McCombs v. Ohio Dept. of Dev. Disabilities ( 2022 )

[Cite as McCombs v. Ohio Dept. of Dev. Disabilities, 2022-Ohio-1035.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jerri L. McCombs, as the Personal :
Representative and Guardian of [B.C.],
:
Plaintiff-Appellant/
Cross-Appellee, : No. 21AP-280
(Ct. of Cl. No. 2019-00194JD)
v. :
(REGULAR CALENDAR)
Ohio Department of Developmental :
Disabilities,
:
Defendant-Appellee/
Cross-Appellant. :
D E C I S I O N
Rendered on March 29, 2022
On brief: Bordas & Bordas, PLLC, Geoffrey C. Brown, and
Tyler J. Smith, for appellant McCombs. Argued: Geoffrey C.
Brown.
On brief: Dave Yost, Attorney General, Eric A. Walker, and
Amy S. Brown, for appellee Ohio Department of
Developmental Disabilities. Argued: Eric A. Walker.
APPEAL from the Court of Claims of Ohio
DORRIAN, J.
{¶ 1} Plaintiff-appellant/cross-appellee, Jerri L. McCombs, individually and as
guardian of her adult son B.C., appeals from a judgment of the Court of Claims of Ohio that
found defendant-appellee/cross-appellant, State of Ohio, through its Department of
Developmental Disabilities ("ODDD"), vicariously liable for the actions of its employees in
abusing and neglecting B.C. when he was a resident at the Cambridge Developmental
Center ("CDC") and awarding $16,100 in damages. ODDD filed a notice of cross-appeal.
No. 21AP-280 2
For the following reasons, we affirm in part and reverse in part the judgment of the Court
of Claims and remand the matter to that court.
I. Facts and Procedural History
{¶ 2} B.C. is a 25-year-old man with diagnoses of autism, seizure disorder,
intellectual disability, attention deficit and hyperactivity disorder, intermittent explosive
disorder, obsessive compulsive disorder, and aphasia. He underwent a craniotomy and
cranioplasty in the past few years due to a traumatic brain injury. B.C. functions in the
moderate to severe range of intellectual disability and is non-verbal. (See CDC
Psychological Evaluation conducted by Melissa M. Harger, Ph.D., Psychologist, CDC
Physical Examination conducted by Dr. Chendraj, M.D., Physician, CDC Special Team
Report and CDC Investigative Service Unit Reports of Investigation at Pltf.'s Ex. 31 at 235,
237 and 253, and Pltf.'s Exs. 1, 2, 5, 6, 9, 11, 13, 15, and 16 respectively.) B.C. has limited
speech, "but communicates best through picture form and through body language and
facial expressions." A CDC document titled "my individual plan," under a section titled
"[h]ow I communicate and how I want you to communicate with me," indicates "[B.C.]
rarely speaks and instead uses simple signs, facial expressions, gestures, body language,
and sometimes aggressive behaviors such as pulling and grabbing to let others know what
he wants and needs." (Pltf.'s Ex. 31 at 255.)
{¶ 3} On March 2, 2018, shortly before his 25th birthday, B.C. was admitted to CDC
for stabilization of some of his behaviors. CDC's mission is "[t]o provide rehabilitation
services to the people that live here and ensure compliance with standards." (Tr. Vol. II at
364.) CDC is a habitation center that includes four cottages, each with two sides, A and B.
Each cottage has administrative offices in the hallway between the two sides.
Approximately 70 residents are housed in the cottages. B.C. was housed in Steele Cottage,
side A, with 11 other residents.
{¶ 4} CDC developed a person-centered plan for B.C., which is a tool that is a
summary of the comprehensive functional assessments from the interdisciplinary team.
The psychologist developed a behavioral-support strategy for B.C. to address target
behaviors. B.C.'s target behaviors included physical aggression, self-injurious behavior,
taking property, especially food and beverages, ritualistic tendencies, including cleaning,
and other inappropriate behaviors. The day-to-day care was provided by therapeutic
No. 21AP-280 3
program workers ("TPWs") who were trained to use positive supports and principles. The
CDC Superintendent, Cathleen Ballinger, testified that "the slapping and * * * kicking and
choking" of a resident constitutes abuse and was "strictly forbidden [at] CDC" and were not
approved ways to control residents' behavior. (Tr. Vol. II at 437-38.) Any use of physical
restraint was only permissible in a situation involving an imminent risk of harm.
{¶ 5} On behalf of B.C., appellant, as his mother and guardian, signed a document
titled "client rights and individual complaint procedure," which stated, among other rights,
the right to "[h]ave a clean safe place to live in." (Emphasis added.) (Pltf.'s Ex. 31 at 238.)
{¶ 6} On June 26, 2018, another CDC resident reported to a supervisor that TPW
Dianna Stein had hit B.C., pulled his ear, and attempted to drag him. B.C. was examined
by a nurse on June 26, 2018, but she did not find any visible injuries. Douglas Bachmann,
an investigator at CDC investigated the claim. Bachmann watched the videotapes from
surveillance cameras in the common areas as part of his investigation and determined that
Stein had committed multiple acts of abuse on B.C. However, the videotape recorded over
itself after 30 days, thus he could only investigate the prior 30 days. In the prior 30 days,
however, Bachmann identified several acts of abuse and other TPWs who failed to report
that abuse.
{¶ 7} The videotapes and Bachmann's reports demonstrated the following
incidents:
➢ On June 9, 2018, at approximately 10:20 a.m., B.C. was
in the dining room and grabbed Stein's keys and Stein
choked B.C. with her right hand. Misty Kuczmarski
watched the incident but did not intervene or report it.
(Pltf.'s Report of Investigation, Ex. 1 at 7; Ex. 2 at 23;
Video Ex. File No. 1.)
➢ On June 20, 2018, at approximately 12:32 p.m., B.C.
took a bag of snacks out of Stein's purse and began
eating. Stein approached B.C. and used her left hand
to choke him while her right hand was on his bicep.
(Video Ex. File No. 2.)
