Thursday, June 16, 2022
Jane Doe 1, a minor, et al. v. Greenville City Schools et al., Case No. 2021-0980
Second District Court of Appeals (Darke County)
State of Ohio v. Jon Troisi et al., Case No. 2021-1182
Eighth District Court of Appeals (Cuyahoga County
State of Ohio v. Ralph E. Bortree, Case No. 2021-1254
Third District Court of Appeals (Logan County)
Does School Have Immunity From Injuries Suffered by Students in Science Class?
Jane Doe 1, a minor, et al. v. Greenville City Schools et al., Case No. 2021-0980
Second District Court of Appeals (Darke County)
ISSUE: Does the absence of a fire extinguisher or unspecified piece of safety equipment in a classroom constitute a “physical defect” that triggers an exception to a school’s immunity from liability?
BACKGROUND:
In December 2019, two students at Greenville High School were in a science class taught by Roy Defrain. During a science experiment the students were conducting, a bottle of isopropyl alcohol caught fire and exploded, and the students were seriously injured. They developed severe burns, and one student had to undergo several surgeries involving skin-grafts.
The students, identified as Jane Doe 1 and Jane Doe 2, sued the Greenville City School District Board of Education, principal Stan Hughes, and teacher Defrain. The students alleged that the defendants failed to provide a fire extinguisher and other safety equipment. They also argued that appropriate protocols weren’t in place to adequately protect and supervise students during classroom activities. The school board disputes the allegations.
The school board requested dismissal of the lawsuit based on the immunity for political subdivisions in Ohio law. In September 2020, the trial court declined to dismiss the case. The school board appealed to the Second District Court of Appeals, which upheld the trial court’s decision.
The school board appealed to the Supreme Court of Ohio, which agreed to review the issue whether the alleged lack of safety equipment triggers an exception to the school’s immunity and would allow the lawsuit to move forward in the trial court.
Test for Determining Immunity of Government Entities
Each side states that Ohio courts apply a three-part test to decide whether a political subdivision, such as a school board, is entitled to immunity under state law. First, R.C. 2744.02 establishes that political subdivisions generally have immunity from liability in civil lawsuits for injuries, death, or loss to a person or to property. Second, the statute makes five exceptions to the immunity, so it must be determined whether one applies and would allow a lawsuit to move forward. Third, the defendant can assert specific defenses to reinstate its immunity.
School Contends Physical Defect Doesn’t Include Lack of Equipment
One exception removes immunity for a government entity when there is a “physical defect.” The exception states that “political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function, ….” The school board maintains that the exception doesn’t apply in this case.
The school board’s brief contends that most appellate courts looking at this exception define “physical defect” as “a perceivable imperfection that diminishes the worth or utility of the object at issue.” The brief argues that a sprinkler system that fails to operate might qualify as a physical defect, but the absence of a sprinkler system isn’t a physical defect. Similarly, the lack of a fire extinguisher in a classroom isn’t an imperfection that diminishes a classroom’s utility, the brief asserts. Noting also that a physical defect must be within or on the grounds of the building, the brief argues that the injuries in this case arose from the science experiment, not a building or grounds defect.
The school board also maintains that a building’s premises cannot be considered physically defective when modifications or improvements might have made the facilities safer. The lack of a hypothetical safety measure cannot be an imperfection or physical defect, the board concludes.
The board contends that even if there were a physical defect, defenses described in the law would reinstate the board’s immunity. One defense restores immunity when the actions were an exercise of discretion or judgment and weren’t done “with malicious purpose, in bad faith, or in a wanton or reckless manner,” the board notes.
Students Respond That Absence of Safety Measures Is Physical Defect
The students maintain that the lack of safety equipment and emergency protocols at Greenville High School removes the school board’s immunity. The students disagree with the board’s view that appellate courts have settled on the definition of “physical defect.” They argue that some appeals courts have viewed the physical-defect exception more broadly, concluding that the absence of safety equipment can be a physical defect. In one case they cite, someone fell into an orchestra pit in a school auditorium. The lawsuit pointed to the lack of reflective tape and lights around the pit. The school argued the pit wasn’t defective, but the court concluded that the lack of safety protocols may be a physical defect because the pit didn’t operate safely.
The students contend that the physical defect in this case isn’t defective safety equipment, but instead is the defectiveness of a classroom that lacks proper safety equipment and protocols. They argue that when a school doesn’t implement reasonable safety measures and procedures for school activities and fails to adequately supervise children engaged in those activities, those failures constitute physical defects.
