DALE A. CRAWFORD, JUDGE
Sent to S.C. Reporter 7/14/21
DECISION
DALE A. CRAWFORD, JUDGE
{¶1} This case is before the Court on a complaint brought by Plaintiff, Jerri McCombs, on behalf of herself and as guardian of her adult son, Bradon Conway. Plaintiff alleges that Defendant's employees abused and neglected Conway while he was in their care, in violation of his rights under R.C. 5123.62 and 5123.64. Plaintiff also brought a claim for loss of consortium based on the economic loss she suffered when she left her job to care for Conway. The Court held a trial on the issues of liability and damages. Concurrently with the trial, the Court held an immunity hearing pursuant to R.C. 2743.02(F). For the reasons stated below, judgment will be rendered in favor of Plaintiff on Plaintiffs abuse and neglect claim and in favor of Defendant on Plaintiffs loss of consortium claim. The Court will also conclude that the former state employees in question are entitled to immunity.
On August 14, 2019, Defendant moved the Court to determine whether six of its former employees are entitled to personal immunity from liability under R.C. 9.86 as state employees: Dianna Stein, Misty Kuczmarski, Theresa Baker, Kelsey Clark, Ashley Jasielum, and Jason Frattali. On October 24, 2019, the Court ordered that the immunity hearing would be held contemporaneously with the trial.
At the end of the trial, the undersigned ruled from the bench in favor of Plaintiff on Plaintiff's abuse and neglect claim and ordered the parties to submit briefs regarding Plaintiff's loss of consortium claim and damages.
Facts
{¶2} Bradon Conway, the son and ward of Plaintiff Jerri McCombs, is an autistic man, unable to speak beyond a few words or otherwise communicate via conventional means. On March 2, 2018, shortly before his 25th birthday, Conway was admitted to Cambridge Developmental Center (CDC) for stabilization of symptoms of his autistic disorder. (Plaintiffs Ex. 31.) CDC developed a person-centered plan for Conway to address target behaviors. Conway's target behaviors included taking other people's property, mainly food and beverages. Kathleen Ballinger, the superintendent of the CDC at the time in question, described Conway as very ritualistic, with OCD tendencies. Ballinger related that one of Conway's rituals is cleaning items over and over again.
Conway had previously been admitted to CDC in 2015, but the care that he received at that time is not at issue in this case.
{¶3} Ballinger testified that CDC is a habitation center consisting of four cottages that house residents such as Conway. Each cottage is broken into A and B sides, with the administrative offices in a hallway at the juncture of the two sides. (Plaintiff's Ex. 30.) Conway resided in side A of Steele cottage.
{¶4} The day-to-day care for residents at CDC is provided by therapeutic program workers (TPWs). The TPWs are supervised by residential care supervisors, who are in turn overseen by qualified intellectual disability professionals. The qualified intellectual disability professionals report to the program director, who answers to the superintendent. The residential care supervisors and qualified intellectual disability professionals work in the administrative offices in the cottages.
{¶5} Ballinger testified that that the common areas of Steele cottage were under video surveillance. However, the surveillance footage was not reviewed on a regular basis. Rather, it was only viewed when the administration knew of an incident. Ballinger testified that the video footage is automatically overwritten after 30 days.
{¶6} On June 26, 2018, a resident of CDC informed a qualified intellectual disability professional that TPW Dianna Stein "hit Brady [Conway] in the face, pulled his hair, and hit him in the mouth." (Plaintiffs Ex. 15.) The CDC commenced an investigation that day. As part of the investigation, the investigator reviewed video footage of Conway and Stein for the previous 30 days. The following eight incidents of abuse were discovered:
1) On June 9, 2018, at 10:20 a.m., Stein was sitting at a table in the dining room, and Conway was standing next to the table. Conway picked up Stein's key lanyard from the table and began twirling her keys in a playful manner. Stein stood up and grabbed her keys with her left hand and Conway's throat with her right hand. She then pushed on his throat as she pulled the keys out of his hand. Conway retreated to a corner and rubbed his throat with his hand. TPW Misty Kuczmarski was sitting at a different table and witnessed the entire incident, but she did not intervene or report it. (Plaintiff's Video Ex. 1.)
