[Cite as Strayer v. Barnett, 2017-Ohio-5617.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 BRANDON M. STRAYER, et al.                          :
                                                     :
         Plaintiffs-Appellants                       :   C.A. CASE NO. 2016-CA-19
                                                     :
 v.                                                  :   T.C. NO. 14CV300
                                                     :
 WESLEY R. BARNETT, et al.                           :   (Civil Appeal from
                                                     :    Common Pleas Court)
         Defendants-Appellees                        :
                                                     :
                                                ...........

                                                OPINION

                Rendered on the ____30th            _ day of _____June_____, 2017.

                                                ...........

VALERIE JUERGENS WILT, Atty. Reg. No. 0040413, 333 N. Limestone Street, Suite
202A, Springfield, Ohio 45503
      Attorney for Plaintiffs-Appellants

MARK LANDES, Atty. Reg. No. 0027227 and ANDREW N. YOSOWITZ, Atty. Reg. No.
0075306, 2 Miranova Place, Suite 700, Columbus, Ohio 43215
     Attorneys for Defendants-Appellees
                                  .............

FROELICH, J.

        {¶ 1} Plaintiffs Brandon Strayer, Amber Strayer, E.S. (“E.”), and A.H. (collectively,

“the Strayers”) appeal from a judgment of the Clark County Court of Common Pleas,

which granted summary judgment to the Clark County Commissioners, Clark County

Board of Developmental Disabilities (“CCDD”), and CCDD’s employees Heather Garrett,

Rodney Willis, and Matt Horvath (collectively, “the Clark County Defendants”). For the
                                                                                        -2-


following reasons, the trial court’s judgment will be affirmed.

                           I. Factual and Procedural History

       {¶ 2} Wesley Barnett is a young adult who has been diagnosed with autism, is

nonverbal, and has moderate mental disabilities; he has also been diagnosed with

obsessive-compulsive disorder and bipolar disorder. In June 2012, Barnett was twenty

years old.

       {¶ 3} From June 2006 to May 25, 2012, Barnett resided at the Indiana

Developmental Training Center (“IDTC”) in Indiana, where he received behavioral

assessments, psychological assessments, and treatment.            Barnett had a behavioral

support plan with goals to improve his anger management, impulse control, inappropriate

toileting, and compliance with rules and instructions. Barnett was generally unable to

“process the cause and effect of his decisions.” (Garrett Depo. at 42.)

       {¶ 4} Barnett’s aggressive behaviors included biting, kicking, scratching, head

butting, slapping, and hitting. Barnett’s parents had reported to IDTC that Barnett would

often behave aggressively when hungry, when others were in his space, or when

something was not as he anticipated it to be. IDTC’s August 2011 Life Skills Assessment

noted that Barnett “[w]ill bite others when angry/upset.” However, IDTC’s February 2012

monthly progress report indicated that Barnett “displays these [aggressive] behaviors

infrequently”; during the six-month period between August 2011 and January 2012,

Barnett displayed physical aggression toward his peers on three occasions and was not

physically aggressive toward staff. IDTC’s Biannual Treatment Plan Review, dated April

13, 2012, stated that Barnett was physically aggressive with his peers twice in February

2012 and twice in March 2012.
                                                                                       -3-


      {¶ 5} On February 28, 2012, IDTC notified CCDD that it would no longer be able

to serve Barnett.   CCDD employees investigated and discussed several placement

options with Barnett’s parents, who were Barnett’s legal guardians.       The actions of

specific CCDD employees will be discussed in more detail below.

      {¶ 6} The Barnetts selected a home in Springfield that was owned and operated

by Housing Connections, an independent housing corporation that rents solely to

individuals that are eligible for services with a board of developmental disabilities.

Barnett moved to the home on May 25, 2012, and he received “24 hour/seven day per

week” care by employees of Self Reliance, Inc. (“SRI”), a provider licensed by the Ohio

Department of Development Disabilities to provide direct services to individuals with

developmental disabilities. Barnett had one roommate, Dale, at the house.

