Jackson v. Butler Cty. Bd. of Cty. Commrs.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] On October 27, 1989, plaintiff-appellant, Sherrie Jackson, administrator of the estate of Tiffany Hubbard, filed a wrongful death action in the Butler County Court of Common Pleas. The following parties, all appellees herein, were named as defendants: the Butler County Board of County Commissioners ("commissioners"); the Butler County Department of Human Services ("BCDHS"); BCDHS Director Diane Logsdon; James Degener, a BCDHS caseworker; and Cathy Shackelford, Degener's supervisor. The complaint alleged that appellant's three-year-old daughter, Tiffany Hubbard, died as a result of injuries received from repeated beatings administered by her father, Jeffery Hubbard. The complaint further alleged that the negligent, willful, wanton and reckless misconduct of appellees in placing Tiffany in the custody of Hubbard and their failure to provide protective supervision for the child following the placement proximately caused or substantially contributed to the child's wrongful death.

This case had its origins on March 21, 1986, when Tiffany and her two younger brothers, Jeremy and Joshua, were removed from appellant's custody after authorities investigated appellant's home and found animal and human feces throughout the house, found Tiffany dressed only in her underwear while the two younger children had no clothes or diapers on. In addition, one of the boys suffered from deep scratches and bruises. By order of the Butler County Court of Common Pleas, Juvenile Division, the children were found to be neglected, temporary custody was granted to BCDHS, and the children were placed in a foster home. At the time, appellant was living with one Kenny Roberts, who had recently been released from prison. Although appellant and Hubbard had never been married, Hubbard had been determined to be the father of Tiffany and Jeremy in an earlier paternity proceeding. Hubbard was living with a Delores Nieman, who was herself the mother of two young children by Hubbard.

Following the children's placement in foster care, BCDHS formulated reunification plans for the purpose of reuniting the children with their parents. The plans were drafted by Degener and reviewed by Shackelford. These plans were heard, modified and approved by the juvenile court in separate proceedings on May 9, 1986 and July 29, 1986. At the July 29, 1986 hearing, the juvenile court directed that the Hubbard home be investigated as a possible foster home, since Hubbard and Nieman had done substantially everything required under the initial plan. On the other hand, appellant had demonstrated virtually no progress in complying with the reunification plan. The juvenile court set another hearing for September 3, 1986.

The case of the Hubbard children was discussed at an August 4, 1986 BCDHS staff meeting. Because of the juvenile court's expressed intention to grant custody of Tiffany and Jeremy to Hubbard, it was decided that the children would be placed with Hubbard and Nieman until the September 3, 1986 hearing so that BCDHS could have a basis for making a permanent custody recommendation to the court at that time. Pursuant to its authority to order temporary placements for up to sixty days, BCDHS placed Tiffany and Jeremy in the Hubbard home on August 6, 1986.

At the September 3, 1986 hearing, BCDHS advised the juvenile court that the placement of Tiffany and Jeremy in the Hubbard home appeared to be satisfactory. At the conclusion of the hearing, the juvenile court terminated BCDHS's custody of Tiffany and Jeremy and, over appellant's objection, placed them in Hubbard's temporary custody. The court also ordered BCDHS to continue appellant's visitation arrangements and maintain its protective supervision of the children's placement.

Following this hearing, Degener visited the Hubbard home on at least one occasion and had four telephone calls with Nieman during which they discussed the health and welfare of the children. Nieman told Degener that Tiffany had influenza and that she and Tiffany kept contracting the disease from each other. Degener and Nieman discussed the possibility of taking Tiffany to the doctor, and he followed up with additional calls inquiring as to Tiffany's health. On September 23, 1986, Degener called Nieman to arrange for a visitation. At this point, Degener had not seen Tiffany since August 11, 1986.

On September 30, 1986, Tiffany was found dead in the Hubbard home. Her death was attributed to beatings administered by Hubbard, who subsequently was convicted of involuntary manslaughter.

Appellees filed motions for summary judgment, claiming they were immune from liability under the provisions of R.C. Chapter 2744. In a comprehensive and well-written opinion, the trial court found that reasonable minds could come to but one conclusion which was adverse to appellant and that appellees were entitled to judgment as a matter of law. The trial granted summary judgment to all appellees. On appeal, appellant submits the following as her sole assignment of error:

"The court erred in granting appellees' motion for summary judgment in light of the requirements of Rule 56(C) of the Ohio Rules of Civil Procedure, since genuine issues of material fact exist in the instant case, appellees were not entitled to judgment as a matter of law, and reasonable minds could come to a conclusion in favor of the appellant construing the evidence most strongly in appellant's favor."

