[Cite as Ferrell v. Ohio State Hwy. Patrol, 2016-Ohio-5223.]

{¶1} Before the court for determination are three motions: (1) motion for judgment 

on the pleadings filed by defendant Ohio State Highway Patrol (OSHP) on March 21, 

2016; (2) a motion to allow depositions filed by plaintiff Benjamin W. Ferrell on March 

31, 2016; and (3) an unopposed motion for leave to file a reply to “Defendant’s 

Memorandum Contra Plaintiff’s Motion to Allow Depositions” filed by Ferrell on April 29, 

2016 with a reply tendered with Ferrell’s motion for leave. 

{¶2} Upon review, the court grants OSHP’s March 21, 2016 motion for judgment 

on the pleadings, denies Ferrell’s March 31, 2016 motion to allow depositions, grants 

Ferrell’s unopposed April 29, 2016 motion for leave to file a reply to OSHP’s 

memorandum contra plaintiff’s motion to allow depositions, and accepts the reply filed 

by Ferrell on April 29, 2016. 

I. Background 

{¶3} Plaintiff Benjamin Ferrell sues OSHP, asserting that state troopers acted 

negligently with respect to him when they investigated a multi-vehicle collision. 

According to Ferrell, on December 20, 2014 at about 6:15 p.m., he was traveling 

southbound on Interstate 71 (I-71) in Ashland County, Ohio, when another driver—

Dantoine Wright—pulled on to the interstate and the vehicle driven by Ferrell—a 

Chevrolet Equinox—struck Wright’s vehicle. (First Amended Complaint at ¶ 7-9, 16.) 

BENJAMIN W. FERRELL 

 Plaintiff 

 v. 

OHIO STATE HIGHWAY PATROL 

 Defendant 

Case No. 2015-01041 

Judge Patrick M. McGrath 

DECISION 
Case No. 2015-01041 -2- DECISION 

Ferrell maintains that another collision occurred moments later that involved his vehicle 

and other vehicles. (First Amended Complaint at ¶ 11.) According to Ferrell, after the 

collisions “the Ohio State Police responded, including, but not limited to, Officer Paul 

Green, Sergeants Bittinger and Bishop, and Troopers Marshall and Rawson,” with 

Sgt. Bittinger arriving at about 6:22 p.m., and Trooper Rawson arriving at about 

6:23 p.m. (First Amended Complaint at ¶ 12, 14). 

{¶4} Ferrell contends that during the period when the troopers arrived at the 

scene until the scene was cleared at about 8:24 p.m., troopers “did not perform a 

physical inspection of the interstate area” to determine his location, despite the fact that 

a trooper discovered Ferrell’s driver’s license and wallet in the vehicle that he was 

operating. (First Amended Complaint at ¶ 13, 15-16.) 

{¶5} Ferrell alleges that only after Sgt. Bishop and two other troopers returned to 

the highway patrol post “was a coordinated effort initiated to track down [him] after 

concerns were expressed by his girlfriend and family members.” (First Amended 

Complaint at ¶ 17.) Ferrell maintains that according to a traffic crash report, Sgt. Bishop 

instructed Troopers Rawson and Marshall to return to the collision scene “to do a 

search and sweep of the collision scene looking for Mr. Ferrell.” (First Amended 

Complaint at ¶ 19.) Ferrell asserts that, after returning to the scene at about 11:26 p.m., 

Trooper Rawson “approached the bridge north of the mile post 186 exit, climbed over a 

concrete abutment and down onto the rock pile beneath the bridge overpass” and, while 

he looked under the bridge, Trooper Rawson heard a groan and called out, asking if 

someone was there. (First Amended Complaint at ¶ 21-22.) After hearing another 

groan, Trooper Rawson shined his flashlight beneath the bridge, found Ferrell lying in 

mud and water, and lifted him from behind to remove him. (First Amended Complaint at 

¶ 23-24.) Ferrell claims that EMS personnel responded to the scene at 11:45 p.m. and 

transported him to a hospital shortly after midnight on December 21, 2014. (First 

Amended Complaint at ¶ 27.) 
Case No. 2015-01041 -3- DECISION 

II. Relevant Procedural History 

{¶6} On December 18, 2015, Ferrell filed a complaint in this court against OSHP. 