      {¶ 7} The Housing Connections home was located on the same street as the

Strayer family’s residence.   On June 21, 2012, Barnett went for a walk with Dale,

supervised by Joy Wells, an SRI employee. During the walk, the three passed the

Strayers’ home. Two-year-old E. was playing in his front yard with a girl. According to

Wells, the girl sprayed E. in the back with a hose, causing E. to scream loudly. Barnett

then ran behind Wells and over to E. Barnett bent down, bit E.’s upper arm, and pushed

E. to the ground. E.’s nine-year-old sister witnessed the assault.

      {¶ 8} In December 2012, the Strayers brought suit against Barnett, SRI, Clark

County, various County and SRI employees, and others, based on the assault on E.

Strayer v. Barnett, Clark C.P. No. 12CV1276. The Stayers voluntarily dismissed the

action, without prejudice, on December 19, 2013.

      {¶ 9} On May 13, 2014, the Strayers refiled the lawsuit (the present action), naming
                                                                                      -4-


as defendants Barnett, SRI, Wells, the Ohio Department of Job and Family Services

(“ODJFS”), and the Clark County Defendants. The State of Ohio filed a cross-claim

against the other defendants for medical payments made on behalf of E. due to the

incident. The Strayers reached a settlement with the SRI Defendants and voluntarily

dismissed their claims against the SRI Defendants in January 2016.

      {¶ 10} The Strayers’ claims against the Clark County Defendants were based on

the CCDD’s employees’ alleged reckless failure to provide appropriate “service and

support administration” to Barnett. The crux of their claims was that the Clark County

Defendants failed to provide an updated individual plan (IP) and behavior support plan

for Wesley to SRI, and thus SRI employees did not have the guidance documents they

needed to prevent aggressive actions by Barnett.

      {¶ 11} On December 23, 2015, the Clark County Defendants moved for summary

judgment on the Strayers’ claims, raising four arguments: (1) they owed no duty of care

to the Strayers, because they had no “special relationship” with Barnett; (2) CCDD was

entitled to sovereign immunity under R.C. Chapter 2744; (3) CCDD was entitled to

immunity under R.C. 2305.51, which provides immunity, under certain circumstances, to

mental health providers and organizations for the violent behavior of their clients; and

(4) Willis, Garrett, and Horvath, as employees of CCDD, were entitled to immunity under

R.C. Chapter 2744. The Strayers opposed the motion.

      {¶ 12} On March 11, 2016, the trial court granted the Clark County Defendants’

motion for summary judgment.      The court’s ruling stated, in its entirety, that it had

reviewed the case file, pleadings, and memoranda of counsel, and “[a]dopting the

reasoning as set out in defendants’ memorandum, the Court finds the Clark County
                                                                                        -5-


Defendants owed no duty to the plaintiffs and they are entitled to statutory immunity under

R.C. 2305.51 and R.C. Chapter 2744.         Further, Plaintiff has failed to provide any

evidence that Wesley Barnett’s conduct proximately caused the harm to [E.S.].”1 The

trial court determined that its ruling was a final appealable order and that there was no

just reason for delay, in accordance with Civ.R. 54(B).

      {¶ 13} The Strayers appeal from the trial court’s grant of summary judgment to the

Clark County Defendants.      They raise four assignments of error: (1) that the Clark

County Defendants were not entitled to immunity under R.C. 2305.51; (2) that the Clark

County Defendants were not entitled to immunity under R.C. Chapter 2744; (3) that the

Clark County Defendants had a duty to Barnett and the community and that the harm was

foreseeable; and (4) that the CCDD employees’ conduct rose to the level of recklessness

and they were not entitled to immunity.

      {¶ 14} As discussed below, we conclude that the trial court properly granted

summary judgment to the Clark County Defendants under R.C. Chapter 2744.