2) On June 20, 2018, at 12:32 p.m., Conway took food out of Stein's purse, which had been left in the dining room, and sat down to eat the food. Stein entered the dining room and approached him to take the food away. Conway stood up and began to evade her, shoving the food into his mouth as he walked between the tables. As soon as Stein reached him, she grabbed his throat with her left hand and his upper left arm with her right hand and pushed him. Conway escaped around another table and continued eating the food. Stein then chased him out of the room and out of the camera's view. (Plaintiff's Video Ex. 2.) Shortly after that encounter, Conway sat down in a recliner. At 12:52 p.m., Stein came up behind his chair and choked him from behind with both arms around his throat. She lifted him up and back in his seat for about 2 seconds. She then slapped him in the face. Kuczmarski was in the room and appeared to observe the end of the choke and the slap, but she did not intervene or report it. (Plaintiff's Ex. 1., p. 6-7.)
3) On June 20, 2018, at 2:18 p.m., Conway walked past Kuczmarski while she was sitting at a dining room table. As he walked past, she kicked him with her left foot. The kick was forceful enough that it pushed Conway away from her. TPW Theresa Baker witnessed the incident, but she did not intervene or report it. Instead, both Kuczmarski and Baker laughed. (Plaintiff's Ex. 5., p. 3.)
4) On the morning of June 21, 2018, Conway was washing dishes in the kitchen, which appears to have been a permitted activity because several TPWs-not including Baker and Stein-observed him and did not intervene. After an hour, around 7:31 a.m., Baker and Stein intervened and attempted to stop Conway from washing the dishes. After several unsuccessful attempts, Stein dragged Conway away from the sink by pulling on the back of his pants. (Plaintiff's Video Ex. 5.)
5) On June 21, 2018, at 8:12 a.m., Stein was sitting at a table in the dining room with TPW Ashley Jasielum and Baker. TPW Jason Frattali was standing nearby. Conway approached the table and pointed to Stein's water bottle. She turned toward him and slapped him in the chest with the back of her hand. He then walked away. None of the other TPWs reported the incident. (Plaintiff's Video Ex. 3.)
6) On June 21, 2018, at 8:32 a.m., Conway, Stein, Baker, and several other people were in the dining room. Conway approached a bulletin board, pointedly looked over at Stein, and removed a paper that was tacked to the board. He crumpled it into a ball and was about to throw it in the trash can when Stein approached him to try to take it from him. He walked away from Stein, keeping the paper in his fist. Conway's demeanor appears to be that of a playful child, purposefully doing something to get attention. Stein took up a position in between him and the board, extended her hand, and seemed to ask for the paper back. Stein then struck him quickly in the face with an open hand. Baker came over to help retrieve the paper. Stein grabbed Conway's arm, locked his elbow, and used his arm to drive him backwards. She then tried to pin him up against a wall, but he evaded her. At that point, TPW Bradford approached and took Conway's arm. Bradford and Stein together managed to take the crumpled paper from Conway. Conway tried to approach the bulletin board again, but Bradford confronted him and pushed him away. Stein and Baker then used their bodies to block Conway from returning to the bulletin board as Bradford tacked the paper up again. Bradford then pushed Conway away several times, redirecting him out of the room. When Conway reentered the room, aiming to walk to the bulletin board again, Baker and Stein pushed chairs into his way to block him. After the chair block was successful, Stein moved a chair in order to approach Conway and kneed him in the groin. He then left the room. No one reported this incident. (Plaintiff's Video Ex. 4.)
Because Defendant did not move for an immunity determination regarding Bradford, the spelling of his first name is unknown to the Court. Furthermore, while his pushes were forceful, the Court does not view them as abusive. In his testimony, the investigator for CDC, Douglas Bachmann, described Bradford's actions as an unapproved behavior support.
