Toros v. Cuyahoga Cty. Bd. of Dev. Disabilities , 2013 Ohio 4601 ( 2013 )

[Cite as Toros v. Cuyahoga Cty. Bd. of Dev. Disabilities, 2013-Ohio-4601.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99637
NICHOLAS TOROS, ADMINISTRATOR
PLAINTIFF-APPELLANT
vs.
CUYAHOGA CTY. BD. OF DEV.
DISABILITIES, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-763903
BEFORE: Blackmon, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: October 17, 2013
ATTORNEYS FOR APPELLANT
Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113
David R. Grant
Plevin & Gallucci Co., L.P.A.
55 Public Square
Suite 2222
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
Kenneth A. Calderone
Michael Ockerman
Hanna, Campbell & Powell, L.L.P.
3737 Embassy Parkway
Suite 100
Akron, Ohio 44333
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Nicholas Toros, Administrator of the Estate of Florence Toros
(“the estate”), appeals the trial court’s granting of summary judgment in favor of the
Cuyahoga County Board of Developmental Disabilities (“CBDD”) and its employees
Dorothy Hamlett, R.N., Laura Kubulins, Ron Duke, Bryan O’Connor, and Lashanda
Bryant (n.k.a. Lashanda Scales) (“employees”) and assigns the following three errors for
our review:
I. The trial judge abused his discretion, to plaintiff-appellant’s
considerable detriment, by allowing defendants-appellees to expand the
scope of the motion for summary judgment to include the individual
defendants only after the memorandum in opposition had been submitted.
II. The trial judge erred, as a matter of law, by granting summary judgment
on the basis of new arguments that were raised only after
plaintiff-appellant’s memorandum were raised only after
plaintiff-appellant’s memorandum in opposition was filed.
III. The trial judge erred, as a matter of law, by granting summary
judgment despite the disputed issues of fact in the record.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision. The apposite facts follow.
Facts
{¶3} In November 2009, Florence Toros (“Toros”), a mentally challenged adult,
was diagnosed with tongue cancer. She underwent surgery in December 2009 to remove
the tumor and to reconstruct her tongue. She spent 11 days in the hospital where she was
fed via feeding tubes. She was transferred to a nursing facility for further rehabilitation.
During this time, she was fed with a feeding tube that led directly to her stomach. Once
the feeding tube was removed, a barium swallow test was performed at the Cleveland
Clinic that indicated that Toros could start eating regular food.
{¶4} Toros attended Maple Heights Adult Activity Center (“the Center”) where
she helped assemble products for various companies. She had been attending the facility
since the early 1980s. The Center is operated under the auspices of the CBDD. The
summer prior to Toros’s return to the Center, Toros’s mother met with the staff to discuss
Toros’s care, in light of her surgery. At the time of the meeting, the mother was still
pureeing Toros’s food, but told the staff that Toros was scheduled to take a barium
swallow test to determine if she was ready for solid food. The mother said she would
update the staff regarding the results. However, as a result of this meeting, Toros’s
Individual Service Plan (“ISP”) stated that her food had to be pureed.
{¶5} By the time Toros returned to the Center in October 2010, she was cleared
to eat solid food because she had passed the barium swallow test. According to Toros’s
mother, Toros had been eating such things as hamburgers and pretzels at home with no
problem. Nurse Dorothy Hamlett, who was assigned to Toros’s ISP team, confirmed
with Toros’s doctor that she had no dietary restrictions.
{¶6} Toros’s mother was in charge of preparing a lunch for Toros to take with
her to the Center. This would typically include a sandwich that would be cut into four
squares, fruit, and small cookies. Toros would bring the lunch in her purse. Her mother
also provided her with money to purchase additional food from the vending machines at
snack time. Because Toros had a history of sneaking food, the staff would make sure she
put her lunch away, and they would keep her snack money until she needed it at break
time.
{¶7} Lashaunda Scales, an Adult Program Specialist, was in charge of Toros’s
group on November 22, 2010. Toros had been back at the Center since October 4, 2010.
Scales stated in her deposition that Toros arrived at the Center at 7:30 a.m. Like usual,
Scales instructed Toros to put her coat and her packed lunch in the work area locker.
That day, her lunch consisted of a salami sandwich, two bananas, and a bag of little
cookies. Toros gave Scales her snack money to be used at the vending machines at
break time.
{¶8} Between 8:15 a.m. and 8:30 a.m., Toros asked to use the restroom. She
had her coat and purse with her. Scales told Toros to leave her things in the work area.
