[Cite as Banks v. Bur. of Workers' Comp., 2018-Ohio-5246.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Elizabeth Banks, as Administratrix of : 

the Estate of Daniel Banks, Deceased, 

 : 

 Plaintiff-Appellant, No. 17AP-748 

 : (Ct. of Cl. No. 2016-00922) 

v. 

 : (ACCELERATED CALENDAR) 

Ohio Bureau of Workers' Compensation, 

 : 

 Defendant-Appellee. 

 : 

 

D E C I S I O N 

Rendered on December 27, 2018 

 

On brief: Kisling, Nestico & Redick, LLC, Christopher J. Van 

Blargan, and Michael J. Maillis, for appellant. Argued: 

Christopher J. Van Blargan. 

On brief: Michael DeWine, Attorney General, and Velda K. 

Hofacker, for appellee. Argued: Velda K. Hofacker. 

 

APPEAL from the Court of Claims of Ohio. 

BROWN, P.J. 

{¶ 1} This is an appeal by plaintiff-appellant, Elizabeth Banks, as Administratrix 

of the Estate of Daniel Banks, Deceased, from a judgment of the Court of Claims of Ohio 

granting a motion for judgment on the pleadings filed by defendant-appellee, Ohio 

Bureau of Workers' Compensation ("BWC"). 

{¶ 2} Appellant is the administratrix for the estate of Daniel Banks ("Banks" or 

"the decedent"). On December 20, 2016, appellant filed a complaint against BWC, 

alleging Banks, an aluminum extrusion press operator employed by BRT Extrusions, Inc. 
No. 17AP-748 2 

("BRT"), died on August 5, 2014 as a result of an industrial accident involving an 

extrusion press. 

{¶ 3} According to the complaint, BRT's normal operating procedures required 

the extrusion press to be set to "semi-automatic" to prevent the machine from cycling 

"without human action and verification that no one was in the point of operation when 

the machine cycled." (Compl. at ¶ 8.) However, after Banks left the machine for a lunch 

break, another worker set the press to "automatic." (Compl. at ¶ 8.) On returning from 

lunch, "a butt from the aluminum billet used in the press fell into the press' point of 

operation." (Compl. at ¶ 9.) Banks walked around to the back of the machine to clear the 

butt, unaware that the press had been set to automatic. As Banks attempted to clear the 

butt, the press cycled and he was crushed in an unguarded pinch point. Banks 

subsequently died of his injuries. 

{¶ 4} The complaint alleged BRT had previously entered into an agreement with 

BWC whereby "BWC agreed gratuitously or for pay to provide BRT with safety consulting 

services including but not limited to evaluating guarding and the safety of extrusion press 

operations, and recommending actions to meet industry safety standards." (Compl. at ¶ 

11.) It was further alleged BRT "justifiably relied upon the services provide[d] by BWC to 

determine whether the extrusion press' operations and Banks' workplace presented an 

unreasonable risk of danger and in taking action to improve safety." (Compl. at ¶ 12.) 

{¶ 5} Appellant alleged BWC was negligent in: (1) failing to recommend a 

comprehensive guarding audit to determine if the extrusion press' guarding was adequate 

for its operation, (2) inspecting the extrusion press and its guards, (3) failing to advise 

BRT or others that the extrusion press guarding was inadequate for its operation, and 

(4) recommending inadequate guards. 

{¶ 6} On January 18, 2017, BWC filed an answer. On May 9, 2017, BWC filed a 

motion for judgment on the pleadings, pursuant to Civ.R. 12(C), asserting the complaint 

was barred by the public duty statute. On May 23, 2017, appellant filed a memorandum 

in opposition to BWC's motion for judgment on the pleadings. 

{¶ 7} By entry filed October 6, 2017, the Court of Claims granted BWC's motion 

for judgment on the pleadings. In its decision, the Court of Claims found BWC was 
No. 17AP-748 3 

entitled to public duty immunity, pursuant to R.C. 2743.02(A)(3) and 2743.01(E)(1), and 

that no special relationship existed between BWC and Banks. 

