Parmertor v. Chardon Local Sch.

119 N.E.3d 436

2019 Ohio 328

Robert PARMERTOR, Individually and as Administrator of the Estate of Daniel Parmertor, Deceased, et al., Plaintiffs-Appellants,

v.CHARDON LOCAL SCHOOLS, et al., Defendants,Joseph Bergant, II, et al., Defendants-Appellees.

NO: 2018-L-035

Court of Appeals of Ohio, Eleventh District, Lake County.

February 4, 2019

Peter William Marmaros, Djordjevic and Marmaros, 25550 Chagrin Boulevard, Suite 202, Beachwood, OH 44122; W. Craig Bashein, Bashein & Bashein Co., L.P.A., Terminal Tower, 35th Floor, 50 Public Square, Cleveland, OH 44113-2216; Paul W. Flowers & Louis Everett Grube, Paul W. Flowers Co., L.P.A., Terminal Tower, Suite 1910, 50 Public Square, Cleveland, OH 44113; and John P. O'Neil, Elk & Elk Co. Ltd., 6105 Parkland Boulevard, Mayfield Heights, OH 44124 (For Plaintiffs-Appellants).

Thomas E. Dover and Markus E. Apelis, Gallagher Sharp LLP, Sixth Floor, Bulkley Building, 1501 Euclid Avenue, Cleveland, OH 44115 (For Defendants-Appellees).

TIMOTHY P. CANNON, J.

{¶1} Before this court is an appeal taken by plaintiffs-appellants from a February 15, 2018 judgment entry issued by the Lake County Court of Common Pleas granting summary judgment in favor of defendants-appellees. The judgment is affirmed.

{¶2} This case emanates from the tragic shooting at Chardon High School on February 27, 2012, perpetrated by Thomas M. Lane, III, which resulted in the deaths of three students: Daniel Parmertor, Russell King, Jr., and Demetrius Hewlin. Another student, Nick Walczak, was paralyzed, and two other students were injured.

{¶3} The circumstances of the shooting are generally undisputed. Lane was a student at Lake Academy, an alternative school for students with academic or behavioral issues. Lane's bus ride to Lake Academy required him to change buses at Chardon High School. On February 27, 2012, Lane took a gun and ammunition, hidden in his backpack, on his bus ride to school. He got off the bus at Chardon High School and waited in the school cafeteria for his transfer bus to Lake Academy. Other students were congregated in the cafeteria. When the bell rang and students began to disperse, Lane reached into his backpack and fired the concealed handgun, striking and killing Russell King, Jr. Lane then removed the gun from the backpack and continued firing, striking and killing Daniel Parmertor and Demetrius Hewlin and injuring two others. Frank Hall, the high school football coach on cafeteria duty, confronted Lane and chased him down the hall from the cafeteria. Lane shot Nick Walczak in the back as he ran down the hallway, seriously injuring him, and then Lane ran out of the school. Surveillance video establishes 6 seconds elapsed between the first shot that was fired while the gun was still in the backpack and the last shot that was fired in the cafeteria. Approximately 22 seconds elapsed between the first shot and Lane's exit from the building.

{¶4} A complaint was filed in the Lake County Court of Common Pleas on February 27, 2014. The plaintiffs in the case are Robert and Dina Parmertor, each individually and as administrators of the estate of Daniel Parmertor, deceased; Jeffrey T. Orndorff, administrator of the estate of Demetrius Hewlin, deceased; Phyllis Ferguson; Jeannie King, individually and as administratrix of the estate of Russell King, Jr., deceased; Russell King; and Nick Walczak. The Parmertor, Hewlin, and King Plaintiffs asserted claims against all defendants for wrongful death: negligence and recklessness; wrongful death: conscious disregard, malice, willful and wanton misconduct; survivorship; and loss of consortium¹ . Plaintiff Walczak asserted claims of negligence and recklessness; and conscious disregard, malice, and willful and wanton misconduct.

{¶5} The named defendants in the complaint are Chardon Local Schools, Chardon Local School District, and Chardon High School (collectively, "Chardon Schools"); Joseph Bergant, II, Dana Stearns, Andy Fetchik, Drew Trimble, and Michael J. Sedlack (collectively, "Chardon School Employees"); Chardon Board of Education and Chardon Local Schools Board of Education (collectively, "Chardon School Board"); Debbie Seenarine-Wilson, Blake Rear, Cindy Sague, Karen Blankenship, David Fairbanks, Paul Stefanko, Guy Wilson, and Larry Reiter (collectively, "Chardon School Board Members"); The Lake Academy Alternative School, The Lake Academy Alternative School-Lake County Educational Service Center, Lake Academy, and Lake County Educational Service Center (collectively, "Lake Academy"); and Bill Kermavner, John Weiss, and Brian Bontempo (collectively, "Lake Educational Service Center Employees").

