Toros v. Cuyahoga Cty. Bd. of Dev. Disabilities
2013 Ohio 4601
Ohio Ct. App.2013Background
- Florence Toros, a developmentally disabled adult, had tongue cancer surgery and was initially on pureed/feeding-tube diet; later cleared to eat solid food after a barium swallow and physician confirmation.
- Prior to returning to the Maple Heights Adult Activity Center (operated by Cuyahoga County Board of Developmental Disabilities — CBDD) the ISP initially listed a pureed diet; it was later updated to remove that restriction after medical clearance, though the formal ISP was not immediately amended.
- On November 22, 2010, staff at the Center supervised Toros; she later suffered an apparent seizure/choking episode by a water fountain, was found with food (peanut-butter-like substance) in her airway, and died two days later.
- Toros’s estate sued CBDD and several employees for wrongful death, alleging violations of statutory "Bill of Rights" protections and negligence; defendants moved for summary judgment based on sovereign immunity.
- The trial court granted summary judgment for defendants; on appeal the estate raised procedural challenges to the defendants’ amended motion/reply and disputed the immunity ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Court allowed defendants to amend/supplement MSJ after plaintiff responded | Amendment prejudiced estate; created new target (individual employees) and deprived time to respond | Amendment made only minor caption/text changes and did not introduce new substantive arguments; estate had already addressed employees | No prejudice; amendment proper and did not restart response time — court did not err |
| 2) Trial court refused to strike defendant reply for raising new statutory-interpretation argument | Reply raised a new argument (statutory scope of Bill of Rights) and should be struck or estate allowed to surreply | Estate had already raised the Bill-of-Rights issue in its opposition; defendants’ reply did not prejudice estate | Denial of motion to strike affirmed; estate could have sought leave to file surreply but was not prejudiced |
| 3) Whether R.C. 5123 Bill of Rights expressly imposes civil liability under R.C. 2744.02(B)(5) to defeat immunity | Estate: R.C. 5123.64(B)(3) authorizes civil actions to enforce rights, so liability is expressly imposed on the political subdivision and employees | Defendants: statute does not expressly and specifically impose civil liability on political subdivisions or employees; exception inapplicable | Court: Bill of Rights does not expressly impose liability for purposes of the R.C. 2744 exception; immunity not defeated |
| 4) Whether defendants lost immunity under R.C. 2744.03 because conduct was not discretionary or was wanton/reckless | Estate: staff were negligent/reckless in supervision and response; factual disputes preclude summary judgment | Defendants: ISP planning and supervision were discretionary policymaking/planning; staff acted without malicious purpose, bad faith, wantonness, or recklessness | Court: ISP creation and supervision were discretionary; no evidence of wanton/reckless conduct; R.C. 2744.03 defenses apply — summary judgment proper |
Key Cases Cited
- Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35 (summary judgment standard in Ohio)
- Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551 (three-tier sovereign immunity analysis)
- Cater v. Cleveland, 83 Ohio St.3d 24 (limitations to political-subdivision liability)
- Butler v. Jordan, 92 Ohio St.3d 354 (meaning of "expressly" under R.C. 2744.02(B)(5))
- Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455 (general statutory liability insufficient to expressly impose liability on political subdivision)
- Campbell v. Burton, 92 Ohio St.3d 336 (clarified and later abrogated regarding mandatory duties and liability)
- Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities, 102 Ohio St.3d 230 (Bill of Rights does not expressly impose liability under R.C. 2744.02(B)(5))
- Cramer v. Auglaize Acres, 113 Ohio St.3d 266 (contrast where statute expressly authorized civil action against county-run facilities)
- Elston v. Howland Local School, 113 Ohio St.3d 314 (distinguishing R.C. 2744.03(A)(3) and (A)(5) discretionary-act immunity)
- Anderson v. Massillon, 134 Ohio St.3d 380 (definitions of wanton and reckless conduct)