➢ On June 20, 2018, at approximately 12:51 p.m., B.C.
ran outside and was standing by the dumpster. He was
redirected inside and sitting in the day room in a
recliner. Stein approached him from behind and
hooked her arms around B.C.'s throat and lifted him up
No. 21AP-280 4
and back while he was seated. Stein then walked
around the recliner and slapped B.C. Kuczmarski
witnessed the slap but did not report it. (Ex. 1 at 6-7.)
➢ On June 20, 2018, at approximately 2:18 p.m., TPWs
Theresa Baker and Kuczmarski were seated at a table
in the dining room looking at their cellphones. B.C.
took a bottle of water from the table and drank it. After
throwing away the bottle, B.C. approached
Kuczmarski, who extended her left leg and kicked B.C.
in his upper thigh/hip area. Baker and Kuczmarski
laughed for approximately 23 seconds and then looked
at their cellphones again. (Ex. 5 at 31, video not
produced.)
➢ On June 21, 2018, at approximately 7:31 a.m., B.C. was
washing dishes in the kitchen when Stein and Baker
grabbed B.C. and grabbed his shirt in a way that
constricted B.C.'s neck, and Stein dragged B.C. out of
the kitchen by the back of his pants. (Ex. 1 at 4; Ex. 9 at
50; Video Ex. File No. 5, at approximately 54:30 mark.)
➢ On June 21, 2018, at approximately 8:12 a.m., Stein
was seated at a dining room table with TPWs Baker,
Jason Frattali, and Ashley Jasielum. B.C. approached
on Stein's left and pointed to a bottle of water. Stein
slapped B.C. on the arm/chest. No one reported the
incident. (Ex. 1 at 5; Video Ex. File No. 3.)
➢ On June 21, 2018, at approximately 8:32 a.m., B.C.
removed a piece of paper from the bulletin board in the
dining room. Stein attempted to retrieve the paper.
Baker also attempted to retrieve the paper. Stein
slapped B.C. under the chin. Another CDC employee
became involved, grabbed the paper, and pushed B.C.
Stein and the employee trapped B.C. against a wall,
forcefully grabbing and gripping his arm. The other
employee shoved B.C. in the chest and then forced B.C.
out of the room by pushing him in the back. B.C. re-
entered the room. Stein and Baker circled and followed
him. The other employee again trapped B.C. against a
wall, then shoved him several times and pushed B.C.
out of the room by pushing him in the back again. B.C.
again re-enters the room, and Baker and Stein used
chairs to corner B.C. and then Stein placed one hand
No. 21AP-280 5
on B.C.'s shoulder and kneed him in the groin area.
(Ex. 1 at 6; Video Ex. File No. 4.)
➢ On June 23, 2018, at approximately 7:18 a.m., B.C. was
in the dining room when Stein forcefully slapped him
in the back side of his head for wanting more orange
juice. (Ex. 1 at 4; Video Ex. File No. 6.)
➢ On June 26, 2018, at approximately 7:42 a.m., B.C.
picked up a bottle of water from a table in the dining
room. Stein chased B.C. and slapped him in the back of
the head as he was drinking. TPW Kelsey Clark did not
intervene. Stein grabbed B.C. and attempted to drag
him outside. Clark and Stein forced B.C. into a chair
and Stein slapped B.C. in the back of the head again.
Stein pointed her finger at B.C. and in the video
appears to be yelling at him. Stein backhanded B.C. in
the mouth and slapped him in the face. Stein forcefully
grabbed B.C. by the ear. (Ex. 15 at 77-78; Ex. 16; Video
Ex. File No. 7.)
➢ Video file 8 immediately follows video 7 and shows
Stein followed B.C. into the kitchen and shoved him
and grabbed him by the back of the neck. Clark and
another person surround B.C. and also attempt to grab
his arms. Stein appears to pull B.C.'s hair and/or flick
at his neck. (Ex. 15 at 77-78; Ex. 16; Video Ex. File No.
8.)
{¶ 8} McCombs removed B.C. from CDC in September 2018.1 B.C. currently lives
in an apartment and has one of two independent care providers with him at all times, one
of whom is McCombs. McCombs left her job as a hospital administrator earning
approximately $89,000 per year plus bonuses to become a certified independent care
provider to provide for B.C. She currently works a full-time job at a nearby hospital and
then works from 5:00 p.m. to 6:00 a.m. every weekday and all weekend as an independent
care provider for B.C. A second independent care provider works from 6:00 a.m. to 5:00
p.m. every weekday.
1 There are two dates in the transcript regarding B.C.'s discharge date, September and December 2018.
No. 21AP-280 6
{¶ 9} As a result of the investigation, TPWs Frattali and Jasielum received five-day
suspensions. TPWs Stein, Kuczmarski, Baker, and Clark were terminated. Stein was
ultimately convicted and sent to prison for 54 months as a result of the abuse.
{¶ 10} McCombs filed a complaint in the Court of Claims asserting claims for
respondeat superior, negligent supervision, and loss of consortium. After a trial on the
issues of liability and damages, concurrent with an immunity determination pursuant to
R.C. 2743.02(F), the Court of Claims determined the employees were immune from
liability. Further, the court determined the state of Ohio was liable on McCombs' abuse and
neglect claim and awarded $16,125 in damages, an amount which includes the filing fee.
Finally, the court found in favor of ODDD on McCombs' loss of consortium claim.
II. Assignments of Error
{¶ 11} McCombs appeals and assigns the following three assignments of error for
our review:
[I.] The trial court erred by applying the incorrect legal
standard to its assessment of damages. The Appellant, Jerri
McCombs, respectfully submits that this Honorable Court
should establish the following standard for any civil case
involving the assessment of damages when a victim cannot,
because of an intellectual or emotional disability,
communicate via conventional means: In such cases, the law
should presume that the disabled individual experienced the
same harms and losses that would have been experienced by
an individual without the disability and award damages
accordingly. The trial court did not follow that legal standard.
Alternatively, if the trial court followed the correct legal
standard, then its award of damages was against the manifest
weight of the evidence.