As for whether the school board can prove defenses that would restore its immunity, that question cannot be answered at this stage – when the dismissal of the case is being considered before any discovery has been conducted, the students maintain. The question is one that must be considered by a jury, the students conclude.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Greenville City School District Board of Education, Stan Hughes, and Roy Defrain: Tabitha Justice, 937.427.8800
Representing Jane Doe 1 et al.: Michael Wright, 937.435.7500
Can Prosecutor Generalize Law Violation to Charge Distributor With Drug Trafficking?
State of Ohio v. Jon Troisi et al., Case No. 2021-1182
Eighth District Court of Appeals (Cuyahoga County
ISSUES:
- Must a wholesale distributor of drugs be notified of a specific statute it violated to be charged with drug trafficking?
- For a wholesale drug distributor to lose its exemption from being charged with drug trafficking, must the distributor be found in violation of a statute in R.C. Chapter 4729?
BACKGROUND:
Martek Pharmacal Company is a wholesale distributor of prescription drugs with a focus on obesity treatment. In 2019, Martek; Andrew Steck, its owner; and two top executives, Jon and Nicholas Troisi were indicted by a Cuyahoga County grand jury for drug trafficking. The seven-count indictment stemmed from the sale of weight-loss drugs to healthcare providers, who sold the drugs to patients.
The indictment stated that the drug distribution by the company and its employees was “not in accordance with Chapter 4729 of the Ohio Revised Code.” The indictment didn’t specify any details about how state laws were violated. Prior to their trial, the distributors asked the Cuyahoga County Common Pleas Court to dismiss the charges. They noted that R.C. Chapter 4729 contains more than 120 sections, and that R.C. 4729.99 alone lists more than 43 different violations that trigger criminal penalties.
The distributors argued the indictment didn’t specify a single section of R.C. Chapter 4729 that the company violated. They noted Ohio’s drug trafficking laws exempt drug wholesalers from being charged with drug trafficking unless a prosecutor proves a section of R.C. Chapter 4729 was violated. Without being told what specific law they violated, their constitutional due process rights were being violated, the distributors argued.
The trial judge pressed the Cuyahoga County Prosecutor’s Office to identify which section of the law the company broke. The prosecutor explained that R.C. 4729.291 doesn’t allow a prescriber to distribute more than 2,500 diet pills a month, and that Martek was giving Cuyahoga County doctors far more than 2,500 pills a month to distribute. The trial judge noted R.C. 4729.291 pertains to prescribers, but not to wholesalers. The prosecutor then argued that the sales, which took place between 2013 and 2017, also had to comply with Ohio Administrative Code rules set by the Ohio Board of Pharmacy. The prosecutor alleged that Martek executives violated the law by not reporting to the pharmacy board the sales in excess of the amount of drugs that could be prescribed. The company countered the reporting rules didn’t apply to drug wholesalers until 2019, two years after the last of the alleged violations.
The trial court dismissed the charges, and the prosecutor appealed to the Eighth District Court of Appeals. In a split decision, the Eighth District reversed the trial court’s decision and ruled that a trial should proceed.
The distributors appealed to the Supreme Court, which agreed to hear the case.
Shifting Charges Violates Due Process, Distributor Asserts
The distributors argue the prosecution’s shifting theory on how the law was broken violates their due process rights because they aren’t able to prepare a proper defense without knowing the law they are alleged to have violated. The prosecutor indicted the company and the executives based on the vague charge of not acting in accordance with an entire chapter of state law regulating the distribution of prescription drugs, they maintain. When the prosecutor was pressed to cite any specific section allegedly violated, they chose one that didn’t apply to wholesalers, the distributors explain. And while in court, the state shifted the charge to a rule violation, and argued violating the rules is also criminal violation of R.C. Chapter 4729, the company notes. Some professions, such as prescribing physicians, are subject to criminal charges for violating pharmacy board rules, the distributors explain. But at the time of the diet-drug sales, no such law applied to wholesalers, the distributor asserts.
The distributors argue Ohio law doesn’t allow a prosecutor to indict suspects on one charge, then seek to try them on another. To charge the company with rule violations, the prosecutor must go back to a grand jury and demonstrate that there is evidence to prove the company violated rules applying to drug wholesalers as the time of the incident and that they can be criminally charged for that, the distributors assert.
Because the prosecutor has cited no law that the distributors violated, they can’t be charged with drug trafficking, the distributors conclude.
