pain, suffering and psychological trauma for the rest of her life. (Emphasis added). Further, in count two of their complaint, appellants assert in relevant part: 10. * * * the City and/or its employees were negligent and/or reckless in allowing Defendant McShan access to children in the Center without adequate supervision of his activities, thereby enabling him the opportunity to commit the assault and rape of Plaintiff Erica Hodge. 11. That the City's and/or its employees' negligent and/or reckless supervision of its volunteer employee was a direct and proximate cause of the injuries suffered by Erica Hodge. * * * 13. That as a direct and proximate result of the City's and/or its employees' negligent and/or reckless supervision of McShan, Erica Hodge was kidnapped, assaulted and forcibly raped by Defendant McShan, thereby suffering physical and psychological injuries which are likely to continue for the rest of her life. (Emphasis added). In count three, appellants allege: 14. * * * the City and/or its employees were negligent and/or recklessin hiring McShan or in allowing him to work at the Center as a volunteer employee. 15. That as a direct and proximate result of the City's and/or its employees' negligence and/or recklessness in hiring McShan, Erica Hodge was kidnapped, assaulted and forcibly raped by Defendant McShan, thereby suffering physical and psychological injuries which are likely to continue for the rest of her life. (Emphasis added). Accordingly, in my view, the appellants' amended complaint in this case, as in York v. Ohio State Highway Patrol, supra, sets forth a set of facts which would allow them to recover and the court should not have granted the motion to dismiss as to Tim Isaac. -4- The majority here, however, attempts to justify its conclusion to the contrary by relying on four Ohio cases: Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666; Byrd v. Faber (1991), 57 Ohio St.3d 56; Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190; and Keller v. East Cleveland (August 10, 1989), Cuyahoga App. No. 55773, unreported. However, in Fahnbulleh v. Strahan, supra, the complaint there alleged only negligence, and the court never addressed the question of whether the plaintiff pled his claim with particularity. Moreover, the court stated at 667: A complaint should not be dismissed for failure to state a claim merely because the allegations do not support the legal theory on which the plaintiff relies. Instead, a trial court must examine the complaint to determine if the allegations provide for relief on any possible theory. Regarding Byrd v. Faber and Mitchell v. Lawson Milk Co., supra, the Supreme Court discussed these cases in York v. Ohio State Highway Patrol, supra, and observed first in Mitchell v. Lawson Milk Co., supra, that [i]n construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. And at 145, articulated why, in my view, the majority reaches the wrong conclusion on this issue: In a few carefully circumscribed cases, this court has modified the standard for granting a motion to dismiss by requiring that the plaintiff plead operative facts with particularity. See Mitchell v. Lawson Milk Co., supra (when a plaintiff brings an intentional tort claim against an employer he -5- must plead operative facts with particularity); Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E. 2d 584 (when a plaintiff brings a negligent hiring claim against a religious institution, he must plead operative facts with particularity); * * *. Hence, in my opinion, these cases are not controlling precedent as the majority implies. Rather, the controlling law, in my view, is set forth by the court in York v. Ohio State Highway Patrol, supra, at 145, where the court considered a case like this one involving immunity: Given the immunity provisions contained in R.C. 2744.02(B), the difficulties of obtaining relevant evidence from the government, and the absence of a strong public policy argument, we see no reason for holding plaintiffs who bring reckless pursuit claims against the state to a heightened pleading standard. Plainly stated, the heightened pleading standard does not apply to the claims presented by Erica Hodge and her mother in this instance. The majority also relies on an unreported case from this district, Keller v. East Cleveland, supra, where this court stated that a mere allegation of recklessness in a complaint, unsupported by particularized operative facts, is not sufficient to survive a motion to dismiss in the context of sovereign immunity. However, an unofficially published or unpublished opinion shall not be considered controlling authority in the judicial district in which it was decided except between the parties to that case. See S.Ct.R.Rep.Op. 2(G)(1). Accordingly, I concur with the majority's determination that the City is immune from liability in connection with the events -6- that occurred at the Kovasic Center, but I dissent from the majority's conclusion that Erica Hodge and Bennedetta Ayers failed .