[II.] The trial court erred by applying Hutchings v. Childress,
119 Ohio St.3d 486, 2008-Ohio-4568, 895 N.E.2d 520 to the
facts of this case. Ms. McCombs respectfully submits that
Hutchings cannot apply to the facts of this case because the
State of Ohio holds a virtual monopoly over the provision of
services to developmentally disabled individuals like [B.C.].
Because that is so, Ms. McCombs faced a choice: (1) upend her
entire life to care for her son herself or (2) leave him in the
exclusive care of individuals supervised by the Ohio
Department of Developmental Disabilities, the very entity
that had just abused her son over and over and over again.
No. 21AP-280 7
Under those circumstances, economic damages for loss of
consortium should be available.
[III.] The trial court erred by failing to address Ms. McCombs'
claim against the State of Ohio for lack of supervision.
(Emphasis sic.) ODDD has filed a cross-appeal and brings the following four assignments
of error for our review:
I. The trial court erred as a matter of law by determining that
the criminal and abusive and neglectful acts of TPW staff
involving [B.C.] were immune from liability.
II. The trial court's finding that the criminal and abusive and
neglectful acts of TPW staff were done to control [B.C.'s]
behaviors is against the manifest weight of the evidence.
III. The trial court erred as a matter of law by failing to apply
the correct legal standard for an award of damages involving
pain and suffering.
IV. The trial court's award of damages involving pain and
suffering is against the manifest weight of the evidence.
III. Analysis
A. ODDD's First and Second Assignments of Error
{¶ 12} For ease of discussion, we initially address ODDD's first and second
assignments of error. ODDD contends the Court of Claims erred as a matter of law by
determining the criminal, abusive, and neglectful acts of TPW staff involving B.C. were
immune from liability and the finding that these acts were done to control B.C.'s behaviors
is against the manifest weight of the evidence.
{¶ 13} R.C. 9.86 provides the civil liability of state officers and employees, as follows:
"no officer or employee shall be liable in any civil action that arises under the law of this
state for damage or injury caused in the performance of [their] duties." A state employee
may be subject to personal liability if their "actions were manifestly outside the scope of
[their] employment or official responsibilities, or unless the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless manner." R.C. 9.86.
{¶ 14} R.C. 2743.02(F) sets forth the procedure for determining the immunity
provided in R.C. 9.86 and provides, as follows:
No. 21AP-280 8
A civil action against an officer or employee, as defined in
section 109.36 of the Revised Code, that alleges that the
officer's or employee's conduct was manifestly outside the
scope of the officer's or employee's employment or official
responsibilities, or that the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless
manner shall first be filed against the state in the court of
claims that has exclusive, original jurisdiction to determine,
initially, whether the officer or employee is entitled to personal
immunity under section 9.86 of the Revised Code and whether
the courts of common pleas have jurisdiction over the civil
action.
{¶ 15} The question of whether an employee is entitled to immunity as a
governmental employee is a question of law. Conley v. Shearer, 64 Ohio St.3d 294, 292
(1992). The Court of Claims has exclusive original jurisdiction over that issue. R.C.
2743.02; Poe v. Univ. of Cincinnati, 10th Dist. No. 12AP-929, 2013-Ohio-5451, ¶ 7.
Whether an individual acted manifestly outside the scope of employment is a question of
fact. Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-6208, ¶ 14, citing
Hopper v. Univ. of Cincinnati, 10th Dist. No. 99AP-787 (Aug. 3, 2000). An appellate court
will not reverse a judgment as being against the manifest weight of the evidence if some
competent, credible evidence supports all the essential elements of the case. Coffman v.
Mansfield Corr. Inst., 10th Dist. No. 09AP-447, 2009-Ohio-5859, ¶ 10.2
{¶ 16} The Court of Claims uses a two-step process to determine whether an
individual is entitled to immunity under R.C. 9.86. First, the court determines whether the
individual was a state officer or employee, and second, the court determines whether the
individual was acting within the scope of their employment when the cause of action arose.
Marotto v. Ohio State Univ. Med. Ctr., 10th Dist. No. 14AP-303, 2014-Ohio-4549, ¶ 14,
citing Theobald at ¶ 14.
2 In addition, App.R. 12(C)(1) states: "In any civil action or proceeding that was tried to the trial court without
the intervention of a jury, and when upon appeal a majority of the judges hearing the appeal find that the
judgment or final order rendered by the trial court is against the manifest weight of the evidence and have not
found any other prejudicial error of the trial court in any of the particulars assigned and argued in the
appellant's brief, and have not found that the appellee is entitled to judgment or final order as a matter of law,
the court of appeals shall reverse the judgment or final order of the trial court and either weigh the evidence
in the record and render the judgment or final order that the trial court should have rendered on that evidence
or remand the case to the trial court for further proceedings."
No. 21AP-280 9
{¶ 17} There is no question in this case that the individuals were state employees,
the issue is whether they were acting within the scope of their employment. The Ohio
Revised Code does not define "scope of employment." "The concept generally denotes an
agency relationship in which the agent or employee is engaged in an activity that is logically
related to the business of the principal or employer. * * * For purposes of personal
immunity under R.C. 9.86, a state employee acts within the scope of employment if the
employee's actions are 'in furtherance of the interests of the state.' " Theobald at ¶ 15,
quoting Conley at 287.
{¶ 18} In this case, the Court of Claims determined that Stein and Kuczmarski
abused B.C. The court also determined that abuse incidents which were witnessed and not
reported amounted to neglect. The court further found that in each instance of abuse, Stein
or Kuczmarski was engaged in their client monitoring function or performed the abuse in
an attempt to control B.C.'s behavior. Further, the court found that the failure of the other
TPWs to report the abuse also fell within the scope of their employment.
{¶ 19} "[I]n order for an employer to be liable under the doctrine of respondeat
superior, the tort of the employee must be committed within the scope of employment.
