Strayer v. Barnett , 94 N.E.3d 156 ( 2017 )

[Cite as Strayer v. Barnett, 2017-Ohio-5617.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
BRANDON M. STRAYER, et al. :
:
Plaintiffs-Appellants : C.A. CASE NO. 2016-CA-19
:
v. : T.C. NO. 14CV300
:
WESLEY R. BARNETT, et al. : (Civil Appeal from
: Common Pleas Court)
Defendants-Appellees :
:
...........
OPINION
Rendered on the ____30th _ day of _____June_____, 2017.
...........
VALERIE JUERGENS WILT, Atty. Reg. No. 0040413, 333 N. Limestone Street, Suite
202A, Springfield, Ohio 45503
Attorney for Plaintiffs-Appellants
MARK LANDES, Atty. Reg. No. 0027227 and ANDREW N. YOSOWITZ, Atty. Reg. No.
0075306, 2 Miranova Place, Suite 700, Columbus, Ohio 43215
Attorneys for Defendants-Appellees
.............
FROELICH, J.
{¶ 1} Plaintiffs Brandon Strayer, Amber Strayer, E.S. (“E.”), and A.H. (collectively,
“the Strayers”) appeal from a judgment of the Clark County Court of Common Pleas,
which granted summary judgment to the Clark County Commissioners, Clark County
Board of Developmental Disabilities (“CCDD”), and CCDD’s employees Heather Garrett,
Rodney Willis, and Matt Horvath (collectively, “the Clark County Defendants”). For the
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following reasons, the trial court’s judgment will be affirmed.
I. Factual and Procedural History
{¶ 2} Wesley Barnett is a young adult who has been diagnosed with autism, is
nonverbal, and has moderate mental disabilities; he has also been diagnosed with
obsessive-compulsive disorder and bipolar disorder. In June 2012, Barnett was twenty
years old.
{¶ 3} From June 2006 to May 25, 2012, Barnett resided at the Indiana
Developmental Training Center (“IDTC”) in Indiana, where he received behavioral
assessments, psychological assessments, and treatment. Barnett had a behavioral
support plan with goals to improve his anger management, impulse control, inappropriate
toileting, and compliance with rules and instructions. Barnett was generally unable to
“process the cause and effect of his decisions.” (Garrett Depo. at 42.)
{¶ 4} Barnett’s aggressive behaviors included biting, kicking, scratching, head
butting, slapping, and hitting. Barnett’s parents had reported to IDTC that Barnett would
often behave aggressively when hungry, when others were in his space, or when
something was not as he anticipated it to be. IDTC’s August 2011 Life Skills Assessment
noted that Barnett “[w]ill bite others when angry/upset.” However, IDTC’s February 2012
monthly progress report indicated that Barnett “displays these [aggressive] behaviors
infrequently”; during the six-month period between August 2011 and January 2012,
Barnett displayed physical aggression toward his peers on three occasions and was not
physically aggressive toward staff. IDTC’s Biannual Treatment Plan Review, dated April
13, 2012, stated that Barnett was physically aggressive with his peers twice in February
2012 and twice in March 2012.
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{¶ 5} On February 28, 2012, IDTC notified CCDD that it would no longer be able
to serve Barnett. CCDD employees investigated and discussed several placement
options with Barnett’s parents, who were Barnett’s legal guardians. The actions of
specific CCDD employees will be discussed in more detail below.
{¶ 6} The Barnetts selected a home in Springfield that was owned and operated
by Housing Connections, an independent housing corporation that rents solely to
individuals that are eligible for services with a board of developmental disabilities.
Barnett moved to the home on May 25, 2012, and he received “24 hour/seven day per
week” care by employees of Self Reliance, Inc. (“SRI”), a provider licensed by the Ohio
Department of Development Disabilities to provide direct services to individuals with
developmental disabilities. Barnett had one roommate, Dale, at the house.
{¶ 7} The Housing Connections home was located on the same street as the
Strayer family’s residence. On June 21, 2012, Barnett went for a walk with Dale,
supervised by Joy Wells, an SRI employee. During the walk, the three passed the
Strayers’ home. Two-year-old E. was playing in his front yard with a girl. According to
Wells, the girl sprayed E. in the back with a hose, causing E. to scream loudly. Barnett
then ran behind Wells and over to E. Barnett bent down, bit E.’s upper arm, and pushed
E. to the ground. E.’s nine-year-old sister witnessed the assault.
{¶ 8} In December 2012, the Strayers brought suit against Barnett, SRI, Clark
County, various County and SRI employees, and others, based on the assault on E.
Strayer v. Barnett, Clark C.P. No. 12CV1276. The Stayers voluntarily dismissed the
action, without prejudice, on December 19, 2013.
{¶ 9} On May 13, 2014, the Strayers refiled the lawsuit (the present action), naming
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as defendants Barnett, SRI, Wells, the Ohio Department of Job and Family Services
(“ODJFS”), and the Clark County Defendants. The State of Ohio filed a cross-claim
against the other defendants for medical payments made on behalf of E. due to the
incident. The Strayers reached a settlement with the SRI Defendants and voluntarily
dismissed their claims against the SRI Defendants in January 2016.
{¶ 10} The Strayers’ claims against the Clark County Defendants were based on
the CCDD’s employees’ alleged reckless failure to provide appropriate “service and
support administration” to Barnett. The crux of their claims was that the Clark County
Defendants failed to provide an updated individual plan (IP) and behavior support plan
for Wesley to SRI, and thus SRI employees did not have the guidance documents they
needed to prevent aggressive actions by Barnett.