Accordingly, we need not address the Strayers’ first and third assignments of error, and

those assignments of error are overruled as moot.

                           II. Summary Judgment Standard

      {¶ 15} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) reasonable minds, after construing the evidence most strongly in



1
 We question whether the trial court meant to say “Wesley Barnett’s conduct,” as
opposed to the Clark County Defendants’ conduct. It appears undisputed that Wesley
Barnett bit and pushed E. The parties dispute, however, whether the Clark County
Defendants are liable for E.’s injuries.
                                                                                         -6-

favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor

Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving

party carries the initial burden of affirmatively demonstrating that no genuine issue of

material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526

N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials

of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary

judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996).

       {¶ 16} Once the moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.

56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits

or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is

a genuine issue of material fact for trial.     Id.   Throughout, the evidence must be

construed in favor of the nonmoving party. Id.

       {¶ 17} We review the trial court’s grant of a motion for summary judgment de novo.

Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42. De novo

review means that this court uses the same standard that the trial court should have used,

and we examine the evidence, without deference to the trial court, to determine whether,

as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist. Champaign

No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.

                    III. Sovereign Immunity: Political Subdivisions

       {¶ 18} CCDD serves individuals with developmental disabilities in Clark County.

At CCDD, the service and support administrators are called Path Coordinators. Their

duties include: (1) assessment of the individual’s need for services; (2) build a team to
                                                                                         -7-


support the individual, facilitate the development of and write an “Individual Plan,” and

authorize services; (3) coordinate services; (4) monitor implementation of the IP by

providers, modify the plan as needed; (5) ensure actions are completed as necessary to

maintain eligibility for all Ohio Department of Developmental Disabilities-administered

waiver programs; and (6) provide crisis intervention.       (Willis Ex. 21, Description of

Services: Path Coordination)

       {¶ 19} In general, political subdivisions are immune from liability for personal

injuries caused by any act of the political subdivision or its employees. R.C.

2744.02(A)(1). It is undisputed that CCDD is a political subdivision, as defined by R.C.

2744.01(F).

       {¶ 20} R.C. 2744.02(B) sets forth five exceptions to this general rule. The first

four exceptions impose liability on a political subdivision for certain negligent conduct of

the political subdivision itself or of one of its employees, namely: (1) the negligent

operation of any motor vehicle while within the scope of employment, (2) acts with respect

to proprietary functions of the political subdivisions, (3) failure to keep public roads in

repair and other negligent failure to remove obstructions from public roads, and (4)

negligent acts that occur within or on the grounds of, and are due to physical defects

within or on the grounds of, buildings that are used in connection with the performance of

a governmental function. The fifth exception imposes liability when another section of

the Revised Code expressly imposes liability.        R.C. 2744.02(B)(1)-(5).     See, e.g.,

Crafton v. Shriner Building Co., L.L.C., 2d Dist. Montgomery No. 25748, 2013-Ohio-4236,

¶ 10. If one of the exceptions to immunity applies, the political subdivision may still be

immune if one of the defenses in R.C. 2744.03 applies. Riffle v. Physicians & Surgeons
                                                                                          -8-

Ambulance Serv., Inc., 135 Ohio St.3d 357, 2013-Ohio-989, 986 N.E.2d 983, ¶ 15.

       {¶ 21} The Strayers claim that CCDD is not immune pursuant to R.C.

2744.02(B)(2), which states that political subdivisions are generally “liable for injury,

death, or loss to person or property caused by the negligent performance of acts by their

employees with respect to proprietary functions of the political subdivisions.”

       {¶ 22} Pursuant to R.C. 2744.01(C)(1), a governmental function is one specified in

R.C. 2744.01(C)(2) or a function that either: (a) is imposed on the state as an obligation

of sovereignty and is performed by a political subdivision voluntarily or pursuant to

legislative requirement; (b) is for the common good of all citizens of the state; or (c)

promotes or preserves the public peace, health, safety, or welfare, and involves activities

not customarily engaged in by nongovernmental persons, and is not specified in R.C.

