Lackey v. Noble , 2012 Ohio 2554 ( 2012 )

[Cite as Lackey v. Noble, 2012-Ohio-2554.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
MORNAN LACKEY, ADMINISTRATOR, C.A. No. 11CA0082-M
et al.
Appellee
APPEAL FROM JUDGMENT
v. ENTERED IN THE
COURT OF COMMON PLEAS
MISTY NOBLE, LPN COUNTY OF MEDINA, OHIO
CASE No. 10CIV0540
Appellant
DECISION AND JOURNAL ENTRY
Dated: June 11, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} Cassandra Lackey, a mentally-disabled adult, choked to death while eating in the
cafeteria of the Medina County Board of Developmental Disabilities Achievement Center.
Although Ms. Lackey was supposed to be on a mechanical soft diet, that fact was never
communicated to cafeteria staff. Ms. Lackey’s estate sued Misty Noble, Ms. Lackey’s case
manager, for negligence and wanton and reckless misconduct. Ms. Noble moved for summary
judgment, arguing that she is immune from liability under Section 2744.03(A)(6) of the Ohio
Revised Code. The trial court denied her motion. Ms. Noble has appealed, assigning as error
that the trial court incorrectly denied her motion for summary judgment. We affirm in part
because the trial court correctly concluded that, viewing the evidence in a light most favorable to
the estate, there is a genuine issue of material fact regarding whether Ms. Noble’s conduct was
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wanton or reckless. We reverse in part because she is immune from liability on the estate’s
negligence claims.
BACKGROUND
{¶2} The Medina County Achievement Center is a workshop and learning center for
individuals with developmental disabilities. Ms. Lackey attended the center for a number of
years, until she had to move to a nursing home in 2007. After about a year, she was able to
resume attending the Achievement Center, even though she continued to reside at the nursing
home.
{¶3} Ms. Noble is a licensed practical nurse. At the time Ms. Lackey resumed
attending the Achievement Center, Ms. Noble had worked for the center for approximately ten
years. Ms. Noble was the case manager for more than 100 of the Center’s clients. Although she
was responsible for more clients than any of the other case managers, her clients tended to have
fewer medical issues than the other case managers’ clients. Ms. Noble was Ms. Lackey’s case
manager both before Ms. Lackey moved to the nursing home and after she resumed attending the
Achievement Center in April 2008.
{¶4} According to Ms. Lackey’s estate, on April 23, 2008, the nursing home faxed a
copy of Ms. Lackey’s physician’s orders to the Achievement Center. Those orders indicated that
she was on a mechanical soft diet. On May 13, 2008, the nursing home faxed another set of
physician’s orders to the Achievement Center that also indicated that she was on a mechanical
soft diet. The May 13 materials included a copy of Ms. Lackey’s rehabilitation dining plan,
which further indicated that she was to receive a mechanical soft diet because she eats at a “rapid
and impulsive rate . . . which increases her risk of choking with solid foods.”
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{¶5} After Ms. Lackey’s death, the Achievement Center discovered that it had copies
of the documents that the nursing home had faxed to it. In the corner of one page of the
physician’s orders, someone had written “Cassandra Lackey” in ink and in the corner of another
page someone had written “Candy Lackey” in ink. At her deposition, Ms. Noble testified that
she could not remember whether she had seen the physician’s orders. She said, however, that it
would have been her practice to forward such information to dietary personnel so that her clients
would receive appropriate meals. She also testified that she did not think that she was the person
who wrote on the documents. Although the handwriting on the documents resembled her own,
she said that it also resembled the handwriting of her former supervisor. She also testified that, if
she had written the notes, she would not have abbreviated Ms. Lackey’s first name. She further
testified that she did not think that the writing was hers because she always used a blue- or black-
ink pen and the writing appeared to be teal. She claimed that her former supervisor was known
to have used pens of many different colors.
POLITICAL SUBDIVISION EMPLOYEE IMMUNITY
{¶6} At the time of Ms. Lackey’s death, Ms. Noble was an employee of the Medina
County Board of Developmental Disabilities. The parties agree that the Board is a political
subdivision under Section 2744.01(F) of the Ohio Revised Code. Under Section 2744.03(A)(6),
a political subdivision employee “is immune from liability unless . . . (a) [t]he employee’s acts or
omissions were manifestly outside the scope of the employee’s employment or official
responsibilities; (b) [t]he employee’s acts or omissions were with malicious purpose, in bad faith,
or in a wanton or reckless manner; [or] (c) [c]ivil liability is expressly imposed upon the
employee by a section of the Revised Code.” In its second amended complaint, the estate
alleged that Ms. Noble, “negligently and in a wanton and reckless manner, . . . failed to properly
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care for [Ms. Lackey] . . . in numerous aspects, including, but not limited to, failing to document
[Ms.] Lackey’s soft mechanical diet . . . failing to implement the medical order that Ms. Lackey
be on a mechanical soft diet [and] failing to notify the cafeteria staff and dietary personnel that
Ms. Lackey was to be on a mechanical soft diet . . . .”