In response, Toros removed her coat, but kept her purse. Scales instructed Toros to put
the purse away. Toros then attempted to use the restroom furthest away from the work
area. However, Scales redirected her to a closer bathroom and watched to see that Toros
actually went to the area of the bathroom. She then watched until Toros left the
bathroom. Toros smiled at her as she walked past. Scales then left the area to make
copies while Toros proceeded to the drinking fountain.
{¶9} Bryan O’Connor, an Adult Program Specialist at the Center, noticed Toros
proceed to the water fountain. As she bent over to drink, he observed her having what
appeared to be a seizure. She fell on her back and began jerking. O’Connor and
Dorothy Hamlett, a staff nurse, provided CPR and called 911. EMS arrived and took
over CPR while transporting Toros to the hospital. At the hospital, food, which appeared
to be peanut butter was discovered in Toros’s airway. She died at the hospital two days
later. Although Toros’s sandwich and banana were found in her purse, the bag of little
cookies was never found.
{¶10} On her behalf, Toros’s estate filed a wrongful death action against the
CBDD and its employees. The CBDD and its employees filed a motion for summary
judgment arguing sovereign immunity protected them from liability. The trial court
granted the motion for summary judgment in a four-page opinion.
Amendment of Motion for Summary Judgment
{¶11} We will address the first and second assigned errors together because they
both concern the estate’s contention that the trial court erred in ruling on procedural
matters. The estate argues that the trial court erred by allowing the CBDD and its
employees to file an amended motion for summary judgment after the estate had already
responded to the original motion for summary judgment.1 The estate also argues the trial
court erred by not striking the CBDD’s reply brief because it set forth a new argument not
presented in the CBDD’s original or amended motions for summary judgment.
1
At oral argument there appeared to be confusion whether the original
motion that the estate responded to was struck for being filed out of rule. There
was actually another motion for summary judgment filed prior to this summary
judgment, which was struck by the court for being filed out of rule. However, it
was subsequently refiled with leave of court.
{¶12} The trial court did not err by allowing the motion for summary judgment to
be amended. Our review of both the original and amended motions show minor changes.
The only difference between the two is that the employees’ names are included in the
caption of the amended motion and on page 19 of the amended brief, the phrase “or its
employees” was added twice so that the pertinent sentences read: “There is absolutely no
evidence that Cuyahoga County Board of Developmental Disabilities or its employees
consciously disregarded Ms. Toros’s eating behavior.” (Emphasis added.) And, “There
is not evidence that the Cuyahoga County Board of Developmental Disabilities or its
employees failed to exercise any care in supervising Ms. Toros and responding to her in
her hour of need.” (Emphasis added.) No other additional changes were made, nor was
further analysis of the employees’ liability added.
{¶13} These changes did not prejudice the estate because they did not create new
arguments. Both the CBDD in its original motion for summary judgment and the estate
in its response motion discussed the employees’ conduct in resolving the immunity issue.
Additionally, in the original motion for summary judgment, the CBDD argued on page 14
that “Without a doubt, each of these alleged ‘failures’ was within the discretion of
defendant Cuyahoga County Board of Developmental Disabilities and its employees.”
(Emphasis added.) On page 15 of the original motion, the CBDD argued, “In addition,
the employees themselves made discretionary decisions in creating Ms. Toros’s ISP and
AASP, whether to supervise Ms. Toros in the bathroom, and how to respond to Ms. Toros
when she suffered from an apparent seizure.” (Emphasis added.) Thus, it is not as if the
original motion completely ignored the employees’ potential liability.
{¶14} Further, the estate attached to its brief in opposition a detailed affidavit by
an expert along with an extensive expert report that addressed each of the employees’
conduct and why the employees were not immune. Therefore, the estate addressed the
immunity of the employees and was not prejudiced by the court’s permitting the CBDD
and its employees to file an amended motion for summary judgment.
{¶15} The estate also argues that by ruling on the amended motion for summary
judgment 20 days after it was filed, the trial court deprived it of the ability to respond to
the amended motion. The estate cites to Loc.R. 11(I), which provides that “Unless
otherwise ordered by the Court, * * * a party opposing a motion for summary judgment
made pursuant to civil rule 56 may file a brief in opposition with accompanying
evidentiary materials (as permitted by civil rule 56 (c)) within thirty (30) days of service
of the motion.” Under the circumstances of this case, where the amended motion for
summary judgment did not change the arguments contained within the original motion
and where the estate provided abundant evidence regarding the employees’ acts and
addressed their liability in its original motion in opposition, we conclude the estate was
not prejudiced by not having the opportunity to respond prior to the court’s ruling.
