[Cite as Lawson v. Mahoning Cty. Mental Health Bd., 2010-Ohio-6389.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

ELAINE LAWSON, ADMINISTRATRIX ) 

OF THE ESTATE OF ) 

STEPHEN LAWSON, ) 

 ) CASE NO. 10 MA 23 

 PLAINTIFF-APPELLANT, ) 

 ) 

 - VS - ) O P I N I O N 

 ) 

MAHONING COUNTY MENTAL ) 

HEALTH BOARD, et al., ) 

 ) 

 DEFENDANTS-APPELLEES. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

 Case No. 08CV973. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiffs-Appellants: Attorney Ronald Yarwood 

 Attorney James Gentile 

 42 North Phelps Street 

 Youngstown, Ohio 44503 

For DefendantsAppellees: Attorney Paul Gains 

 Prosecuting Attorney 

 Attorney Gina DeGenova Bricker 

 Assistant Prosecuting Attorney 

 21 West Boardman Street, 5th Floor 

 Youngstown, Ohio 44503 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 Dated: December 22, 2010 
VUKOVICH, P.J. 

¶{1} Plaintiff-appellant Elaine Lawson, Administratrix of the Estate of Stephen 

Lawson (the estate) appeals the decision of the Mahoning County Common Pleas 

Court granting defendant-appellee Mahoning County Mental Health Board’s (MCMHB) 

Motion to Dismiss for failure to state a claim pursuant to Civ.R. 12(B)(6). Three issues 

are raised in this appeal. 

¶{2} The first issue concerns the statutory claims under R.C. Chapter 5123 

that were raised against MCMHB. The trial court found that R.C. Chapter 5123 did not 

apply to MCMHB, and accordingly, dismissed the complaint. The estate contends that 

that holding is incorrect. MCMHB counters asserting that the trial court’s decision was 

correct because R.C. Chapter 5123 applies to the Department of Mental Retardation 

and Developmental Disability, not to Mental Health Boards. Thus, according to 

MCMHB, it could not be sued for violating R.C. 5123.62 and R.C. 5123.64. 

¶{3} We do not need to reach a determination on whether R.C. Chapter 5123 

applies to MCMHB because regardless of our determination the result is the same. If 

it does apply, nothing in that Chapter strips MCMHB’s general grant of immunity, and 

thus, dismissal was warranted. Likewise, if it does not apply, then MCMHB cannot be 

sued for violations of that chapter and dismissal was appropriate. 

¶{4} The second issue concerns the common law claims asserted against 

MCMHB. In the reply brief to the motion in opposition to the MCMHB’s motion to 

dismiss, MCMHB raised for the first time that the common law claims were barred by 

the doctrine of sovereign immunity in R.C. 2744.02. While the magistrate found that 

such arguments were outside the scope of review because they were raised for the 

first time in the reply, the trial court determined that the immunity argument could be 

considered. The trial court then considered the argument and found MCMHB immune 

from liability. 

¶{5} The estate contends that the trial court’s consideration of the immunity 

argument was incorrect. It maintains that the common law claims were asserted in the 

complaint, MCMHB was on notice of those claims and could have argued for their 
dismissal in the motion to dismiss. It then asserts that arguments raised for the first 

time in a reply brief cannot be considered. 

¶{6} MCMHB counters the above by arguing that the complaint did not appear 

to raise strict common law negligence claims against it. It asserts that the estate 

raised the issue of strict common law negligence for the first time in the Motion in 

Opposition to the Motion to Dismiss. Thus, it contends that it was permitted to rebut 

that claim. While the complaint clearly did raise common law claims against MCMHB, 

we find that the trial court did not commit error when it considered the immunity 

argument. 

¶{7} The estate’s final argument is that the trial court erred in issuing a ruling 

on whether the doctrine of sovereign immunity applied to the common law claims 

asserted against MCMHB. The estate contends that the trial court could not issue an 

opinion on sovereign immunity because the magistrate never issued a decision on that 

defense. It is the estate’s position that once the trial court determined that the issue of 

immunity should have been addressed, that issue should have been sent to the 

magistrate to determine whether immunity applied. According to the estate, only after 

the magistrate rendered a decision on the applicability of immunity could the trial court 

address the immunity issue. 

¶{8} MCMHB counters by arguing it was within the trial court’s scope to 

address the applicability of sovereign immunity to the common law claims. It then 

provides an analysis of why the trial court’s determination that MCMHB is immune 

under R.C. Chapter 2744 is correct. 