WANTON OR RECKLESS
{¶7} The definition of “wanton” has had a tortuous history. Early on, the word was
used to modify the term negligence. See Higbee Co. v. Jackson, 101 Ohio St. 75, paragraph
three of the syllabus (1920) (providing definition of “wanton negligence”), partially overruled on
other grounds by Union Gas & Elec. Co. v. Crouch, 123 Ohio St. 81 (1930). In Universal
Concrete Pipe Company v. Bassett, 130 Ohio St. 567 (1936), however, the Ohio Supreme Court
explained that “there is no such thing as wanton negligence.” Id. at 574. Rather, “wanton
misconduct and ordinary negligence are, as a matter of law, as far apart as the poles of the axis . .
. [and] are just as repugnant and inconsistent as it is possible for two causes of action to be.” Id.
at 579. “The declaration on wanton misconduct is positive, and as a matter of law cuts off the
defense of contributory negligence in behalf of the party sued and subjects him to an award for
punitive in addition to compensatory damages, whereas the declaration on ordinary negligence is
negative in nature, secures to the party sued his plea of contributory negligence, and subjects him
to compensatory damages only.” Id. at 579-80. The Supreme Court, equating wantonness with
“cussedness,” proceeded to define wanton misconduct as “such conduct as manifests a
disposition to perversity, and it must be under such surrounding circumstances and existing
conditions that the party doing the act or failing to act must be conscious, from his knowledge of
such surrounding circumstances and existing conditions, that his conduct will in all common
probability result in injury.” Id. at 573, paragraph two of the syllabus.
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{¶8} After Bassett, the Ohio Supreme Court “announced many decisions in which
wanton misconduct [was] discussed in conjunction with the phrase ‘disposition to perversity.’”
Hawkins v. Ivy, 50 Ohio St. 2d 114, 117 (1977). In Hawkins, however, the Supreme Court
determined that “further reliance upon that phrase to be unnecessary to a workable definition of
wanton misconduct.” Id. Clarifying the definition, it held that, if someone “fails to exercise any
care whatsoever toward those to whom he owes a duty of care, and his failure occurs under such
circumstances in which there is great probability that harm will result, such failure constitutes
wanton misconduct.” Id. at syllabus.
{¶9} In Fabrey v. McDonald Village Police Department, 70 Ohio St. 3d 351 (1994),
the Ohio Supreme Court muddied the definition of wanton it had provided in Hawkins.
Although it noted that it had held in Hawkins that “wanton misconduct was the failure to exercise
any care whatsoever,” it also quoted a pre-Hawkins decision in which it had written that “‘mere
negligence is not converted into wanton misconduct unless the evidence establishes a disposition
to perversity on the part of the tortfeasor.’ Such perversity must be under such conditions that
the actor must be conscious that his conduct will in all probability result in injury.” Id. at 356
(quoting Roszman v. Sammett, 26 Ohio St. 2d 94, 97 (1971)). It repeated that same language in
McGuire v. Lovell, 85 Ohio St. 3d 1216, 1219 (1999), and cited exclusively to the definition of
wanton misconduct provided in Bassett, instead of the definition provided in Hawkins, in Talik v.
Federal Marine Terminals Inc., 117 Ohio St. 3d 496, 2008-Ohio-937, ¶ 14. Despite that, it
applied the Hawkins definition of wanton misconduct in Zivich v. Mentor Soccer Club Inc., 82
Ohio St. 3d 367, 375 (1998) and Gladon v. Greater Cleveland Regional Transit Authority, 75
Ohio St. 3d 312, 319 (1996), which were both decided after Fabrey.
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{¶10} Further clouding the standard that applies under Section 2744.03(A)(6) of the
Ohio Revised Code is the fact that, even though the statute provides that a political subdivision
employee is liable for “wanton” or “reckless” acts or omissions, the Ohio Supreme Court has
determined that those terms mean the same thing. McGuire v. Lovell, 85 Ohio St. 3d 1216, 1219
(1999) (“In the context of immunity, reckless conduct has been viewed as interchangeable with
wanton conduct.”). In O’Toole v. Denihan, 118 Ohio St. 3d 374, 2008-Ohio-2574, the Supreme
Court, defining reckless conduct, wrote that, “an actor’s conduct ‘is in reckless disregard of the
safety of others if he does an act or intentionally fails to do an act which it is his duty to the other
to do, knowing or having reason to know of facts which would lead a reasonable man to realize,
not only that his conduct creates an unreasonable risk of physical harm to another, but also that
such risk is substantially greater than that which is necessary to make his conduct negligent.’”
