[Cite as Savage v. Ohio State Univ., 2014-Ohio-2504.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Scott A. Savage, : 

 Plaintiff-Appellant, : 

v. : No. 13AP-896 

 (Ct. of Cls. No. 2009-06575) 

The Ohio State University, : 

 (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on June 10, 2014 

 

Thomas W. Condit, for appellant. 

Michael DeWine, Attorney General, Randall W. Knutti and 

Amy S. Brown, for appellee. 

 

APPEAL from the Court of Claims of Ohio 

TYACK, J. 

{¶ 1} Plaintiff-appellant, Scott A. Savage, is appealing from the granting of 

immunity to two members of the faculty at The Ohio State University Mansfield Regional 

Campus ("OSU Mansfield"). He assigns a single assignment of error for our 

consideration: 

THE TRIAL COURT IN FINDING THAT OSU FACULTY 

MEMBERS HAMLIN AND KENNEDY DID NOT ACT 

MALICIOUSLY IN THEIR TREATMENT OF SAVAGE AND 

WERE THEREFORE ENTITLED TO IMMUNITY UNDER 

R.C. §2743.02 AND R.C. §9.86. 

{¶ 2} The cited code sections read as follows: 
No. 13AP-896 2 

(F) 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 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. The officer or employee may participate 

in the immunity determination proceeding before the court of 

claims to determine whether the officer or employee is 

entitled to personal immunity under section 9.86 of the 

Revised Code. 

The filing of a claim against an officer or employee under this 

division tolls the running of the applicable statute of 

limitations until the court of claims determines whether the 

officer or employee is entitled to personal immunity under 

section 9.86 of the Revised Code. 

R.C. 9.86 reads: 

Except for civil actions that arise out of the operation of a 

motor vehicle and civil actions in which the state is the 

plaintiff, no officer or employee shall be liable in any civil 

action that arises under the law of this state for damage or 

injury caused in the performance of his duties, unless the 

officer's or employee's actions were manifestly outside the 

scope of his employment or official responsibilities, or unless 

the officer or employee acted with malicious purpose, in bad 

faith, or in a wanton or reckless manner. 

This section does not eliminate, limit, or reduce any immunity 

from civil liability that is conferred upon an officer or 

employee by any other provision of the Revised Code or by 

case law. This section does not affect the liability of the state 

in an action filed against the state in the court of claims 

pursuant to Chapter 2743. of the Revised Code. 
No. 13AP-896 3 

{¶ 3} In his brief, Savage asserts that the acts of the two faculty members were 

malicious as a matter of law, not as a matter of fact. His argument is summarized in the 

introduction to his brief as follows: 

This case involves the malice of radically pro-Homosexual 

faculty members who were permitted to drive a Christian 

librarian from his position at a public university – all 

because the faculty members would not tolerate a book 

selection discussion that they perceived as a challenge to 

their homosexual orthodoxy and to their "scholarship. " 

{¶ 4} Savage started the course of litigation by filing a lawsuit in the Richland 

County Court of Common Pleas against four faculty members of OSU Mansfield. 

However, state employees cannot be sued successfully in a common pleas court unless the 

Court of Claims has made a finding that the state employees are not immune from a 

lawsuit. Nease v. Med. College Hosp., 64 Ohio St.3d 396 (1992). Ultimately, suit was 

filed by Savage in the Court of Claims which found the faculty members were immune. 

Essentially, the litigation in state court ended as to the faculty members. On appeal, 

Savage now questions those immunity findings "as a matter of law." Immunity of a state 

employee is a question of law properly decided by the Court of Claims. See id. at 400. 

{¶ 5} The record before us on appeal includes two volumes of transcripts from the 

evidentiary hearings on the immunity issues. The record also incudes a transcript from 

the trial which followed in which OSU Mansfield was the only party. The evidence 

produced subsequent to the immunity finding is not proper for us to consider in deciding 

whether the court of claims was wrong in granting immunity. State ex rel. Duncan v 

Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730 (1995); Sanders v. WAMCO, Inc., 10th 

Dist. No. 10AP-548, 2011-Ohio-1336, ¶ 10. The Court of Claims cannot be faulted for 

failing to consider evidence which had not been presented at the time it made its decision. 
No. 13AP-896 4 

{¶ 6} The litigation filed by Savage arose out of an internal discussion of faculty 

and staff at OSU Mansfield about a book or books which would be required reading for 

freshmen at OSU Mansfield. Savage proposed four conservative books for consideration. 