¶{9} We disagree with the estate. The trial court was permitted to issue a 

ruling on the applicability of the doctrine of sovereign immunity even though the 

magistrate never decided the issue. The trial court is not required to return the matter 

to the magistrate to decide an issue that the magistrate has not rendered a decision 

on. Furthermore, although the estate does not address whether the trial court’s 

immunity finding was correct, as stated above, a review of the immunity statutes 

indicates that MCMHB is immune from liability. 

¶{10} Consequently, there is no merit with any of the estate’s arguments. The 

trial court’s decision to grant of the motion to dismiss is hereby affirmed. 
STATEMENT OF CASE

¶{11} On March 11, 2007, Stephen Lawson, the deceased, was residing in a 

group home at 135 Illinois Avenue in Youngstown, Ohio. Also residing at that group 

home was James DiCioccio. On that date, DiCioccio choked Stephen and Stephen 

died as a result. 

¶{12} Thereafter, Elaine Lawson filed a wrongful death action on behalf of 

Stephen’s estate against MCMHB, as well as others not involved in this appeal. The 

estate asserted in the complaint that the deceased was “disabled, mentally retarded 

and an incapacitated adult.” It alleged that MCMHB owed a common law and statutory 

duty to the deceased to provide for his health, safety and welfare and to protect him 

from harm pursuant to R.C 5123.61. Furthermore, the estate asserted that MCMHB is 

responsible for the building at 135 Illinois Avenue and for preventing any potentially 

dangerous persons to remain on the property. According to the estate, MCMHB knew 

or should have known of the documented attacks and DiCioccio’s criminal history. 

Lastly, the estate alleged that all defendants, including MCMHB, provided services to 

the residents under R.C. 5123.62, that they were negligent in breaching the duty under 

R.C. 5123.62 and thus, were the direct and proximate cause of death. 03/25/08 

Amended Complaint. 

¶{13} In response to the complaint, MCMHB filed a Motion to Dismiss, claiming 

that R.C. 5123.62 and R.C. 5123.64 applied to the Department of Mental Retardation 

and Development Disabilities (MRDD), not to MCMHB. The estate replied to the 

motion asserting that it should not be granted because MCMHB failed to address the 

common law claims. It also disputed MCMHB’s argument that R.C. Chapter 5123 did 

not apply to MCMHB. MCMHB responded asserting that the common law claims are 

barred by immunity under R.C. Chapter 2744. 

¶{14} Following a hearing the magistrate determined that the motion to dismiss 

should be denied. 07/10/09 Decision. It stated that immunity was raised for the first 

time in the response and thus, was outside the scope of its review and would not be 

considered. It then found that MCMHB failed to establish that R.C. Chapter 5123 does 
not apply to it. 07/10/09 Decision. MCMHB filed objections to that decision claiming 

once again that R.C. Chapter 5123 applies to MRDD and not to it. It also stated that 

the magistrate erred in refusing to consider immunity under R.C. 2744.02(B)(2) or R.C. 

2744.02(B)(5). The estate filed a motion in opposition to objections. 10/06/09. 

¶{15} After reviewing the objections and response to objections, the trial court 

stated that R.C. Chapter 5123 does not apply to MCMHB and the magistrate should 

have considered immunity. It then went on to state that none of the exceptions to 

immunity applied to MCMHB. It then concluded that the “Motion to Dismiss should 

have been granted” and sustained the objections. 10/20/09 J.E. The estate then filed 

a motion to clarify that judgment because it did not contain Civ.R. 54(B) language and 

it did not contain language that returned the matter to the magistrate for further 

determination. 10/29/09 Motion. 

¶{16} On January 19, 2010, the trial court clarified its decision. It restated all of 

the findings it made in the October 20, 2009 judgment entry, concluded that “the 

Motion to Dismiss should have been granted,” and sustained the objections. It then 

added no just cause for delay language and that the order is a final appealable order. 

01/19/10 J.E. The estate timely appeals from that decision. 

STANDARD OF REVIEW

¶{17} In this appeal we are reviewing the trial court’s decision to grant 

MCMHB’s Civ.R. 12(B)(6) Motion to Dismiss. When reviewing a judgment on a Civ.R. 

