Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

A.M. v. Miami University

Court of Appeals of Ohio, Tenth District

November 16, 2017

[A.M.], Plaintiff-Appellant,
Miami University, Defendant-Appellee.

         APPEAL from the Court of Claims No. 2015-00190 of Ohio

         On brief:

          Spangenberg Shibley & Liber LLP, Jeremy A. Tor, and Stuart E. Scott, for appellant.

          Taft Stettinius & Hollister LLP, Doreen Canton, and Evan T Priestle; Michael DeWine, Attorney General, and Peter M. DeMarco, for appellee.


          Jeremy A. Tor.

          Evan T Priestle.


          SADLER, J.

         {¶ 1} Plaintiff-appellant, AM., appeals from the judgment entry of the Court of Claims of Ohio granting summary judgment in favor of defendant-appellee, Miami University ("Miami"). For the following reasons, we affirm the decision of the Court of Claims.


         {¶ 2} Unless otherwise indicated, the following facts are undisputed. On October 30, 2011, AC. sexually assaulted appellant while she was at his private, off-campus residence. Both AC. and appellant were students at Miami at the time of the assault. Following a hearing, Miami dismissed AC. as a student.

         {¶ 3} On October 24, 2013, appellant filed her original complaint against Miami in the Butler County Court of Commons Pleas. The Butler County Court of Commons Pleas transferred the case to the Court of Claims on February 25, 2014. On March 13, 2014, the Court of Claims dismissed the case without prejudice for lack of subject-matter jurisdiction. The instant case was refiled in the Court of Claims on March 11, 2015.

         {¶ 4} In her complaint, appellant alleges a negligence cause of action. According to appellant, Miami:

[B]reached its duty of care to [appellant], by among other acts and omissions: failing to investigate reports and allegations of sexual misconduct by [A.C.]; failing to act in accordance with and enforce its written rules, regulations, Codes of Conduct, policies, and procedures regarding sexual misconduct, assault and abuse; failing to warn of the dangers presented by members of its student body - of whom it permitted to remain students at Miami University despite reports of sexual misconduct, assault, and abuse; failing to provide a safe environment for its students and contributing to a needlessly dangerous environment; and failing to act as a reasonably safe, careful, and prudent university, college, or institution of higher learning would under the circumstances then and there existing.

(Compl. at 6-7.)

         {¶ 5} The complaint alleges that the sexual assault of a Miami student by A.C. was "foreseeable and likely" based on information Miami knew or should have known by the date of A.C.'s assault of appellant. (Compl. at 7.) Specifically, the complaint alleges that Miami had actual or constructive knowledge about a sexual assault report against A.C. in 2008 and allegations of voyeurism against A.C. in 2009. Regarding the 2008 incident, the complaint alleges that a woman reported to Miami officials that she had been sexually assaulted by A.C. Regarding the 2009 voyeurism allegations, the complaint alleges that in September 2009, A.C.'s fraternity dismissed him as a member and turned him into the Oxford Police Department "for acts of criminal voyeurism in violation of [R.C.] 2907.08, " arising out of "surreptitiously recording] numerous females * * * while they were engaged in sex acts with [A.C.]" and showing these videos to many of his friends without the females' consent. (Compl. at 3.) A female student alleged in her statement to Oxford police that in the beginning of the 2009-2010 school year, A.C. had acted in a manner consistent with the voyeurism allegations by the fraternity. The complaint alleges that the Miami University Police Department became a participant in the investigation of the voyeurism allegations, received a copy of a search warrant to search A.C.'s dormitory residence, was present for the search, and conducted a forensic examination of A.C.'s computer, which uncovered three videos of unidentified females, with their faces not visible, engaging in sexual acts with A.C.

         {¶ 6} As a result of the 2008 and 2009 incidents, the complaint states that Miami had actual and constructive knowledge that A.C. had violated its Code of Student Conduct and that as a student, "[A.C.] was subject to the disciplinary action and control, including by virtue of the power of suspension and expulsion, of Miami University." (Compl. at 2.) The complaint alleges that despite Miami's knowledge of multiple reports of sexual misconduct and violations of the Code of Conduct prior to October 2011, it "took no action to investigate these reports or pursue disciplinary action." (Compl. at 6.) Due to Miami's failure to pursue the reports and code violations, A.C. "remained an ongoing and substantial threat to the health, safety, and welfare of other Miami University students" and sexually assaulted appellant as a direct and proximate result of Miami and its employees' actions. (Compl. at 6.) The complaint also states that another female student of Miami alleged that A.C. sexually assaulted her on October 29, 2011. The complaint concludes that as a result of Miami's actions, appellant was caused injuries, rendering Miami liable under the doctrine of respondeat superior and, pursuant to R.C. 2743.02(A)(2), the state's waiver of immunity.