Three days later—on December 21, 2015—Ferrell filed an amended complaint in 

this court, presenting two causes of action: (1) “Count I”–“Gross 

Negligence/Wanton/Reckless Conduct of Defendant,” (2) “Count II”—“Negligence of 

Defendant.” (First Amended Complaint at 6, 7.) With this first amended complaint, 

Ferrell appended two exhibits (Exhibits A and B)—OSHP traffic crash reports 

concerning the events of December 20, 2014. In his amended complaint, Ferrell 

maintains that OSHP’s failure to properly investigate his location in a timely manner 

constituted negligence and gross negligence and reckless and wanton misconduct. 

(First Amended Complaint at ¶ 32, 38.) He contends that OSHP owed common law 

duties to him—i.e., among other things, to properly and thoroughly investigate the 

collision scene and timely locate his whereabouts. (First Amended Complaint at ¶ 33, 

39.) Ferrell asserts that he sustained injuries, including but not limited to, an epidural 

hematoma requiring a right craniotomy for hematoma evaluation, hypothermia, 

traumatic brain injury, various bone fractures, and deficits resulting from the incident. 

(First Amended Complaint at ¶ 29-30.) Ferrell seeks damages for lost wages in excess 

of $10,000, and medical expenses in excess of $58,000. Ferrell also seeks damages of 

$4,000,000 for “pain and suffering, past, present, and future,” court costs and attorney 

fees, pre and post-judgment interest, and other relief for which the court determines that 

he may be entitled. 

{¶7} Defendant OSHP has answered Ferrell’s first amended complaint, denying 

his claims of negligence and gross negligence. On March 21, 2016, OSHP moved the 

court for judgment on the pleadings in accordance with Civ.R. 12(C). On March 31, 

2016, in a combined filing, Ferrell responded to OSHP’s Civ.R. 12(C) motion and moved 

the court to allow depositions. In response to Ferrell’s motion to allow depositions, 

OSHP filed a memorandum in opposition. On April 29, 2016, Ferrell moved for leave to 
Case No. 2015-01041 -4- DECISION 

file a reply to OSHP’s memorandum in opposition to Ferrell’s motion to allow 

depositions. OSHP has not opposed Ferrell’s motion for leave to file a reply. 

III. Ohio State Highway Patrol’s Civ.R. 12(C) Motion for Judgment on the 

Pleading and Ferrell’s Response in Opposition 

{¶8} In its Civ.R. 12(C) motion for judgment on the pleadings, OSHP urges that 

Ferrell’s claims should be dismissed on the basis of public-duty immunity contained in 

R.C. 2743.02(A). OSHP asserts that, absent the existence of a statutorily-defined 

“special relationship,” Ferrell may not surmount a defense to the application of publicduty immunity, which OSHP maintains includes, among other things, any action or 

omission of the state involving a law enforcement activity or emergency activity. OSHP 

contends that, based on the facts alleged in Ferrell’s complaint, Ferrell cannot 

demonstrate a “special relationship” because he does not satisfy the requirements 

contained in R.C. 2743.02(A)(3)(b)(iii) (some form of direct contact between the state’s 

agents and an injured party) and (iv) (an injured party’s justifiable reliance on the state’s 

affirmative undertaking). OSHP states, “It is clear from the facts alleged in the amended 

complaint that no employee of OSHP had contact with Ferrell; thus, as a matter of law 

he cannot establish the third element of the ‘special relationship’ exception to immunity. 

Furthermore, since Ferrell had no contact with troopers, he cannot demonstrate his 

reliance on any purported affirmative undertaking of the troopers. Thus, Ferrell cannot 

prove as a matter of law the fourth element of the ‘special relationship’ exception to 

immunity.” (Defendant’s Civ.R 12(C) Motion at 5.) OSHP maintains that Ferrell’s first 

amended complaint should be dismissed in its entirety. 

{¶9} In a filing that combines a response to OSHP’s motion for judgment on the 

pleadings and a motion to allow depositions, Ferrell asserts that OSHP’s Civ.R. 12(C) 

motion is improper and premature. He contends that he has requested depositions and 

discovery and he is within the statute of limitations to amend his pleadings in the future. 

