[Cite as Fitzgerald v. Cuyahoga Cty., 2011-Ohio-3476.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96333 

ARNETTA FITZGERALD

PLAINTIFF-APPELLANT 

vs. 

COUNTY OF CUYAHOGA, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-738363 
 BEFORE: Blackmon, J., Kilbane, A.J., and Cooney, J. 

 RELEASED AND JOURNALIZED: July 14, 2011 

ATTORNEY FOR APPELLANT

Paul M. Kaufman 

801 Terminal Tower 

50 Public Square 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEES

William D. Mason 

Cuyahoga County Prosecutor 

Steven W. Ritz 

Assistant County Prosecutor 

3955 Euclid Avenue, Room 305E 

Cleveland, Ohio 44115 

PATRICIA ANN BLACKMON, J.: 

{¶ 1} Appellant Arnetta Fitzgerald appeals the trial court’s dismissal of 

her complaint and assigns the following error for our review: 

“I. The trial court erred in granting defendants-appellees’ 

motion to dismiss. (A) Sovereign immunity violates the 

United States Constitution and the Ohio Constitution and 

should be judicially abolished.” 
{¶ 2} Having reviewed the record and pertinent law, we affirm the trial 

court’s decision. The apposite facts follow. 

{¶ 3} The instant matter arises out of the October 24, 2009 death of 

Fitzgerald’s grandson, Arshon Baker, who died as a result of being beaten by 

his mother, Angel Glass. On October 5, 2010, Fitzgerald, as administrator 

of her grandson’s estate, filed a complaint against Cuyahoga County 

Department of Children and Family Services (“CCDCFS”) for negligence and 

wrongful death. 

{¶ 4} According to the complaint, Fitzgerald alleged that Baker was 

under the care and supervision of CCDCFS’s social workers, supervisors, and 

related staff. Fitzgerald alleged that CCDCFS failed to provide Baker with 

safe and acceptable social services care. Fitzgerald specifically alleged that 

as a result of CCDCFS’s negligent acts and/or omissions, Baker sustained 

injuries, which resulted in his death. 

{¶ 5} On December 3, 2010, CCDCFS filed a motion to dismiss 

Fitzgerald’s complaint on the basis of sovereign or governmental immunity. 

In response to CCDCFS’s motion, Fitzgerald argued that governmental 

immunity as applied to the case was unconstitutional. On December 29, 

2010, the trial court granted CCDCFS’s motion to dismiss the complaint. 

Governmental Immunity
{¶ 6} In the sole assigned error, Fitzgerald argues the trial court erred 

in granting CCDCFS’s motion to dismiss. We disagree. 

{¶ 7} We review an order granting a Civ.R. 12(B)(6) motion to dismiss 

de novo. Silver v. Krulak, Cuyahoga App. No. 93285, 2011-Ohio-1666. We 

afford no deference to the trial court’s decision and independently review the 

record to determine whether the dismissal was appropriate. Hollins v. 

Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637. 

{¶ 8} During oral argument, Fitgerald’s counsel conceded that 

CCDCFS is immune under R.C. 2744, which provides for governmental 

immunity, and acknowledged that willful, wanton, or reckless conduct was 

not alleged in Fitzgerald’s complaint. Fitzgerald’s only issue is that R.C. 

2744 is unconstitutional. 

{¶ 9} However, the Ohio Supreme Court in O’Toole v. Denihan, 118 

Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, refused to revisit the 

constitutionality of R.C. Chapter 2744, and stated: “In reviewing our 

precedent and that of numerous appellate courts, we conclude that this issue 

is one that is settled and need not be discussed any further in this case.” Id., 

see, also, Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 670, 1995-Ohio-295, 653 

N.E.2d 1186, (“[w]e hold that R.C. 2744.02(B)(1) is a constitutional exercise of 

legislative authority which does not violate the guarantees of equal protection 
of the Ohio and United States Constitutions because its grant of limited 

immunity of political subdivisions is rationally related to legitimate state 

interest”). 

{¶ 10} As such, Fitzgerald’s constitutional challenge is without merit. 

Given that Fitzgerald is unable to prove any set of facts entitling her to relief, 

the trial court did not err in granting CCDCFS’s motion to dismiss the 

complaint. Accordingly, we overrule the sole assigned error. 

Judgment affirmed. 

It is ordered that appellees recover from appellant their costs herein 

taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

MARY EILEEN KILBANE, A.J., and 

COLLEEN CONWAY COONEY, J., CONCUR