7) On June 23, 2018, at 7:18 a.m., Conway, Stein, and two men who appear to be residents were standing at a table in the dining room. Conway poured himself a drink. Stein then slapped him hard on the side of his head. (Plaintiff's Video Ex. 6.)
8) On June 26, 2018, at 7:42 a.m., Conway, TWP Kelsey Clark, and several other residents were in the dining room. Conway took a partially finished bottle of water from the table where Stein normally sits. As he walked away, drinking the water, Stein entered the room and followed him. Clark then went to help. When Stein reached Conway, she immediately smacked him on the back of the head. He then walked away from her, moving between the chairs, still chugging the water. She grabbed his wrist and attempted to pull him out the back door, but he pulled away, walked across the room to the trash can, and threw the empty bottle away. He then went to a seat to sit down, with Stein following him. When he reached the seat, Clark blocked him from walking further, and she and Stein boxed him into the seat. After Stein helped him push his chair in, she smacked him on the back of the head again and yelled in his face. Stein then helped him prepare his breakfast cereal. When she removed the foil lid from his yogurt, he grabbed it and appeared to lick it. She smacked him in the face, presumably to punish him for that behavior, but she did not take the wrapper away or prevent him from licking it. She then smacked him on the back of the head again. After he took a few bites of cereal, she grabbed his ear, pulled on it to force him to sit up, and screamed in his face. (Plaintiffs Video Ex. 7.) The violence continued as Conway walked into the kitchen. (Plaintiffs Video Ex. 8.) Conway went to the sink and began washing dishes. Stein rushed into the room after him. She hit him on the head once, and then attempted to get her arm around his neck, as though to put him in a headlock. She failed in this, due to being shorter than him. Then Clark and another resident entered the kitchen. When Clark entered, Stein switched to trying to pull Conway away from the sink. Clark joined Stein in trying to pull Conway away, and then the other resident grabbed Conway's shirt and pulled on him. At that point, Stein and Clark stopped and left Conway alone. (Plaintiffs Video Ex. 8.) Although no CDC employees reported the abuse, this incident was reported by a resident.
{¶7} After the abuse was discovered, Conway was inspected by a nurse who found no injuries directly related to these incidents. A nurse also called Plaintiff and informed her that the abuse had been reported. However, the nurse further informed her that the resident who reported the abuse often made up stories to get the staff in trouble. Conway was also moved to a different cottage. Plaintiff testified that she was not informed that the abuse was real and that there had been other incidents until July 6 or July 9, 2018 when Douglas Backman, an investigator for CDC, called her.
However, no such inspection occurred immediately after the abuse on June 9th, 20th, 21st, or 23rd.
{¶8}After Plaintiff was informed of the abuse, she requested that Conway be moved to a different cottage until he could be moved to a different facility. She testified that she wanted him moved to a new facility as soon as possible, and she was told that a move to a new place would be imminent. However, after he was not moved, she eventually removed him from CDC in December 2018 and brought him home with her.
{¶9} Plaintiff testified that in June 2018, she was the census director, a management position, at a long-term care and acute rehabilitation hospital. She testified that her salary was $89,000 per year, and she was usually awarded a bonus of $1,500 each month. She also received regular raises. When Plaintiff brought Conway home to live with her, she had to leave her management job in order to take care of him. She then went through the training required to become an independent care provider in order to take care of Conway herself. After leaving her management job, she took a part-time job as an in-patient psychiatric nurse and then she switched to a job in pediatrics at a hospital in Wheeling, West Virginia until the pandemic began. She currently works full-time as the surgery coordinator for a hospital in Wheeling, West Virginia as her day job. She then comes home and is on the clock as Conway's independent care provider. She testified that another independent care provider cares for him from 6 a.m. to 5 p.m. so that he is never alone. Plaintiff is paid by the county for her work as a care provider, as is the other care provider.
{¶10} Douglas Bachmann is an investigator for CDC. During the trial, he testified that he began an investigation on June 27, 2018 regarding the abuse incident that occurred the day before. That investigation led to the discovery of the other incidents of abuse. Bachmann related that he contacted Plaintiff to inform her of the newly discovered abuse incidents. Bachman testified that his investigation concluded that six TPWs either committed abuse or failed to report it, as described above. He admitted that he did not interview or investigate any residential care supervisors or qualified intellectual disability professionals.