Ferrell maintains that OSHP is not immune from liability, urging that OSHP’s argument 
Case No. 2015-01041 -5- DECISION 

disregards R.C. 2744.03 (defenses or immunities of a political subdivision and 

employee). Relying on Estate of Graves v. Circleville, 124 Ohio St.3d 339, 2010-Ohio168, 922 N.E.2d 201 (public-duty rule is not applicable in civil actions brought against 

employees of political subdivisions for wanton or reckless conduct), Ferrell asserts that 

OSHP is not immune from liability as the “allegations in Plaintiff’s Complaint, along with 

the attached Exhibits incorporated therein, clearly set forth Plaintiff’s case that the 

State’s employees acted in a wanton and reckless manner during its investigation of the 

collision scene.” (Response at 6.) 

{¶10} According to Ferrell, OSHP’s argument concerning R.C. 2743.02 is flawed. 

Ferrell maintains that R.C. 2744.03 pre-dates R.C. 2743.02 and “it is clear in 

R.C. 2744.03(A)(6)(b) the State had consented to be sued in situations when ‘[t]he 

employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton 

and reckless manner.’” (Emphasis omitted.) (Response at 7.) Ferrell reasons that 

“since the State had previously consented to be sued, the portion of R.C. 2743.02 relied 

upon by Defendant has no applicability to this case.” (Response at 8.) See 

R.C. 2743.02(A)(1) (“To the extent that the state has previously consented to be sued, 

this chapter has no applicability”). 

{¶11} Ferrell also challenges OSHP’s application of R.C. 2743.02(A)(3)(b) 

(special relationship requirement) maintaining that the “wanton and reckless conduct 

exception is independent of any purported ‘special relationship’ requirement.” 

(Response at 8.) Ferrell urges that agents of OSHP “had direct contact and control of 

just about every item in Plaintiff’s possession, except his body. The State Police had 

direct contact with Plaintiff’s vehicle, girlfriend, wallet, driver’s license, insurance 

information, money and cell phone number.” (Response at 9.) 

{¶12} In a reply memorandum, Ferrell clarifies contentions made in his response, 

stating: “Although Plaintiff did cite to Chapter 2744 and the case of Estate of Graves v. 

Circleville, (2010), 124 Ohio St.2d 339,345, 922 N.E. 2d 201, as the only published case 
Case No. 2015-01041 -6- DECISION 

addressing public duty in the context of wanton and reckless conduct, Plaintiff also 

clearly relied on the waiver of immunity provisions R.C. Chapter 2743 [sic]. 

R.C. 2743.02 expressly provides that an action against an officer alleging the officer 

acted outside the scope of his employment, acted with malicious purpose, in bad bath 

or in a wanton or reckless manner must first be filed in the Court of Claims for an 

immunity determination and a determination whether the Courts of Common Pleas have 

jurisdiction over the civil action. R.C. 2743.02(F).” (Reply at 2.) 

{¶13} Thus, based on the motions before the court, at issue are (1) whether, as a 

matter of law, OSHP is entitled to judgment on the pleadings based on public-duty 

immunity, and (2) whether discovery should proceed such that Ferrell may be permitted 

to depose OSHP employees. 

Discussion

A. Standard for Determining Civ.R. 12(C) Motion

{¶14} Civ.R. 12(C) permits motions for judgment on the pleadings, providing: 

“After the pleadings are closed but within such times as not to delay the trial, any party 

may move for judgment on the pleadings.” In State ex rel. Midwest Pride IV, Inc. v. 

Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996), the Supreme Court of Ohio 

discussed the standard for determining a Civ.R. 12(C) motion for judgment on the 

pleadings, stating: “Civ.R. 12(C) motions are specifically for resolving questions of law, 

Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, 166, 63 Ohio Op. 2d 262, 264, 297 

N.E.2d 113, 117.” Pontious states at 570: 

a. Under Civ. R. 12(C), dismissal is appropriate where a court (1) 

construes the material allegations in the complaint, with all 

reasonable inferences to be drawn therefrom, in favor of the 

nonmoving party as true, and (2) finds beyond doubt, that the 

plaintiff could prove no set of facts in support of his claim that would 

entitle him to relief. * * * Thus, Civ.R. 12(C) requires a 

determination that no material factual issues exist and that the 

movant is entitled to judgment as a matter of law. 
Case No. 2015-01041 -7- DECISION 

{¶15} In Marok v. Ohio State Univ., 10th Dist. Franklin No. 07AP-921, 2008-Ohio3170, ¶ 10, the Tenth District Court of Appeals observed, “A Civ.R. 12(C) motion for 

judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion 

for failure to state a claim upon which relief can be granted.” And in S.E.A. Inc. v. 