Specifics Provided for Charges to Move Forward, Prosecutor Argues
The grand jury, and the distributors, were provided sufficient evidence of sales that are considered drug trafficking, the office asserts. The prosecutor maintains the state constitution doesn’t require the grand jury to be provided with specific code sections to allege a crime. When the distributors asked for more details about the charges, the office presented itemized receipts and dates of the sales of the diet drugs. The prosecutor argues the law limiting prescribers’ pill sales to 2,500 per month logically flows to distributors as well. If distributors were making sales of more than 10 times the amount of pills a prescriber could sell, then it can be evidence of attempting to evade the law, the office asserts.
The prosecutor also notes that R.C. 4729.10 requires that anyone authorized to sell prescription drugs, including wholesalers, must report violations of state and federal law, including state pharmacy board rules. At the time of the sales, there was a rule requiring the reporting of suspicious purchases of drug sales that applied to wholesalers, and the distributors didn’t report their questionable sales, the office asserts.
The prosecutor maintains the case might be hard to prove in court, but the Eighth District correctly ruled that the case could go forward. The office argues the charges shouldn’t have been dismissed, and a trial should determine whether the distributors broke the law.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Martek Pharmacal Co. and Andrew Steck: Charles Bowers, 216.241.2838
Representing Jon Troisi: John Mitchell, 216.241.2838
Representing Nicholas Troisi: Brian Radigan, 440.213.8830
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Katherine Mullin, 216.698.6454
Can Offender Be Tried for Attempted Aggravated Murder 26 Years After Offense?
State of Ohio v. Ralph E. Bortree, Case No. 2021-1254
Third District Court of Appeals (Logan County)
ISSUES: Is the statute of limitations in Ohio for attempted aggravated murder and attempted murder six years?
BACKGROUND:
Ralph Bortree was indicted in August 2019 with attempted aggravated murder for an assault of a Logan County woman in 1993. Under Ohio law, there is no statute of limitations for aggravated murder. Bortree maintains the statute of limitations for “attempted aggravated murder” isn’t specifically defined in state law and falls under the general limit for all felonies, which is six years. He maintains his constitutional rights were violated when he was tried and convicted of slashing the neck of a woman with a large knife after forcing her to perform oral sex on him.
Initial Assault Investigation Produces No Results
In July 1993, a woman identified in court records as “A.C.” was 19 years old and was driving from her home in Quincy along a rural highway in Logan County to her night shift job. Bortree pulled his truck in front of her, forced her car to stop, and pointed a gun at her. He ordered her into his truck and drove to a secluded area. There he forced A.C. to have oral sex. He then drove her around to another wooded area and forced her out of the truck. He slit her throat with a knife. A.C. fell to the ground and played dead until Bortree left. She then ran to a nearby home, where a family called emergency services for help.
A.C. was transported to a local hospital and treated for a deep wound to the neck. A.C. was able to recognize the model and color of the truck and recalled the first two letters of the license plate, “NM.” She was able to describe her attacker and worked with a sketch artist to develop a drawing. She recalled that her attacker gave her a light cigarette to smoke. A rape kit was conducted, and her clothes were collected by investigators, who identified semen on her shirt.
Shortly after a Logan County Sheriff’s detective began investigating the case, the sheriff’s office started working with the Sidney Police Department in neighboring Shelby County. The departments believed the same person who assaulted A.C. may have abducted and sexually assaulted a Sidney woman the year before. The Sidney victim, identified as “S.L.,” also provided a description of her attacker, who forced her into the trunk of his car, drove her to a rural area, and forced her to perform oral sex on him. Her clothes were collected, and semen was detected on her blouse.
The detective requested a list of all license plates beginning with NM from the state, and a list of more than 56,000 registered vehicles were sent. At the time, the department didn’t notice that a 1988 Ford truck registered to Bortree was on the list. The registration information indicated Bortree and his wife lived about 500 feet away from A.C., and that a car registered to Bortree’s wife matched the description of the car that S.L. stated she was forced into by her attacker.
The department sent A.C.’s clothes and test kit materials to the state Bureau of Criminal Investigation (BCI), which didn’t do DNA testing at the time. The DNA samples were sent to a private lab, which documented there was semen on A.C.’s shirt, but was unable to develop a suspect profile. The BCI conducted blood sample testing, but found no test results that could lead to a suspect.
