“Based on the record before us, even when viewed in a light most favorable to the family, reasonable minds can come to only one conclusion: appellants were not reckless.”

Justice Fischer, Opinion of the Court

On November 10, 2020, the Supreme Court of Ohio handed down a merit decision in A.J.R. v. Lute, 2020-Ohio-5168. In a unanimous opinion written by Justice Fischer, the Court held that the family of a young girl who claimed to have been bullied at school failed to produce sufficient evidence to hold the educators involved liable. Justice Kennedy concurred in judgment only, without explanation.  The case was argued July 8, 2020.

Case Background

This case is very fact intensive.

Parties

A.J.R. was a kindergartner at the time of the alleged bullying in this case. Her parents are A.R. and C.R. (collectively, “the family”). The appellants are Amanda Lute, A.J.R.’s former kindergarten teacher, Cynthia Skaff, the acting assistant principal at A.J.R.’s former school, and Ralph Schade, the principal of A.J.R.’s former school (collectively, “the educators” ). The student who allegedly bullied A.J.R. is identified as “S.”

The Family’s Allegations

The family filed a lawsuit against the educators, alleging they were reckless in handling the alleged bullying of A.J.R. by S.

The family alleged that A.J.R. was subjected to various forms of bullying by S., including name-calling, teasing, social exclusion, and physical bullying, and that they repeatedly notified the educators of this bullying by S. A.J.R.’s parents alleged that this pattern of bullying culminated in S. assaulting A.J.R. with a sharpened pencil causing a puncture wound to A.R.J.’s face, and that the educators failed to take appropriate action to address this situation, specifically including allowing A.J.R. and S. to be seated at the same table the day this happened.

Educators’ Response to the Family’s Allegations

Collectively, the educators claimed they took all necessary steps to deal with the reports of bullying they received from A.J.R.’s parents.

Schade said that once he had learned that A.J.R. had been teased by other students including S., he spoke to all of them and the teasing stopped. He also visited A.J.R. herself on many occasions and believed the two had a good relationship. He said he was sure that A.J.R. would have told him if anything was amiss, but she always assured him all was well. He added that A.J.R. often sat with S.   Skiff said that after speaking with everyone involved, A.J.R. and S. seemed to be friendly. She said she checked on A.J.R. from time to time and each time A.J.R. seemed fine. Lute stated that after she learned that A.J.R. had been teased by other students, she monitored all of them, and added that if S. had tried to tease A.J.R. in her classroom, she would have intervened.

Educators’ Motion for Summary Judgment

The educators filed a motion for summary judgment on the basis of immunity pursuant to R.C. 2744.03(A)(6), arguing that the family had failed to produce any evidence that they had acted with malicious purpose, in bad faith, or in a wanton or reckless manner regarding A.J.R. They argued that there was no evidence that they knew or should have known that S. posed any risk of physical harm to A.J.R. or any other students.

The trial court granted summary judgment for the educators on the basis of immunity.

The Appeal

In a split decision, the Ninth District Court of Appeals panel assigned to sit as the Sixth District Court of Appeals panel reversed the trial court’s judgment, finding a genuine issue of material fact on whether the educators were reckless. The lead opinion found that A.J.R. and her parents had presented evidence of ongoing bullying of A.J.R. such as pushing in the bathroom line, that A.J.R.’s father had notified the educators of specific incidents of bullying at least four times, and that before the alleged pencil-stabbing incident, A.J.R.’s father notified the educators about escalating harassment of A.J.R. The lead opinion found there was evidence that the educators knew A.J.R. was being subjected to physical bullying and had been told of this on multiple occasions. The judge concurring in judgment only found that the family had provided sufficient facts to rebut the presumption of immunity in R.C. 2744.03(A)(6). The dissenting judge found that the family had failed adequately to provide sufficient evidence of reckless conduct on the part of any of the three employees, and that at worst, the failure to separate A.J.R. and S. was negligent, rather than reckless conduct.

Read the oral argument preview of the case here and the analysis here.