12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, 

an appellate court's standard of review is de novo. Perrysburg Twp. v. Rossford, 103 

Ohio St.3d 79, 2004-Ohio-4362, ¶5. A Civ.R. 12(B)(6) motion to dismiss for failure to 

state a claim upon which relief can be granted is procedural and tests the sufficiency 

of the complaint. State ex rel. v. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 

Ohio St.3d 545, 548. In order to dismiss a complaint for failure to state a claim upon 

which relief can be granted, the court must find beyond doubt that appellant can prove 

no set of facts warranting relief after it presumes all factual allegations in the complaint 

are true, and construes all reasonable inferences in appellant's favor. State ex rel. 

Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490. See, also, Percy Squire Co., 

L.L.C. v. City of Youngstown, 7th Dist No. 05MA33, 2005-Ohio-6442, ¶5 (reviewing the 
decision of a trial court adopting the magistrate’s decision to dismiss the complaint). 

With that standard in mind, we now turn to the assignments raised in this appeal. 

FIRST ASSIGNMENT OF ERROR

¶{18} “THE TRIAL COURT ERRED IN REVERSING THE MAGISTRATE AND 

HOLDING THAT ORC § 5123 DOES NOT IMPOSE LIABILITY ON THE MAHONING 

COUNTY MENTAL HEALTH BOARD.” 

¶{19} The issue the parties’ present under this assignment of error is whether 

R.C. Chapter 5123 applies to the MCMHB. We, however, do not need to reach a 

decision on that issue because assuming it does apply, MCMHB is immune from 

liability under R.C. 2744.02. 

¶{20} The general rule in R.C. 2744.02(A)(1) is that a political subdivision may 

not be held liable in damages for injury or loss caused by an act or omission in 

connection with a governmental or proprietary function. That rule applies to MCMHB. 

See R.C. 2744.01(F); R.C. 340.01; R.C. 340.03(D). The general rule of immunity, 

however, is subject to the five exceptions carved out in R.C. 2744.02(B). In these five 

circumstances, a political subdivision will be responsible for its tortious conduct. 

¶{21} In the complaint, the estate asserts that MCMHB violated R.C. 5123.62 

and R.C. 5123.64 and as such is liable for Stephen’s death. R.C. 5123.62 is 

sometimes referred to as the Bill of Rights for Persons with Mental Retardation or a 

Developmental Disability because it contains a non-inclusive list of rights persons with 

mental retardation or developmental disabilities are entitled to. Estate of Ridley v. 

Hamilton Cty. Bd. of Mental Retardation & Development, 102 Ohio St.3d 230, 2004-

Ohio-2629; Havely v. Franklin Cty., 10th Dist. No. 07AP-1077, 2008-Ohio-4889. R.C. 

5123.64 is the statute that is used to enforce a violation of R.C. 5123.62. 

¶{22} Given the estate’s claims that MCMHB is civilly liable because it violated 

R.C. 5123.62 and R.C. 5123.64, the only possible exception to immunity under R.C. 

2744.02(B) is subsection (5). This section states: 

¶{23} “(5) In addition to the circumstances described in divisions (B)(1) to (4) of 

this section, a political subdivision is liable for injury, death, or loss to person or 

property when civil liability is expressly imposed upon the political subdivision 

by a section of the Revised Code, including, but not limited to, sections 2743.02 and 
5591.37 of the Revised Code. Civil liability shall not be construed to exist under 

another section of the Revised Code merely because that section imposes a 

responsibility or mandatory duty upon a political subdivision, because that section 

provides for a criminal penalty, because of a general authorization in that section that 

a political subdivision may sue and be sued, or because that section uses the term 

‘shall’ in a provision pertaining to a political subdivision.” (Emphasis added). 

¶{24} In its final judgment, the trial court made the following statement: 

¶{25} “The Court has reviewed §2744.02(A) which provides a blanket immunity 

to political subdivisions for injuries that occur in the performance of a governmental or 

proprietary function. Furthermore, the Court has reviewed the five exceptions to this 

immunity listed in §2744.02(B). The Court finds that none of the exceptions apply to 

this matter.” 

¶{26} Likewise, as to MCMHB’s codefendant, City of Youngstown, the trial 

court specifically found: 

¶{27} “As a result, ORC §5123.62-64 does not expressly grant liability as 

required by ORC §2744.02(B)(5) and as such does not apply.” 01/26/10 J.E. 

¶{28} The trial court’s conclusion that R.C. 5123.62 and R.C. 5123.64 do not 

strip the general grant of immunity is correct. 

