Lindsey v. Summit Cty. Children Servs. Bd.Lindsey v. Summit Cty. Children Servs. Bd.
Dated: May 27, 2009
MOORE, Presiding Judge.
{¶1} Appellant, Stephen Lindsey, appeals from the decision of the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} This case results from the tragic death of two-year-old C.L. in December of 2002. C.L. was born in November of 2000 and his parents separated shortly thereafter. His Mother, nka Crystal Jones (“Mother“), left the family home and moved in with her parents. C.L. remained with his Father, Appellant Stephen Lindsay (“Father“), and starting in February of 2002, C.L. began visiting Mother overnight. These visits took place at Mother‘s parents’ home on Gale Street in Akron, Ohio. On March 25, 2002, Father arrived at Mother‘s residence to pick up C.L. Father noticed a red mark on C.L.‘s face and questioned Mother. Mother indicated that she was not sure what caused the mark, and that perhaps it was an allergy. Father took C.L. to
{¶3} CSB employee, Patricia Westfall (“Westfall“), began an investigation into the incident. After several unsuccessful attempts to reach C.L.‘s parents, Westfall was finally able to schedule a meeting with the parents regarding the March incident. On June 17, 2002, Westfall met with C.L.‘s parents, his grandmother and C.L. At the meeting, Westfall learned that Mother had a boyfriend but that the boyfriend was not living with her. After the meeting, Father continued to allow C.L. to visit with Mother at Mother‘s parents’ home. In July 2002, CSB closed its investigation into the March incident, noting that C.L. was safe in Father‘s care.
{¶4} Sometime after the June meeting, Mother moved out of her parents’ Gale Street home. Father continued taking C.L. for overnight visits at Mother‘s new home. While Mother stated that she was pregnant with her boyfriend‘s, Gerald Barham, child, he did not live with her at the new address. He did, however, often stay overnight. On December 27, 2002, Father took C.L. to stay the night at Mother‘s home. Although Father stated that he believed Mother was home at the time, he did not see her and left C.L. with Barham. The parties agree that that night, Barham fatally struck and killed C.L. In their deposition testimony, Mother and Father alleged that Barham was also responsible for the March incident.
{¶5} On March 16, 2007, Father filed a wrongful death action against CSB, and CSB employees, Patricia Westfall and Steven Bodey (collectively “the Employees“). CSB and the Employees answered, asserting that they were immune to suit. On April 29, 2008, CSB filed its motion for summary judgment. On May 1, 2008, the Employees filed their motion for summary
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN GRANTING A SUMMARY JUDGMENT IN FAVOR OF [] WESTFALL AND [BODEY] BASED UPON A FINDING OF FACT THAT WAS NOT RAISED IN THE MOTION FOR SUMMARY JUDGMENT AS A POTENTIALLY DISPUTED MATERIAL FACT AND, THUS, DENYING THE NONMOVING PARTY THE OPPORTUNITY TO PRESENT EVIDENCE ON THAT ISSUE.”
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT IN FAVOR OF [] WESTFALL AND [BODEY] AS THERE ARE GENUINE DISPUTES WITH REGARD TO MATERIAL FACTS[.]”
{¶6} In his first assignment of error, Father contends that the trial court erred in granting summary judgment in favor of the Employees based upon an issue that was not raised in their motion for summary judgment. In his second assignment of error, Father contends that the trial court erred in granting the Employees’ summary judgment motion as there are genuine disputes with regard to material facts. We conclude that the trial court properly granted the Employees’ summary judgment motion.
{¶7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. We apply the same standard as the trial court, viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12.
{¶8} Pursuant to
“(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 such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
{¶9} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in
{¶10} With regard to the moving party‘s burden to inform the trial court of the basis for the motion, “[a] party seeking summary judgment must specifically delineate the basis for [the motion] in order to allow the opposing party a meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 116. We have explained that if the moving party does not raise an issue in its motion for summary judgment, then it is improper for the trial court to grant the motion on that basis. Wilson v. Smith, 9th Dist. No. 22193, 2005-Ohio-337, at ¶15. “[I]f a party files a motion based on some, but not all, issues in a case, the trial court should restrict its ruling to those matters raised. It is reversible error to award summary judgment on grounds not specified in the motion for summary judgment.” (Internal citations omitted.) Caplinger v. New Carlisle, 2d Dist. No. 2007CA0072, 2008-Ohio-1585, at ¶26. The trial court may not rely on law or fact that is not presented in the moving party‘s motion. Id. at ¶28.
{¶11} Lindsey contends that the trial court improperly granted the Employees’ motion on the basis that Westfall made a determination that Mother hit C.L. and therefore she [(Westfall)] was not reckless in failing to pursuing any further investigation into the incident. With regard to whether the Employees were reckless, in its judgment entry the trial court stated that
“[t]he key is the conclusion reached by Westfall and Brody (sic)1—disregarded by [Lindsey‘s expert] in reaching her opinions—that Mother was the likely perpetrator of the March assault. Plaintiff does not question that conclusion, he simply ignores it. *** It is not that [the Employees] simply closed the case without forming a belief as to what had happened, blindly leaving a potentially dangerous but unknown likely perpetrator in proximity to [C.L.] Rather they drew the reasonable conclusion that Mother had struck [C.L.] (in frustration, as Westfall believed), but that there was unlikely to be repetition, especially since [C.L.‘s] father would have primary custody and control of him and it was thought that [C.L.] would continue to be at the Grandparents’ house when visiting with Mother. They concluded it was safe to close the case out on that basis. *** The evidence will not support the conclusion that either Westfall or Brody (sic) were reckless or acted wantonly in deciding to close the case when and how they did, without pursuing the identity of the boyfriend or imposing restrictions on his contact with [C.L.], once they concluded that Mother was the likely perpetrator.”