Appellant submits that summary judgment is inappropriate in the case at bar since appellees are not entitled to immunity under R.C. Chapter 2744 as a matter of law and a genuine issue of material fact exists with respect to whether appellees are liable for the death of Tiffany Hubbard. Pursuant to Civ.R. 56(C), summary judgment will be granted where (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion and, viewing the evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the nonmoving party.Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, 254,553 N.E.2d 1038, 1042. See, also, Temple v. Wean United, Inc. (1977),50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. Within the context of the case at bar, the key issue to be considered is whether appellees were entitled to judgment as a matter of law as a result of the immunity granted under R.C. Chapter 2744.

In response to numerous Supreme Court decisions abrogating the common-law doctrine of sovereign immunity, the General Assembly enacted R.C. Chapter 2744 to restore the defense of sovereign immunity to political subdivisions. See, e.g., McVettav. Totin (1990), 56 Ohio App.3d 87, 88, 564 N.E.2d 1143, 1144, and cases cited therein. Generally, a political subdivision and its employees are not liable for damages in a civil action for death caused by an act or omission of the political subdivision or any of its employees in connection with the exercise of a governmental or proprietary function. R.C. 2744.02(A)(1). For purposes of R.C. Chapter 2744, a county is a political subdivision, R.C. 2744.01(F), and the operation of a county human services department is a governmental function. R.C. 2744.01(C)(2)(m). In addition, Shackelford, Logsdon, and Degener are employees of a political subdivision. R.C. 2744.01(B).

The political subdivision itself is immune from liability if the death or injury resulted from the exercise of judgment or discretion in determining how to use personnel and other resources, unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner. R.C. 2744.03(A)(5). Similarly, R.C. 2744.03(A)(6) provides that:

"In addition to any immunity or defense * * * the employee is immune from liability unless one of the following applies:

"(a) His acts or omissions were manifestly outside the scope of his employment or official responsibilities;

"(b) His acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;

"(c) Liability is expressly imposed upon the employee by a section of the Revised Code."

With respect to the individual employees, R.C.2744.03(A)(6)(a) is inapplicable to the case at bar. The complaint acknowledges that the individual employees were acting within the scope of their employment. Furthermore, Logsdon, Shackelford, and Degener were also acting under the auspices, direction, and order of the juvenile court. In addition, appellant does not cite any section of the Revised Code which would impose liability on the employees under R.C.2744.03(A)(6)(c). Thus, the question is whether a genuine issue of fact exists with respect to the employees' conduct, and whether the way in which they handled Tiffany Hubbard's case reflects malicious purpose, bad faith, or a wanton or reckless manner on their part. R.C. 2744.03(A)(6)(b).

As to whether conduct would reflect a malicious purpose, the Supreme Court has held that "`[m]alicious' means `indulging or exercising malice; harboring ill will or enmity.'" Teramano v.Teramano (1966), 6 Ohio St.2d 117, 118, 35 O.O.2d 144, 145,216 N.E.2d 375, 377. Furthermore, "malice" can be defined as the willful and intentional design to do injury, or the intention or desire to harm another, usually seriously, through conduct which is unlawful or unjustified. See Bush v. Kelley's, Inc. (1969), 18 Ohio St.2d 89, 47 O.O.2d 238, 247 N.E.2d 745.

With respect to "bad faith," the second standard enumerated in R.C. 2744.03(A)(6)(b), the Supreme Court, in Slater v.Motorists Mut. Ins. Co. (1962), 174 Ohio St. 148, 21 O.O.2d 420,187 N.E.2d 45, paragraph two of the syllabus, held that:

"* * * [B]ad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another."

Finally, an individual acts in a "reckless" manner "`if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.'"Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104-105,559 N.E.2d 705, 708, quoting 2 Restatement of the Law 2d, Torts (1965), at 587, Section 500.

The Supreme Court also noted that since the term "reckless" is often used interchangeably with "willful" and "wanton," its comments regarding recklessness apply equally to conduct characterized as willful or wanton. Id. at 104,559 N.E.2d at 708, fn. 1. Furthermore, we recently held that the term "reckless" as used in R.C. 2744.03(A)(6)(b) means a perverse disregard of a known risk. Poe v. Hamilton (1990), 56 Ohio App.3d 137,138, 565 N.E.2d 887, 889. We also concluded that "[i]n R.C. 2744.03(A)(6)(b), the word `reckless' is associated with the words `malicious purpose,' `bad faith,' and `wanton,' all of which suggest conduct more egregious than simple carelessness." Id.