{¶11} As a result of failing to report abuse, TPW Jason Frattali and TPW Ashley Jasielum received 5-day suspensions. TPWs Dianna Stein, Misty Kuczmarski, Theresa Baker, and Kelsey Clark were terminated. Stein did not cooperate with CDC's investigation or the Ohio State Highway Patrol, which conducted a criminal investigation. Stein ultimately was convicted and went to prison as a result of the abuse.
Defendant's employees abused and neglected Conway
{¶12} Plaintiff claims that Defendant's employees abused and neglected Conway in violation of his rights under R.C. 5123.62. The Ohio Revised Code defines abuse and neglect as follows:
(A) "Abuse" means all of the following:
(1) The use of physical force that can reasonably be expected to result in physical harm or serious physical harm;
(2) Sexual abuse;
(3) Verbal abuse.
(D) "Neglect" means, when there is a duty to do so, failing to provide an individual with any treatment, care, goods, or services that are necessary to maintain the health and safety of the individual.
R.C. 5123.50.
{¶13} It is clear from the videos and the descriptions contained in the exhibits that the 8 incidents described above constituted abuse. Furthermore, each incident in which a TPW witnessed abuse and failed to report it amounted to neglect. Each TPW had a legal duty to report any abuse witnessed. R.C. 5123.61(C)(1).
Defendant is liable for its employees' abuse and neglect of Conway
{¶14} Defendant argues that it is not liable for its employees' abuse and neglect of Conway. As described in the enumerated instances above, the Court finds that Stein and Kuczmarski abused Conway. The Court further finds that Baker, Clark, Jasielum, and Frattali witnessed abuse and failed to report it.
While Clark laid hands on Conway in an attempt to get him to stop washing dishes, as described in the latter part of incident eight above, the touching was not abusive. It could not have reasonably been expected to result in physical harm.
{¶15} "'[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 * * *.'" Osborne v. Lyles, 63 Ohio St.3d 326, 329, 587 N.E.2d 825 (1992), quoting Byrd v. Faber, 57 Ohio St.3d 56, 58, 565 N.E.2d 584 (1991).
{¶16} In Elliot, a prison guard struck an inmate in the face without any provocation or justification after a discussion regarding the inmate's failure to report to work. Elliot v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 91-08743 (Nov. 20, 1992). This Court held that the use of force by the guard, "although heedless and unnecessary, was not outside the authority of a corrections officer charged by the defendant to maintain and discipline an inmate population." Id. at 6. The Ohio Department of Rehabilitation and Corrections (ODRC) was thus liable for the battery via respondeat superior even though this Court also found that the guard acted recklessly and, consequently, was not entitled to civil immunity. Id. at 8.
{¶17} On appeal, the Tenth District affirmed: "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." Elliot v. Ohio Dept. of Rehab. & Corr., 92 Ohio App.3d 772, 776, 637 N.E.2d 106 (10th Dist.1994). 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." Id. In Jodrey, the Tenth District clarified that the guard in Elliot acted within the scope of his employment because he had "the authority to use non-deadly force to the extent [he] reasonably believed necessary to enforce prison rules and regulations." Jodrey v. Ohio Dept. of Rehab. and Corr., 10th Dist. Franklin No. 12AP-477, 2013-Ohio-289, ¶ 18. "Although the amount of force * * * was unnecessary, [the guard] employed force to discipline [an inmate], which served the prison's interest." Id.
{¶18} In each instance of abuse, Stein or Kuczmarski was engaged in their client monitoring function or performed the abuse in an attempt to control Conway's behavior. Conway's target behaviors included taking other people's property, especially food and beverages. And one of his rituals is cleaning items, such as dishes, over and over again. The force used was thus in furtherance of the facility's interest in controlling Conway's targeted behavior. Furthermore, the failure of the other TPWs to report the abuse also fell within the scope of their employment. Therefore, Defendant is liable for the abuse and neglect. Because 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.