Cold Case Revived by DNA Testing Advancements
The investigating detective left the department in 1993, and the department had no viable suspects. In 2004, the BCI tested an oral swab from A.C. and a sample taken from her shorts, but not her shirt. The samples didn’t yield a male suspect.
In 2014, Detective Phil Bailey of the Logan County Sheriff’s Department contacted the BCI and asked if any further DNA testing could be conducted. Bailey testified that he had no knowledge of anyone else in the department investigating the case since 1998.
In 2015, the BCI was unable to identify a male suspect from a sample taken from A.C.’s shirt because it didn’t match any known male in the DNA database. However, it did match a DNA result developed from the blouse of S.L.’s shirt, which confirmed that the suspect was likely the attacker of both women. But even after a connection was made, Sidney police and the Logan County investigators were unable to identify a suspect.
In 2018, the BCI suggested the Logan County Sheriff’s Department use a “genetic genealogy company” that could trace the DNA to relatives of the suspect. An Texas firm received the samples from both cases in 2019. Within 24 hours, the company connected the samples to four brothers in Logan County, including Bortree.
Stakeout Collects DNA Evidence
The Logan County Sheriff’s Department discovered where Bortree worked and placed a piece of foil in the smoking receptable outside of the building. They collected the butts of three light cigarettes that they saw Bortree smoke. The BCI tested the butts and matched Bortree’s DNA to the profile from the genealogy company’s profile. A search of Bortree’s home produced photographs of him from around the time of the attacks and of the truck he owned. He was arrested.
Because the crimes took place 26 years earlier, Bortree couldn’t be charged with the rape or kidnapping of the women. The statute of limitations on those cases had expired. He was charged with the attempted aggravated murder of A.C. under R.C. 2923.02(A) and R.C. 2903.01(B).
Bortree asked the Logan County Common Pleas Court to dismiss the charges, stating the statute of limitations for attempted aggravated murder is six years. The trial court rejected the request, and he was convicted of the crime and sentenced to 11 years in prison.
Bortree appealed to the Third District Court of Appeals on several grounds. The Third District affirmed his conviction. He appealed to the Supreme Court, which agreed to consider only is argument that the statute of limitations for attempted aggravated murder had expired by the time he was charged with the crime.
Law Clearly Limits Time to Charge, Offender Argues
Bortree noted that R.C. 2901.13 defines the statute of limitations for felonies in Ohio, and that R.C. 2901.13(A)(1)(a) states that a felony not provided with a specified period of limitation is six years.
The law then specifies in R.C. 2901.13(A)(3)(a) a 20-year statute of limitations for several felonies other than aggravated murder and murder. Bortree notes the next subsection, (A)(3)(b), states that “conspiracy to commit, attempt to commit, or complicity to commit” a violation listed in (A)(3)(a) has the same 20-year time limit.
Based on the language of the law, there is no specified language that says attempted aggravated murder has the same statute of limitations as aggravated murder, so it falls into the six-year category, Bortree maintains. He argues it was a logical choice by lawmakers because there is a significant difference between a crime that caused the death of another and one where an assault occurred but the victim didn’t die.
Bortree also maintains that if there is any dispute or mistake about the law as written, it is the legislature, not the Court, that can correct it. He argues the Court is obligated to interpret the law as written, and concluded that he couldn’t be charged with the crime 26 years later.
Bortree maintains the law doesn’t lead to absurd results. The law contains “tolling events,” which allows law enforcement to extend the statute of limitations. Logan County did nothing to toll the time limit because it did nothing for decades to solve A.C.’s assault, he argues. The inability to charge him for a crime was the result of the inaction by the sheriff’s department, he concludes.
Law Includes Attempt to Commit Crime, Prosecutor Asserts
The prosecutor argues when the two laws Bortree was charged with violating are read in context, the definition of aggravated murder also includes attempted aggravated murder.
R.C. 2903.01, the aggravated murder law, states, “No person shall purposely cause the death of another… while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape,” or other felonies. R.C. 2923.02(A), the attempt-to-commit-an-offense law, states, “No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.”
The prosecutor maintains that Bortree was being prosecuted “for conduct, that if successful, would result in the purposeful death of another while committing and fleeing from a rape or kidnapping.” That is a violation of the aggravated murder law, and no statute of limitations is in effect, the office argues. Bortree was validly prosecuted in 2019 for the crime, and his conviction should stand, the office concludes.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Logan County Prosecutor’s Office: Eric Stewart, 937.599.7272
Representing Ralph Bortree: James Tyack, 614.221.1341