{¶16} Also, the amended motion did not constitute a new motion that restarted the
response time pursuant to Loc.R. 11(I). This court in Cook v. Wal-Mart, Inc., 8th Dist.
Cuyahoga No. 79451, 2002-Ohio-973, held that a court did not err by granting summary
judgment less than 30 days after the movant filed a supplemental motion to its motion for
summary judgment because it did not constitute a “new motion starting a new time period
for response.” Id. at ¶ 7.
{¶17} The estate also contends that the trial court erred by not granting its motion
to strike the CBDD’s reply brief. The determination of a motion to strike is vested
within the broad discretion of the trial court. State ex rel. Morgan v. New Lexington, 112
Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 26. The estate contends the reply
brief should have been struck because it raised an argument not raised in the amended
motion for summary judgment. In its reply brief, the CBDD contended that the “Bill of
Rights for Persons with Mental Retardation or Developmental Disability” contained in
R.C. 5123.62 to 5123.64 did not expressly impose liability on it or its employees.
Although this argument was not presented in the motion for summary judgment, the estate
had raised this issue in its motion in opposition to the CBDD’s motion for summary
judgment. Thus, it was not a new argument to the estate. The estate could have asked
for leave to file a surreply brief if it felt a response was necessary. By choosing instead
to file a motion to strike the amended motion for summary judgment, the estate
demonstrated that it had no new arguments to present. Accordingly, the estate’s first and
second assigned errors are overruled.
Sovereign Immunity
{¶18} In the third assigned error, the estate contends the trial court erred by
granting summary judgment in favor of the CBDD and its employees.
{¶19} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio
Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
{¶20} Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the
nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party.
{¶21} Determining whether a political subdivision is immune from tort liability
pursuant to R.C. Chapter 2744 involves a three-tiered analysis. Greene Cty. Agricultural
Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 2000-Ohio-486, 733 N.E.2d 1141. The first
tier is the general rule that a political subdivision is immune from liability incurred in
performing either a governmental function or proprietary function. Id. at 556-557; R.C.
2744.02(A)(1). However, that immunity is not absolute. R.C. 2744.02(B); Cater v.
Cleveland, 83 Ohio St.3d 24, 28, 1998-Ohio-421, 697 N.E.2d 610.
{¶22} “The second tier of the analysis requires a court to determine whether any of
the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political
subdivision to liability.” Id. at 28. If any of the exceptions to immunity apply and no
defense in that section protects the political subdivision from liability, then the third tier
of the analysis requires a court to determine whether any of the defenses set forth in R.C.
2744.03 apply, thereby providing the political subdivision a defense against liability.
Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 9.
{¶23} The estate does not dispute that the CBDD qualifies as a “political
subdivision” under R.C. 2744.01(F) and that the operation of facilities for the
developmentally disabled is a “government function” pursuant to R.C. 2744.01(C)(2)(o).
The estate, however, claims that the CBDD and its employees are not immune from
liability because the exception to immunity as outlined in R.C. 2744.02(B)(5) applies.
{¶24} R.C. 2744.02(B)(5) provides that “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.” (Emphasis added.) The estate
contends that R.C. 5123.62, which contains the “Bill of Rights for Persons with Mental
Retardation or Developmental Disability,” creates an exception to immunity because the
General Assembly expressly imposed civil liability in R.C. 5123.64(B)(3) that a person
with a developmental disability may take “appropriate action to ensure compliance with
sections 5123.61 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.” The estate argues that by
not providing Toros with a safe environment at the Center, the CBDD and its employees
violated Toros’s rights outlined in R.C. 5123.62 to 5123.64.
{¶25} We conclude that the statute does not specifically impose liability on the
political subdivision but contains a general imposition of liability. The Ohio Supreme
Court has held that the term “expressly” as used under R.C. 2744.02(B)(5) means “in
direct or unmistakable terms: in an express manner: explicitly, definitely, directly.”
Butler v. Jordan, 92 Ohio St.3d 354, 357, 750 N.E.2d 554 (2001). A general imposition
of liability is not sufficient. See Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d
455, 2009-Ohio-1250, 905 N.E.2d 606 (Landlord Tenant Act expressly imposes liability
on landlords in general, but did not expressly impose it on the political subdivision of the
LMHA). Similarly, in the instant case, R.C. 5123.64 creates a right to pursue civil
liability, but does not specifically identify a political subdivision.