2744.01(G)(2) as a proprietary function.

       {¶ 23} R.C. 2744.01(C)(2) provides a nonexhaustive list of 24 functions that qualify

as governmental functions.      These include, for example, “[t]he operation of mental

health facilities, developmental disabilities facilities, alcohol treatment and control

centers, and children’s homes or agencies,” R.C. 2744.01(C)(2)(o); and “[a] function

that the general assembly mandates a political subdivision to perform,” R.C.

2744.01(C)(2)(x).

       {¶ 24} A “proprietary function” is defined as function of a political subdivision that

is specified in R.C. 2744.01(G)(2) or that satisfies both of the following:

       (a) The function is not one described in division (C)(1)(a) or (b) of this

       section and is not one specified in division (C)(2) of this section;

       (b) The function is one that promotes or preserves the public peace, health,
                                                                                         -9-


       safety, or welfare and that involves activities that are customarily engaged

       in by nongovernmental persons.

       {¶ 25} The Strayers claim that CCDD performed a proprietary function with respect

to Barnett for four reasons. First, they assert that this action did not arise out of the

operation of a developmental disabilities facility or out of an obligation that CCDD was

required by law to perform. The Strayers argue that CCDD did not own the house where

Barnett resided when the assault occurred, and it was not obligated by law to provide

service and support administration to Barnett. Second, they claim that the provision of

service and support administration “is not an obligation of Clark County’s sovereignty.”

Third, they claim that “the function of the CCDD is not for the common good for all citizens

of the state,” because it is “for only those developmentally disabled individuals who

qualify.” Fourth, they assert that the type of service and support administration that

CCDD provided to Barnett “is customarily engaged by non-governmental persons in a

number of ways.” The primary thrust of their argument is that non-governmental entities

can and do provide service and support administration, which renders that activity a

proprietary function, not a governmental function.

       {¶ 26} Pursuant to R.C. 5126.02(A), each county must have its own county board

of developmental disabilities.       The Revised Code requires county boards of

developmental disabilities to “plan and set priorities” for the provision of “facilities,

programs, and other services to meet the needs of county residents who are individuals

with * * * developmental disabilities * * *.” R.C. 5126.04(A). Each county must “assess

the facility and service needs of the individuals with * * * developmental disabilities,”

require “individual habilitation or service plans for individuals with * * * developmental
                                                                                         -10-


disabilities who are being served or who have been determined eligible for services and

are awaiting the provision of services,” and ensure that “methods of having their service

needs evaluated are available.”2 Id.

       {¶ 27} R.C. 5126.05 sets forth the responsibilities of a county board of

developmental disabilities. Those responsibilities include:

       (1) Administer and operate facilities, programs, and services as provided by

       this chapter and Chapter 3323. of the Revised Code and establish policies

       for their administration and operation;

       (2) Coordinate, monitor, and evaluate existing services and facilities

       available to individuals with * * * developmental disabilities;

       (3) Provide early childhood services, supportive home services, and adult

       services, according to the plan and priorities developed under section

       5126.04 of the Revised Code;

       (4) Provide or contract for special education services pursuant to Chapters

       3306., 3317. and 3323. of the Revised Code and ensure that related

       services, as defined in section 3323.01 of the Revised Code, are available

       according to the plan and priorities developed under section 5126.04 of the

       Revised Code;

       (5) Adopt a budget, authorize expenditures * * *, approve attendance of

       board members and employees at professional meetings and approve



2
 At the time of the assault on E., R.C. Chapter 5126 addressed the needs of individuals
with “mental retardation and other developmental disabilities.” The current version of the
statute has eliminated the reference to “mental retardation” and refers to “individuals with
developmental disabilities.”
                                                                                           -11-


         expenditures for attendance, and exercise such powers and duties as are

         prescribed by the director;