{¶ 11} On December 23, 2015, the Clark County Defendants moved for summary
judgment on the Strayers’ claims, raising four arguments: (1) they owed no duty of care
to the Strayers, because they had no “special relationship” with Barnett; (2) CCDD was
entitled to sovereign immunity under R.C. Chapter 2744; (3) CCDD was entitled to
immunity under R.C. 2305.51, which provides immunity, under certain circumstances, to
mental health providers and organizations for the violent behavior of their clients; and
(4) Willis, Garrett, and Horvath, as employees of CCDD, were entitled to immunity under
R.C. Chapter 2744. The Strayers opposed the motion.
{¶ 12} On March 11, 2016, the trial court granted the Clark County Defendants’
motion for summary judgment. The court’s ruling stated, in its entirety, that it had
reviewed the case file, pleadings, and memoranda of counsel, and “[a]dopting the
reasoning as set out in defendants’ memorandum, the Court finds the Clark County
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Defendants owed no duty to the plaintiffs and they are entitled to statutory immunity under
R.C. 2305.51 and R.C. Chapter 2744. Further, Plaintiff has failed to provide any
evidence that Wesley Barnett’s conduct proximately caused the harm to [E.S.].”1 The
trial court determined that its ruling was a final appealable order and that there was no
just reason for delay, in accordance with Civ.R. 54(B).
{¶ 13} The Strayers appeal from the trial court’s grant of summary judgment to the
Clark County Defendants. They raise four assignments of error: (1) that the Clark
County Defendants were not entitled to immunity under R.C. 2305.51; (2) that the Clark
County Defendants were not entitled to immunity under R.C. Chapter 2744; (3) that the
Clark County Defendants had a duty to Barnett and the community and that the harm was
foreseeable; and (4) that the CCDD employees’ conduct rose to the level of recklessness
and they were not entitled to immunity.
{¶ 14} As discussed below, we conclude that the trial court properly granted
summary judgment to the Clark County Defendants under R.C. Chapter 2744.
Accordingly, we need not address the Strayers’ first and third assignments of error, and
those assignments of error are overruled as moot.
II. Summary Judgment Standard
{¶ 15} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no
genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds, after construing the evidence most strongly in
1
We question whether the trial court meant to say “Wesley Barnett’s conduct,” as
opposed to the Clark County Defendants’ conduct. It appears undisputed that Wesley
Barnett bit and pushed E. The parties dispute, however, whether the Clark County
Defendants are liable for E.’s injuries.
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favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St. 3d 367, 369-370, 696 N.E.2d 201 (1998). The moving
party carries the initial burden of affirmatively demonstrating that no genuine issue of
material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St. 3d 112, 115, 526
N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials
of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
judgment. Dresher v. Burt, 75 Ohio St. 3d 280, 292–293, 662 N.E.2d 264 (1996).
{¶ 16} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits
or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is
a genuine issue of material fact for trial. Id. Throughout, the evidence must be
construed in favor of the nonmoving party. Id.
{¶ 17} We review the trial court’s grant of a motion for summary judgment de novo.
Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42. De novo
review means that this court uses the same standard that the trial court should have used,
and we examine the evidence, without deference to the trial court, to determine whether,
as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist. Champaign
No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.
III. Sovereign Immunity: Political Subdivisions
{¶ 18} CCDD serves individuals with developmental disabilities in Clark County.
At CCDD, the service and support administrators are called Path Coordinators. Their
duties include: (1) assessment of the individual’s need for services; (2) build a team to
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support the individual, facilitate the development of and write an “Individual Plan,” and
authorize services; (3) coordinate services; (4) monitor implementation of the IP by
providers, modify the plan as needed; (5) ensure actions are completed as necessary to
maintain eligibility for all Ohio Department of Developmental Disabilities-administered
waiver programs; and (6) provide crisis intervention. (Willis Ex. 21, Description of
Services: Path Coordination)
{¶ 19} In general, political subdivisions are immune from liability for personal
injuries caused by any act of the political subdivision or its employees. R.C.
2744.02(A)(1). It is undisputed that CCDD is a political subdivision, as defined by R.C.
2744.01(F).
{¶ 20} R.C. 2744.02(B) sets forth five exceptions to this general rule. The first
four exceptions impose liability on a political subdivision for certain negligent conduct of
the political subdivision itself or of one of its employees, namely: (1) the negligent
operation of any motor vehicle while within the scope of employment, (2) acts with respect
to proprietary functions of the political subdivisions, (3) failure to keep public roads in
repair and other negligent failure to remove obstructions from public roads, and (4)
negligent acts that occur within or on the grounds of, and are due to physical defects
within or on the grounds of, buildings that are used in connection with the performance of
a governmental function. The fifth exception imposes liability when another section of
the Revised Code expressly imposes liability. R.C. 2744.02(B)(1)-(5). See, e.g.,
Crafton v. Shriner Building Co., L.L.C., 2d Dist. Montgomery No. 25748, 2013-Ohio-4236,
¶ 10. If one of the exceptions to immunity applies, the political subdivision may still be
immune if one of the defenses in R.C. 2744.03 applies. Riffle v. Physicians & Surgeons
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Ambulance Serv., Inc., 135 Ohio St. 3d 357, 2013-Ohio-989, 986 N.E.2d 983, ¶ 15.
