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Hodge v. City of Cleveland, Not Reported in N.E.2d (1998) 1998 WL 742171 Only the Westlaw citation is currently available. CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY. Court of Appeals of Ohio, Eighth District, Cuyahoga County. Erica HODGE, et al., Plaintiffs-appellants v. CITY OF CLEVELAND, et al., Defendants-appellees No. 72283. | Oct. 22, 1998. Civil appeal from Common Pleas Court, Case No. CV-314029. Affirmed. Attorneys and Law Firms John T. Castele, Cleveland, for plaintiffs-appellants. Sharon Sobol Jordan, Director of Law, Donna M. Andrew, Lisa Herbert, Assistant Law Directors, Elise Hara, Cleveland, for defendants-appellees. Opinion JOURNAL ENTRY AND OPINION KARPINSKI, J. *1 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 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. 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. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 1 Hodge v. City of Cleveland, Not Reported in N.E.2d (1998) 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 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, 686 N.E.2d 1141; Harris v. Plain Dealer Pub. Co. (1988), 40 Ohio App.3d 127, 129, 532 N.E.2d 192. 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 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. *2 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. 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, 653 N.E.2d 1186; Rich v. Erie Cty. Dept. Of Human Resources (1995), 106 Ohio App.3d 88, 665 N.E.2d 278. 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. © 2012 Thomson Reuters. No claim to original U.S. Government Works. 2 Hodge v. City of Cleveland, Not Reported in N.E.2d (1998) 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.) *3 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, 639 N.E.2d 462; emphasis added). 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.