{¶12} In other words, the trial court relied heavily on its determination that the Employees concluded that Mother was the perpetrator of the March incident. Therefore, we look to the Employees’ arguments in their motion to determine if the trial court erred in relying on this fact. Nowhere in the Employees’ motion is there mention that the Employees made a determination regarding the March incident and therefore closed the case. Accordingly, we conclude that the trial court erred in relying on this fact. However, we have consistently held
{¶13} The Employees argued that they were not liable for C.L.‘s death, that they were statutorily immune from the claims being asserted and that their conduct was not the direct and proximate cause of C.L.‘s death.
{¶14} Pursuant to the
“In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies: “*** “(b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner[.]”
{¶15} In Shadoan v. Summit Cty. Children Serv. Bd., 9th Dist. No. 21486, 2003-Ohio-5775, we elaborated on the type of conduct that meets the standard set forth in
{¶16} “‘[B]ad faith’ embraces more than a simple misjudgment or negligence.” Id. “‘It imports a dishonest purpose, moral obliquity, conscious wrongdoing, [or] breach of a known duty through some ulterior motive or ill will[.]“’ Id. citing Jackson v. Butler Cty. Bd. of Cty. Commsrs. (1991), 76 Ohio App.3d 448, 454.
{¶17} One acts wantonly when there is a complete “failure to exercise any care whatsoever.” Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 356. Importantly, “mere negligence will not be construed as wanton misconduct in the absence of evidence establishing a disposition of perversity on the part of the tortfeasor [.]” Shadoan, supra, at ¶13, citing Fabrey, 70 Ohio St.3d at 356.
{¶18} The Ohio Supreme Court has explained that a person‘s conduct
“is in reckless disregard of the safety of others 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. Distilled to its essence, *** recklessness is a perverse disregard of a known risk. Recklessness, therefore, necessarily requires something more than mere negligence. In fact, the actor must be conscious that his conduct will in all
probability result in injury.” (Internal citations and quotations omitted.) O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, ¶¶73-74
{¶19} We deduce from their motion that the Employees claim that they were not reckless or malicious in their investigation of the March incident because they did not determine that there was an immediate need for their response. Specifically, they contend that they determined that the Gale Street address provided a safe environment for C.L. and that they recommended that visitation continue with Mother on the basis that the Grandmother would be present in the home. They further contend that they did not know that Mother had moved to the Thornton St. home with Barham or, that on the night of the murder, Father willingly dropped C.L. off at the Thornton home with Barham. What was known to the Employees was that after the March incident, there were no further reports or inquiries from Father regarding either the investigation of the March incident or any other incidents of abuse.
“Showing recklessness is subject to a high standard. Rankin v. Cuyahoga Cty. Dept. of Children and Family Servs., 118 Ohio St.3d 392, 2008-Ohio-2567, ¶37. Thus, although the determination of recklessness is typically within the province of the jury, summary judgment is appropriate in instances where the individual‘s conduct does not demonstrate a disposition to perversity. O‘Toole at ¶75; Fabrey., 70 Ohio St.3d 351.” Fields v. Talawanda Bd. of Edn, 12th Dist. No. CA2008-02-035, 2009-Ohio-431, at ¶16.
{¶20} To conclude whether there was a genuine issue of material fact with regard to the Employees’ recklessness and whether they were entitled to judgment as a matter of law, we turn to the evidence presented to determine what the Employees knew at the time of the March incident. The Employees supported their motion with the deposition testimony of Mother, Grandmother, Father, and the Employees’ affidavits.
{¶21} In their motion, the Employees contend repeatedly that they were unaware of Barham‘s presence in Mother‘s home. We find that this conclusion is supported by the record. Notably, Westfall testified that at the June hearing, the fact that Mother had a boyfriend was
{¶22} Next, we look at Bodey‘s deposition testimony. He confirmed that Westfall informed him that Mother had a boyfriend and that she asked for more information, but that “it didn‘t appear that anybody wanted to offer that information[.]” He further explained that it was not an uncommon occurrence that the parties would decline to give Westfall the name of the boyfriend. When later questioned whether the Employees followed up to determine the identity of the boyfriend, Bodey reiterated that they “would have no method to do that unless somebody told us who the person is.” To this end, Father testified that prior to the March incident he knew that Barham was Mother‘s boyfriend and that he informed Mother that he did not want his son around another man. He confirmed that the Grandmother said something at the June meeting about Mother‘s boyfriend, but that she did not say anything that would have put the boyfriend in a bad light in terms of his relationship with C.L. He stated that the Grandmother did not say anything that would indicate that the boyfriend was a danger or risk to C.L. Finally, Father stated that when Westfall asked if anyone else was living in the home at the time of the March incident, both the Grandmother and Mother said no. The Grandmother and Mother‘s deposition
{¶23} We must next determine whether the decision not to further investigate the boyfriend issue showed a “perverse disregard of a known risk.” O‘Toole, supra, at ¶73. We reiterate that we are not determining whether the Employees were negligent in this regard, but rather if their alleged failure to act was “with malicious purpose, in bad faith, or in a wanton or reckless manner“.