{¶ 21} The Strayers claim that CCDD is not immune pursuant to R.C.
2744.02(B)(2), which states that political subdivisions are generally “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.”
{¶ 22} Pursuant to R.C. 2744.01(C)(1), a governmental function is one specified in
R.C. 2744.01(C)(2) or a function that either: (a) is imposed on the state as an obligation
of sovereignty and is performed by a political subdivision voluntarily or pursuant to
legislative requirement; (b) is for the common good of all citizens of the state; or (c)
promotes or preserves the public peace, health, safety, or welfare, and involves activities
not customarily engaged in by nongovernmental persons, and is not specified in R.C.
2744.01(G)(2) as a proprietary function.
{¶ 23} R.C. 2744.01(C)(2) provides a nonexhaustive list of 24 functions that qualify
as governmental functions. These include, for example, “[t]he operation of mental
health facilities, developmental disabilities facilities, alcohol treatment and control
centers, and children’s homes or agencies,” R.C. 2744.01(C)(2)(o); and “[a] function
that the general assembly mandates a political subdivision to perform,” R.C.
2744.01(C)(2)(x).
{¶ 24} A “proprietary function” is defined as function of a political subdivision that
is specified in R.C. 2744.01(G)(2) or that satisfies both of the following:
(a) The function is not one described in division (C)(1)(a) or (b) of this
section and is not one specified in division (C)(2) of this section;
(b) The function is one that promotes or preserves the public peace, health,
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safety, or welfare and that involves activities that are customarily engaged
in by nongovernmental persons.
{¶ 25} The Strayers claim that CCDD performed a proprietary function with respect
to Barnett for four reasons. First, they assert that this action did not arise out of the
operation of a developmental disabilities facility or out of an obligation that CCDD was
required by law to perform. The Strayers argue that CCDD did not own the house where
Barnett resided when the assault occurred, and it was not obligated by law to provide
service and support administration to Barnett. Second, they claim that the provision of
service and support administration “is not an obligation of Clark County’s sovereignty.”
Third, they claim that “the function of the CCDD is not for the common good for all citizens
of the state,” because it is “for only those developmentally disabled individuals who
qualify.” Fourth, they assert that the type of service and support administration that
CCDD provided to Barnett “is customarily engaged by non-governmental persons in a
number of ways.” The primary thrust of their argument is that non-governmental entities
can and do provide service and support administration, which renders that activity a
proprietary function, not a governmental function.
{¶ 26} Pursuant to R.C. 5126.02(A), each county must have its own county board
of developmental disabilities. The Revised Code requires county boards of
developmental disabilities to “plan and set priorities” for the provision of “facilities,
programs, and other services to meet the needs of county residents who are individuals
with * * * developmental disabilities * * *.” R.C. 5126.04(A). Each county must “assess
the facility and service needs of the individuals with * * * developmental disabilities,”
require “individual habilitation or service plans for individuals with * * * developmental
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disabilities who are being served or who have been determined eligible for services and
are awaiting the provision of services,” and ensure that “methods of having their service
needs evaluated are available.”2 Id.
{¶ 27} R.C. 5126.05 sets forth the responsibilities of a county board of
developmental disabilities. Those responsibilities include:
(1) Administer and operate facilities, programs, and services as provided by
this chapter and Chapter 3323. of the Revised Code and establish policies
for their administration and operation;
(2) Coordinate, monitor, and evaluate existing services and facilities
available to individuals with * * * developmental disabilities;
(3) Provide early childhood services, supportive home services, and adult
services, according to the plan and priorities developed under section
5126.04 of the Revised Code;
(4) Provide or contract for special education services pursuant to Chapters
3306., 3317. and 3323. of the Revised Code and ensure that related
services, as defined in section 3323.01 of the Revised Code, are available
according to the plan and priorities developed under section 5126.04 of the
Revised Code;
(5) Adopt a budget, authorize expenditures * * *, approve attendance of
board members and employees at professional meetings and approve
2
At the time of the assault on E., R.C. Chapter 5126 addressed the needs of individuals
with “mental retardation and other developmental disabilities.” The current version of the
statute has eliminated the reference to “mental retardation” and refers to “individuals with
developmental disabilities.”
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expenditures for attendance, and exercise such powers and duties as are
prescribed by the director;
(6) Submit annual reports of its work and expenditures * * *;
(7) Authorize all positions of employment, establish compensation,
including but not limited to salary schedules and fringe benefits for all board
employees, approve contracts of employment for management employees
that are for a term of more than one year, employ legal counsel under
section 309.10 of the Revised Code, and contract for employee benefits;
(8) Provide service and support administration in accordance with section
5126.15 of the Revised Code;
(9) Certify respite care homes pursuant to rules adopted under section
5123.171 of the Revised Code by the director of developmental disabilities.
(Emphasis added.)3
{¶ 28} Service and support administration is addressed in R.C. 5126.15. Under
R.C. 5126.15(A), county boards of developmental disabilities are required to provide
service and support administration to each individual three years of age or older who is
eligible for service and support administration if the individual requests, or a person on
the individual’s behalf requests, service and support administration. “A board shall
provide service and support administration to each individual receiving home and
community-based services.” Id. The county board of developmental disability may
provide service and support administration “by directly employing service and support
administrators or by contracting with entities for the performance of service and support
3
Two additional duties were added in Am.Sub.H.B. 59, effective September 29, 2013.