Moreover, where the tort is intentional, * * * the behavior giving rise to the tort must be
'calculated to facilitate or promote the business for which the servant was employed.' "
Byrd v. Faber, 57 Ohio St.3d 56, 58 (1991), quoting Little Miami RR. Co. v. Wetmore, 19
Ohio St. 110, 132 (1869). In order for an act to be outside the scope of employment, "[t]he
act must be so divergent that it severs the employer-employee relationship." Elliott v. Ohio
Dept. of Rehab. & Corr., 92 Ohio App.3d 772, 775 (10th Dist.1994), citing Thomas v. Ohio
Dept. of Rehab. & Corr., 48 Ohio App.3d 86, 89 (10th Dist.1988).
{¶ 20} CDC Superintendent Ballinger testified that CDC developed a behavior
support strategy that identified some of B.C.'s target behaviors, including physical
aggression, self-injurious behavior, and taking property, which consisted of mainly food
and beverages. The behavioral support strategies document identifies B.C.'s target
behaviors and provides recommended strategies to create a supportive environment for
B.C. The document only provides for physical restraint in circumstances of imminent
threat of harm in order to address and mitigate the risk of harm, not to control B.C.'s
behavior. In all the videos, one can see that each incident is precipitated by B.C.'s behavior,
No. 21AP-280 10
all of which fall within the identified target behaviors. For example, on June 9, 2018, B.C.
was in the dining room and grabbed Stein's keys. It was only after B.C. took the keys that
Stein responded by using her right hand to choke B.C. B.C.'s target behavior identified as
taking other's property was identified in his person-centered plan. Each incident of abuse
began with B.C.'s behavior and the staff responding to his target behavior. In each instance,
the TPW was engaged in their client monitoring function and performed the abuse in an
attempt to control B.C.'s target behavior. Consequently, although the degree and nature of
force employed markedly differed from the recommended strategies, the force used was in
furtherance of CDC's interest in controlling B.C.'s target behavior as identified in the
behavioral support strategies document. This court has stated "a trial court can properly
find that even a reckless act was performed in the course of employment and in furtherance
of the employer's interest." Elliott at 776. Therefore, some competent, credible evidence
supported the Court of Claims' finding that the TPWs' abusive and neglectful acts were not
manifestly outside the scope of employment. Because such finding was not against the
manifest weight of the evidence, the Court of Claims did not err in concluding that the TPWs
were entitled to immunity. ODDD's first and second assignments of error are overruled.
B. McCombs' First Assignment of Error and ODDD's Third and Fourth
Assignments of Error
{¶ 21} Because these assignments of error are related, we address McCombs' first
assignment of error and ODDD's third and fourth assignments of error together. In these
assignments of error, both McCombs and ODDD argue the Court of Claims applied an
incorrect legal standard in assessing damages. McCombs suggests that this court adopt a
new standard. McCombs and ODDD both argue the award of damages was against the
manifest weight of the evidence.
1. Court of Claims' Award of Damages
{¶ 22} The Court of Claims awarded McCombs $16,100 in damages and in so doing
applied the following standard in assessing legal damages:
[I]n assessing damages for each incident of abuse, the Court
has applied a two-step process: (1) objectively observe the
incident and determine the nature and extent of the abuse
incurred; then (2) apply a subjective, reasonably prudent
No. 21AP-280 11
person standard as to the pain and suffering incurred as a
result of the abuse observed.
(Decision at 13-14.)
2. Summary of Arguments in Support of the Assignments of Error
{¶ 23} The Court of Claims pointed to no authority to support this standard for
assessing damages. ODDD argues the court "invented" this two-step process. (ODDD's
Brief at 39.) ODDD does not, however, propose an alternative standard. Rather, ODDD
argues the standard applied by the Court of Claims was erroneous because it resulted in a
damages determination that is a guestimate, speculative, not ascertainable with reasonable
certainty and did not require proof of a reasonable degree of probability or certainty. In
support, ODDD points to non-binding cases from the Fourth, Seventh, Eighth, and
Eleventh Districts which addressed issues and facts not relevant to the case before us.3
McCombs also argues the standard applied by the Court of Claims was erroneous; however,
McCombs argues the court's standard was erroneous because the court "was incorporating
[B.C.'s] disability into this standard and using that disability against him to reduce his
damages." (McCombs' Brief at 31.)
3. Standard of Review
{¶ 24} The question of whether the Court of Claims applied the correct legal
standard for assessing damages is subject to a de novo review. The question of whether the
Court of Claims' determination of the existence and amount of damages was against the
manifest weight is subject to a different standard of review. In Fisher v. Univ. of Cincinnati
Med. Ctr., 10th Dist. No. 14AP-188, 2015-Ohio-3592, we held:
"In order to set aside a damage award as inadequate and
against the manifest weight of the evidence, a reviewing court
3 In Bevens v. Wooten Landscaping, Inc., 4th Dist. No. 11CA819, 2012-Ohio-5137, the Fourth District Court
of Appeals addressed the proper measure of damages for a contractor's breach of its implied duty to perform
in a workmanlike manner. In Marzullo v. J.D. Pavement Maintenance, 8th Dist. No. 96221, 2011-Ohio-6261,
¶ 40, the Eighth District Court of Appeals addressed the extent of evidence required to support future or
permanent economic and pain and suffering damages for a negligence claim. In Barker v. Sundberg, 11th
Dist. No. 92-A-1756 (Oct. 25, 1993), the Eleventh District Court of Appeals addressed the extent of evidence
required to support an award of damages for economic damages in the form of lost wages and impairment of
earning capacity. In Glenwood Homes, Ltd. v. State Auto Mut. Ins. Co., 8th Dist. No. 72856 (Oct. 1, 1998), the
Eighth District Court of Appeals addressed the proper measure of damages for a construction breach of
contract claim. In E. Liverpool v. Buckeye Water Dist., 7th Dist. No. 08 CO 19, 2010-Ohio-3170, ¶ 72, the
Seventh District Court of Appeals addressed the measure of damages for lost profits in a breach of contract
case.
No. 21AP-280 12
must determine that the verdict is [1] so gross as to shock the
sense of justice and fairness, [2] cannot be reconciled with the
undisputed evidence in the case, or [3] is the result of an
apparent failure by the jury to include all the items of damage
making up the plaintiff's claim. Bailey v. Allberry, 88 Ohio
App.3d 432, 435, 624 N.E.2d 279 (2d Dist.1993)."
