Fabian L. Qualls, as Administrator of the Estate of Valarie T. Qualls, Deceased, Plaintiff-Appellant, v. Peregrine Health Services, Inc. et al., Defendants-Appellees.
No. 21AP-473
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 22, 2022
[Cite as Qualls v. Peregrine Health Servs., 2022-Ohio-4644.]
DORRIAN, J.
(C.P.C. No. 20CV-3805) (REGULAR CALENDAR)
Rendered on December 22, 2022
On brief: Donnell & Thomas Law, LLC, and Titus G. Donnell, for appellant. Argued: Titus G. Donnell.
On brief: Reminger Co., L.P.A., Robert V. Kish, and Melvin J. Davis, for appellees Peregrine Health Services, Inc., and Edinburgh Care Resources, LLC d/b/a Echo Manor Nursing & Rehabilitation Center. Argued: Melvin J. Davis.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Fabian L. Qualls, administrator of the Estate of Valarie T. Qualls, deceased, appeals from a judgment of the Franklin County Court of Common Pleas granting the motion for summary judgment filed by defendants-appellees Peregrine Health Services, Inc. (“Peregrine“) and Edinburgh Care Resources, LLC d/b/a Echo Manor Nursing & Rehabilitation Center (“Echo Manor“) (collectively, “appellees“). For the reasons which follow, we reverse and remand.
{¶ 2} On June 12, 2020, appellant filed a complaint against Peregrine, Echo Manor, and 15 John Doe defendants alleging claims of negligence, violation of a nursing home resident‘s rights under
{¶ 3} On September 10, 2016, Ms. Qualls suffered a debilitating middle cerebral artery stroke which caused “severe damage to her brain.” (McClary Aff. at ¶ 3; McClary Depo. at 20.) The September 2016 stroke left Ms. Qualls paralyzed on her left side and incapable of speaking or walking. Ms. Qualls’ doctors recommended she be admitted to a skilled nursing facility following the stroke as she was no longer able to care for herself. Ms. Qualls’ stepfather, Gerry1 McClary, moved Ms. Qualls into Echo Manor on September 23, 2016.
{¶ 4} On March 24, 2018, Ms. Qualls was transported from Echo Manor to the Ohio State University Hospital (“OSU“) due to health concerns. Doctors at OSU prescribed several antimicrobial medications, including a seven-day course of Flagyl, as treatment for a suspected meningitis infection. On April 14, 2018, Ms. Qualls was discharged from OSU and transported back to Echo Manor by the transport company Americare. On April 27, 2018, Ms. Qualls developed a high fever which persisted until April 29, 2018, when she was again transported to OSU for treatment. Testing at OSU revealed Ms. Qualls was suffering from a sexually transmitted disease (“STD“) known as Trichomonas. Ms. Qualls’ doctors prescribed a one-time dose of Flagyl as treatment for the STD infection.
{¶ 5} As a result of the STD diagnosis, OSU medical staff filed a report with the Ohio State University police department indicating that Ms. Qualls had been sexually assaulted. Ms. Qualls’ family reported the sexual assault to the Columbus Police Department, the Fairfield County Sheriff‘s Office, the Ohio Attorney General‘s Office, and
{¶ 6} On July 7, 2020, appellees filed a
{¶ 7} Appellant filed an amended complaint on August 7, 2020. The amended complaint asserted the same claims against the same defendants as the original complaint, but specified that Ms. Qualls was suffering from “medical conditions” which caused her to be “of unsound mind * * * while in the care and custody of Echo Manor.” (Am. Compl. at ¶ 13.) Appellant also attached an affidavit of merit to the amended complaint. Appellees filed an answer to the amended complaint on August 19, 2020.