The former CDC employees are entitled to immunity
{¶19} Defendant has requested that the Court determine whether six of its former employees are entitled to immunity under R.C. 9.86: Dianna Stein, Misty Kuczmarski, Theresa Baker, Kelsey Clark, Ashley Jasielum, and Jason Frattali. Ohio Revised Code 9.86 states, in part:
[N]o officer or employee [of the state] shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer's or employee's actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. "In the context of immunity, an employee's wrongful act, even if it is unnecessary, unjustified, excessive or improper, does not automatically take such act manifestly outside the scope of employment."
Caruso v. Ohio State Univ. Med. Ctr., 136 Ohio App.3d 616, 620,
737 N.E.2d 563 (10th Dist.2000), citing
Elliot, 92 Ohio App.3d at 775. In
Elliot-the case in which a guard punched an inmate in the face-this Court found that the guard acted within the scope of his employment, but the recklessness of his actions resulted in him being stripped of immunity.
Elliot, Ct. of Cl. No. 91-08743.
{¶20} As discussed above, the conduct of the six TPWs fell within the scope of their employment. Furthermore, the actions of Stein and Kuczmarski were not as reckless as the guard's actions in Elliot. Overall, their actions were closer to negligence than the degree of recklessness necessary for them to lose their immunity. Additionally, the failure to report abuse by Kuczmarski, Baker, Clark, Jasielum, and Frattali squarely falls within mere negligence. Therefore, all six former TPWs retain their immunity for their abuse and negligence at issue in this case.
Plaintiff is not entitled to economic loss of consortium damages
{¶21} Plaintiff, as the mother and caretaker of her adult, mentally disabled child, would be entitled to loss of consortium for a loss of companionship. However, in her amended complaint, Plaintiff reasserted that her loss of consortium claim is based on economic loss to Plaintiff as a result of leaving her higher-paying job in order to take care of Conway.
{¶22} In Hutchings, a woman suffered brain damage as a result of a car accident. Hutchings v. Childress, 119 Ohio St.3d 486, 2008-Ohio-4568, 895 N.E.2d 520. Her husband took time off work to care for her instead of hiring outside home health care. In addition to the wife's claim for her injury, the husband brought a consortium claim for the amount of income that he lost due to taking care of his wife. The Ohio Supreme Court noted that "[i]f there is to be recovery of lost income, it cannot be part of the uninjured spouse's claim for loss of consortium. A claim for loss of consortium is not based upon economic damages." Id. at ¶ 16. The Court instead held that "part of the injured spouse's damages against a defendant can include the fair market value of the home health care provided by the uninjured spouse. Damages are measured not by the lost income of the supporting spouse but by the market value of the services he or she renders." Id. at ¶ 3.
{¶23} Plaintiff argues that the rule in Hutchings should not be applied here because Conway's situation is unique: state law requires that care for Conway be provided by Defendant's authorized agents, but she cannot trust Defendant to care for Conway. However, while the Court finds merits in Plaintiff's belief that Conway should not return to CDC, Plaintiff did not submit evidence showing that Defendant is incapable of safely caring for Conway at another facility or by another means such as independent care providers. Accordingly, the Court concludes that the Hutchings rule applies and an exception is not warranted for this situation.
{¶24} Because Hutchings applies, Plaintiff cannot recover for any lost income as a result of leaving her higher-paying job. Instead, as Conway's guardian, Plaintiff could recover damages for the market value of the care that she provides to Conway. However, Plaintiff testified that she and the other independent care provider are paid by the state to take care of Conway. There is thus no financial loss to Plaintiff that the state is responsible to repay. Therefore, the Court will rule for Defendant on Plaintiff's loss of consortium claim.
As noted in Hutchings, an uninjured party cannot recovery for lost income via loss of consortium. Hutchings at ¶ 16. However, Plaintiff's claim fails on its merits, not because of improper form.