An appellate court cannot reverse the judgment of the trial
court if that judgment is supported by competent, credible
evidence. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d
279 (1978), syllabus. "However, if the judgment is against the
manifest weight of the evidence and is so grossly inadequate
that it shocks the conscience and constitutes an abuse of
discretion, this court cannot allow the judgment to remain
undisturbed." O'Neil v. State, 13 Ohio App.3d 320, 321 (10th
Dist.1984).
Id. at ¶ 14-15, quoting Staley v. Allstate Property Cas. Ins. Co., 10th Dist. No. 12AP-1085,
2013-Ohio-3424, ¶ 11.
4. Damages Sought
{¶ 25} The amended complaint alleges several types of damages suffered by B.C.:
➢ (1) Severe emotional distress, embarrassment,
anguish, and humiliation experienced at the time B.C.
was neglected and abused ("Emotional distress
damages");
➢ (2) Severe emotional distress, embarrassment,
anguish, and humiliation that B.C. will continue to
experience in the future ("Future emotional distress
damages");4 and
4 Paragraph 20 of the amended complaint avers that as a direct and proximate result of the wrongful conduct
of ODDD, B.C. "has suffered severe emotional distress, embarrassment, anguish, and humiliation, which will
continue on an ongoing basis into the future." (Emphasis added.) Notwithstanding, in her brief McCombs
states "[i]mportantly, the only damages sought here were for [B.C.'s] past physical, mental, and emotional
anguish." (Emphasis added.) (McCombs' Brief at 29.) However, with regard to future damages, we note in
Hohn v. Ohio Dept. of Mental Retardation & Dev. Disabilities, 10th Dist. No. 93AP-106 (Dec. 14, 1993), this
court held:
The recovery of future damages in a negligence action is limited to those damages reasonably certain
to result from the injury suffered. Powell v. Montgomery (1971), 27 Ohio App.2d 112. Where the
injury is not objective or obvious, the plaintiff must present expert testimony as to probability of the
permanency of the injury. * * * Future damages will not be awarded if there is only the mere
speculation or possibility that the damages will occur. * * * Under the foregoing standard, plaintiffs
can only recover the additional future economic damages they seek if it is reasonably certain from the
record that Hohn will incur the additional medical costs alleged.
No. 21AP-280 13
➢ (3) Physical pain ("Physical pain damages").
(See Am. Compl. at ¶ 20-21.)
{¶ 26} All three types of damages sought by McCombs are considered to be non-
economic compensatory damages.5 Non-economic compensatory damages are to be
distinguished from economic compensatory damages, and compensatory damages are to
be distinguished from punitive and exemplary damages. McCombs does not seek economic
compensatory damages or punitive damages for B.C.'s pain and suffering.
5. Nature of Non-Economic Compensatory Damages—Pain and
Suffering
{¶ 27} In Fantozzi v. Sandusky Cement Prods. Co., 64 Ohio St.3d 601, 612-15
(1992), the Supreme Court of Ohio addressed the nature of compensatory damages and the
difficulty in assessing compensatory damages for non-economic damages such as pain and
suffering:
The fundamental rule of the law of damages is that the injured
party shall have compensation for all of the injuries sustained.
* * * Compensatory damages are intended to make whole the
plaintiff for the wrong done to him or her by the defendant.
* * * Compensatory damages are defined as those which
measure the actual loss, and are allowed as amends therefor.
For example, compensatory damages may, among other
allowable elements, encompass direct pecuniary loss, such as
hospital and other medical expenses immediately resulting
Furthermore, in Day v. Gulley, 175 Ohio St. 83, 86 (1963), the Supreme Court of Ohio held:
The question for this court to determine is whether there must be expert evidence as to future pain or
suffering, permanency of injuries or lasting impairment of health, where the injury is subjective in
character.
The general rule on the subject is stated, as follows, in the annotation, 115 A. L. R., 1149, at page 1150:
"* * * That is, if the injury is of an objective nature (such as the loss of an arm, leg, or other member)
the jury may draw their conclusions as to future pain and suffering from that fact alone (the
permanency of such injury being obvious); whereas there must be expert evidence as to future pain
and suffering or permanency where the injury is subjective in character." See, also, 15 American
Jurisprudence, 815, Damages, Section 377.
5 R.C. 2315.18(H); 2323.43(H)(3); 2744.05.
No. 21AP-280 14
from the injury, or loss of time or money from the injury, loss
due to the permanency of the injuries, disabilities or
disfigurement, and physical and mental pain and suffering.
See 4 Restatement of the Law 2d, Torts (1965), Section 903 et
seq. These among other elements of damages are well known
in Ohio jurisprudence and are allowable elements to be
assessed by the jury. Some of these elements of damages, such
as the costs and expenses of the injury and loss of time from
employment, entail only the rudimentary process of
accounting to calculate. Other elements such as pain and
suffering are more difficult to evaluate in a monetary sense.
The assessment of such damage is, however, a matter solely
for the determination of the trier of fact because there is no
standard by which such pain and suffering may be measured.
In this regard, this court has recognized that "no substitute for
simple human evaluation has been authoritatively suggested."
Flory v. New York Central RR. Co. (1959), 170 Ohio St. 185,
190, 10 O.O.2d 126, 128, 163 N.E.2d 902, 905.
***
One of the elements of compensatory damages that is
universally allowed in actions for personal injuries is the pain
and suffering endured by the plaintiff as a result of the injury.
In addition to compensation for the physical pain, the jury is
permitted to award compensation for the mental suffering
endured. See Smith v. Pittsburg[h], Fort Wayne & Chicago
Ry. Co. (1872), 23 Ohio St. 10, 18-19; Flory v. New York
Central RR. Co., supra.
In Black's Law Dictionary (6 Ed. 1990) 1109, we find that
"pain and suffering" is a "term used to describe not only
physical discomfort and distress but also mental and
emotional trauma which are recoverable as elements of
damage in torts. * * *["]
Generally, pain and suffering has been viewed as a unitary
concept. Accordingly, it was stated in Capelouto v. Kaiser
Found. Hosps. (1972), 7 Cal.3d 889, 892-893, 103 Cal.Rptr.