¶{29} R.C. 5123.64, the enforcement statute, states in pertinent part: 

¶{30} “(B) Any person with mental retardation or a developmental disability 

who believes that the person's rights as enumerated in section 5123.62 of the Revised 

Code have been violated may: 

¶{31} “* * * 

¶{32} “(3) Take any other appropriate action to ensure compliance with 

sections 5123.60 to 5123.64 of the Revised Code, including the filing of a legal action 

to enforce rights or to recover damages for violation of rights.” R.C. 5123.64 (effective 

version for cause of action). 

¶{33} A sister district has found that that statute does not expressly impose 

liability and, as such, R.C. 2744.02(B)(5) does not strip liability. Havely, 10th Dist. No. 

07AP-1077, 2008-Ohio-4889, ¶54-55 (injured party was suing the Department of 
Mental Retardation and Developmental Disability (MRDD)).1

 In reaching that decision, 

the Tenth Appellate District reviewed the Ohio Supreme Court’s decision in Cramer v. 

Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, where the supreme court found 

that R.C. 2744.02(B)(5) applies to strip the political subdivision of immunity because 

the Ohio Nursing Home Patients’ Bill of Rights expressly imposed liability. Havely, 

supra, ¶54. The Tenth Appellate District then compared the Nursing Home Patients’ 

Bill of Rights statute, R.C. 3721.71(I) and R.C. 5123.64. Id. at ¶55. R.C. 3721.17(I) 

specifically states: 

¶{34} “(I)(1)(a) Any resident whose rights under sections 3721.10 to 3721.17 of 

the Revised Code are violated has a cause of action against any person or home 

committing the violation.” 

¶{35} Consequently, since that statute specifically authorizes a civil action 

against the individual tortfeasor and the “home,” and R.C. 5123.64 contains no specific 

authorization for the bringing of a suit against political subdivisions that operate 

facilities for the mentally retarded, the Tenth Appellate District concluded that R.C. 

2744.02(B)(5) prohibits construing liability to exist solely because a statute imposes a 

responsibility or mandatory duty upon a political subdivision. Id. 

¶{36} In coming to that determination, the Tenth Appellate District also 

commented that the Ohio Supreme Court “has observed that no section of the Ohio 

Revised Code expressly imposes liability upon a public agency for the failure to 

perform the duties enumerated in R.C. 5123.62. Estate of Ridley v. Hamilton Cty. Bd. 

of Mental Retardation and Dev. Disabilities, 102 Ohio St.3d 230, 2004-Ohio-2629.” Id. 

¶{37} In Estate of Ridley, the estate conceded that no section of the Revised 

Code expressly imposed liability for failure to perform the duties in R.C. 5123.62. 

Instead it argued that the Enforcement Clause of the Fourteenth Amendment would 

satisfy R.C. 2744.02(B)(5). 102 Ohio St.3d 230, 2004-Ohio-2629, ¶24. The Court 

concluded that “none of these code sections-R.C. 5123.62, * * * -through the 

Enforcement Clause of the Fourteenth Amendment expressly imposes liability within 

the meaning of former R.C. 2744.02(B)(5).” Id. at ¶26. 

 1

The version of R.C. 5123.64(B) used to decide Havely is identical to the version of R.C. 

5123.64(B) that is at issue in this case. 
¶{38} The Supreme Court decision in Estate of Ridley is not directly on point as 

to whether R.C. 5123.64 expressly imposes liability on a political subdivision. 

However, our sister district’s reasoning in Havely concerning the Supreme Court’s 

decision in Cramer and the comparison of R.C 5123.64 to R.C. 3721.17(I) is helpful. 

Thus, we find the Tenth Appellate District’s decision that R.C. 5123.64 does not 

expressly impose liability well reasoned and persuasive, and accordingly adopt it as 

our own. Therefore, we hold that R.C. 5123.64 does not strip MCMHB’s general grant 

of immunity under R.C. 2744.02 and thus, MCMHB is immune from any liability 

brought under R.C. Chapter 5123. 

¶{39} Consequently, sovereign immunity applies and, as such, regardless of 

whether R.C. 5123 applies to MCMHB the trial court’s decision to dismiss the 

complaint was appropriate. This assignment of error has no merit. 

