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Office of General Counsel

Immunity and Indemnity Issues for Members of the University Community

The grid below charts many of the provisions of the Ohio Revised Code which concern immunity and indemnity issues for members of the University community. While they do not constitute legal advice by the OGC, they may answer some of your preliminary questions.

Additional information regarding this issues is found below or call the Office of General Counsel at 330-972-7830.

O.R.C. CitationApplicable SectionSubject of Law
Entire Law Conditions in which the state will/will not indemnify an officer/employee
(B)(1) & (B)(2) Immunity for federal law enforcement officers within the scope and course of their duties
(A)(1) Court of Claims act, conditional waiver of sovereign immunity
(J) Immunity of Trustees and Directors of Universities
(B), (D) Immunity and Indemnity Insurance for Trustees of State Universities
(C)(1), (2) Indemnification of students by Universities for required clinical or field-based activities
(B)(1)-(3) Limitation of Damages in suits against Universities
(B) Immunity and Indemnity issues for university law-enforcement personnel

 

Am I Liable?

Immunity

Q: Will I be liable for my actions as a state employee? 

A: In general, an individual will not be liable in any civil action that arises under Ohio law if that individual:

  1. is an officer or employee of the state (See Ohio Revised Code § 109.36 for definitions of “officer or employee” and “state”);
  2. is acting within the scope of his or her employment or official responsibilities; and
  3. is not acting “with malicious purpose, in bad faith, or in a wanton or reckless manner.”
Q: Am I an “officer or employee” within the meaning of the statute?

A: Ohio Revised Code § 109.36 defines "officer or employee" as "any person who, at the time a cause of action against the person arises, is serving in an elected or appointed office or position with the state or is employed by the state or any person that, at the time a cause of action against the person, partnership, or corporation arises, is rendering medical, nursing, dental, podiatric, optometric, physical therapeutic, psychiatric, or psychological services pursuant to a personal services contract or purchased service contract with a department, agency, or institution of the state; or is rendering medical services to patients in a state institution operated by the department of mental health, is a member of the institution's staff, and is performing the services pursuant to an agreement between the state institution and a board of alcohol, drug addiction, and mental health services described in Ohio Revised Code § 340.021. ‘Officer or employee’ does not include any person elected, appointed, or employed by any political subdivision of the state." (See Ohio Revised Code § 109.36 for the definition of "political subdivision")


Q: Under what circumstances will I be considered to be acting "within the scope of my employment"?

A: To determine whether an employee or officer is acting within the scope of his or her employment, the specific facts of the situation must be considered. However, a sampling of what the courts have held regarding this issue may be helpful.

Courts have held that the following individuals were acting within the scope of their employment:

  • a physician employed at a university who treated a patient in his capacity as a university faculty member teaching resident physicians, rather than in his capacity as a private practitioner (Allen v. University of Cincinnati Hospitals, 122 Ohio App.3d 195 (1997))
  • employees of the Bureau of Workers’ Compensation who exercised a high degree of discretion when establishing policies involving the construction of homes for disabled workers (Hatala v. Ohio Bur. Of Workers’ Comp, 88 Ohio App.3d 77 (1993))
  • a university diving coach who recruited divers from a private team that he owned and managed (Patena v. Akron University, 2002 WL 576095 (Ohio App. 10 Dist))
  • a state trooper who “searched” a female’s undergarments and breast, even though the search was not actually a proper strip search (Hidey v. State Highway Patrol, 1998 WL 655277 (Ohio App. 10 Dist))
  • a state liquor control agent who became involved in a scuffle when performing an undercover investigation for underage drinking at a bar (Matlock v. Ohio Dept. of Liquor Control, 77 Ohio Misc.2d 13 (1996))
  • a corrections officer who helped a police officer restrain a person who had been arrested, not knowing that the police officer had mistreated him before the corrections officer came to assist (Boyer v. City of Mansfield, 3 F.Supp.2d 843 (1998))
Courts have held that the following individuals were NOT acting within the scope of their employment:
  • a university professor who performed surgery at a university hospital (Balson v. Ohio State University, 112 Ohio App.3d 33 (1996))
  • an osteopath serving a state university whose conduct resembled that of a doctor in private practice, rather than that of a teacher (Newton v. Ohio Univ. School of Osteopathic Medicine, 91 Ohio App.3d 703 (1993))
  • a psychological aide in a correctional facility who participated in activities of a sexual nature with inmates, even though such activities may have been foreseeable (Ohio Dept. of Rehab. & Corr., 79 Ohio App.3d 303 (1992))
  • a deputy registrar who issued a driver’s license without authority to do so (Solowitch v. Bennett, 8 Ohio App.3d 115 (1982))
Ohio courts have also held that a state employee acts outside the scope of his or her employment when the employee’s conduct "has no relationship to the conduct of the principal’s business or the conduct is so divergent that its very character severs the relationship of employer-employee." (Wiebold Studio, Inc. v. Old World Restorations, Inc., 19 Ohio App.3d 246 (1985))

 

Indemnity

Q: What if the action against me arises under some law other than Ohio law?

A: In general, in any civil action arising under federal law or the law of another state or a foreign jurisdiction, an individual will be indemnified for an adverse judgment or settlement if that individual:

  1. is an officer or employee of the state;
  2. is acting within the scope of his or her employment or official responsibilities; and
  3. is not acting “with malicious purpose, in bad faith, or in a wanton or reckless manner.”
An individual will NOT be indemnified:
  1. at all if he or she acts “manifestly outside the scope of his employment or official responsibilities, with malicious purpose, in bad faith, or in a wanton or reckless manner”;
  2. for any portion that is covered by a civil liability insurance policy purchased by the state;
  3. for any portion that is unreasonable; or
  4. for punitive or exemplary damages (if the individual’s conduct falls within (1) above).
Q: What if I meet the above criteria but my request for indemnification is denied?

A: If an individual is entitled to indemnification but indemnification is refused, the individual may commence an action against the employer (See Ohio Revised Code § 109.36 for definition of "employer").


Q: How long do I have to bring such an action?

A: An individual must bring the action within two years of:

  1. the entry of a money judgment (if no appeal is taken);
  2. the conclusion of any final appeal that is taken; or
  3. the execution of any monetary settlement agreement.
Q: May I bring an action against my employer for indemnification of punitive or exemplary damages?

A: No. An individual may NOT commence an action seeking indemnification of punitive or exemplary damages.

 

The Office of General Counsel would like to thank Stephanie Felicity for her special contribution to this project.

 

 

The University of Akron

Akron, OH 44325
Phone: 330-972-7111
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