         {¶ 7} Miami moved to dismiss the complaint in April 2015 citing the statute of limitations and the inability of appellant to establish that Miami owed the requisite duty of care to A.M. on the facts of the case. Appellant filed a reply the following month. On December 15, 2015, appellant filed notice of service of her first set of interrogatories and requests for production of written discovery. Miami responded several days later by filing a motion for a protective order arguing that because the pending motion to dismiss "addresses purely legal issues, discovery will serve no useful purpose at [that] time." (Dec. 18, 2015 Mot. for Protc. Order at 2.) On February 4, 2016, the Court of Claims denied the motion to dismiss, noting that the determination relied on materials outside of the pleadings and denied Miami's motion for a protective order as moot. Miami filed an answer to the complaint on February 17, 2016, denying it was negligent and breached a duty of care to appellant and setting forth affirmative defenses.

         {¶ 8} The Court of Claims set the case for trial on April 10-12, 2017. After a March 9, 2016 case management conference, the Court of Claims ordered that no discovery would be allowed after November 28, 2016 without leave of the court and that "[a]ny dispositive motions shall be filed on or before December 9, 2016, and shall be heard pursuant to L.C.C.R. 4." (Emphasis omitted.) (Mar. 23, 2016 Entry at 1.) On September 7, 2o16, appellant filed a motion for a telephone conference to discuss deadlines and the schedule of the case in light of pending discovery matters.

         {¶ 9} On September 8, 2016, Miami moved for summary judgment on two grounds: the statute of limitations and Miami's entitlement to judgment as a matter of law because it had no legal duty to protect appellant from a sexual assault taking place at the private, off-campus residence of her attacker. Miami supported its motion for summary judgment with supplemental answers to its first set of interrogatories and request for production, the affidavit of David Creamer averring that the residence where the sexual assault took place was not owned by Miami and was not a part of the Miami University campus, and the affidavit of Miami's attorney, Doreen Canton, pertaining to the procedural history of the case. The same day, Miami filed a motion for a protective order to stay further discovery pending resolution of the motion for summary judgment, since the motion for summary judgment addressed "purely legal issues" based on undisputed facts. (Sept. 8, 2016 Mot. for Protc. Order at 2.)

         {¶ 10} The Court of Claims filed a notice of non-oral hearing on the motion for summary judgment to be held on October 6, 2016 pursuant to Civ.R. 56 and L.C.C.R. 4(C). On September 15, 2015, the Court of Claims denied Miami's motion for a protective order and denied appellant's motion for a telephone conference as moot.

         {¶ 11} On September 22, 2016, appellant moved to compel Miami to produce witnesses and depositions and moved for a continuation of the time to respond to summary judgment, pursuant to Civ.R. 56(F), as "[substantial discovery is needed to proceed to trial and defend against [Miami's] Motion for Summary Judgment." (Sept. 22, 2016 Mot. at 1.) The Court of Claims granted appellant's motion, indicating that appellant "shall respond to [Miami's] motion for summary judgment on or before November 7, 2016" and rescheduled the non-oral hearing on the motion for summary judgment on that date. (Emphasis sic.) (Oct. 5, 2016 Entry at 1.)

         {¶ 12} Appellant filed her brief in opposition to Miami's motion for summary judgment at 8:13 a.m. on November 8, 2016. Later that same day, appellant filed an amended brief in opposition to summary judgment. A footnote to the amended brief in opposition states that appellant served Miami's counsel with a copy of the original brief in opposition on November 7, 2016, Miami's counsel recognized that some of the exhibits attached to the brief in opposition had been marked confidential and were subject to a stipulated protective order, and that after conferring with Miami's counsel, appellant agreed to submit an amended filing that removed the potentially confidential exhibits. The footnote indicates that appellant requested that the clerk's office not place the original brief in opposition on the public ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.