856, 859, 500 P.2d 880, 883, that: "In general, courts have
not attempted to draw distinctions between the elements of
'pain' on the one hand, and 'suffering' on the other; rather, the
unitary concept of 'pain and suffering' has served as a
convenient label under which a plaintiff may recover not only
for physical pain but for fright, nervousness, grief, anxiety,
worry, mortification, shock, humiliation, indignity,
No. 21AP-280 15
embarrassment, apprehension, terror or ordeal." (Footnote
omitted.)
In Ohio, an action in tort may allege, and proof may be offered
on both pain from physical injuries and suffering from mental
or emotional disturbance. However, in Ohio there need not be
a contemporaneous physical injury in order to allege damages
for emotional distress. Schultz v. Barberton Glass Co. (1983)
4 Ohio St.3d 131, 4 OBR 376, 447 N.E.2d 109, syllabus; Paugh
v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759,
paragraph two of the syllabus.
As noted, case law generally and repeatedly refers to "pain and
suffering" as an element of damages that is recoverable in
Ohio.
{¶ 28} In Flory v. New York Cent. RR. Co., 170 Ohio St. 185, 190 (1959), the
Supreme Court observed: "Of all the items of compensatory damages which it may become
the duty of a court or jury to assess, that which will compensate for human pain and
suffering is perhaps the most difficult to determine. Such determination is susceptible of
no mathematical or rule of thumb computation, and no substitute for simple human
evaluation has been authoritatively suggested."
{¶ 29} As this court stated in Kelly v. Northeastern Ohio Univ. College, 10th Dist.
No. 07AP-945, 2008-Ohio-4893, citing Fantozzi, Flory, and other case law:
An appellate review of the adequacy of a trial court's award for
noneconomic damages, or pain and suffering, is difficult
because no specific yardstick, or mathematical rule exists for
determining pain and suffering. Rather, the finder of fact
makes a "human evaluation" of all the facts and
circumstances involved. In reviewing the reasonableness of a
pain and suffering award, a court may consider awards given
in comparable cases as a point of reference, but ultimately
must evaluate each case in light of its own particular facts.
Given the difficulty in calculating pain and suffering damages,
reviewing courts generally defer such determinations to the
trier of fact, and are reluctant to substitute their judgment.
Indeed, in no other element of damages is there so wide a
latitude for awards as in pain and suffering.
(Emphasis added.) (Citations omitted.) Id. at ¶ 8, quoting Hohn.
No. 21AP-280 16
6. Court of Claims' Erroneous Invented Standard for Assessing
Damages
{¶ 30} With all this in mind, we agree with ODDD that the Court of Claims appears
to have invented a standard for assessing damages. We acknowledge, however, that
McCombs asks us to do the same, albeit suggesting a different invented standard. Although
we decline to adopt either standard, we appreciate and understand the Court of Claims' and
the parties' challenge in determining and proposing a correct standard for assessing
damages for pain and suffering and in applying such a standard. Nevertheless,
notwithstanding the challenge of assessing pain and suffering, physical and emotional,
where a plaintiff cannot verbally express the same, we agree with McCombs that in applying
its invented standard of objective observation and subjective assessment, the Court of
Claims used B.C.'s disability (in particular, being non-verbal) against him to reduce his
damages.
7. Court of Claims' Award of Damages Against the Manifest Weight of
the Evidence
{¶ 31} Furthermore, we find to be against the manifest weight of the evidence the
Court of Claims' findings that: (1) "[B.C.] is unable to articulate pain, discomfort, suffering,
or emotional distress"; (2) the videotapes "do not reflect visible signs of pain or discomfort
that [B.C.] suffered as a result of each instance of abuse"; (3) "there is no evidence that
[B.C.] suffered any emotional distress, present or future, for any act of abuse"; and
(4) "[t]here is no evidence that after any incident of abuse, or the collective incidents, [B.C.]
had any emotional discomfort continuing to reside at CDC." (Decision at 13.)
{¶ 32} In a case such as the one before us, where a plaintiff cannot verbally express
pain and suffering,6 it is incumbent upon the factfinder to pay special attention to evidence
which reveals the plaintiff's alternative expressions or manifestations of pain and suffering.
Here, McCombs explained the condition B.C. has which results in his being non-verbal:
Q. I want to follow up on something that you said about [B.C.]
being nonverbal and that despite all of his capabilities you
can't talk to him.
What does that mean? Like tell us about that part of him.
6 Whether due to infancy, impairment, disability, dementia or otherwise.
No. 21AP-280 17
A. I'm sorry, can you say it differently.
Q. Yeah, when you say he's nonverbal and you can't talk to
him, tell us how you know that. What is it about him that
prevents you from having a conversation with him sort of like
the two of us are right now?
A. His disability is, the nonverbal parts, getting into the
science of it, there's diagnoses called dyspraxia, apraxia. It's
cognitively where ideas come in your head, but you can't --
they don't connect to come out your mouth, to articulate.
So [B.C.] makes his needs very clear. You can talk to him, but
you can't have conversations. They're one-sided because he
can't have [a] conversation back with you.
(Tr. Vol. I at 168-69.)
{¶ 33} Furthermore, CDC Psychologist Harger, CDC Special Team reports and
Bachmann's investigation reports provided evidence that while B.C. rarely speaks, he "uses
simple signs, facial expressions, gestures, [and] body language" to communicate. (Pltf.'s
Ex. No. 31 at 233 and 255.)
{¶ 34} Contrary to the Court of Claims' findings, the record contains the following
evidence7 revealing B.C.'s expressions of pain and suffering via facial expressions, gestures,
and body language:
➢ Video Exhibit File No. 1: during the June 9, 2018
incident, the video reveals B.C. contorting his body to
evade Stein as she chokes him and raising his arm to
deflect Stein. B.C. also increases the pace of his steps
backwards to escape. B.C. rubs his neck;
➢ Video Exhibit File No. 2: during the June 20, 2018
12:32 p.m. incident, the video reveals B.C. retreating
backwards, recoiling and using his hand to deflect
Stein as she chokes him;
➢ Plaintiff's Exhibit No. 1 at 7: the Report of Investigation
completed by Bachmann reveals that on June 20-21,
2018 "similar instances are observed with [B.C.]