         (6) Submit annual reports of its work and expenditures * * *;

         (7) Authorize all positions of employment, establish compensation,

         including but not limited to salary schedules and fringe benefits for all board

         employees, approve contracts of employment for management employees

         that are for a term of more than one year, employ legal counsel under

         section 309.10 of the Revised Code, and contract for employee benefits;

         (8) Provide service and support administration in accordance with section

         5126.15 of the Revised Code;

         (9) Certify respite care homes pursuant to rules adopted under section

         5123.171 of the Revised Code by the director of developmental disabilities.

(Emphasis added.)3

         {¶ 28} Service and support administration is addressed in R.C. 5126.15. Under

R.C. 5126.15(A), county boards of developmental disabilities are required to provide

service and support administration to each individual three years of age or older who is

eligible for service and support administration if the individual requests, or a person on

the individual’s behalf requests, service and support administration.          “A board shall

provide service and support administration to each individual receiving home and

community-based services.”        Id.   The county board of developmental disability may

provide service and support administration “by directly employing service and support

administrators or by contracting with entities for the performance of service and support


3
    Two additional duties were added in Am.Sub.H.B. 59, effective September 29, 2013.
                                                                                          -12-

administration.” Id.

      {¶ 29} R.C. 5126.15(B) identifies certain duties for individuals who are either

employed by or under contact with a board to provide service and support administration.

These duties include:

      (1) Establish an individual’s eligibility for the services of the county board of

      developmental disabilities;

      (2) Assess individual needs for services;

      (3) Develop individual service plans with the active participation of the

      individual to be served, other persons selected by the individual, and, when

      applicable, the provider selected by the individual, and recommend the

      plans for approval by the department of developmental disabilities when

      services included in the plans are funded through medicaid;

      (4) Establish budgets for services based on the individual’s assessed needs

      and preferred ways of meeting those needs;

      (5) Assist individuals in making selections from among the providers they

      have chosen;

      (6) Ensure that services are effectively coordinated and provided by

      appropriate providers;

      (7) Establish and implement an ongoing system of monitoring the

      implementation of individual service plans to achieve consistent

      implementation and the desired outcomes for the individual;

      (8) Perform quality assurance reviews as a distinct function of service and

      support administration;
                                                                                        -13-


       (9) Incorporate the results of quality assurance reviews and identified trends

       and patterns of unusual incidents and major unusual incidents into

       amendments of an individual’s service plan for the purpose of improving

       and enhancing the quality and appropriateness of services rendered to the

       individual;

       (10) Ensure that each individual receiving services has a designated person

       who is responsible on a continuing basis for providing the individual with

       representation, advocacy, advice, and assistance related to the day-to-day

       coordination of services in accordance with the individual’s service plan.

       ***

       {¶ 30} In arguing that CCDD was not obligated by law to provide service and

support administration, the Strayers emphasize the portion of R.C. 5126.15(A) that states,

“A board may provide service and support administration by directly employing service

and support administrators or by contracting with entities for the performance of service

and support administration.” (Emphasis added.) They argue that a function that can be

contracted out to a private entity “is the antithesis of a governmental function.”

       {¶ 31} We do not accept the Strayers’ assertion that the provision of service and

support administration is not a governmental function merely because non-governmental

entities also may engage in this activity. A political subdivision may use independent

contractors to perform a governmental function without transforming the activity involved

into a proprietary function. See Craycraft v. Simmons, 2d Dist. Montgomery No. 24313,

2011-Ohio-3273, ¶ 22. In Craycraft, the plaintiff asserted that the provision of school

security was a proprietary function, because independent contractors sometimes perform
                                                                                           -14-


the job. We rejected the assertion, stating:

       We do not dispute that a school may choose to contract with a private

       company to provide security. But this does not negate the fact that the

       nature of the work involved, providing security for public school students on

       school grounds, is a governmental function. Craycraft’s argument fails to

       recognize that a political subdivision may use independent contractors to

       perform a governmental function. See, e.g., Howell v. Canton, Stark App.