{¶ 8} On March 19, 2021, appellees filed a
{¶ 9} On July 23, 2021, appellant filed a memorandum contra the motion for summary judgment. Appellant asserted that, as Ms. Qualls was in a persistent vegetative state when her claims accrued, Ms. Qualls was a person of unsound mind and
{¶ 11} The trial court issued a decision and entry granting appellees’ motion for summary judgment on August 26, 2021. The court found appellant‘s claims for negligence, violation of
II. Assignments of Error
{¶ 12} Appellant appeals and assigns the following two assignments of error for our review:
[I.] THE TRIAL COURT ERRED IN ITS DECISION AND ENTRY GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGEMENT BY HOLDING THAT THE STATUTES OF LIMITATIONS AS TO PLAINTIFF‘S CLAIMS WERE NOT TOLLED PURSUANT TO R.C. § 2305.16 .[II.] THE TRIAL COURT ERRED IN ITS DECISION AND ENTRY GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF/APPELLANT‘S ASSAULT AND BATTERY CLAIMS BY IMPROPERLY APPLYING THE RULES AND STANDARDS GOVERNING SUMMARY JUDGEMENT CONTAINED IN
CIV.R. 56 AND RELEVANT CASE LAW.
III. Standard of Review on Motions for Summary Judgment
{¶ 13} An appellate court reviews a grant of summary judgment under a de novo standard. Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). “[D]e novo appellate review means that the court of appeals independently reviews the record and affords no deference to the trial court‘s decision.” (Internal quotations and citations omitted.) Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary judgment is appropriate only when the moving party demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made.
{¶ 14} Pursuant to
IV. First Assignment of Error – Tolling
{¶ 15} Appellant‘s first assignment of error asserts the trial court erred by failing to find that
{¶ 16}
[I]f a person entitled to bring any action mentioned in [
R.C. 2305.113 ], unless for penalty or forfeiture, is, at the time the cause of action accrues, within the age of minority or of unsound mind, the person may bring it within the respective times limited by those sections, after the disability is removed. When the interests of two or more parties are joint and inseparable, the disability of one shall inure to the benefit of all.After the cause of action accrues, if the person entitled to bring the action becomes of unsound mind and is adjudicated as such by a court of competent jurisdiction or is confined in an institution or hospital under a diagnosed condition or disease which renders the person of unsound mind, the time during which the person is of unsound mind and so adjudicated or so
confined shall not be computed as any part of the period within which the action must be brought.
{¶ 17} When assessing whether a person is of unsound mind for purposes of
{¶ 18} “Upon summary judgment by the defendant, the plaintiff bears the burden of presenting evidence substantiating a claim that
{¶ 19} As the plain language of
{¶ 20} If a plaintiff claims they were of unsound mind at the time the cause of action accrued, “any otherwise admissible evidence tending to support that claim may be used to establish [their] entitlement to tolling.” Bradford at 106. Accord Robinson v. Kramer, 8th Dist. No. 76643 (Dec. 9, 1999) (stating that, under the first paragraph of
{¶ 21} If the plaintiff claims they became of unsound mind after the cause of action accrued, “the evidence on that issue must include either an adjudication by a court or evidence that [the plaintiff] was institutionalized or hospitalized for a condition or disease that caused her to be of unsound mind.” Bradford at 106. See Drake (holding that, although testimony from the plaintiff‘s brother and friends demonstrated the plaintiff “may have been ‘of unsound mind’ at some time,” as the plaintiff sought tolling under the second paragraph of
{¶ 22} Appellant alleged that Ms. Qualls was of unsound mind at the time her cause of action accrued in 2018, as she had been in a persistent vegetative state since September 2016. As such, appellant sought tolling under the first paragraph of
{¶ 23} Accordingly, the trial court erred by applying the second paragraph of
{¶ 24} In resolving the tolling issue, the trial court noted that the statement of expert evaluation executed by Dr. Witter was insufficient evidentiary material, as Dr. Witter had not authenticated the statement and McClary was not a custodian of the record. The court also found appellant‘s allegation in the amended complaint indicating that Echo Manor found Ms. Qualls to be in a persistent vegetative state insufficient, as appellees denied this allegation in their answer and the court believed appellant failed to “verify that allegation in discovery.” (Decision at 10.) The court did not address any other evidence bearing on Ms. Qualls’ mental state.