{¶6} On November 25, 2014, the trial court dismissed Plaintiffs' claims against Chardon Schools, Chardon School Board, Chardon School Board Members, and Lake Academy based upon statutory immunity pursuant to R.C. Chapter 2744. The trial court also granted judgment on the pleadings in favor of the Chardon School Employees on Plaintiffs' claims for negligence, pursuant to R.C. 2744.03(A)(6).² Plaintiffs' claims against the Lake Educational Service Center Employees were also dismissed, pursuant to a Civ.R. 41(A) notice of dismissal, on August 10, 2017.

{¶7} The Chardon School Employees subsequently moved for summary judgment on Plaintiffs' remaining claims, on the basis that there is legally insufficient evidence of specific conduct that rises to the level of malice, bad faith, wanton, or reckless so as to overcome the statutory immunity to which they are entitled. They argued the deposition testimony reflects the School Employees considered the safety and security of students and staff as their top priority. The school administrators worked with local law enforcement to provide safety training to students and staff, and each school conducted state-mandated emergency drills, including an active shooter drill at Chardon High School in 2009, with the involvement of local police and fire departments. The school had a safety and security plan in place, which was evaluated by law enforcement for possible improvements; law enforcement was never critical of the protocols in place, including not having a school resource officer ("SRO") stationed at the school. Police officers were in the building on a daily basis, either responding to calls or meeting with students and staff; the Chardon Police Department also required an officer to walk through the high school twice a day when school was in session. Lieutenant Troy Duncan, the police department's liaison to the school district, was at the high school at least once per week.

{¶8} The School Employees also engaged in efforts to increase security and safety by having staff and administrators act as a visible presence throughout the school day, but particularly in the mornings when the students arrived at school. Staff monitored the cafeteria, where large numbers of students would congregate before classes began. The administrators also provided guidance counselors, worked to become acquainted with individual students, and regularly attended school safety and security conferences.

{¶9} The Chardon School Employees also argued that summary judgment in their favor was appropriate because, even without statutory immunity, they owed no legal duty to Plaintiffs or their decedents to protect against Lane's unforeseeable criminal acts. They contended Ohio law does not recognize a "special relationship" between school officials and students that creates a duty to prevent criminal acts of third parties. Further, they claimed not to have a legal duty because Lane's actions were not foreseeable: there was no history of violent crime at Chardon High School; the School Employees had no knowledge Lane intended to bring a gun to school or intended to kill other students; they had no knowledge of any behavioral issues or violent propensities; Lane attended Lake Academy at the request of his guardians, not due to academic or behavioral issues; he had no disciplinary issues; and Lane was on track to graduate early despite attendance issues.

{¶10} Finally, the Chardon School Employees argued summary judgment in their favor was appropriate because Lane's actions were the sole proximate cause of Plaintiffs' injuries and damages. They argued that Plaintiffs' claim that the Chardon School Employees failed to employ an SRO, and that this measure would have prevented the shooting, is legally insufficient to hold them liable. First, the decision to hire an SRO is within the exclusive province of the Board of Education, not the School Employees. Second, Plaintiffs did not present legally sufficient evidence that an SRO would have prevented the shooting, which was over in approximately 22 seconds, or that it would have deterred Lane from bringing a gun to the school.

{¶11} Plaintiffs duly opposed the motion, contending triable issues of fact were established upon the claim that the lives and safety of the Chardon High School students had been recklessly endangered. Plaintiffs asserted the School Employees' motion for summary judgment ignored deposition testimony that established critical security recommendations that would have either prevented or deterred Lane's criminal actions were "rashly rejected." They contended Chardon High School was not nearly as safe as suggested by the School Employees and that local police were called to the school 500-600 times per year, "typically in response to reports of fighting, threats to faculty and staff, drugs, thefts, and vandalism."

{¶12} Plaintiffs concluded that if an SRO had been present at the high school, it is doubtful the shooting would have occurred. Superintendent Bergant, Principal Fetcik, and Assistant Principal Trimble all agreed that Lane should have been removed from the cafeteria when he arrived at the school wearing a sweatshirt on which was printed the word "KILLER." Video surveillance shows that Lane was never confronted in the 30 minutes before he began shooting in the cafeteria. Plaintiffs contend...