Dunning-Lathrop & Assocs., 10th Dist. Franklin Nos. 03AP-1051, 03AP-1052, 2004 

Ohio App. LEXIS 3734, at *11-12 (Aug. 5, 2004), the Tenth District Court of Appeals 

stated, “The Ohio Supreme Court has made it abundantly clear that a court’s review of a 

Civ.R. 12(C) motion is limited exclusively to the allegations contained in the complaint 

and answer, and any writings properly attached to such and that a trial court may not 

consider any other evidentiary materials.” 

{¶16} Thus, as Ferrell has filed a first amended complaint and OSHP has 

answered this complaint, the court finds that OSHP’s Civ.R. 12(C) motion is properly 

before the court. The court further finds that in accordance with S.E.A. Incorporated it 

may consider the allegations in Ferrell’s first amended complaint and the exhibits that 

Ferrell appended to this complaint when determining OSHP’s Civ.R. 12(C) motion for 

judgment on the pleadings. 

B. Immunity for Government Officials and Employees

{¶17} In Conley v. Shearer, 64 Ohio St.3d 284, 285, 595 N.E.2d 862 (1992), the 

Supreme Court of Ohio discussed the concept of immunity for government officials and 

employees, stating: “Historically, immunity for government officials and employees was 

derived from the legal fiction that ‘[t]he King could do no wrong, so any mistake in 

judgment on the part of the King’s officials was an act for which the government would 

take no responsibility.’ Civil Actions Against State Government, Its Divisions, Agencies 

and Officers (Winborne Ed.1982) 230, Section 6.2.” Conley notes that the Ohio 

Supreme Court held many years ago that the state and its officers were immune from 

tort and other liability for wrongs committed by agents of the state when acting in their 

official capacity. Id. Conley explains that in 1912 in Section 16, Article I of the Ohio 
Case No. 2015-01041 -8- DECISION 

Constitution, the state constitution was amended to allow actions to be brought against 

the state, but this provision “was ‘not self-executing,’ and constituted only an 

authorization for subsequent statutes in which the General Assembly could grant its 

specific consent to be sued.” Id. 

{¶18} As stated in Conley, “In 1975, the General Assembly enacted legislation 

creating the Court of Claims and specifying the forum and manner in which actions may 

be brought against the state and its officers and employees.” Id. at 286. However, it 

was not until after 1975 that the General Assembly enacted provisions in R.C. Chapter 

2744, which concerns actions brought against political subdivisions. See Am.Sub.H.B. 

No. 176, 141 Ohio Laws, Part I, 1699 (enacting R.C. 2744.01 to 2744.09) (effective 

November 20, 1985). Compare Am.Sub.H.B. No. 800, 135 Ohio Laws, Part II, 869 

(enacting R.C. 2743.01 to 2743.20) (effective January 1, 1975). Ferrell’s contention that 

“R.C. 2744.03 pre-dated R.C. 2743.02 and it is clear in R.C. 2744.03(A)(6)(b) the State 

had consented to be sued in situations when ‘[t]he employee’s acts or omissions were 

with malicious purpose, in bad faith, or in wanton and reckless manner’” (emphasis 

omitted) (Ferrell’s Response to Judgment on the Pleadings at 7) is not persuasive. 

{¶19} Additionally, Ferrell’s reliance on R.C. 2744.03 and Estate of Graves v. 

Circleville is not persuasive as R.C. 2744.03 applies to a political subdivision—not the 

state—and Graves interprets the public-duty rule in civil actions brought against 

employees of a political subdivision for wanton or reckless conduct. See Estate of 

Graves, syllabus (“The public-duty rule adopted by this court in Sawicki v. Ottawa Hills

(1988), 37 Ohio St.3d 222, 525 N.E.2d 468, is not applicable in civil actions brought 

against employees of political subdivisions for wanton or reckless conduct”). 