Id. at ¶ 73 (quoting Thompson v. McNeill, 53 Ohio St. 3d 102, 104-05 (1990)). It also wrote that,
“[d]istilled to its essence, . . . recklessness is a perverse disregard of a known risk.” Id. It further
wrote that “the actor must be conscious that his conduct will in all probability result in injury.”
Id. at ¶ 74 (quoting Fabrey v. McDonald Village Police Department, 70 Ohio St. 3d 351, 356
(1994)); Rankin v. Cuyahoga County Dep’t of Children and Family Servs., 118 Ohio St. 3d 392,
2008-Ohio-2567, ¶ 37 (quoting Fabrey, 70 Ohio St. 3d at 356).
{¶11} The Supreme Court has never rejected the definition of wanton misconduct that it
provided in Hawkins v. Ivy, 50 Ohio St. 2d 114, 117-18 (1977). In fact, it cited that definition
with approval in Fabrey, the case in which it reintroduced the “disposition to perversity”
language that Hawkins had set aside. Fabrey v. McDonald Village Police Dep’t, 70 Ohio St. 3d
351, 356 (1994). After consideration, the Hawkins definition is the appropriate standard for
wantonness. Under that standard, Ms. Noble’s acts or omission may be found wanton if she
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“fail[ed] to exercise any care whatsoever toward those to whom [she] owe[d] a duty of care, and
[her] failure occur[red] under such circumstances in which there [was] great probability that
harm [would] result . . . .” Hawkins, 50 Ohio St. 2d 114, at syllabus.
{¶12} Ms. Noble has argued that, even if she saw the documents that the nursing home
faxed to the Achievement Center and failed to direct them to the appropriate people, her
omissions rose, at most, to the level of negligence. She has argued that there is no evidence that
she consciously decided to ignore the diet instructions or consciously refused to relay the
physician’s orders to others. In support of her argument, she has claimed that, when Ms. Lackey
returned to the Achievement Center, she called Ms. Lackey’s nursing home and learned from its
staff that Ms. Lackey was on a regular diet. She has also noted that she was only at work for half
the day on the day that the nursing home faxed the first set of physician’s orders to the
Achievement Center.
{¶13} The fact that the faxes that the Achievement Center received contain handwritten
notes in ink indicates that someone at the Center handled them. The estate submitted the
affidavit of a forensic document examiner who claimed that she had compared the writing on the
faxes to Ms. Noble’s handwriting and determined that there were “significant similarities.” The
examiner also said that she was “virtually certain” that the writing on the faxes was Ms. Noble’s.
{¶14} Ms. Noble admitted that, if she had seen the physician’s orders, it would have
been her duty to pass Ms. Lackey’s dietary restrictions to the appropriate personnel. It is
undisputed that the Center’s dietary and cafeteria staff never received the physician’s
instructions. In addition, it cannot reasonably be argued that giving a regular diet to someone
who requires a mechanical soft diet because she is at an increased risk of choking are not
“circumstances in which there is great probability that harm will result.” Hawkins v. Ivy, 50
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Ohio St. 2d 114, syllabus (1977). Accordingly, viewing the evidence in a light most favorable to
the estate, there is a genuine issue of material fact regarding whether Ms. Noble failed to exercise
any care toward Ms. Lackey under circumstances in which there was great probability that harm
would result to Ms. Lackey.
{¶15} Even if Ms. Noble had to know that her omissions would create an “unreasonable
risk of physical harm” to Ms. Lackey and that the risk was “substantially greater than that which
is necessary to make [her] conduct negligent” in order for that conduct to be wanton misconduct,
such facts can be inferred from Ms. Lackey’s rehabilitation dining plan, which the nursing home
faxed to the Achievement Center at the same time it faxed the second set of physician’s orders.
O’Toole v. Denihan, 118 Ohio St. 3d 374, 2008-Ohio-2574, ¶ 73. The dining plan indicated that
Ms. Lackey had to be on a mechanical soft diet because she eats at a “rapid and impulsive rate . .
. which increases her risk of choking with solid foods” and dispelled any ignorance Ms. Noble
might have been able to claim about the risk of harm of keeping Ms. Lackey on a regular diet.
{¶16} The trial court correctly denied Ms. Noble’s motion for summary judgment to the
extent that the estate alleged that her conduct was wanton and reckless. The court, however,
failed to separately analyze the estate’s claims that Ms. Noble’s conduct was negligent. Under
Section 2744.03(A)(6), political subdivision employees are generally immune from negligence
claims. See Lindsey v. Summit County Children Servs. Bd., 9th Dist. No. 24352, 2009-Ohio-
2457, at ¶ 14. Accordingly, the court should have granted Ms. Noble’s motion for summary
judgment on the estate’s ordinary negligence claims. Ms. Noble’s assignment of error is
sustained in part and overruled in part.