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administration.” Id.
{¶ 29} R.C. 5126.15(B) identifies certain duties for individuals who are either
employed by or under contact with a board to provide service and support administration.
These duties include:
(1) Establish an individual’s eligibility for the services of the county board of
developmental disabilities;
(2) Assess individual needs for services;
(3) Develop individual service plans with the active participation of the
individual to be served, other persons selected by the individual, and, when
applicable, the provider selected by the individual, and recommend the
plans for approval by the department of developmental disabilities when
services included in the plans are funded through medicaid;
(4) Establish budgets for services based on the individual’s assessed needs
and preferred ways of meeting those needs;
(5) Assist individuals in making selections from among the providers they
have chosen;
(6) Ensure that services are effectively coordinated and provided by
appropriate providers;
(7) Establish and implement an ongoing system of monitoring the
implementation of individual service plans to achieve consistent
implementation and the desired outcomes for the individual;
(8) Perform quality assurance reviews as a distinct function of service and
support administration;
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(9) Incorporate the results of quality assurance reviews and identified trends
and patterns of unusual incidents and major unusual incidents into
amendments of an individual’s service plan for the purpose of improving
and enhancing the quality and appropriateness of services rendered to the
individual;
(10) Ensure that each individual receiving services has a designated person
who is responsible on a continuing basis for providing the individual with
representation, advocacy, advice, and assistance related to the day-to-day
coordination of services in accordance with the individual’s service plan.
***
{¶ 30} In arguing that CCDD was not obligated by law to provide service and
support administration, the Strayers emphasize the portion of R.C. 5126.15(A) that states,
“A board may provide service and support administration by directly employing service
and support administrators or by contracting with entities for the performance of service
and support administration.” (Emphasis added.) They argue that a function that can be
contracted out to a private entity “is the antithesis of a governmental function.”
{¶ 31} We do not accept the Strayers’ assertion that the provision of service and
support administration is not a governmental function merely because non-governmental
entities also may engage in this activity. A political subdivision may use independent
contractors to perform a governmental function without transforming the activity involved
into a proprietary function. See Craycraft v. Simmons, 2d Dist. Montgomery No. 24313,
2011-Ohio-3273, ¶ 22. In Craycraft, the plaintiff asserted that the provision of school
security was a proprietary function, because independent contractors sometimes perform
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the job. We rejected the assertion, stating:
We do not dispute that a school may choose to contract with a private
company to provide security. But this does not negate the fact that the
nature of the work involved, providing security for public school students on
school grounds, is a governmental function. Craycraft’s argument fails to
recognize that a political subdivision may use independent contractors to
perform a governmental function. See, e.g., Howell v. Canton, Stark App.
No. 2007CA00035, 2008-Ohio-5558 (involving an independent contractor
hired to perform a governmental function). He cites nothing to establish
that doing so transforms the activity involved from a governmental function
into a proprietary function.
Craycraft at ¶ 22.
{¶ 32} R.C. 5126.05 unambiguously requires the county board of developmental
disabilities to provide service and support administration. By its plain language, R.C.
5126.15(A) permits a county board to decide whether to provide service and support
administration itself with county employees or to contract with an outside entity to provide
those services. But, the ability of a county board to contract with an outside entity does
not diminish the board’s statutory obligation to ensure that service and support
administration is provided. And, in this case, CCDD elected to provide service and
support administration itself, pursuant to R.C. 5126.15.
{¶ 33} We reject the Strayers’ contention that CCDD’s provision of service and
support administration is a proprietary function simply because CCDD services
individuals with developmental disabilities, rather than the county population at large.
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{¶ 34} In summary, R.C. Chapter 5126 requires each county to have a board of
developmental disabilities, and the duties of a county board of developmental disabilities
include the provision of service and support administration, in accordance with R.C.
5126.15. Because the provision of service and support administration is a “function that
the general assembly mandates a political subdivision to perform,” R.C.
2744.01(C)(2)(x), the provision of service and support administration is a
governmental function; none of the exceptions to sovereign immunity in R.C. 2744.02(B)
applies.
{¶ 35} CCDD and the Clark County Board of Commissioners were performing a
governmental function, and the trial court properly granted them summary judgment on
that ground that they were entitled to immunity under R.C. Chapter 2744.
IV. Sovereign Immunity: Employees of CCDD
{¶ 36} The Strayers claims that three CCDD employees – Horvath, Garrett, and
Willis ̶ were reckless in their provision of service and support administration to Barnett,
and consequently, they are not immune under R.C. 2744.03(A)(6). Garrett and Horvath
were Path Coordinators for Barnett; Willis was the Path Coordinator supervisor.
A. Standard for Immunity under R.C. 2744.03(A)(6)
{¶ 37} R.C. 2744.03(A)(6) grants employees of political subdivisions immunity
from liability, unless any of three exceptions to that immunity apply. Anderson v.
Massillon, 134 Ohio St. 3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 21. Those
exceptions are (1) the employee’s acts or omissions were manifestly outside the scope
of the employee’s employment or official responsibilities; (2) the employee’s acts or
omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
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and (3) civil liability is expressly imposed upon the employee by a section of the Revised
Code. R.C. 2744.03(A)(6)(a)-(c). Only the second exception is at issue here, and we
confine our discussion to whether CCDD’s employees were wanton or reckless; there is
no allegation, or any facts to support, that the CCDD employees’ actions were manifestly
outside the scope of their employment or official responsibilities or that they acted with a
malicious purpose or in bad faith.