{¶20} In his response, Ferrell draws this court’s attention to R.C. 2743.02(F), 

which provides: 

b. A civil action against an officer or employee, as defined in section 

109.36 of the Revised Code, that alleges that the officer’s or 

employee’s conduct was manifestly outside the scope of the 
Case No. 2015-01041 -9- DECISION 

officer’s or employee’s employment or official responsibilities, or 

that the officer or employee acted with malicious purpose, in bad 

faith, or in a wanton or reckless manner shall first be filed against 

the state in the court of claims that has exclusive, original 

jurisdiction to determine, initially, whether the officer or employee is 

entitled to personal immunity under section 9.86 of the Revised 

Code and whether the courts of common pleas have jurisdiction 

over the civil action. * * *. 

{¶21} Notably, R.C. 2743.02(F) pertains to this court’s jurisdiction. As the Ohio 

Supreme Court explained in Ries v. Ohio State Univ. Med. Ctr., 137 Ohio St.3d 151, 

2013-Ohio-4545, 998 N.E.2d 461, ¶ 20, “R.C. 2743.02(F) vests the Court of Claims with 

exclusive jurisdiction to determine whether a state employee is immune from personal 

liability in a civil action allowed by R.C. 9.86.” See L.C.C.R. 4.1 (immunity 

determinations). In this case neither party through their motions challenges the 

jurisdiction of this court to adjudicate whether an employee of OSHP should be afforded 

immunity from personal liability. Neither have the parties sought an immunity 

determination in accordance with this court’s local rule. 

 

C. Public Duty Doctrine

{¶22} In Wallace v. Ohio Dep’t of Commerce, 96 Ohio St.3d 266, 2002-Ohio4210, 773 N.E.2d 1018, ¶ 13, the Supreme Court of Ohio explained that the public-duty 

doctrine originated at English common law and “precludes a private party from 

sustaining a cause of action against a public officer for breach of a public duty. * * * In 

other words, a public entity owes a duty only to the general public when performing 

its functions and is therefore not liable for torts committed against an individual absent a 

special duty owed to the injured person.” In Wallace, the Ohio Supreme Court 

examined the applicability of the public-duty rule to actions against the state and its 

agencies in this court. Wallace at ¶ 12. Wallace holds paragraph one of the syllabus: 

“The public-duty rule is incompatible with R.C. 2743.02(A)(1)’s express language 

requiring that the state’s liability in the Court of Claims be determined ‘in accordance 
Case No. 2015-01041 -10- DECISION 

with the same rules of law applicable to suits between private parties.’ In negligence 

suits against the state, the Court of Claims must determine the existence of a legal duty 

using conventional tort principles that would be applicable if the defendant were a 

private individual or entity.” 

{¶23} After Wallace, the General Assembly amended R.C. 2743.01 and 2743.02, 

adding divisions (3)(a) and (b) to R.C. 2743.02. Sub.H.B. No. 316, 150 Ohio Laws, 

Part IV, 5438, 5445-5446 (effective March 31, 2005). In accordance with the current 

version of R.C. 2743.02, the state generally enjoys immunity from civil liability with 

respect to the performance or nonperformance of a public duty. See R.C. 

2743.02(A)(3). As used in R.C. Chapter 2743, a 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 * * *.” (Emphasis added.) R.C. 2743.01(E)(1). 

c. R.C. 2743.02(A)(3) provides: 

(a) 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, including the performance or 

nonperformance of a public duty that is owed by the state 

in relation to any action of an individual who is committed 

to the custody of the state. 

(b) 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 relationship under this division is demonstrated if 

all of the following elements exist: 

d. 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; 
Case No. 2015-01041 -11- DECISION 

e. Knowledge on the part of the state’s agents that inaction of the 

state could lead to harm; 

f. Some form of direct contact between the state’s agents and the 

injured party; 

g. The injured party’s justifiable reliance on the state’s affirmative 

undertaking. 

(Emphasis added.) 

{¶24} It is manifest that according to R.C. 5503.01 the state highway patrol is a 

division within the Ohio department of public safety and state highway patrol troopers 

are authorized to investigate and report all motor vehicle accidents on all roads and 

highways outside of municipal corporations. See R.C. 553.01 and 5503.02. Given that 

the state highway patrol is a law enforcement entity and state troopers are authorized to 

investigate motor vehicle accidents, the court finds that public-duty immunity as codified 

in R.C. 2743.02(A)(3)(a) applies as Ferrell’s complaint presents allegations against 

OSHP with respect to its troopers’ investigation of a multi-vehicle collision on I-71 in 

Ashland County. 

