Wilkinson v. Dayton

Citations

• 2024 Ohio 180

Syllabus

Appellant, as an estate administrator, filed wrongful death, survivorship, and related causes of action against two police officers who, in response to a domestic violence dispatch, did not arrest or otherwise take charge of the abuser a short time after the officers left the home, the abuser fatally shot the domestic violence complainant and her daughter. The trial court did not err in dismissing appellant's complaint under Civ.R. 12(B)(6). Appellant's petition for discovery was properly dismissed because the information sought was not available under either R.C. 2317.48 or Civ.R. 34(D). Appellant's common law wrongful death and survivorship claims were properly dismissed because, under the facts set forth in the amended complaint, the appellee-officers did not have a special relationship with the decedents or any statutory mandate to arrest or otherwise take charge of the person who murdered them as such, as a matter of law, appellant could not establish the duty element of the wrongful death and survivorship claims. The amended complaint also asserted a cause of action under R.C. 2307.60, which allows a crime victim to pursue a cause of action against the perpetrator for the damages caused by the crime, alleging that the police officers were guilty of criminal conduct - dereliction of duty - under R.C. 2921.44(E). The trial court correctly dismissed this claim because R.C. 2921.44(E) requires the duty to act, and appellant did not articulate an express duty imposed upon the officers to arrest or otherwise take charge of the individual who murdered the decedents. Appellant's argument that the officers had a duty under R.C. 2921.44(A) is waived because she did not raise it in the trial court. Finally, the trial court did not abuse its discretion by overruling appellant's motion for leave to file a second amended complaint, because that complaint did not add any causes of action that were not included in the first amended complaint. Judgment affirmed.