{¶ 8} On appeal, appellant sets forth the following three assignments of error for 

this court's review: 

[I.] The Court of Claims court erred in granting the BWC 

judgment on the pleadings based on its finding that the BWC 

performed a public duty in providing individualized safety 

consulting services to BRT Extrusions where such task is 

typically performed by the employer or third party safety 

consultants retained by the employer to fulfill the employer's 

duty to its employees under Revised Code Section 4101.11. 

Ohio's Frequenter Statute. 

[II.] Assuming the activities performed by the BWC were 

public duties, the Court of Claims nevertheless erred in 

granting judgment on the pleadings based on its finding the 

Estate could not as a matter of law demonstrate the existence 

of a special relationship between the BWC and decedent 

under Revised Code Section 2743.02(A)(3)(b). 

[III.] Assuming that the Estate failed to plead sufficient 

operative facts to demonstrate a special relationship between 

the BWC and the decedent, the Court of Claims abused its 

discretion in denying the Estate's Motion for Leave to Amend 

Complaint where the Estate submitted evidence 

demonstrating that amendment would not be fruitless and 

dismissal was with prejudice. 

{¶ 9} Appellant's first and second assignments of error are interrelated and will 

be considered together. Under these assignments of error, appellant asserts the Court of 

Claims erred in granting BWC's motion for judgment on the pleadings on the grounds 

that BWC performed a public duty in providing safety consulting services to BRT, and 

appellant could not demonstrate the existence of a special relationship between BWC and 

decedent. 

{¶ 10} Civ.R. 12(C) states: "After the pleadings are closed but within such times as 

not to delay the trial, any party may move for judgment on the pleadings." A motion for 

judgment on the pleadings, pursuant to Civ.R. 12(C), "has been characterized as a belated 

Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted." Tran 

v. State, 10th Dist. No. 09AP-587, 2009-Ohio-6784, ¶ 10. In ruling on a motion for 
No. 17AP-748 4 

judgment on the pleadings, a trial court is permitted to "consider both the complaint and 

answer." Zhelezny v. Olesh, 10th Dist. No. 12AP-681, 2013-Ohio-4337, ¶ 8. The trial 

court "must construe all the material allegations of the complaint as true, and must draw 

all reasonable inferences in favor of the nonmoving party." Id. The court may grant the 

motion "if it finds, beyond doubt, that the plaintiff can prove no set of facts in support of 

the claim(s) that would entitle him or her to relief." Id. 

{¶ 11} A motion for judgment on the pleadings under Civ.R. 12(C) "tests the 

allegations of the complaint and presents a question of law." Id. at ¶ 9. As such, an 

appellate court's "review of a decision to grant judgment on the pleadings is de novo." Id.

{¶ 12} R.C. 2743.02(A)(3)(a) states in part: "Except as provided in division 

(A)(3)(b) of this section, the state is immune from liability in any civil action or 

proceeding involving the performance or nonperformance of a public duty." This court 

has noted that R.C. 2743.02(A)(3)(a) "represents an exception to the state's waiver of 

sovereign immunity, as set forth in R.C. 2743.02(A)(1)." Burr v. Ohio State Hwy. Patrol, 

10th Dist. No. 12AP-26, 2012-Ohio-4906, ¶ 19. 

{¶ 13} R.C. 2743.01(E)(1) defines public duty in part as follows: 

"Public duty" includes, but is not limited to, any statutory, 

regulatory, or assumed duty concerning any action or 

omission of the state involving any of the following: 

(a) Permitting, certifying, licensing, inspecting, investigating, 

supervising, regulating, auditing, monitoring, law 

enforcement, or emergency response activity. 