Key Statutes and Precedent

R.C. 2744.03(A)(3)(“In a civil action brought against . . . an employee of a political subdivision to recover damages for injury . . . allegedly caused by any act or omission in connection with a governmental or proprietary function . . . [t]he political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee.)

R.C. 2744.03(A)(6) (an employee is immune from liability unless the employee’s acts were with malicious purpose, in bad faith or in a wanton or reckless manner.)

O’Toole v. Denihan, 2008-Ohio-2574 (“Recklessness is a perverse disregard of a known risk. Recklessness, therefore, necessarily requires something more than mere negligence. The actor must be conscious that his conduct will in all probability result in injury.”)(Syllabus paragraph three).

Anderson v. Massillon, 2012-Ohio-5711 (Reckless conduct is characterized by “the conscious disregard or indifference to a known or obvious risk of harm that is unreasonable under the circumstances and is substantially greater than negligent conduct.”)(Syllabus paragraph four).

Educators’ Proposition of Law Accepted for Review

There can be no finding of reckless conduct or perverse disregard of a known risk where the record establishes that in response to reports of teasing among kindergarteners, educators promptly speak with the kindergarteners about the teasing, frequently ask the kindergarteners how they are doing, and regularly monitor the kindergarteners in the lunchroom and classroom. Under these circumstances, if a kindergartener with no history of discipline or violence later pokes another kindergartener with a pencil, R.C. 2744.03(A)(6) shields these educators from liability.

Does the Court Adopt the Educators’ Proposed Proposition of Law?

Yes

Merit Decision

Analysis

General Immunity Rules and Exceptions

Employees of political subdivisions (which includes the educators in this case) are generally immune from liability pursuant to R.C. 2744.03(A)(6) unless one of the exceptions applies. One such exception, R.C. 2744.03(A)(6)(b) provides an employee is not immune from liability if the employee’s acts or omissions were reckless. So, the issue that determines the outcome of this case is whether the educators acted recklessly. They argue they undisputedly did not, and that even if the family’s allegations were true, they do not meet the standard of recklessness. The family in turn argues that there are genuine issues of material fact on this question, and the case should proceed to trial. The Court agrees with the educators.

Definitions of  Recklessness

The high court has defined recklessness in two different case syllabi, (remember those ?) both in the sovereign immunity context. In 2008, in O’Toole v. Denihan, which involved a public children’s services agency and its employees, recklessness is defined is “a perverse disregard of a known risk” which “necessarily requires something more than mere negligence. The actor must be conscious that his conduct will in all probability result in injury.” Then later, in 2012, in Anderson v. Massillon, which involved firefighters on an emergency run, recklessness is defined as conduct “characterized by the conscious disregard of or indifference to a known or obvious risk or harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct.”

Family’s Failure of Proof

The family’s argument boils down to the alleged failure of the educators to take the necessary care to protect A.J.R. from S. In their motion for summary judgment, the educators argued that the family failed to show that the educators knew S. would physically harm A.J.R. The Court determines that the family failed to present any evidence of this.

The family’s evidence suggested that the educators were generally aware of the fact that A.J.R. had been subject to verbal bullying. The only evidence tending to indicate any risk of physical harm was that S. had pushed A.J.R. while they were standing in line, but the record was unclear on the extent of the pushing. Beyond that, there was no record evidence that S. had any history of physical bullying or aggressiveness. So, the Court concludes that a general allegation that S. pushed A.J.R. was insufficient to establish a known risk that S. might physically harm A.J.R. or any other student. Since the family failed to establish that there was a known risk that S. might physically attack A.J.R., the educators could not have been reckless. Thus, the trial court properly granted summary judgment to the educators.

The Court takes one more step here. Even if the educators should have been aware of the fact that A.J.R.’s being pushed was enough to create a known risk that S. might physically harm A.J.R., there was no evidence whatsoever that the educators perversely disregarded that risk. In other words, the conduct of the educators never rose to the level of meeting the definition of recklessness set forth in the syllabi of both O’Toole and Anderson. To the contrary, says the Court. The educators presented facts showing they took steps to address the reports of bullying. Each of them took the time to observe and talk with A.J.R. to make sure she was okay and was not experiencing any further bullying.