{¶26} The estate contends that in spite of the Supreme Court’s opinion in Moore,
in an earlier decision, Campbell v. Burton, 92 Ohio St.3d 336, 2001-Ohio-206, 750
N.E.2d 539, the Supreme Court had held that the imposition of general liability was
sufficient. We disagree. In Campbell, the statute at issue was R.C. 2151.421, which
imposes on certain persons a duty to report child abuse and neglect. The court held that
because the violation of R.C. 2151.421 resulted in criminal liability, that liability was
expressly imposed on employees of political subdivisions who had a mandatory duty to
report the abuse. When Campbell was decided, however, R.C. 2744.05(B)(5) did not
require that the statute impose “civil liability” as it does now. In 2003, two years after
Campbell was decided, R.C. 2744.05(B)(5) was amended to abrogate Campbell. The
amended statute clarified that exceptions pursuant to R.C. 2744.02(B)(5) must expressly
impose “civil liability,” not criminal liability. The amended statute also clarified that,
contrary to what was stated in Campbell, liability is not construed to exist merely because
another statute imposes a “mandatory duty” on the political subdivision.
{¶27} The Ohio Supreme Court has since held in Estate of Ridley v. Hamilton Cty.
Bd. of Mental Retardation & Dev. Disabilities., 102 Ohio St.3d 230, 2004-Ohio-2629,
809 N.E.2d 2, that the “Bill of Rights for Persons with Mental Retardation or
Developmental Disability” does not expressly impose liability on a subdivision. The
estate contends we should not rely on Ridley, arguing that the plaintiff in that case
conceded that liability was not expressly imposed, therefore, the Supreme Court did not
consider the issue. However, merely because a party concedes an issue does not mean
that courts must accept a clearly wrong concession. Therefore, by not correcting the
plaintiff’s concession to the fact that there was no express liability, the Supreme Court
obviously agreed. The court, thus, went on to consider whether liability existed pursuant
to the Enforcement Clause of the Fourteenth Amendment and held that it did not, stating
as follows:
Although the Enforcement Clause of the Fourteenth Amendment
gives Congress the “power to enforce, by appropriate legislation, the
provisions of this article,” an act of Congress is not “a section of the
Revised Code” pursuant to R.C. 2744.02(B)(5). Furthermore, even if we
treated it as such, the estate has not pointed to any legislative action taken
by the United States Congress pursuant to the Enforcement Clause that
would abrogate tort immunity or expressly impose a penalty for violations
of the above statutes or the rights contained therein. Accordingly, none of
these code sections — R.C. 5123.62, 5126.05, 5126.41, and 5126.431—
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. Thus, the trial court in the instant case did not err by relying upon Ridley to
support its determination that the “Bill of Rights for Persons with Mental Retardation or
Developmental Disability” does not expressly impose liability on a political subdivision.
{¶28} In fact, other districts in Ohio have also concluded that the R.C. 5123.62
Bill of Rights fails to expressly impose liability on political subdivisions. In Havely v.
Franklin Cty., 10th Dist. Franklin No. 07AP-1077, 2008-Ohio-4889, the Tenth District
held that R.C. 5123.62 did not expressly impose liability on the political subdivision. In
reaching this conclusion, the court relied upon the Supreme Court’s decision in Cramer v.
Auglaize Acres, 113 Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9. In Cramer, the
Supreme Court held that R.C. 2744.05(B)(5) created an exception to immunity because
the Ohio Nursing Home Patients’ Bill of Rights at issue in that case, expressly imposed
liability. The Nursing Home statute explicitly authorizes a civil action against “any
person or home.” While the Cramer court admitted that the word “person” was too
general, “home” was defined in the statute as including homes run by the county. Thus,
the Supreme Court held that an exception to immunity applied. In comparing the two
terms, the Court stated:
With respect to nurses Warder and Green, the court of appeals
determined that the use of the term “person” in R.C. 3721.17(I)(1) was too
general to expressly impose liability on an employee of a political
subdivision. Unlike the term “home,” the term “person” is not defined in
the Patients’ Bill of Rights. Under R.C. 3721.13, certain patients’ rights —
such as the right to adequate and appropriate medical treatment and nursing
care and the right to communicate with the home’s physician and employees
in planning treatment or care — involve the conduct of nursing home
employees, but there is no express statement that the employees of a county
nursing home will be liable individually for violations of the Patients’ Bill
of Rights. We therefore hold that R.C. 3721.17(I)(1) does not expressly
impose liability on the employees of the county nursing home within the
meaning of R.C. 2744.03(A)(6)(a).