{¶ 38} The terms “wanton” and “reckless” describe different and distinct degrees
of care and are not interchangeable. Anderson v. Massillon, 134 Ohio St. 3d 380, 2012-
Ohio-5711, 983 N.E.2d 266, paragraph one of the syllabus. They are sometimes
described “as being on a continuum, i.e., willful conduct is more culpable than wanton,
and wanton conduct is more culpable than reckless.” Id. at ¶ 42 (Lanzinger, J.,
concurring in judgment in part and dissenting in part).
{¶ 39} Both “wanton” and “reckless” represent “rigorous standards that will in most
circumstances be difficult to establish.” Argabrite v. Neer, 149 Ohio St. 3d 349, 2016-
Ohio-8374, 75 N.E.3d 161, ¶ 8. “Wanton conduct” has been defined as “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.” (Emphasis added.) Anderson
at paragraph three of the syllabus; Argabrite at ¶ 8. “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.” Anderson at ¶ 34, adopting 2 Restatement of the Law 2d, Torts, Section 500
(1965); Argabrite at ¶ 8.
{¶ 40} Mere negligence in the performance of an employee’s duties is insufficient
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to meet this high standard. See O’Toole v. Denihan, 118 Ohio St. 3d 374, 2008-Ohio-
2574, 889 N.E.2d 505, ¶ 74. As stated by the Ohio Supreme Court, an individual’s
conduct “ ‘is in reckless disregard of the safety of others if * * * such risk is substantially
greater than that which is necessary to make his conduct negligent.’ ” Fabrey v. McDonald
Village Police Dept., 70 Ohio St. 3d 351, 356, 639 N.E.2d 31 (1994), quoting 2
Restatement of the Law 2d, Torts, Section 500, at 587 (1965).
B. Evidence Related to CCDD Employee Conduct
{¶ 41} According to the record, the last Individual Plan (IP) in effect for Barnett prior
to the June 21, 2012 incident was effective March 18, 2012. Barnett had a behavioral
support plan with IDTC, which was updated periodically; Barnett’s most recent behavioral
support plan prior to the assault was dated February 2012 and prepared by IDTC. That
support plan was cancelled when Barnett returned to Ohio.
{¶ 42} According to Garrett’s affidavit and deposition testimony, Garrett was a Path
Coordinator with CCDD between September 2003 and March 29, 2012. She was the
Path Coordinator for Barnett for many years.
{¶ 43} Garrett completed an individual assessment for Barnett on February 9,
2012, while Barnett was still at IDTC. (Willis Ex. 13) After CCDD was notified that IDTC
would stop providing services for Barnett as of May 25, 2012, Garrett began working with
Barnett’s parents and researched options on home living arrangements and the providers
that could provide services for Barnett. (Willis Depo. at 86.) Barnett’s parents, as
Barnett’s guardians, were responsible for selecting the service provider and housing
location for Barnett.
{¶ 44} Garrett stated that she immediately contacted Barnett’s parents to inform
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them of IDTC’s decision and to “begin figuring out” what they would like to do regarding
Barnett’s placement and schooling. (Garrett Aff. at ¶ 9.) Barnett’s mother told Garrett
that she would like CCDD to investigate Consumer Support Services, Barnett’s former
provider, as a placement option; Garrett spoke with April Grigsby of CSS, but there were
no openings at CSS’s facility in Clark County. (Id. at ¶ 10-11.) Garrett discussed other
possible housing options with Grigsby. (Id. at ¶ 12.)
{¶ 45} On March 1, 2012, Garrett received a monthly status report from IDTC,
which reported that Barnett had no aggressive incidents in January and that he had made
progress on his home goals. On March 5, she emailed other Path Coordinators,
including Horvath, to see if Barnett would be a suitable roommate with any of their clients.
On March 7, Garrett received a response from Horvath stating that Barnett might be a
good match with Dale and that he (Horvath) would look into it further. Wendy Mahar of
SRI also indicated that she thought that Barnett and Dale would be a good match.
Garrett met with Barnett’s mother on March 8 to discuss options for Barnett, and on March
9, Garrett worked on coordinating roommate visits for Barnett.
{¶ 46} Garrett also investigated schooling options for Barnett. She contacted
Springfield City Schools, Summit Academy, Goodwill Easter Seals in Beavercreek, and
Bittersweet Farms.
{¶ 47} On several days, Garrett and Barnett’s mother toured potential housing
opportunities and school options. On March 16, they toured a home on Delcourt and
discussed visiting Dale’s residence. On March 19, Garrett, Barnett, and Barnett’s mother
toured Quest, CCDD’s adult day habilitation program, and met with Dale, Horvath, and
two of Dale’s staff from Dale’s residence. On March 22, Garrett and Barnett’s mother
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took a tour of Goodwill Easter Seals in Beavercreek; they discussed the advantages and
disadvantages of Goodwill versus Quest.
{¶ 48} On March 22, Barnett’s mother chose to have Barnett live with Dale in a
Housing Connections house, and Garrett e-mailed Mahar at SRI to inform her that
Barnett’s mother wanted Barnett to live with Dale. Garrett also spoke with Horvath,
Dale’s Path Coordinator, about his (Horvath’s) also being Barnett’s Path Coordinator
since she (Garrett) would soon be leaving for a new job. Horvath agreed.