{¶ 7} Savage's proposal was offensive to some of the others on the selection 

committee, who viewed some of the books Savage proffered as denigrating homosexual 

students and faculty. One of the committee members called one of the proffered books 

"anti-gay" and "homophobic tripe." 

{¶ 8} Savage then chose to invite a person affiliated with the Foundation for 

Individual Rights in Education (F.I.R.E) into the discussion. Savage felt that other 

committee members had also reached outside of the committee and invited others into 

the discussion. 

{¶ 9} As the discussion heated up, Savage decided to withdraw from the book 

selection committee. The issue did not die with Savage's withdrawal. A faculty member 

who was not on the book selection committee had become aware of the list proffered by 

Savage. That faculty member, now deceased, sent an e-mail to virtually everyone on 

campus and attacked the book suggestions. The faculty member, who was gay, claimed 

the suggestion of one of the books, "The Marketing of Evil," was a personal attack on him 

and was a violation of OSU Mansfield's anti-discrimination policy. No immunity issues as 

to this faculty member have been raised and no litigation in state court involving that 

person's estate has been present. 

{¶ 10} After vigorous discussions at a faculty meeting, two other members of the 

faculty initiated proceedings with OSU Mansfield's Human Resource Office ("HR"). 

Apparently, the initiation of these proceedings and the exhibits provided in conjunction 
No. 13AP-896 5 

with the initiation of the proceedings are the basis for Savage's claims of defamation and 

intentional infliction of emotional distress and are the issues at the heart of the granting 

of immunity. 

{¶ 11} Outside groups, including an entity called Allied Defense Fund ("ADF"), 

waded in and issued publicity which brought national media attention to the controversy. 

Savage was the person who got ADF involved. 

{¶ 12} As with most heated controversies, this one continued longer than it should 

have. One of the faculty who initiated an HR complaint wanted Savage fired from his 

position as a reference librarian. 

{¶ 13} Eventually Savage took a leave of absence and then followed it with his 

resignation. 

{¶ 14} The trial court addressed the immunity issues simply and concisely: 

In addition, the court finds that plaintiff failed to prove, by a 

preponderance of the evidence, that the above-listed 

individuals acted with malicious purpose, in bad faith, or in a 

wanton or reckless manner toward the plaintiff. Although the 

charges of sexual harassment were ultimately determined to 

be without merit, the evidence does not support the 

conclusion that charges were made for an improper purpose. 

Accordingly, the above-mentioned individuals are entitled to 

immunity pursuant to R.C. 9.86 and 2743.02(F) and the 

courts of common pleas do not have jurisdiction over civil 

actions against them based upon the alleged actions in this 

case. 

(Decision, at 5-6.) 

{¶ 15} This analysis is consistent with the guidance of the Supreme Court of Ohio 

in Villella v. Waikem Motors, Inc., 45 Ohio St.3d 36 (1989), which states: 

[T]he defendant must have operated under "(1) that state of 

mind which is characterized by hatred, ill-will, or as spirit of 

revenge, or (2) a conscious disregard for the rights and safety 
No. 13AP-896 6 

of other persons that has a great probability of causing 

substantial harm." Also, we have noted "that it is rarely 

possible to prove actual malice otherwise than by conduct 

and surrounding circumstances." Moreover, actual malice 

can be inferred from conduct and surrounding 

circumstances which may be characterized as reckless, 

wanton, willful or gross. 

Id. at 37. (Citations omitted.) 

{¶ 16} The communication with HR was internal to OSU Mansfield and addressed 

an issue of general concern on the campus. The discussions which followed were about 

issues of what was best for the students, faculty and staff. We cannot say the discussions 

or the conduct and surrounding circumstances were malicious "as a matter of law." A 

university campus in particular should be a place where people can have heated 

discussions about deeply held beliefs without hating each other. 

{¶ 17} The sole assignment of error is overruled. The judgment of the Court of 

Claims of Ohio as to immunity for the two faculty members is affirmed. 

Judgment affirmed. 

SADLER, P.J., and BROWN, J., concur.