{¶29} In Havely, the court applying the analysis set forth in Cramer, concluded
that the “Bill of Rights for Persons with Mental Retardation or Developmental Disability”
did not explicitly define a political subdivision, and, therefore, no exception to immunity
existed. In Lawson v. Mahoning Cty. Mental Health Bd., 7th Dist. Mahoning No. 10
MA 23, 2010-Ohio-6389, the Seventh District agreed with the analysis in Havely, and
found no express liability in the “Bill of Rights for Persons with Mental Retardation or
Developmental Disability.” We also agree with the analysis in these cases and conclude
the Bill of Rights did not create an exception to immunity regarding the CBDD or its
employees.
{¶30} Even if the R.C. 5123.62 Bill of Rights expressly imposed liability, under
the third tier of a sovereign immunity analysis, the court must determine whether any of
the defenses outlined in R.C. 2744.03 apply, thereby providing the political subdivision
with a defense against liability. Colbert v. Cleveland, 99 Ohio St.3d 215,
2003-Ohio-3319, 790 N.E.2d 781, ¶ 9. Here, the CBDD and its employees exercised a
high level of discretion in determining Toros’s care; therefore, the defenses set forth in
R.C. 2744.03(A)(3) and (5) apply.
{¶31} R.C. 2744.03(A)(3) and (A)(5) state:
(3) The political subdivision is immune from liability if the action or failure
to act by the employee involved that gave rise to the claim of liability was
within the discretion of the employee with respect to policy-making,
planning, or enforcement powers by virtue of the duties and responsibilities
of the office or position of the employee.
(5) The political subdivision is immune from liability if the injury, death,
or loss to person or property resulted from the exercise of judgment or
discretion in determining whether to acquire, or how to use, equipment,
supplies, materials, personnel, facilities, and other resources unless the
judgment or discretion was exercised with malicious purpose, in bad faith,
or in a wanton or reckless manner.
{¶32} The Ohio Supreme Court in Elston v. Howland Local School, 113 Ohio
St.3d 314, 2007-Ohio-2070, 865 N.E.2d 84, compared R.C. 2744.03(A)(3) and (A)(5) and
noted:
Although both R.C. 2744.03(A)(5) and 2744.03(A)(3) concern an
employee’s discretionary acts, the focus of subsection (A)(3) is that the
employee be engaged in policy-making, planning, or enforcement. Also
unlike R.C. 2744.03(A)(5), R.C. 2744.03(A)(3) does not have language
limiting its grant of immunity. In other words, a political subdivision may
assert the immunity defense when an employee who has the duty and
responsibility for policy-making, planning, or enforcement by virtue of
office or position actually exercises discretion with respect to that power.
This immunity exists even if the discretionary actions were done recklessly
or with bad faith or malice.
Id. at ¶ 27.
{¶33} A discretionary act under R.C. 2744.03 involves a heightened amount of
official judgment or discretion. Inland Prods., Inc. v. Columbus, 193 Ohio App.3d 740,
2011-Ohio-2046, 954 N.E.2d 141, ¶ 62 (10th Dist.). Routine decisions that require
little judgment or discretion and that, instead, portray inadvertence, inattention, or
unobservance do not create a defense to liability. Frenz v. Springvale Golf Course &
Ballroom, 8th Dist. Cuyahoga No. 97593, 2012-Ohio-3568. In the instant case, the
evidence indicated that the CBDD and the employees exercised a high level of judgment
and discretion in determining the requirements for Toros’s care.
{¶34} The Revised Code requires county boards of disabilities to “plan and set
priorities” for the “provision of * * * programs and other services to meet the needs of
county residents who are individuals with mental retardation and other developmental
disabilities.” R.C. 5126.04(A). The CBDD then must provide eligible individuals with
“habilitations or services plans.” An ISP is tailored to the specific needs of each
individual and requires an analysis of the individual’s needs and how to best provide
those needs. To perform this service, trained, certified employees conduct formal and
informal evaluations of the individual and then using the knowledge gained, plan and
enforce services for the individual. Ohio Adm. Code 5123:2-12-03. These services are
more than routine and require a great deal of judgment.
{¶35} It is undisputed that the CBDD assembled an ISP team comprised of
certified employees and Toros’s parents created an ISP that was tailored to Toros’s needs
and enforced the plans. These services rendered by the employees and the CBDD in
devising the ISP and determining the level of care Toros required was a highly
discretionary function.