SECOND ASSIGNMENT OF ERROR

¶{40} “THE TRIAL COURT INCORRECTLY REVERSED THE MAGISTRATE 

AND ALLOWED REBUTTAL ARGUMENT OF APPELLEE CONCERNING 

STATUTORY IMMUNITY WHEN THE SAME WAS IMPERMISSABLY [SIC] RAISED 

FOR THE FIRST TIME IN A REPLY BRIEF.” 

¶{41} As aforementioned, in MCMHB’s motion to dismiss for failure to state a 

claim it concentrated solely on the statutory claims asserted against it under R.C. 

Chapter 5123, and did not address the common law claims. In response to the motion 

to dismiss, the estate asserted that the common law claims could not be dismissed 

since MCMHB did not provide a basis for their dismissal. MCMHB replied arguing that 

the complaint did not raise common law claims, but alternatively argued that if it did - 

those claims were barred by R.C. 2744.02, sovereign immunity. The magistrate 

determined that the complaint raised common law claims and since the issue of 

immunity was raised for the first time in the reply brief, it was outside the scope of 

review. The trial court disagreed with the magistrate and found that since the common 

law claims were addressed in the brief in opposition to the motion to dismiss, MCMHB 

was entitled to respond to the argument. It then considered the immunity argument 

and found that it applied. 
¶{42} Our starting point in determining whether the trial court committed any 

error is whether the complaint raised a common law cause of action. MCMHB focuses 

on the Ninth Claim for Relief to support its position that the complaint did not assert a 

common law cause of action. This portion of the complaint reads: 

¶{43} “48. All Defendants herein are providers of services to persons with 

mental retardation or developmental disabilities and are therefore obligated to provide 

those rights enumerated in Sections 5123.62 of the Ohio Revised Code. 

¶{44} “49. All Defendants were negligent, breaching their duties of care as set 

forth in Ohio Revised Code Section 5123.64, thus directly and proximately causing the 

death of Stephen A. Lawson.” 03/25/08 Amended Complaint. 

¶{45} MCMHB is correct that these paragraphs do not raise a common law 

negligence cause of action. However, paragraphs 27 and 30, which are part of the 

Fifth Claim for Relief, specifically state: 

¶{46} “Defendant M.H.B. owed duties to Stephen A. Lawson, which included 

both common law and statutory duties to provide for his health, safety and welfare 

and to protect him from harm pursuant to but not limited by O.R.C. 5123.61. 

¶{47} “* * * 

¶{48} “Defendant M.H.B. knew, had reason to know, or should have known of 

documented attacks and criminal offenses by Defendant DiCioccio prior to March 7, 

2007, and failed to remove him, for his own protection and the protection of others, 

including Plaintiff’s Decedent, Stephen A. Lawson.” 03/25/08 Amended Complaint. 

(Emphasis Added). 

¶{49} Since these paragraphs clearly assert a common law duty and a breach 

of that duty, MCMHB’s assertion that the complaint did not raise common law 

negligence is incorrect. However, that does not necessarily mean that this assignment 

of error has merit. We must determine whether MCMHB could argue for the first time 

in the reply to the motion in opposition to the motion to dismiss that the common law 

claims were barred by the doctrine of sovereign immunity. 

¶{50} Typically reply briefs are restricted to matters in rebuttal, not new 

arguments. The problem with allowing a new argument to be asserted in a reply in 

support of the original motion is that it does not give the party opposing the motion the 
opportunity to respond. Buren v. Karrington Health, Inc., 10th Dist. No. 00AP-1414, 

2002-Ohio-206 (stating for purposes of a summary judgment motion, the motion to 

strike the reply that raised a claim that was not raised in the summary judgment motion 

should have been granted because it left the opposing party without the ability to 

respond to the new argument). 

¶{51} That said, nothing prevented the estate from moving to strike the 

argument or requesting the opportunity to file a surreply. One appellate court has 

found in the context of summary judgment that if a reply raises new arguments and the 

non-moving party fails to file a motion to strike, the non-moving party is precluded from 

arguing on appeal that it was “ambushed” by the new argument. Internatl. Fid. Ins. 

Co. v. TC Architects, Inc., 9th App. Dist. No. 23112, 2006-Ohio-4869, ¶11, citing 

Collins v. Emro Marketing, Co. (May 11, 1999), 10th Dist. No. 98AP-1014 (stating that 

Appellant's failure to file motion to strike Appellee's reply brief in trial court on grounds 

that reply brief raised new arguments precluded appeal on the issue of “summary 

judgment by ambush”). 