{¶ 14} The doctrine of public duty immunity "does not apply, however, 'under 

circumstances in which a special relationship can be established between the state and an 

injured party.' " Lawrence v. Meridian Senior Living, L.L.C., 10th Dist. No. 16AP-326, 

2016-Ohio-8500, ¶ 8, quoting R.C. 2743.02(A)(3)(b). In this respect, "[t]he statute 

provides a four-part test for determining whether a special relationship exists that will 

overcome the state's public duty immunity." Id. Specifically, R.C. 2743.02(A)(3)(b) 

states: 

The state immunity provided in division (A)(3)(a) of this 

section does not apply to any action of the state under 

circumstances in which a special relationship can be 

established between the state and an injured party. A special 
No. 17AP-748 5 

relationship under this division is demonstrated if all of the 

following elements exist: 

(i) An assumption by the state, by means of promises or 

actions, of an affirmative duty to act on behalf of the party 

who was allegedly injured; 

(ii) Knowledge on the part of the state's agents that inaction of 

the state could lead to harm; 

(iii) Some form of direct contact between the state's agents 

and the injured party; 

(iv) The injured party's justifiable reliance on the state's 

affirmative undertaking. 

{¶ 15} We initially address appellant's contention that the Court of Claims erred in 

concluding the public duty doctrine was applicable to BWC's safety consulting services. 

According to appellant, the services provided by BWC are similar to those typically 

provided by an employer or third-party safety consultants (i.e., commonly performed by 

private entities) and, therefore, should not be subject to the public duty doctrine. In 

support, appellant relies in part on a decision by this court in Jones v. Dept. of Health, 

Div. of Public Health & Laboratories, 69 Ohio App.3d 480, 488 (10th Dist.1990), holding 

the public duty doctrine did not apply to laboratory testing by the Ohio Department of 

Health ("ODH") for phenylketonuria ("PKU") with respect to newborn babies, as "ODH 

performs the same function as private laboratories when it tests samples for PKU." 

{¶ 16} In response, BWC argues appellant ignores the clear statutory definition of 

the public duty statute and seeks to invoke a common law exception by relying on a 

decision (Jones) that predates the statute. BWC maintains the public duty statute 

provides only one exception to public duty immunity, i.e., the special relationship test. 

{¶ 17} As noted, appellant's complaint alleged BWC agreed to provide safety 

consulting services to BRT, including "evaluating guarding and the safety of extrusion 

press operations, and recommending actions to meet industry safety standards." Further, 

appellant alleged BWC was negligent in (1) failing to recommend a comprehensive 

guarding audit, (2) inspecting the extrusion press and guards, (3) failing to advise BRT or 

others that the extrusion guarding was inadequate for its operation, and (4) in 

recommending inadequate guards. 
No. 17AP-748 6 

{¶ 18} In its answer, BWC admitted that "at various times BWC provided 

consulting services to BRT * * * at times through BRT's participation in the IndustrySpecific Safety Program * * * as set forth in OAC 4123-17-56.3, and at other times through 

BWC's division of safety and hygiene created in R.C. 4121.37." (Answer at ¶ 5.) 

{¶ 19} R.C. 4121.37 provides for the creation of BWC's division of safety and 

hygiene, under which the superintendent "shall conduct investigations and researches for 

the prevention of industrial accidents and diseases, conduct loss prevention programs and 

courses for employers, establish and administrate cooperative programs with employers 

for the purchase of individual safety equipment for employees, and print and distribute 

information as may be of benefit to employers and employees." Ohio Adm.Code 4123-17-

56.3 sets forth the "[i]ndustry-specific safety program" whereby an employer is eligible for 

a bonus upon enrolling and participating in certain "[l]oss prevention activities." Ohio 

Adm.Code 4123-17-56.3(A)(3). Those activities include: (a) "Industry-specific safety 

classes prescribed by the division of safety and hygiene," (b) "Individual safety consulting 

with staff from the division of safety and hygiene or a sponsor approved by the division of 

safety and hygiene," and (c) "The division of safety and hygiene's annual safety congress." 

{¶ 20} In addressing the issue of public duty immunity with respect to the 

allegations in the complaint, the Court of Claims held in part: 

Defendant admits in its answer that at various times, BWC 

provided consulting services to BRT, at times through BRT's 

participation in the Industry-Specific Safety Program as set 

forth in Ohio Administrative Code section 4123-17-56.3, and 

at other times through BWC's division of safety and hygiene 

created in R.C. 4121.37. * * * Thus, defendant's duty to inspect 

the extrusion press where Banks was injured was a statutory 

or assumed duty by BWC. These duties are public duties, and 

"[a]s such, [public duties] do not flow to any private 

individual, including the individual being regulated, 

inspected, licensed or audited, and including any individuals 

who would benefit from these governmental functions." 