       No. 2007CA00035, 2008-Ohio-5558 (involving an independent contractor

       hired to perform a governmental function). He cites nothing to establish

       that doing so transforms the activity involved from a governmental function

       into a proprietary function.

Craycraft at ¶ 22.

       {¶ 32} R.C. 5126.05 unambiguously requires the county board of developmental

disabilities to provide service and support administration. By its plain language, R.C.

5126.15(A) permits a county board to decide whether to provide service and support

administration itself with county employees or to contract with an outside entity to provide

those services. But, the ability of a county board to contract with an outside entity does

not diminish the board’s statutory obligation to ensure that service and support

administration is provided. And, in this case, CCDD elected to provide service and

support administration itself, pursuant to R.C. 5126.15.

       {¶ 33} We reject the Strayers’ contention that CCDD’s provision of service and

support administration is a proprietary function simply because CCDD services

individuals with developmental disabilities, rather than the county population at large.
                                                                                        -15-


      {¶ 34} In summary, R.C. Chapter 5126 requires each county to have a board of

developmental disabilities, and the duties of a county board of developmental disabilities

include the provision of service and support administration, in accordance with R.C.

5126.15. Because the provision of service and support administration is a “function that

the general assembly mandates a political subdivision to perform,” R.C.

2744.01(C)(2)(x), the provision of service and support administration is a

governmental function; none of the exceptions to sovereign immunity in R.C. 2744.02(B)

applies.

      {¶ 35} CCDD and the Clark County Board of Commissioners were performing a

governmental function, and the trial court properly granted them summary judgment on

that ground that they were entitled to immunity under R.C. Chapter 2744.

                    IV. Sovereign Immunity: Employees of CCDD

      {¶ 36} The Strayers claims that three CCDD employees – Horvath, Garrett, and

Willis ̶ were reckless in their provision of service and support administration to Barnett,

and consequently, they are not immune under R.C. 2744.03(A)(6). Garrett and Horvath

were Path Coordinators for Barnett; Willis was the Path Coordinator supervisor.

      A. Standard for Immunity under R.C. 2744.03(A)(6)

      {¶ 37} R.C. 2744.03(A)(6) grants employees of political subdivisions immunity

from liability, unless any of three exceptions to that immunity apply.       Anderson v.

Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, ¶ 21.                Those

exceptions are (1) the employee’s acts or omissions were manifestly outside the scope

of the employee’s employment or official responsibilities; (2) the employee’s acts or

omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner;
                                                                                         -16-


and (3) civil liability is expressly imposed upon the employee by a section of the Revised

Code. R.C. 2744.03(A)(6)(a)-(c). Only the second exception is at issue here, and we

confine our discussion to whether CCDD’s employees were wanton or reckless; there is

no allegation, or any facts to support, that the CCDD employees’ actions were manifestly

outside the scope of their employment or official responsibilities or that they acted with a

malicious purpose or in bad faith.

       {¶ 38} The terms “wanton” and “reckless” describe different and distinct degrees

of care and are not interchangeable. Anderson v. Massillon, 134 Ohio St.3d 380, 2012-

Ohio-5711, 983 N.E.2d 266, paragraph one of the syllabus.            They are sometimes

described “as being on a continuum, i.e., willful conduct is more culpable than wanton,

and wanton conduct is more culpable than reckless.”           Id. at ¶ 42 (Lanzinger, J.,

concurring in judgment in part and dissenting in part).