{¶ 25} Even if we accept the court‘s conclusion that Dr. Witter‘s statement of expert evaluation was inadmissible, and although we find potential evidentiary issues with some
{¶ 27} McClary explained in his deposition that, following the September 2016 stroke, Ms. Qualls’ speech was “incoherent,” she did not “understand what was going on,” and did not react consistently when spoken to. (McClary Depo. at 18-20.) McClary, who visited Ms. Qualls often, stated that her condition remained “[t]he same” from September 2016 through 2018. (McClary Depo. at 21.) Appellant, Ms. Qualls’ brother, indicated he did not believe Ms. Qualls “knew what was going on” when she arrived at Echo Manor in September 2016. (Appellant Depo. at 8.) Appellant visited Ms. Qualls two or three times while she was at Echo Manor, and affirmed that Ms. Qualls’ mental condition remained the same from the time she was admitted to the facility through April 2018.
{¶ 28} Appellees incorporated the arguments set forth in their motion to dismiss into their motion for summary judgment. In their motion to dismiss, appellees argued Ms. Qualls was not of unsound mind for purposes of
{¶ 30} Based on the foregoing, we sustain appellant‘s first assignment of error.
V. Second Assignment of Error – Assault & Battery Claims
{¶ 31} Appellant‘s second assignment of error asserts the trial court failed to properly apply the rules and standards governing summary judgment when ruling on the assault and battery claims. In tort, an assault is “the willful threat or attempt to harm or touch another offensively, which threat or attempt reasonably places the other in fear of such contact.” Smith v. John Deere Co., 83 Ohio App.3d 398, 406 (10th Dist.1993). Accord Bauman v. Bob Evans Farms, Inc., 10th Dist. No. 06AP-737, 2007-Ohio-145, ¶ 18, fn. 3. To establish the tort of battery, a plaintiff “must demonstrate that the defendant acted intending to cause a harmful or offensive contact and, in fact, a harmful contact resulted.” McRae v. Icon Entertainment Group, Inc., 10th Dist. No. 08AP-820, 2009-Ohio-5119, 18, citing Love v. Port Clinton, 37 Ohio St.3d 98, 99 (1988). Accord Stafford v. Clever Investigations, Inc., 10th Dist. No. 06AP-1204, 2007-Ohio-5086, ¶ 9.
{¶ 32} Appellant‘s assault claim alleged that “John Does 1 - 15 intentionally, without consent or authority, engaged in sexual intercourse with Ms. Qualls,” and reasonably placed Ms. Qualls in fear of such offensive contact. (Am. Compl. at ¶ 99-101.) Appellant‘s battery claim alleged that “John Does 1 15 intended to cause,” and caused “a harmful and/or offensive contact with Ms. Qualls when forcing her to engage in sexual intercourse.” (Am. Compl. at ¶ 104-05.) Appellant identified John Does 1 through 5 as employees or agents of Echo Manor, John Does 6 through 10 as residents of Echo Manor, and John Does 11
{¶ 33} In moving for summary judgment, appellees argued the assault and battery claims were time barred by
{¶ 34} Although appellant contends the trial court erred in its summary judgment analysis, we note a more fundamental problem with the court‘s ruling on the assault and battery claims. Echo Manor and Peregrine sought summary judgment on the assault and battery claims, but appellant filed the assault and battery claims solely against the 15 John
{¶ 35} Based on the foregoing, we sustain appellant‘s second assignment of error.
VI. Conclusion
{¶ 36} Having sustained appellant‘s first and second assignments of error, the judgment of the Franklin County Court of Common Pleas is reversed and this case is remanded to that court for further proceedings consistent with law and this decision.
Judgment reversed, cause remanded.
LUPER SCHUSTER, P.J., and SADLER, J., concur.