{¶ 49} Garrett began to coordinate a time to discuss Barnett’s Individual Plan (IP),
and a meeting was tentatively scheduled for April 3, 2012. On March 26, the IP meeting
was rescheduled for April 4, 2012. Garrett e-mailed Mahar of SRI a copy of Barnett’s
“most recent IP and Behavioral Support Plan. I explained in the email that there may be
several changes as Wesley [Barnett] was coming out of a facility.” Mahar initially did not
receive Garrett’s email with Barnett’s plans, so Garrett resent it. Elizabeth Crawford,
CEO of SRI, confirmed that SRI had received Barnett’s IP and behavior support plan from
IDTC, IDTC’s documentation that supported the behavior support plan, and a
psychological evaluation of Barnett.
{¶ 50} Garrett’s last day of employment with CCDD was March 29, 2012, and she
had no further involvement with Barnett’s case. Horvath became Barnett’s Path
Coordinator after March 30, 2012, following Garrett’s departure from CCDD.
{¶ 51} Horvath testified at his deposition that, once he became Barnett’s Path
Coordinator, he read the information in Barnett’s file and began working on Barnett’s
relocation. Horvath stated that Garrett had set up day programming in Beavercreek, so
he (Horvath) visited the program with Sam Menier, the positive support specialist for
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CCDD, and tried to arrange for transportation for Barnett. (Willis testified that Menier sits
on teams and helps teams determine interventions; Menier also writes the formalized
behavior support plans for CCDD. (Willis Depo. at 110.)) When Horvath could not solve
the transportation problem, he began working on getting Barnett into Quest.
{¶ 52} Horvath also testified that he worked on arrangements with SRI, and he
included Menier in the planning for Barnett’s care. Horvath testified that Menier wrote a
behavior support plan for Barnett. Horvath indicated that he completed everything he
needed to do for Barnett’s transition, including Barnett’s bank account, medications,
transportation, and training with the “residential folks and workshop folks.” He stated that
the only thing that remained to do was “the final paperwork,” meaning the IP. (Horvath
Depo. at 27.) Horvath stated that he had sent Mahar everything that he had received
from IDTC, including the IP and behavior support plan. Menier drafted positive behavior
supports for Barnett; however, a behavior support plan was not finalized. (Id. at 55-56,
68.) (SRI received the positive support plan that Menier drafted, but it is unclear whether
it was received before or after the June 21 incident.) Horvath stated that Menier
conducted training with SRI on Barnett’s treatments and behavior.
{¶ 53} Horvath, Willis, Mahar, and Barnett’s parents each testified in their
depositions that there were numerous meetings regarding Wesley. Willis, the Path
Coordinator supervisor, stated in his deposition that, once Barnett’s parents selected a
residence and service provider for Barnett, the support team had numerous meetings to
prepare for Barnett’s relocation. The team consisted of Barnett’s Path Coordinator,
Barnett’s parents, representatives of SRI, and Menier. When Barnett began adult day
services at Quest, a representative of Quest joined the team. Horvath likewise stated
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that there were “a ton of conversations and meetings about Wesley [Barnett] and Dale
and setting up providers. * * * It was a huge undertaking.” (Horvath Depo. at 31.)
{¶ 54} Wendy Mahar, associate director of SRI, testified in her deposition that
there were “lots of meetings” during which they talked about Barnett (his likes, dislikes,
etc.), and discussed what the Barnetts thought, what their (the parents’) wishes were, and
what they wanted from SRI regarding services. When asked how many meetings were
held before Barnett became a client, Mahar responded, “I couldn’t even guess. There
were so many.” Mahar testified that she received from CCDD everything that CCDD had
received from IDTC. Mahar stated that she did not feel that there was paperwork that
she needed, but was not getting, regarding Barnett.
{¶ 55} Garrett testified that the IP was required to be maintained at the residence
of a CCDD client, as well as the behavior support plan, if the client had one. SRI would
also have certain documentation, created by SRI, that it would need to keep at the
residence, such as time sheets, log notes, and the like. (Garrett Depo. at 43-44.) Wells
(the SRI employee who was with Barnett during the June 21 incident) testified that an IP
for Barnett was at the house and that she had received additional information about
Barnett from his mother; Wells used the IP to take care of Barnett. SRI’s answers to
interrogatories also indicated that “[t]he staff had received training based on Wesley’s
Individual Plan from his previous case provider while awaiting an updated Individual Plan
from the Clark County Board of DD. The Individual Plan gave staff procedures to follow
for all home, medical and community needs.” SRI employees completed a “Daily
Documentation” form, which contained similar guidelines as Barnett’s March 2012 IP.
{¶ 56} Wells stated that she did not have a written behavior support plan for
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Barnett. Crawford (CEO of SRI) stated in her deposition that Barnett did not have a
behavior support plan from the beginning, “[b]ecause in our initial meetings and
discussions, we felt that we should give him an opportunity to adjust to his new
environment and his new home before placing possible unnecessary restrictions on him.
Clark County is a leader in the state of Ohio in regards to behavior support. And we are
very forward-thinking, as far as using the lowest level of restrictions possible for
individuals.” (Crawford Depo. at 40.) Crawford stated that SRI staff had Barnett’s prior
behavior support plan from IDTC “for informational purposes only for his history, not as a
guideline for [SRI] staff”; the plan was used “as a training tool just so the staff would be
aware of Wesley’s previous behaviors.” (Id. at 57.)