       {¶ 39} Both “wanton” and “reckless” represent “rigorous standards that will in most

circumstances be difficult to establish.” Argabrite v. Neer, 149 Ohio St.3d 349, 2016-

Ohio-8374, 75 N.E. 3d 161, ¶ 8. “Wanton conduct” has been defined as “the failure to

exercise any care toward those to whom a duty of care is owed in circumstances in

which there is great probability that harm will result.” (Emphasis added.) Anderson

at paragraph three of the syllabus; Argabrite at ¶ 8. “Reckless conduct is characterized

by the conscious disregard of or indifference to a known or obvious risk of harm to another

that is unreasonable under the circumstances and is substantially greater than negligent

conduct.” Anderson at ¶ 34, adopting 2 Restatement of the Law 2d, Torts, Section 500

(1965); Argabrite at ¶ 8.

       {¶ 40} Mere negligence in the performance of an employee’s duties is insufficient
                                                                                            -17-

to meet this high standard. See O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-

2574, 889 N.E.2d 505, ¶ 74. As stated by the Ohio Supreme Court, an individual’s

conduct “ ‘is in reckless disregard of the safety of others if * * * such risk is substantially

greater than that which is necessary to make his conduct negligent.’ ” Fabrey v. McDonald

Village Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994), quoting 2

Restatement of the Law 2d, Torts, Section 500, at 587 (1965).

       B. Evidence Related to CCDD Employee Conduct

       {¶ 41} According to the record, the last Individual Plan (IP) in effect for Barnett prior

to the June 21, 2012 incident was effective March 18, 2012. Barnett had a behavioral

support plan with IDTC, which was updated periodically; Barnett’s most recent behavioral

support plan prior to the assault was dated February 2012 and prepared by IDTC. That

support plan was cancelled when Barnett returned to Ohio.

       {¶ 42} According to Garrett’s affidavit and deposition testimony, Garrett was a Path

Coordinator with CCDD between September 2003 and March 29, 2012. She was the

Path Coordinator for Barnett for many years.

       {¶ 43} Garrett completed an individual assessment for Barnett on February 9,

2012, while Barnett was still at IDTC. (Willis Ex. 13) After CCDD was notified that IDTC

would stop providing services for Barnett as of May 25, 2012, Garrett began working with

Barnett’s parents and researched options on home living arrangements and the providers

that could provide services for Barnett.      (Willis Depo. at 86.)     Barnett’s parents, as

Barnett’s guardians, were responsible for selecting the service provider and housing

location for Barnett.

       {¶ 44} Garrett stated that she immediately contacted Barnett’s parents to inform
                                                                                         -18-


them of IDTC’s decision and to “begin figuring out” what they would like to do regarding

Barnett’s placement and schooling. (Garrett Aff. at ¶ 9.) Barnett’s mother told Garrett

that she would like CCDD to investigate Consumer Support Services, Barnett’s former

provider, as a placement option; Garrett spoke with April Grigsby of CSS, but there were

no openings at CSS’s facility in Clark County. (Id. at ¶ 10-11.) Garrett discussed other

possible housing options with Grigsby. (Id. at ¶ 12.)

       {¶ 45} On March 1, 2012, Garrett received a monthly status report from IDTC,

which reported that Barnett had no aggressive incidents in January and that he had made

progress on his home goals.       On March 5, she emailed other Path Coordinators,

including Horvath, to see if Barnett would be a suitable roommate with any of their clients.

On March 7, Garrett received a response from Horvath stating that Barnett might be a

good match with Dale and that he (Horvath) would look into it further. Wendy Mahar of

SRI also indicated that she thought that Barnett and Dale would be a good match.

Garrett met with Barnett’s mother on March 8 to discuss options for Barnett, and on March

9, Garrett worked on coordinating roommate visits for Barnett.

       {¶ 46} Garrett also investigated schooling options for Barnett.      She contacted

Springfield City Schools, Summit Academy, Goodwill Easter Seals in Beavercreek, and

Bittersweet Farms.