“The fact that appellants paid special attention to A.J.R. and the situation shows that they neither consciously disregarded any risk nor were indifferent to any risk,” Fischer wrote.

Nor did the Court find seating A.J.R. with S. resulting in the episode with the sharpened pencil to be reckless conduct. Seating the two at the same table simply did not show that in all probability this would result in physical injury to A.J.R.

The Court finds that in trying to overcome the educators’ motion for summary judgment, the family relied on general and unsupported allegations that the educators failed to take appropriate action to address the bullying and to prevent the alleged incident with the pencil, but this kind of unsupported allegation is not enough to defeat a motion for summary judgment.

Issues Not Before the Court

The Court found that the family had raised a number of issues not properly before it in this appeal—including arguments that the educators owed A.J.R. a heightened duty of care, allegations of certain statutory violations, the family’s economic and non-economic damages, and alleged constitutional violations. Since the Court accepted only one narrow issue in the case, it declined to address these others.

Bottom Line

Even if there was a known risk in this situation, the educators did not perversely disregard it, and therefore could not have been reckless.

Case Disposition

The trial court was correct in granting summary judgment to the educators.

Justice Kennedy concurred in judgment only, without explanation. Baffling.

Trial Court Judge (affirmed)

Lucas County Court of Common Pleas Judge Linda Jennings.

Ninth District Court of Appeals Panel, Sitting as Sixth District, by Assignment (lead opinion reversed, dissent position adopted)

Lead opinion, authored by Judge Donna Carr, joined in judgment only by Judge Jennifer L. Hensal

Dissent by Judge Julie Schafer

Concluding Observations

This case never had a chance from the get-go. Both student contributor Liam McMillin and I called this as an easy win for the educators. As I wrote after argument,

“Mr. Glase, (counsel for the family) while clearly caring deeply about his clients and this issue, was totally out of his depth here. His argument was unpersuasive and ineffective. He kept repeating basic legal generalizations like children of tender years being owed a special duty and needing special protections, arguing about reasonableness, which is a negligence standard, and repeatedly failing to provide specific evidentiary examples of recklessness… Ms. Dawson, on behalf of the educators, gave a laser-like argument rebutting any suggestions of reckless behavior as to each of the individual educators involved in the lawsuit, and emphasizing the absence of the evidence necessary to create any genuine issues of material fact on this issue. In fact, she got no more than a couple of half-hearted questions during her entire argument.” 

I continue, though, to be troubled by the use of the “perverse disregard of a known risk” language to define recklessness. The behavior which excepts political subdivision employees from immunity is a continuum, with recklessness being the least culpable, just beyond negligence.  That “perverse disregard” language sounds much more appropriate to behavior that is wanton or willful. While the perverse disregard language is used in the syllabus of O’Toole, it is not used in the syllabus of Anderson, which is the more recent case. Anderson very carefully differentiated the reckless, wanton, and willful standards of conduct, explaining that they are definitely not interchangeable.

Here is the pertinent paragraph on recklessness from the Anderson case:

{¶ 34} Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct. Thompson, 53 Ohio St.3d at 104-105, 559 N.E.2d 705, adopting 2 Restatement of the Law 2d, Torts, Section 500, at 587 (1965); see also Black’s Law Dictionary 1298-1299 (8th Ed.2004) (explaining that reckless conduct is characterized by a substantial and unjustifiable risk of harm to others and a conscious disregard of or indifference to the risk, but the actor does not desire harm).

The only reference to O’Toole in the majority opinion in Anderson, is this:

“Thus, as we concluded in O’Toole v. Denihan  {citation omitted]”[w]ithout evidence of an accompanying knowledge that the violations `will in all probability result in injury,’ Fabrey [v. McDonald Village Police Dept.], [citation omitted] evidence that policies have been violated demonstrates negligence at best.” 

So, when it comes to recklessness, I think the Court should retire the “perverse disregard” language.  Just sayin’.