Markowitz v. Dept. of Ins., 144 Ohio App.3d 155, 161 (10th 

Dist.2001). 

(Entry Granting Def.'s Mot. for Judgment on the Pleadings at 3-4.) 

{¶ 21} As noted, R.C. 2743.01(E)(1)(a) defines "public duty" to include any 

statutory, regulatory, or assumed duty concerning any action or omission of the state 
No. 17AP-748 7 

involving "inspecting," "investigating," "monitoring" and "auditing" law enforcement or 

emergency response activity. This court has previously held, in construing provisions 

under R.C. Chapter 4121 (regarding the Industrial Commission), that "[s]tatutes requiring 

state agencies to inspect and enforce safety standards were enacted to protect the public 

generally against unsafe conditions," and that such statutes "were not intended * * * to 

create a duty toward any particular person." Shelton v. Indus. Comm., 51 Ohio App.2d 

125, 131 (10th Dist.1976). See also Pursley v. Miller, 8th Dist. No. 56537 (Feb. 1, 1990) 

("safety statutes do not create a duty toward a particular person"). 

{¶ 22} In reviewing the pleadings at issue, we agree with the Court of Claims that 

the allegations regarding the safety consulting services BWC provided to BRT (i.e., 

involving inspecting, auditing, and consulting with an employer to address workplace 

safety concerns) implicate statutory or assumed duties by BWC for which the public duty 

doctrine is applicable. Appellant's claim that third parties also engage in activities such as 

inspecting, auditing, and investigating is not persuasive. Although private parties may 

engage in similar activities, "a private party's duty to inspect and to enforce safety 

standards is not created by statute." Shelton at 130. 

{¶ 23} Having found no error with the Court of Claims' determination that the 

duties alleged to have been violated by BWC are public duties, we next consider 

appellant's contention that the Court of Claims erred in failing to find a special 

relationship as an exception to the public duty doctrine. As noted, an exception to the 

public duty doctrine "allows recovery * * * where a 'special relationship,' as defined by 

meeting all elements of a four-part test, is established between the state and the injured 

party." Rudd v. Ohio State Hwy. Patrol, 10th Dist. No. 15AP-869, 2016-Ohio-8263, ¶ 13. 

With respect to the first element necessary to prove a special relationship, "in order for 

the state to assume an affirmative duty to act on behalf of an injured party it must 'do 

more than adhere to its statutory duty.' * * * 'It must voluntarily assume some additional 

duty.' " Lawrence at ¶ 12, quoting Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 

96, 101 (1989). 

{¶ 24} In the present case, the Court of Claims noted appellant's complaint alleged 

BWC was negligent in its performance of safety consultant services provided to BRT 

through an agreement between them, and that "BRT's justifiable reliance on BWC's 
No. 17AP-748 8 

services resulted in injury to [appellant]." The Court of Claims determined, however, that 

appellant's complaint "lacks adequate underlying factual allegations of promises or 

actions by BWC to demonstrate that it assumed affirmative duties beyond those that it 

owed the public" and, further, that the complaint "lacks any allegation that Banks had 

some form of direct contact between himself and BWC." 

{¶ 25} We agree with the Court of Claims that the complaint lacks factual 

allegations as to all of the elements of the special relationship exception, including facts 

alleging that BWC assumed an affirmative duty to act on behalf of Banks, or allegations of 

"direct contact" between BWC and Banks. This court has previously held the absence of 

such facts renders a complaint subject to dismissal pursuant to Civ.R. 12(B)(6). Rooney v. 

Ohio State Hwy. Patrol, 10th Dist. No. 16AP-204, 2017-Ohio-1123, ¶ 22 (granting Civ.R. 

12(B)(6) motion to dismiss where allegations plaintiff had "direct contact" with state's 

agents were not supported by sufficient factual allegations in complaint). We further note 

that, to the extent the complaint alleges justifiable reliance, the allegations involve 

reliance between BWC and BRT, not between BWC and the "injured party" (i.e., Banks). 