Damages
{¶25} It is difficult for the Court to apply traditional rules in determining damages because the traditional rules in this case would lead to speculative results, which are inappropriate. See Weber v. Obuch, 9th Dist. Medina No. 05CA0048-M, 2005-Ohio-6993, ¶ 28 ("Under Ohio law, a party cannot recover purely speculative damages."). Conway is unable to articulate pain, discomfort, suffering, or emotional distress. The video tapes have been observed closely; however, they do not reflect visible signs of pain or discomfort that Conway suffered as a result of each instance of abuse. Other than the abuse to the groin area, the videos do not reflect a touching or injury for which the court can assume pain and suffering. No evidence of physical bruising or other evidence of trauma was presented.
{¶26} The parties have not provided the Court with any case law reflecting how other courts have dealt with this issue. Young children, individuals with Alzheimer's, and mentally ill patients have obviously been abused, but the issue of damages has rarely been judicially discussed. In Guernsey, a federal district court awarded damages to an individual with Alzheimer's who suffered a 30-minute rape while a patient at the defendant nursing home. Guernsey v. County Living Personal Care Home(s), Inc., M.D.Pa. No. 3:CV-04-0423, 2006 U.S. Dist. LEXIS 31450 (May 19, 2006). While recognizing the seriousness of the rape itself, the court only awarded damages for the victim's physical and emotional trauma during the rape and shortly after the rape. Id. Taking into account the victim's severely limited memory due to Alzheimer's and lacking evidence that the rape had a long-term effect on the victim, the court did not award damages for future emotional distress or future pain and suffering. Id.
{¶27} In this case, there is no evidence that Conway suffered any emotional distress, present or future, for any act of abuse. There is no evidence that after any incident of abuse, or the collective incidents, Conway had any emotional discomfort continuing to reside at CDC. Thus, in 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 person standard as to the pain and suffering incurred as a result of the abuse observed. Applying this standard, the Court has determined the damages for each of the eight incidents of abuse described above:
1) $1,000
2) $500 + $3,500 = $4,000
3) $500
4) $200
5) $200
6) $5,000
7) $200
8) $5,000
In their post-trial briefs, both parties split the second incident into two parts when recommending damages. The Court awards $500 in damages for the abuse that occurred at 12:32 p.m. The Court awards $3,500 in damages for the abuse that occurred at 12:52 p.m.
In total, the Court will award Plaintiff $16,100 in damages for the abuse of Conway by Defendant's employees.
Conclusion
{¶28} The Court conducted a supplemental hearing in order for the parties to address Conway's future care needs. The parties were unable to reach an agreement, and the Court is not empowered to order any particular form of future care. The Court hopes that the parties can agree on a housing situation for Conway that is in his best interests.
{¶29} Considering all of the evidence presented, the Court concludes that the state failed in its duty to care for Bradon Conway and protect him from abuse. Judgment shall be rendered in favor of Plaintiff on her abuse and neglect claim in the amount of $16,125, which includes the filing fee paid by plaintiff. However, judgment shall be rendered in favor of Defendant on Plaintiff's loss of consortium claim. Lastly, the Court concludes that the six TPWs whose immunity was at issue are entitled to immunity.
JUDGMENT ENTRY
{¶30} This case came to trial before the Court on the issues of liability and damages. For the reasons set forth in the decision filed concurrently herewith, judgment is rendered in favor of Plaintiff on her abuse and neglect claim in the amount of $16,125, which includes the filing fee paid by Plaintiff. Judgment is rendered in favor of Defendant on Plaintiffs loss of consortium claim.
{¶31} Concurrently with the trial, the Court held an immunity hearing pursuant to R.C. 2743.02(F). The Court concludes that Dianna Stein, Misty Kuczmarski, Theresa Baker, Kelsey Clark, Ashley Jasielum, and Jason Frattali are entitled to immunity pursuant to R.C. 9.86 and 2743.02(F) and that the courts of common pleas do not have jurisdiction over any civil actions that may be filed against them, based upon the allegations in this case.
{¶32} Court costs are assessed against Defendant. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.