{¶36} In fact, the evidence showed that the CBDD and its employees did not
ignore the fact that Toros’s needs may have changed since her surgery. Before her return
to the Center, the ISP team discussed the fact that Toros had been on a pureed diet while
at home. At that time, Toros’s mother advised the team that her daughter would be
undergoing swallow tests, and she would provide more current information prior to
Toros’s return to the center. Because the swallow test had not been done at the time of
the initial meeting, the ISP team noted “pureed diet” on Toros’s ISP. Her daily activities
sheet was changed in November 2010 to delete the pureed diet requirement.2
{¶37} Prior to Toros’s return to the Center, but after the ISP had been drafted,
Toros passed a swallow test and her doctor cleared her to return to the Center without any
2
The ISP was not immediately amended to delete the pureed food
specification because the ISP plans are usually updated annually.
dietary restrictions. Toros’s mother advised the ISP team of this fact, and Nurse Hamlett
also confirmed there were not dietary restrictions with the doctor’s office. Upon Toros’s
return, her mother packed her solid foods in her lunch. All of these actions indicate that
the team utilized discretion and judgment in determining Toros’s needs and made sure she
was able to eat solid foods prior to being placed under their care.
{¶38} Nor do we find the employees acted in a wanton or reckless manner. The
Ohio Supreme Court in Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983
N.E.2d 266, has defined “wanton” and “reckless” as follows:
3. Wanton misconduct is the failure to exercise any care toward those to
whom a duty of care is owed in circumstances in which there is great
probability that harm will result. (Hawkins v. Ivy, 50 Ohio St.2d 114, 363
N.E.2d 367 (1977), approved and followed).
4. Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is
unreasonable under the circumstances and is substantially greater than
negligent conduct. (2 Restatement of the Law 2d, Torts, Section 500 (1965),
adopted).
Id. at paragraphs three and four of the syllabus.
{¶39} There was no indication the staff failed to exercise a duty of care towards
Toros based on the information they were provided regarding Toros’s condition.
Although the staff knew that Toros had a habit of sneaking food, she had never choked.
She was successfully eating foods, such as hamburgers and pretzels, prior to returning to
the Center, and the staff was told by both Toros’s mother and doctor that there were no
dietary restrictions imposed on Toros. Moreover, the choking incident did not occur on
Toros’s first day back to the Center. The choking incident happened more than a month
after she returned; thus, she had successfully eaten solid foods packed for lunch by her
mother and from the vending machines numerous times after her return.
{¶40} Toros was also carefully supervised on the date of the incident. Toros
attempted to take her coat and purse to the bathroom, but was instructed to leave them
behind. She attempted to go to a distant bathroom instead of a closer one, and was
directed to go to the closer one. The supervisor, Lashanda Scales, watched Toros enter
the bathroom. Once she saw Toros come out of the bathroom, Scales went to make
copies. Scales testified that Toros seemed fine upon exiting the bathroom and that Toros
“smiled at her.” Given there was no way for Toros to have lunch on her person, and
because there was no indication that Toros would choke even if she had stolen food, and
because Toros was not in distress after leaving the bathroom, we cannot say this decision
to make copies was wanton or reckless behavior.
{¶41} Once Toros left the bathroom, she walked to the water fountain and began
convulsing. Several employees immediately responded to her aid, including Nurse
Hamlett. Toros’s mouth was checked for visible obstructions, but none were found.
CPR was administered. Given that the employees had no reason to know that Toros
would choke, even if she indeed stole food, we cannot say this behavior by the employees
was wanton or reckless.
{¶42} Although the estate argues, citing to Burlinghame v. Estate of Burlinghame,
5th Dist. Stark No. 2010-CA-000124, 2013-Ohio-3447, that whether the employees were
reckless is a jury question, we disagree. Burlinghame was decided prior to the Supreme
Court’s decision in Anderson. In fact, Burlinghame was reversed by the Supreme Court
based on its decision in Anderson. Burlinghame v. Estate of Burlinghame, 134 Ohio
St.3d 490, 2012-Ohio-5698, 983 N.E.2d 1252.
{¶43} Here, the evidence is undisputed that the CBDD and its employees did not
consciously disregard Toros’s needs. They acted appropriately based upon the
information received from both Toros’s mother and doctor and their own observations.
Accordingly, we conclude the trial court did not err by granting summary judgment in
favor of the CBDD and its employees. The estate’s third assigned error is overruled.
{¶44} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas 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
EILEEN A. GALLAGHER, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J.,
CONCURS IN JUDGMENT ONLY