{¶25} Having determined that public-duty immunity applies in this case, to 

overcome public-duty immunity Ferrell is required pursuant to R.C. 2743.02(A)(3)(b) to 

demonstrate that a “special relationship,” as defined in R.C. 2743.02(A)(3)(b), exists 

based on the allegations in his first amended complaint and its attachments. 

{¶26} Upon review, after reviewing the first amended complaint and the 

attachments thereto with reasonable inferences drawn in Ferrell’s favor, the court 

concludes that Ferrell has not demonstrated the existence of a statutorily-defined 

“special relationship.” A review of Ferrell’s first amended complaint discloses no 

allegation that he had any contact with agents of OSHP until he was located by Trooper 

Rawson. See First Amended Complaint at ¶ 23. And a review of Exhibits A and B that 
Case No. 2015-01041 -12- DECISION 

are appended to Ferrell’s first amended complaint supports a determination that state 

troopers had no contact with Ferrell until Trooper Rawson located him. For example, in 

the “Officer Narrative” section of a Traffic Crash Report contained in Exhibit A Trooper 

Paul Green reports, 

h. I made contact with a female that was sitting in the driver’s seat of 

the Equinox. She stated that her boyfriend was driving when the 

crash occurred. The female in the driver’s seat of the Equinox 

identified herself as Amira S. Mabjish, D.O.B. * * *. Ms. Mabjish 

stated that she did not witness the crash because, she was asleep 

in the passenger seat with the dog on her lap when the crash 

occurred. While speaking with Mabjish, she advised me that her 

boyfriend Benjamin Farrell [sic] was no longer at the scene. I 

asked her where he went. Mabjish stated that she was not sure. I 

spoke with Mabjish later, and she stated that she thought 

Mr. Ferrell had left the scene with the gentleman that was driving a 

maroon SUV, because she had last seen the two gentleman [sic] 

speaking. Miss Mabjish stated that the gentleman in the maroon 

SUV said he had witnessed the crash, and asked Ferrell to come 

with him. 

{¶27} (Exhibit A at 7.) Trooper Green further notes, “I advised Wooster dispatch 

that [Ferrell] was gone on arrival, as was reported to me by Miss Mabjish. * * * I asked 

Wooster Dispatch to call Ashland Samaritan and see if Mr. Ferrell was there, being that 

he was missing from the crash scene. * * * I attempted to contact Mr. Ferrell on his cell 

phone by the number that Mabjish had provided. His phone went directly to voice mail.” 

In his narrative Trooper Green indicated that he spoke by phone with Ferrell’s father 

(Phillip Ferrell) and informed him that Mabjish had reported that his son had left the 

scene “with a maroon SUV. Mr. Phillip Ferrell stated that gentleman in the maroon SUV 

was taking Mr. Ferrell to complete a police report [sic]. I spoke with Mr. Ferrell a little 

later. He stated that he wished to file a missing persons report for his son, being that 

his son was missing.” The Narrative Section further states, “Sgt. Bishop contacted the 

HUB regarding the incident and informed them of Benjamin Ferrell being missing. 

Sgt. Bishop requested that two units check the area of the crash scene to ensure that 
Case No. 2015-01041 -13- DECISION 

Mr. Ferrell was not located anywhere near it. Tpr. Rawson and Tpr. Marshall traveled to 

check the area at approximately 2326 hours. Tpr. Rawson indicated over the radio that 

he had located a gentleman. * * * Tpr. Rawson indicated that he had pulled Mr. Ferrell 

out of the mud and onto the grassy bank.” 

{¶28} Additionally, a review of Trooper Rawson’s narrative in Exhibit A supports a 

finding that until Trooper Rawson located Ferrell, agents of OSHP did not have contact 

with Ferrell. The Officer Narrative Section in Exhibit B also supports a finding that 

agents of OSHP did not have contact with Ferrell until Trooper Rawson located him. 

See Exhibit B at 11. 