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CONCLUSION
{¶17} The trial court correctly denied summary judgment to Ms. Noble on the estate’s
wanton and reckless claims because a genuine issue of material fact exists regarding whether her
conduct rose to that level. The court incorrectly denied summary judgment to Ms. Noble on the
estate’s negligence claims. The judgment of the Medina County Common Pleas Court is
affirmed in part and reversed in part, and this matter is remanded for proceedings consistent with
this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
CLAIR E. DICKINSON
FOR THE COURT
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WHITMORE, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶18} Although I agree with the outcome the lead opinion reaches in this matter, I do
not join in the analysis employed to reach that outcome. Consequently, I concur in judgment
only.
{¶19} Apart from their respective discussions of perversity, I fail to see any meaningful
distinction between the “wanton” definitions in Hawkins v. Ivy, 50 Ohio St.2d 114 (1977), and
Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351 (1994). Both classify “wanton” as
a high standard and a failure to exercise “any care whatsoever.” Fabrey at 356; Hawkins at
syllabus. Both shy away from any classification of “wanton” as mere or simple negligence.
Fabrey at 356; Hawkins at 116. Both weave the concept of recklessness directly into the
definition of “wanton” behavior. Fabrey at 356, quoting 2 Restatement of the Law 2d, Torts,
Section 500, at 587 (1965); Hawkins at 116 (“With full knowledge of the surrounding
circumstances, [defendant’s] reckless and inexcusable disregard of the rights of other motorists *
* * would support a finding of wanton misconduct.”) (Emphasis added.) Finally, both discuss
“wanton” conduct in terms of the probability of a resultant injury. Fabrey at 356; Hawkins at
syllabus. The similarities between the two opinions are great in number.
{¶20} The difference highlighted by the lead opinion is that Fabrey discussed
“perversity” in its analysis while Hawkins considered the discussion “unnecessary.” Fabrey at
356; Hawkins at 117. It is curious that the Court deemed a perversity discussion unnecessary as
it then went on to hold that wanton misconduct amounts to an actor’s failure to exercise “any
care whatsoever toward those to whom he owes a duty of care * * * under circumstances in
which there is great probability that harm will result * * *.” Hawkins at syllabus. Perversity is
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really nothing more than acting or failing to act with conscious knowledge that, under the
circumstances, an actor’s conduct “will, in all common probability, result in injury.” Roszman v.
Sammett, 26 Ohio St.2d 94, 97 (1971). I do not find the difference between the probabilities
espoused in the definitions of “wanton misconduct” and “perversity” to have any significance in
practical application.
{¶21} In any event, Fabrey must control this Court’s analysis. The Supreme Court
clearly was aware of Hawkins’ continued vitality as it quoted the opinion in Fabrey. Fabrey
constitutes the Court’s more recent pronouncement on the meaning of the term “wanton.” See
also Rankin v. Cuyahoga Cty. Dept. of Children and Family Servs., 118 Ohio St.3d 392, 2008-
Ohio-2567, ¶ 37 (Fabrey applied). Moreover, unlike Hawkins, Fabrey actually discussed
wantonness in the context of the sovereign immunity statute, the statute at issue in this case.
This Court also has applied the test from Fabrey in numerous instances. See, e.g., Moss v.
Lorain Cty. Bd. of Mental Retardation, 185 Ohio App.3d 395, 2009-Ohio-6931, ¶ 19 (9th Dist.).
I see no reason to depart from that approach.
{¶22} I agree that, under the circumstances here, a genuine issue of material fact
remains as to whether Noble engaged in wanton misconduct. See Fabrey at 356. The trial court
correctly denied Noble’s motion for summary judgment on the estate’s wanton and reckless
claim. I further agree that the trial court should have granted Noble’s motion for summary
judgment on the estate’s ordinary negligence claims. Therefore, I concur in the lead opinion’s
decision to affirm in part, reverse in part, and remand this case for further proceedings.
MOORE, J.
CONCURRING IN JUDGMENT ONLY.
{¶23} I concur in the judgment of the majority to affirm the trial court’s decision to deny
Ms. Noble’s motion for summary judgment with respect to the claims of wantonness and
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recklessness, and to reverse any decision to deny immunity with respect to negligence claims. I
do not join in the rest of the opinion.
APPEARANCES:
KENNETH A. CALDERONE and MICHAEL OCKERMAN, Attorneys at Law, for Appellant.
GARY W. KISLING, Attorney at Law, for Appellee.