{¶ 57} Crawford testified that SRI staff receive “Do The Right Thing” training within
their first three to six months of employment. Crawford explained that Do The Right
Thing training includes “teaching staff how to protect themselves if there are physical
behaviors, how to protect others, how to protect the individual. It does teach some
restraints, but [SRI] staff are not allowed to use any restraints unless it is specifically
written in a behavior support plan.” (Crawford Depo. at 46.) Wells testified that she had
received Do the Right Thing training.
{¶ 58} Willis and Crawford also testified about the plan that was in place for
Barnett’s transition back into the community upon his return to Ohio. Willis testified that
the “team planned very well in advance” between the time that CCDD was notified of
Barnett’s anticipated discharge from IDTC through June 21, 2012, but he indicated that
there was a “paperwork issue.” He stated: “I mean, the new provider has copies of the
current plan that was in place; it was just not updated with a change of provider. You
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know, the whole team was on board. It was just an accident. We couldn’t have
prevented it.” (Willis Depo. at 88-89.) Willis later reiterated, “The county board had a
thorough up-to-date and current individual plan in place. As I had stated earlier, the only
error that we had in that was that we didn’t change it to Self-Reliance as the provider, but
nothing would have changed in the plan.” (Id. at 102.) Willis indicated that Sam Menier
met with Barnett’s service providers and trained them on behaviors of concern.
{¶ 59} Crawford testified:
In our meetings and in our discussions, in our e-mails, in our phone calls
and everything, in review of his other documents from the institution and all
of that pre-stuff before he came to be with us, we all knew – when I say we,
I mean, the County board path coordinator, myself, Wendy, our staff
supervisor, we all were very clear on what the plan was, how that transition
was going to work, what we needed to do in the home to help him transition
smoothly. We all communicated that very effectively among each other
and then we communicated that to our staff in the home.
(Crawford Depo. at 67.)
{¶ 60} Between May 25 (when Barnett moved into the home) and June 21 (the
assault on E.), SRI filed ten “unusual incident” (UI) reports with CCDD, which were faxed
to Horvath. Twice on May 30, a SRI staff member reported that Barnett was engaged in
masturbation behaviors in the living room, which required redirection. On four different
dates in June, Barnett tried to use milk from his roommate’s refrigerator. At three
different times on June 16, Barnett broke window treatments inside the house. On June
15, SRI staff noticed a red mark on Barnett’s forehead. Willis testified that when CCDD
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receives UIs “and it’s a pattern, then we have to – the team has to meet and they have to
discuss what the prevention plan is as the full team.” In contrast, with a major usual
incident (MUI), “you have to immediately put in prevention plans to assure health and
safety.” (The assault on E. was considered a MUI.) On June 19, Quest staff reported
that Barnett had bitten another consumer of their services.
{¶ 61} The Stayers offered the deposition testimony of Dr. Terrance Kukor, Ph.D.,
a clinical psychologist with a certification in forensic psychology by the American Board
of Professional Psychology. Dr. Kukor opined that CCDD and its employees were
reckless, because they did not prepare a written IP and behavior support plan specific to
Barnett’s residential circumstances. (Kukor Depo. at 65-67.) Dr. Kukor stated that,
without a written plan, “you don’t have a map * * * that you can share across shifts, that
you share across staff and say here’s the plan for Wesley.” (Id. at 71.) Dr. Kukor further
explained:
[I]t’s the plan that would tell me did they [CCDD] adequately account for
what was known about his [Barnett’s] tendency to be violent. It’s one thing
to say, sure we discussed it. There’s no documentation. I can’t tell what
– how far that discussion went, if they were properly applying the
information from a more restrictive level of care to a lower level of care[.] *
* * [B]ut the problem with it is that the people that were responsible for
providing day-to-day, hour-to-hour supervision and care for Wesley didn’t
have a written plan that they could consult and use to make decisions about
what they were going to do or not do with Wesley based on his behavior in
the moment.
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(Kukor Depo. at 102-103.) Dr. Kukor noted that the failure to create a revised IP for
Barnett violated the Ohio Admin. Code 5123:2-1-11 (Service and Support Administration
provisions).4
C. Employees’ Entitlement to Immunity
{¶ 62} Upon review of the evidence submitted by the parties, and viewing the
evidence in the light most favorable to the Strayers, we find that there are no genuine
issues of material fact and that, as a matter of law, the CCDD employees’ conduct did not
constitute a “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.”
{¶ 63} Beginning with Garrett, Barnett’s long-time Path Coordinator, the evidence
reflects that, after Garrett was notified that Barnett would be leaving IDTC and returning
to Ohio, she began to investigate new placements and schooling for Barnett. This
involved numerous discussions with Barnett’s parents (his guardians), potential housing
providers, and potential schooling options. Garrett left her employment with CCDD on
March 29, 2012, nearly two months before Barnett returned to Ohio from Indiana.
Although Garrett did not complete a new IP or behavior support plan for Barnett before
she left her employment with CCDD, her provision of service and support administration
to Barnett in February and March of 2012 cannot reasonably be categorized as reckless
or wanton conduct. The trial court properly granted summary judgment to Garrett
4
Ohio Admin. Code 5123:2-1-11, addressing county boards of “mental retardation” and
developmental disabilities, has been revised, effective March 17, 2014. Among other
changes, the current version renumbered some of the provisions, and an individual plan
is now known as an individual service plan (ISP).