¶{52} Here, there is no evidence that the estate moved to strike. There is no 

written motion in the file. Furthermore, there is no transcript of the hearing on the 

motion to dismiss that occurred before the magistrate. Thus, we do not know whether 

the estate orally moved to strike the reply as it pertained to arguing common law 

claims. It was the estate’s obligation to have a transcript of that hearing provided to 

this court. App.R. 9. Without the transcript and no evidence that the estate moved to 

strike the reply, we find that MCMHB waived the argument raised in this assignment of 

error. 

¶{53} This assignment of error lacks merit. However, even if it did have merit, 

as the first and third assignments of error show, given the claims raised, MCMHB is 

immune from statutory and common law liability and therefore, any error would be 

harmless. 

THIRD ASSIGNMENT OF ERROR

¶{54} “THE TRIAL COURT GRANTED APPELLEE A DISMISSAL THROUGH 

AN OBJECTION HEARING ON AN ISSUE THAT WAS NOT RULED ON BY THE 
MAGISTRATE AND THEREFORE WAS OUTSIDE OF THE SCOPE OF REVIEW 

FOR THE TRIAL COURT.” 

¶{55} Civ.R. 53(D)(4)(d) states that “If one or more objections to a magistrate’s 

decision are timely filed, the court shall rule on those objections.” However, that does 

not mean that the trial court’s review only extends to those objections. Other portions 

of Civ.R. 53(D) clearly indicate that the trial court is permitted to review the entire 

ruling and issue a ruling on the matters before it, even matters that the magistrate did 

not decide. For instance, Civ.R. 53(D)(4)(b) provides: 

¶{56} “Action on magistrate’s decision. Whether or not objections are timely 

filed, a court may adopt or reject a magistrate’s decision in whole or in part, with or 

without modification. A court may hear a previously-referred matter, take additional 

evidence or return the matter to a magistrate.” 

¶{57} This provision indicates that regardless of whether objections are filed, 

the trial court has a wide range of options in addressing the magistrate’s decision. 

Staff Notes to Civ.R. 53 (stating “Civ.R. 53(D)(4)(b) provides a court may properly 

choose among a wide range of options in response to a magistrate’s decision, whether 

or not timely objections are filed.”). Logically, Civ.R. 53(D)(4)(b) includes the situation 

where the magistrate does not decide an issue because it determined the issue was 

not properly raised and the trial court disagrees with that decision. In that situation, by 

the language of this section, the trial court does not have to return the matter to the 

magistrate (although it could); rather it can decide the matter itself. 

¶{58} Consequently, we find the trial court had the authority to issue a ruling on 

the application of immunity without first sending the matter to the magistrate to decide. 

¶{59} Furthermore, although the estate makes no counter argument 

concerning MCMHB’s contention that all claims against it are barred by the doctrine of 

sovereign immunity, we find that they are and thus, any possible error under this 

assignment would amount to harmless error. The only plausible exceptions to 

immunity are R.C. 2744.02(B)(2) and (B)(5). As discussed above, subsection (B)(5) 

does not strip the general grant of immunity. 

¶{60} Subsection (B)(2) also does not strip the general grant of immunity. This 

section provides: 
¶{61} “(2) Except as otherwise provided in sections 3314.07 and 3746.24 of 

the Revised Code, political subdivisions are liable for injury, death, or loss to person or 

property caused by the negligent performance of acts by their employees with respect 

to proprietary functions of the political subdivisions.” R.C. 2744.02(B)(2). 

¶{62} R.C. 2744.01 provides lists of specific functions that are considered 

governmental and proprietary functions and contains general definitions for 

governmental functions and proprietary functions. R.C. 2744.01(C)(1) (general 

definition of governmental function; R.C. 2744.01(C)(2) (list of governmental 

functions); R.C. 2744.01(G)(1) (general definition of proprietary function); R.C. 

2744.01(G)(2) (list of proprietary functions). R.C. 2744.02(C)(1)(n) specifically 

indicates that the operation of a health board is a governmental function. As MCMHB 

states a review of claims against the MCMHB show that they are governmental 

functions. Thus, R.C. 2744.02(B)(2) does not strip MCMHB’s general grant of 

immunity. 

CONCLUSION

¶{63} For the foregoing reasons, all assignments of error lack merit. The 

judgment of the trial court is hereby affirmed. 

Waite, J., concurs. 

DeGenaro, J., concurs.