{¶29} Construing Ferrell’s first amended complaint and attachments thereto in 

Ferrell’s favor, the court finds that until Trooper Rawson discovered Ferrell, Ferrell 

did not have some form of direct contact between the state’s agents and him 

as required by R.C. 2743.02(A)(3)(b)(iii) to establish a “special relationship” for 

purposes of R.C. 2743.02(A)(3)(b). And because, based on the first amended 

complaint and attachments thereto Ferrell did not have some form of direct contact 

with agents of OSHP before Trooper Rawson discovered him, it follows that 

Ferrell could not have had a justifiable reliance on the state’s affirmative undertaking 

as required by R.C. 2743.02(A)(3)(b)(iv). And because Ferrell does not satisfy 

R.C. 2743.02(A)(3)(b)(iii) and (iv), it further follows that Ferrell does not satisfy the 

special relationship exception in R.C. 2743.02(A)(3)(b) as this provision provides that a 

“special relationship under this division is demonstrated if all of the following elements 

exist. ” (Emphasis added.) 

{¶30} Therefore, construing the material allegations in the complaint and 

attachments appended thereto, with all reasonable inferences to be drawn therefrom in 

favor of Ferrell, the court concludes that, as a matter of law, public-duty immunity 

contained in R.C. 2743.02(A)(3)(a) applies in this case and judgment on the pleadings 

in favor of OSHP is warranted. 
Case No. 2015-01041 -14- DECISION 

{¶31} Having determined that, as a matter of law, OSHP is protected by publicduty immunity, the court determines that Ferrell’s motion to allow depositions is moot. 

See Black’s Law Dictionary 1161 (10th Ed. 2014) (defining moot as “[h]aving no 

practical significance; hypothetical or academic”). See also Wiles v. Miller, 2013-Ohio3625, 3 N.E.3d 226, ¶ 44 (10th Dist.) (noting that “courts have concluded that no 

additional discovery is needed for a court to rule on a motion to dismiss or a motion for 

judgment on the pleadings”); Lindow v. City of N. Royalton, 104 Ohio App.3d 152, 159, 

661 N.E.2d 253 (8th Dist.1995) (“The completion of discovery is not relevant to the 

granting of a motion to dismiss”). 

V. Conclusion

{¶32} Wherefore, for reasons set forth above, the court determines that, based 

on his first amended complaint and attachments thereto Ferrell can prove no set of facts 

entitling him to relief beyond doubt after all factual allegations are presumed true and 

reasonable inferences are made in his favor. The court shall grant defendant OSHP’s 

motion for judgment on the pleadings filed on March 21, 2016 and shall dismiss 

plaintiff’s first amended complaint with prejudice. The court DENIES plaintiff’s motion to 

allow depositions filed on March 31, 2016. The court GRANTS plaintiff’s April 29, 2016 

motion for leave to file a reply to OSHP’s memorandum contra plaintiff’s motion to allow 

depositions and accepts Ferrell’s reply filed on April 29, 2016. 

 PATRICK M. MCGRATH 

 Judge 
[Cite as Ferrell v. Ohio State Hwy. Patrol, 2016-Ohio-5223.]

{¶33} For the reasons set forth in the decision filed concurrently herewith, the 

court determines that, based on his first amended complaint and attachments thereto, 

plaintiff can prove no set of facts entitling him to relief beyond doubt after all factual 

allegations are presumed true and reasonable inferences are made in his favor. The 

court GRANTS defendant’s motion for judgment on the pleadings filed on March 21, 

2016, and DISMISSES plaintiff’s first amended complaint with prejudice. Judgment is 

rendered in favor of defendant. All previously scheduled events are VACATED. Court 

costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this 

judgment and its date of entry upon the journal. 

 PATRICK M. MCGRATH 

 Judge 

cc: 

Roger N. Braden 

7000 Houston Road, Suite 36 

Florence, Kentucky 41042 

Eric A. Walker 

Velda K. Hofacker 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Filed June 1, 2016 

Sent to S.C. Reporter 8/3/16

BENJAMIN W. FERRELL 

 Plaintiff 

 v. 

OHIO STATE HIGHWAY PATROL 

 Defendant 

Case No. 2015-01041 

Judge Patrick M. McGrath 

JUDGMENT ENTRY