7This summary of evidence focuses on B.C.'s reaction, expressed through his facial expressions, gestures, and
body movements, to the neglect and abuse perpetrated by Stein and the other TPWs; whereas the summary
of evidence at paragraph 7 focuses on the actions of Stein and the other TPWs in perpetrating the neglect and
abuse.
No. 21AP-280 18
exiting his room before Stein and left hurriedly while
holding his right hand to his head and looking back at
Stein who exited a few steps behind." Bachmann
further reported that "[v]ideo evidence also adds to
additional suspicious behaviors from Stein such as
going into his bedroom on multiple occasions while
staff report that he is independent in his room with
times going to his room following stealing water or
food items from Stein and/or is observed leaving his
bedroom quickly while covering his head with Stein
following him." (Pltf.'s Ex. No. 1 at 16.)
➢ Video Exhibit File No. 5: during the June 21, 2018 7:31
a.m. incident, the video reveals B.C. using his arms
twice to deflect Stein and Baker as they grab him and
attempt to drag him. He uses his arm to try to yank
away from them;
➢ Video Exhibit File No. 3: during the June 21, 2018 8:12
a.m. incident, the video reveals B.C. slow to walk away
after Stein slaps him;
➢ Video Exhibit File No. 4: during the June 21, 2018 8:32
a.m. incident, the video reveals B.C. trying to use both
his arms to deflect Stein and the other CDC employee
as they have him pinned against the wall. B.C. is
hunched over and turned to the side in a protective
stance. After the other CDC employee retrieves the
paper B.C. is holding, B.C. is released and pushed in the
back by the other CDC employee and B.C. lurches
forward. Stein and the other CDC employee continue
pushing B.C. around the tables and B.C. makes an
angry arm gesture trying to get away. He has a
distraught look on his face. Again he is pinned against
the wall and he uses his arms to cross his chest. When
Stein and the other employee are trying to trap him
with a chair, B.C.'s brow is furrowed. Stein knees B.C.
in the groin as he is backing away into the camera;
➢ Video Exhibit File No. 7: during the June 26, 2018 7:42
a.m. incident, the video reveals B.C. recoiling
backwards to evade Stein after she slaps him on the
back of his head and puts her finger in his face. Again
he leans away as she slaps him, slaps the back of his
head, pulls and yanks his ear;
No. 21AP-280 19
➢ Video Exhibit File No. 8: during the June 26, 2018 8:04
a.m. incident, the video reveals B.C. using his arms to
evade Stein as she is pulling him, pinching/flicking the
back of his head. He hunches his shoulders as wincing
and protecting himself. He has an alarmed and scared
look on his face.
➢ Bachmann's report observed "Steins actions toward
[B.C.] were with enough force that could reasonably be
expected to result in physical harm, particularly
choking and hitting a client on the head who is
diagnosed with traumatic brain injury and seizure
disorder." (Pltf.'s Ex. 1 at 16.)
{¶ 35} Furthermore, in a case such as the one before us, where the plaintiff cannot
verbally express pain and suffering, it is also incumbent upon the factfinder to pay special
attention to evidence of the context and circumstances within which the plaintiff
experiences the abuse and neglect. Evidence of the context and circumstances may be
considered in making findings of the existence and/or amount of pain and suffering
damages in particular in the nature of emotional distress, such as humiliation and fear. As
we stated in Hohn, the factfinder must evaluate the case "in light of its own particular facts."
Id. at 10. Here, the evidence reveals that the context and circumstances, the particular facts
of this case, were that B.C. experienced the neglect and abuse as a very vulnerable person—
with a diagnosis of autism and being non-verbal, among others. B.C. was entrusted to the
care of CDC by McCombs, his mother and guardian. On B.C.'s behalf, McCombs signed a
document titled "client rights and individual complaint procedure" with one of the
enumerated rights listed as "[h]ave a clean safe place to live." (Emphasis added.) B.C. was
neglected and abused in the facility where he lived—his "home"—by those persons whose
responsibility it was to care for him. Ballinger testified that "prevention of abuse is
everyone's job at the facility." (Tr. Vol. I at 51.) Ballinger confirmed that the CDC incident
reporting procedures policy contains the following statement: "Abuse is defined as the
willful infliction of injury, unreasonable confinement, intimidation or punishment with the
resulting physical harm, pain or personal anguish. Injury does not need to be present as
assess [sic] the emotional trauma/personal anguish. Also, since many individuals are
unable to communicate feelings of fear, humiliation, etc. the assumption must be made that
any actions that would usually be viewed as psychologically or verbally abusive by a
No. 21AP-280 20
member of the general public, is also viewed as abusive by the individual residing in the
facility, regardless of the individual's perceived ability to comprehend the nature of the
incident." (Deft.'s Ex. C at 201; Tr. Vol. I at 153.)
8. Sustain Assignments of Error and Instructions on Remand
{¶ 36} Therefore, we find that in assessing damages the Court of Claims applied an
incorrect standard which used B.C.'s disability (in particular, being non-verbal) against him
to reduce his damages. We further find the Court of Claims' award of damages cannot be
reconciled with the undisputed evidence in the case, failed to include all the items of
damages making up McCombs' claim, and was so grossly inadequate as to shock the sense
of justice and fairness and the conscience. Accordingly, we sustain McCombs' first
assignment of error and ODDD's third and fourth assignments of error (albeit for reasons
other than those suggested by ODDD). On remand, the Court of Claims, as the factfinder
in this case, in determining the existence and amount of damages shall make a human
evaluation of all the facts and circumstances involved and evaluate this case in light of its
own particular facts—paying special attention to evidence: (1) which reveals B.C.'s
alternative expressions or manifestations of pain and suffering, and (2) of the context and
circumstances within which B.C. experienced the abuse and neglect.