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pursuant to R.C. 2744.03(A)(6).
{¶ 64} Turning to Horvath, Garrett’s successor as Barnett’s Path Coordinator, the
Strayers claim that Horvath’s placement of Barnett in a residential setting without an
updated IP and behavior support plan amounted to reckless or wanton conduct, and that
Willis (Garrett’s and Horvath’s supervisor) also was not immune from liability due to his
failure to ensure that Barnett’s case was “properly managed and properly transitioned
within the agency.”
{¶ 65} There is no genuine issue of material fact that, prior to the June 21 incident,
a revised IP was not prepared to specifically address Barnett’s relocation from IDTC to a
residential setting. Both Willis and Horvath testified that there was a “paperwork” error,
and Horvath indicated that, after the incident, he was put on administrative leave by
CCDD because “the paperwork was not completed.”
{¶ 66} However, upon review of all of the evidence, we find no genuine issue of
material fact that the absence of the revised paperwork did not amount to recklessness.
Both Garrett and Horvath sent documentation about Barnett, including Barnett’s most
recent IP and behavior support plan for IDTC, to SRI prior to Barnett’s residential
placement. The March 2012 IP indicated that Barnett “has a history of MUI’s involving
physical intervention for physical aggression” and other inappropriate behaviors, such as
inappropriate urination. With respect to alone time, it stated: “Wesley has no alone time.
He must be within hearing distance at all times when in an enclosed area. When in an
open area or around other people Wesley must be within vision at all times due to a
tendency to elope or become aggressive.” Wells testified that an IP for Barnett was
available in the residence, and that she used it as a reference for Barnett’s care. The
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Daily Documentation form that SRI completed included the requirement that staff “monitor
for inappropriate behaviors (physical aggression, inappropriate urination) and document
as an Unusual Incident as they occur. Refer to IP.” Other Daily Documentation
requirements, such as waking Barnett three times throughout the night to urinate and the
“alone time” monitoring, mirrored Barnett’s prior IP.
{¶ 67} The February 2012 behavior support plan indicated that Barnett’s physical
aggression consisted of hitting, head butting, throwing objects at people, and biting, and
it indicated potential triggers for those behaviors. In addition, during several “support
team” meetings to prepare for Barnett’s transition to residential care, SRI was informed
of and discussed Barnett’s aggressive behaviors and the potential triggers. In April
2012, Menier prepared a positive behavior plan for Barnett, and although it was never
formalized as a behavior support plan, Menier met with Barnett’s service providers and
trained them on Barnett’s behaviors of concern. SRI staff were not permitted, by law, to
use chemical and physical restraints, as provided in the IDTC behavior support plan, but
all SRI staff had been trained in positive supports (Do The Right Thing) by SRI. Although
Horvath perhaps should have provided updated documentation (IP and behavior support
plan) to SRI prior to Barnett’s transition to residential care in Clark County, Horvath’s
actions did not, as a matter of law, display a conscious disregard of or indifference to a
known risk of harm to others. Stated simply, Horvath’s conduct was neither reckless nor
wanton.
{¶ 68} We recognize that Dr. Kukor testified in his deposition that the absence of
a written plan was reckless because SRI did not have updated documentation, specific
to Barnett’s residential placement, to consult and use to make decisions about Barnett
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based on his behavior. Dr. Kukor indicated that an updated IP and behavior support plan
should have accounted for changes in the amount of supervision that Barnett would have.
Dr. Kukor indicated that, in the absence of updated documentation, he could not tell
whether CCDD employees and SRI had a plan to manage Barnett’s care and the risk of
aggression. Willis testified that Barnett’s IP would have mirrored the IP that had
previously been in place at IDTC, and that the only change at the beginning of Barnett’s
residential placement would have been changing the name of the service provider from
IDTC to SRI; the members of Barnett’s support team anticipated that a plan would be
“tweeked” based on how Barnett adapted to residential placement. Considering the
entirety of the evidence presented, including CCDD’s provision of and SRI’s use of
Barnett’s prior IP and behavioral information regarding Barnett to inform Barnett’s care,
Dr. Kukor’s testimony does not, by itself, create a genuine issue of material fact about the
recklessness of Horvath’s provision of service and support administration for Barnett.
{¶ 69} During the relevant time period, Willis was a Path Coordinator supervisor
with CCDD. In that position, Willis supervised ten Path Coordinators, who served as the
service and support administrators. Although no path coordinator prepared an updated
IP and formalized a new behavior support plan for Barnett upon his transition to residential
placement, we find nothing in the record to suggest that Willis’s supervision of Barnett’s
Path Coordinators rose to the level of reckless or wanton conduct.
{¶ 70} The trial court properly granted summary judgment to Garrett, Horvath, and
Willis pursuant to R.C. 2744.03(A)(6).
V. Conclusion
{¶ 71} The trial court’s judgment will be affirmed.
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.............
HALL, P.J. and WELBAUM, J., concur.
Copies mailed to:
Valerie Juergens Wilt
Mark Landes
Andrew N. Yosowitz
Robert Byrne
Karen Clouse
Wesley R. Barnett, c/o Carolyn Barnett or Michael Barnett, Guardians
Hon. Douglas M. Rastatter