[Cite as McConnell v. Dudley, 2018-Ohio-3099.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

RENEE McCONNELL, et al., 

Plaintiffs-Appellees, 

v. 

DONALD C. DUDLEY, JR., et al., 

Defendants-Appellants.

 

OPINION AND JUDGMENT ENTRY 

Case No. 17 MA 0045 

 

Motion to Certify a Conflict 

BEFORE: 

Cheryl L. Waite, Gene Donofrio, Judges. 

JUDGMENT: 

Denied 

Atty. Ryan J. Melewski and 

Atty. Mark A. Rafidi, Rafidi, Pallante & Melewski, LLC, 105 N. Broad Street, Canfield, 

Ohio 44406 

Atty. Paul W. Flowers, Paul W. Flowers Co., L.P.A., Terminal Tower, Suite 1910, 50 

Public Square, Cleveland, Ohio 44113, for Plaintiffs-Appellees 

Atty. Gregory A. Beck, and 

Atty. Andrea K. Ziarko, Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street, 

North Canton, Ohio 44720, for Defendants-Appellants. 

 

Dated: July 25, 2018 

 
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Case No. 17 MA 0045

PER CURIAM. 

{¶1} On January 26, 2018 we released our Opinion in McConnell v. Dudley, 7th 

Dist. No. 17 MA 0045, 2017-Ohio-5704, -- N.E.3d --. Appellants have filed a motion to 

certify a conflict, arguing that our decision conflicts with cases arising from the Eighth 

and Tenth Districts. See McCloud v. Nimmer, 72 Ohio App.3d 533 (8th Dist.1991); HallPearson v. S. Euclid, 8th Dist. No. 73429, 1998 WL 703390 (Oct. 8, 1998); DiGiorgio v. 

City of Cleveland, 8th Dist. No. 95945, 2011-Ohio-5878; Wingfield v. City of Cleveland, 

8th Dist. No. 100589, 2014-Ohio-2772; Glenn v. City of Columbus, 10th Dist. No. 16AP15, 2016-Ohio-7011. 

{¶2} Motions to certify a conflict are governed by Article IV, Section 3(B)(4) of 

the Ohio Constitution. It provides: “Whenever the judges of a court of appeals find that 

a judgment upon which they have agreed is in conflict with a judgment pronounced 

upon the same question by any other court of appeals of the state, the judges shall 

certify the record of the case to the Supreme Court for review and final determination.” 

{¶3} Under Ohio law, “there must be an actual conflict between appellate 

judicial districts on a rule of law before certification of a case to the Supreme Court for 

review and final determination is proper.” Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 

594, 613 N.E.2d 1032 (1993), paragraph one of the syllabus. We have adopted the 

following requirements from the Supreme Court: 

[A]t least three conditions must be met before and during the certification 

of a case to this court pursuant to Section 3(B)(4), Article IV of the Ohio 

Constitution. First, the certifying court must find that its judgment is in 

conflict with the judgment of a court of appeals of another district and the 
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asserted conflict must be “upon the same question.” Second, the alleged 

conflict must be on a rule of law─not facts. Third, the journal entry or 

opinion of the certifying court must clearly set forth that rule of law which 

the certifying court contends is in conflict with the judgment on the same 

question by other district courts of appeals. (Emphasis in original.) 

Id. at 596. 

{¶4} Appellants argue that the Eighth and Tenth Districts have held that no 

independent cause of action exists within R.C. 2744.02(B) imposing liability for the 

negligent training or hiring of police officers. As such, Appellants urge that our decision, 

finding that a genuine issue of material fact exists as to whether Appellants were 

negligent in hiring and training Officer Donald C. Dudley, Jr. is in conflict with these 

districts. 

{¶5} In response, Appellees contend that they have not asserted an 

independent cause of action for negligent training or hiring of Officer Dudley. Instead, 

these claims are intended to serve as evidence that the Coitsville Police Department 

and Coitsville Township acted in a willful and wanton manner. Appellees point out that 

R.C. 2744.02(B)(1) provides an exception to a political subdivision’s immunity where the 

plaintiff can successfully demonstrate that the political subdivision negligently operated 

a motor vehicle. Evidence of negligent training or hiring can be used to support this 

claim in accordance with Wagner v. Heavlin, 136 Ohio App.3d 719, 737 N.E.2d 989 (7th 

Dist.2000) and Adams v. Ward, 7th Dist. No. 09 MA 25, 2010-Ohio-4851. 

{¶6} Appellants have misinterpreted our Opinion. We were clear in our Opinion 

that Appellees’ complaint asserted one claim based on R.C. 2744.02(B)(1), and that 
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while Appellees also attempted to raise allegations against Officer Dudley as an 

individual, they failed to properly do so. Appellees did assert in their complaint that 

Officer Dudley was negligently hired or trained, however, these allegations were not 

construed as an independent cause of action. Instead, we stated that “R.C. 

2744.02(B)(1), which strips a political subdivision of immunity when an employee 

negligently operates a motor vehicle, includes entrustment and failure to train claims.” 

McConnell at ¶ 30, citing Wagner, supra. Because this is true, we treated Appellees’ 

assertions in this regard as one claim, not separate, independent claims. Accordingly, 

we merged the assignments of error related to allegations under R.C. 2744.01(B)(1) of 

willful and wanton misconduct and negligent hiring and training into one analysis. Our 

Opinion comports with the two cases we relied on, Wagner v. Heavlin, 136 Ohio App.3d 

719, 737 N.E.2d 989 (7th Dist.2000) and Adams v. Ward, 7th Dist. No. 09 MA 25, 2010-

Ohio-4851.

{¶7} In Wagner, a police officer crashed into a third-party vehicle while 

pursuing a suspect. We reviewed whether the officer’s conduct was willful and wanton 

pursuant to R.C. 2744.02(B)(1), the same provision at issue in the instant case. We 

determined that there was a genuine issue of material fact as to whether the officer 

acted in a willful and wanton manner. We also reviewed the plaintiff’s claim that the 

township was liable for negligently hiring and training the officer. We found that there 

was also a genuine issue of material fact as to the negligent hiring and training of the 

officer. We recognized that a claim regarding negligent hiring and training does not 

state an independent cause of action. Nonetheless, a genuine issue of material fact 

existed as to whether the village was negligent in hiring and training. We explained that 
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although the allegation of negligent entrustment and failure to train would not serve as a 

basis for an independent action, they were relevant to an R.C. 2744.02(B)(1) analysis 

as evidence of willful and wanton misconduct. 

{¶8} Similarly, in Adams, we reviewed the issue of whether an officer acted in a 

willful and wanton manner in causing a crash while pursuing a suspect. The plaintiff in 

that case also claimed that the city was negligent in hiring and training the officers. We 

held that, in accordance with Adams, negligent hiring and training of a police officer 

does not form the basis for an independent claim but rather, could serve as evidence of 

wanton or willful behavior on the part of the government. 

{¶9} Neither Wagner nor Adams is inconsistent with our Opinion in the instant 

matter. Similarly, our Opinion is consistent with cases cited by Appellants. In Wingfield, 

the Eighth District held that while negligent training and hiring of an officer is not an 

independent claim, it can be used as evidence of willful and wanton misconduct. See 

Wingfield, fn. 1. Our Opinion also does not conflict with the remaining cases cited by 

Appellants, each of which held that allegations of negligent entrustment and failure to 

train are not, themselves, independent claims. For these reasons, Appellants’ motion to 

certify a conflict is denied. 

 

JUDGE CHERYL L. WAITE 

JUDGE GENE DONOFRIO 

 
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Case No. 17 MA 0045

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.