C. McCombs' Second Assignment of Error
{¶ 37} In her second assignment of error, McCombs contends the Court of Claims
erred by applying Hutchings v. Childress, 119 Ohio St.3d 486, 2008-Ohio-4568, to the facts
of this case and economic damages for loss of consortium should be available to her.
McCombs only sought economic damages through her loss of consortium claim.
{¶ 38} In Hutchings, the appellant was injured in an automobile accident caused by
the appellee and sustained a traumatic brain injury. The appellant filed a claim for her
injuries and her husband filed a claim for loss of consortium. The appellant's husband
functioned as a caregiver for his wife after the accident and presented evidence that his time
missed from work would produce an income gap of between $1,775,000 and $2,296,000
over his expected work life. The Supreme Court determined that "[i]f there is to be recovery
of lost income, it cannot be a part of the uninjured spouse's claim for loss of consortium. A
claim for loss of consortium is not based upon economic damages. 'Consortium consists of
society, services, sexual relations and conjugal affection which includes companionship,
No. 21AP-280 21
comfort, love and solace.' Clouston v. Remlinger Oldsmobile Cadillac, Inc. (1970), 22 Ohio
St.2d 65, * * * syllabus." Hutchings at ¶ 16. A loss of consortium claim is based on the loss
of services provided by the injured party prior to the injury, and a loss of income by the
caregiver is not a service that the injured party once provided. Id. The court concluded that
"[t]he appropriate measure of damages for an uninjured spouse's provision of care to an
injured spouse is the economic value of the care provided, not the value of the lost wages
incurred in providing that care." Id. at ¶ 44.
{¶ 39} In this case, McCombs seeks to carve out an exception to Hutchings because
ODDD holds a monopoly over the provision of services to developmentally disabled
individuals and, therefore, her choices are limited to providing care herself or leave him in
the exclusive care of individuals supervised by ODDD, the very entity that abused her son.
However, seeking economic damages for McCombs' loss of wages pursuant to loss of
consortium claim does not differ from Hutchings in the fact that B.C. did not previously
provide those wages, it was McCombs who provided the wages. A loss of consortium claim
is a derivative claim. Canfield v. United Airlines, Inc., 10th Dist. No. 21AP-252, 2021-Ohio-
4460, ¶ 23, quoting Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 92-93 (1992) (" '[A] claim
for loss of consortium is derivative in that the claim is dependent upon the defendant's
having committed a legally cognizable tort upon the spouse who suffers bodily injury.' ");
Gordon v. Ohio State Univ., 10th Dist. No. 10AP-1058, 2011-Ohio-5057, ¶ 80. McCombs'
loss of consortium claim is only proper for a loss of society, services, companionship,
comfort, love, and solace from B.C. Applying Hutchings, the appropriate measure of
damages for McCombs' provision of care to B.C. would be the economic value of the care
provided, not the value of the lost wages incurred in providing that care. Hutchings at ¶ 44.
McCombs does not seek such economic damages and testified that Medicaid paid the
expenses for B.C. to stay at CDC, and ODDD currently pays the independent care
providers.8 (Tr. Vol. I, 182; 242.) Therefore, we cannot find the Court of Claims erred in
applying Hutchings to conclude that McCombs was not entitled to economic damages
under her loss of consortium claim. McCombs' second assignment of error is overruled.
8McCombs testified that due to the staffing shortage in Belmont County, there are no other independent care
providers to hire to care for B.C.
No. 21AP-280 22
D. McCombs' Third Assignment of Error
{¶ 40} McCombs' third assignment of error raises the issue that the Court of Claims
erred in failing to address her claim for lack of supervision. The court provided that
"[b]ecause the Court has found Defendant liable for the abuse and neglect via respondeat
superior, the Court will not analyze whether Defendant is liable under a negligent hiring,
training, or supervision theory." (Decision at 10.) McCombs' counsel stated during oral
argument that the assignment of error is more in the nature of a cross-assignment of error
if this court were to determine Stein and the other TPWs were not immune from liability—
in other words, if we were to sustain ODDD's first and second assignments of error.
McCombs does not seek to alter the judgment of ODDD liability. McCombs nevertheless
urges this court to require a finding with regard to the negligent hiring, training, and
supervision claim in order to hold CDC supervisors accountable. McCombs counsel
conceded, however, that regardless of the theory of liability, the damages would be the
same.
{¶ 41} Because McCombs' third assignment of error does not seek to change the
Court of Claims' judgment of ODDD liability but, rather, seeks an additional finding to
support the judgment of liability, we decline to consider the same and determine the third
assignment of error to be moot. See Ra v. Ohio Atty. Gen. Office, 10th Dist. No. 19AP-533,
2020-Ohio-1346, ¶ 35, citing Fowler v. Ohio Dept. of Pub. Safety, 10th Dist. No. 16AP-867,
2017-Ohio-7038, ¶ 4, 23. See also App.R. 12(A)(1)(c); Sourial v. Nationwide Mut. Ins. Co.,
10th Dist. No. 17AP-731, 2018-Ohio-2528, ¶ 61; Ra at ¶ 35 ("[T]o the extent [the] appellee's
cross-assignments of error do not seek to change the trial court judgment but, rather, offer
arguments in support of alternative reasons to affirm the trial court's judgment under
App.R. 3(C)(2), we find such arguments to be moot considering our resolution of [the]
appellants' first and second assignments of error. Accordingly, we need not pass on the
propriety or merits of [the] appellees' three cross-assignment[s] of error in this regard.").
IV. Conclusion
{¶ 42} For the foregoing reasons, we sustain McCombs' first assignment of error and
ODDD's third and fourth assignments of error, overrule McCombs' second assignment of
error, decline to consider McCombs' third assignment of error and render it moot, and
overrule ODDD's first and second assignments of error. Therefore, we affirm in part and
No. 21AP-280 23
reverse in part the judgment of the Court of Claims of Ohio and remand the matter to that
court for further proceedings in accordance with law and consistent with this decision.
Judgment affirmed in part;
reversed in part; and cause remanded.
LUPER SCHUSTER, P.J., and JAMISON, J., concur.