See Rudd at ¶ 18 ("the special relationship must be with the injured party"). 

{¶ 26} Accordingly, the Court of Claims did not err in its determination that, on 

making all reasonable inferences in favor of appellant, BWC was immune from liability 

under the public duty doctrine and that no special relationship existed between BWC and 

Banks. Based on the foregoing, appellant's first and second assignments of error are not 

well-taken and are overruled. 

{¶ 27} Under the third assignment of error, appellant asserts the Court of Claims 

erred in denying a request for leave to amend the complaint. Appellant argues the Court 

of Claims denied the request for leave without explanation, and that leave should have 

been freely granted pursuant to Civ.R. 15(A). 

{¶ 28} By way of background, in response to BWC's motion for judgment on the 

pleadings, appellant filed a "memorandum in opposition" on May 23, 2017. In the last 

section of appellant's memorandum, appellant requested, in the event the Court of Claims 

disagreed with appellant's contention that BWC was not entitled to judgment on the 
No. 17AP-748 9 

pleadings, that the court "grant it leave to file an amended complaint under Civil Rule 15 

rather than grant judgment on the pleadings and dismiss the case with prejudice."1

{¶ 29} After a responsive pleading is filed, "a party may amend his pleading only by 

leave of court or by written consent of the adverse party." Reighard v. Cleveland Elec. 

Illuminating, 7th Dist. No. 05 MA 120, 2006-Ohio-1283, ¶ 39, citing Civ.R. 15(A). 

Pursuant to Civ.R. 15(A), leave of court shall be freely given "when justice so requires." A 

trial court's ruling with respect to a Civ.R. 15 motion to amend a complaint "is reviewed 

for abuse of discretion." Suriano v. NAACP, 7th Dist. No. 05 JE 30, 2006-Ohio-6131, 

¶ 81. 

{¶ 30} In the present case, appellant did not seek to amend the complaint before 

BWC filed its motion for judgment on the pleadings. Further, appellant did not file a 

formal motion for leave to amend (nor did appellant submit a proposed amended 

complaint). Rather, appellant made an alternative request in the memorandum in 

opposition to BWC's motion for judgment on the pleadings to amend "if the Court 

disagrees and finds the Estate's complaint deficient." (Pl.'s Memo in Opposition to Def.'s 

Mot. for Judgment on the Pleadings at 1-2.) Under these circumstances, we find no abuse 

of discretion by the Court of Claims by not granting appellant leave to amend the 

complaint. See Miller v. Med. Mut. of Ohio, 5th Dist. No. 2012CA0020, 2013-Ohio-3179, 

¶ 59 (trial court did not abuse its discretion in failing to grant leave to amend where 

appellants did not file formal motion for leave to amend complaint but, instead, in 

response to motion to dismiss, requested the court allow them to file amended pleading in 

the event the court found the complaint deficient); White v. Roch, 9th Dist. No. 22239, 

2005-Ohio-1127, ¶ 8 (finding no abuse of discretion by trial court in not granting 

appellant leave to amend complaint where appellant did not file formal motion seeking 

leave to amend but rather made passing request for leave to amend in brief opposing 

motion to dismiss). 

{¶ 31} Appellant's third assignment of error is not well-taken and is overruled. 

 

1 Appellant also filed, on August 28, 2017, a motion for leave to submit "attached evidentiary materials in 

support of its alternative Motion for Leave to Amend Complaint in the event the Court agrees with 

Defendant that the Complaint's allegation of operative facts is insufficient to survive Defendant's Motion for 

Judgment on the Pleadings." The Court of Claims denied appellant's motion for leave to submit that 

evidence. As noted by BWC, appellant has not assigned as error the Court of Claims' denial of appellant's 

motion for leave to submit evidentiary materials. 
No. 17AP-748 10 

{¶ 32} Based on the foregoing, appellant's three assignments of error are 

overruled, and the judgment of the Court of Claims of Ohio is hereby affirmed. 

Judgment affirmed. 

LUPER SCHUSTER and BRUNNER, JJ., concur. 

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