Applying these standards to the case at bar, we must first determine whether the conduct of Degener, Shackelford, and Logsdon in supervising Tiffany's placement in the Hubbard home suggests conduct more egregious than simple carelessness, or reflects the perverse disregard of a known risk. Appellant relies on the following evidence in support of her position that appellees were reckless: a written evaluation prepared by the Children's Diagnostic Center ("CDC"), the alleged failure of BCDHS to adequately supervise Tiffany's placement in the Hubbard home, and an expert witness' affidavit indicating that appellees were "reckless" in placing Tiffany in the Hubbard home.¹

Appellant argues that the CDC report is replete with warnings that it would be dangerous to place Tiffany in the custody of her father. The report excludes appellant as a prospective custodian, and while not portraying Jeffery Hubbard as the ideal parent, it does conclude that Hubbard and Nieman could benefit from marital therapy if considered as custodians of Tiffany and her brothers. The report does not even contemplate the actions of Hubbard as they were finally acted out. The report is void of any suggestion of violence and, at its most critical point, simply states that if Hubbard's "depression proceeds from the mild to moderate level which it normally exists at, to a more severe level, [he] can be expected to either act out illegally or to become involved in substance abuse." Although the report classifies Hubbard in less than idealistic terms, we agree with the trial court's well-founded observation that cases such as the one currently under consideration deal "with less than an ideal environment [and] extremely disadvantaged people."

As to the claim that BCDHS failed to adequately supervise the placement once Tiffany was in the Hubbard home, appellant argues that Degener's failure to see Tiffany on a face-to-face basis reflects a "reckless" attitude and failure to adequately supervise the placement since there was evidence that Tiffany's injuries were inflicted weeks before her death. Although Degener did not see Tiffany between September 3, 1986 and the date of her death, he did stop at the Hubbard home on one occasion and called there several other times. Among other things, Degener discovered that both Tiffany and Nieman were suffering from influenza. Degener gave Nieman authority to seek medical help for herself and Tiffany. At the time of the home visit, Degener did not see Hubbard and believed he was working. Although Degener did not confirm Hubbard's employment, such lack of confirmation certainly does not rise to the level of recklessness. We again agree with the trial court's observation that "[a] social homeworker cannot be everywhere at all times and everything to everybody. * * * The fact that Tiffany died and that it could have been prevented with more vigilance on behalf of [BCDHS] does not equate with negligence, let alone recklessness. The department is not an insurer of its clients."

Appellant also claims that the commissioners bear a responsibility for Tiffany's death inasmuch as they did not adequately finance or fund BCDHS. In support of this position, appellant relies on a letter written by Degener in which he claimed to be overburdened by a heavy caseload and that there was a need for additional social workers. Following Tiffany's death, Logsdon made a request for additional personnel and the commissioners agreed to fund three additional home social workers. Appellant asserts that "in all probability" the addition of these workers would have given Degener time to see Tiffany and her father face-to-face, which in turn would have saved Tiffany's life.

Such is pure speculation and it is impossible to know how many additional caseworkers, if any, might have accomplished this purpose. Furthermore, the funding of additional workers was a discretionary matter with the commissioners. If the commissioners could be held liable for the unfortunate consequences suffered by each BCDHS client wherein the expenditure of additional money and personnel might have prevented it, then the commissioners are indeed insurers of the welfare of all who utilize the services offered by BCDHS. It cannot be said, however, that the commissioners' exercise of judgment or discretion with respect to the use of personnel and other resources was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.

In conclusion, we find that, after construing the evidence most strongly in favor of appellant, reasonable minds could come to but one conclusion, being that appellees' conduct in handling Tiffany Hubbard's case neither amounted to a perverse disregard of a known risk nor rose to the level of maliciousness, bad faith, or recklessness. Accordingly, appellees are entitled to the statutory immunity established by R.C. Chapter 2744 and are also entitled to judgment as a matter of law. Appellant's assignment of error is not well taken and is hereby overruled.

Judgment affirmed.

KOEHLER, J., concurs.

WALSH, J., dissents.

¹ The trial court declared this affidavit inadmissible for a number of reasons and refused to consider it. See Civ.R. 56(E). Appellant has not specifically assigned the court's refusal to admit the affidavit as error, but simply refers to the affidavit as supporting evidence in her brief. In the absence of an assigned error, we will not consider whether the trial court properly declared the affidavit inadmissible or whether such creates a genuine issue of fact. App.R. 12(A).