       {¶ 47} On several days, Garrett and Barnett’s mother toured potential housing

opportunities and school options. On March 16, they toured a home on Delcourt and

discussed visiting Dale’s residence. On March 19, Garrett, Barnett, and Barnett’s mother

toured Quest, CCDD’s adult day habilitation program, and met with Dale, Horvath, and

two of Dale’s staff from Dale’s residence. On March 22, Garrett and Barnett’s mother
                                                                                       -19-


took a tour of Goodwill Easter Seals in Beavercreek; they discussed the advantages and

disadvantages of Goodwill versus Quest.

      {¶ 48} On March 22, Barnett’s mother chose to have Barnett live with Dale in a

Housing Connections house, and Garrett e-mailed Mahar at SRI to inform her that

Barnett’s mother wanted Barnett to live with Dale. Garrett also spoke with Horvath,

Dale’s Path Coordinator, about his (Horvath’s) also being Barnett’s Path Coordinator

since she (Garrett) would soon be leaving for a new job. Horvath agreed.

      {¶ 49} Garrett began to coordinate a time to discuss Barnett’s Individual Plan (IP),

and a meeting was tentatively scheduled for April 3, 2012. On March 26, the IP meeting

was rescheduled for April 4, 2012. Garrett e-mailed Mahar of SRI a copy of Barnett’s

“most recent IP and Behavioral Support Plan. I explained in the email that there may be

several changes as Wesley [Barnett] was coming out of a facility.” Mahar initially did not

receive Garrett’s email with Barnett’s plans, so Garrett resent it. Elizabeth Crawford,

CEO of SRI, confirmed that SRI had received Barnett’s IP and behavior support plan from

IDTC, IDTC’s documentation that supported the behavior support plan, and a

psychological evaluation of Barnett.

      {¶ 50} Garrett’s last day of employment with CCDD was March 29, 2012, and she

had no further involvement with Barnett’s case.        Horvath became Barnett’s Path

Coordinator after March 30, 2012, following Garrett’s departure from CCDD.

      {¶ 51} Horvath testified at his deposition that, once he became Barnett’s Path

Coordinator, he read the information in Barnett’s file and began working on Barnett’s

relocation. Horvath stated that Garrett had set up day programming in Beavercreek, so

he (Horvath) visited the program with Sam Menier, the positive support specialist for
                                                                                         -20-


CCDD, and tried to arrange for transportation for Barnett. (Willis testified that Menier sits

on teams and helps teams determine interventions; Menier also writes the formalized

behavior support plans for CCDD. (Willis Depo. at 110.)) When Horvath could not solve

the transportation problem, he began working on getting Barnett into Quest.

       {¶ 52} Horvath also testified that he worked on arrangements with SRI, and he

included Menier in the planning for Barnett’s care. Horvath testified that Menier wrote a

behavior support plan for Barnett. Horvath indicated that he completed everything he

needed to do for Barnett’s transition, including Barnett’s bank account, medications,

transportation, and training with the “residential folks and workshop folks.” He stated that

the only thing that remained to do was “the final paperwork,” meaning the IP. (Horvath

Depo. at 27.) Horvath stated that he had sent Mahar everything that he had received

from IDTC, including the IP and behavior support plan. Menier drafted positive behavior

supports for Barnett; however, a behavior support plan was not finalized. (Id. at 55-56,

68.) (SRI received the positive support plan that Menier drafted, but it is unclear whether

it was received before or after the June 21 incident.)         Horvath stated that Menier

conducted training with SRI on Barnett’s treatments and behavior.

       {¶ 53} Horvath, Willis, Mahar, and Barnett’s parents each testified in their

depositions that there were numerous meetings regarding Wesley.             Willis, the Path

Coordinator supervisor, stated in his deposition that, once Barnett’s parents selected a

residence and service provider for Barnett, the support team had numerous meetings to

prepare for Barnett’s relocation.    The team consisted of Barnett’s Path Coordinator,

Barnett’s parents, representatives of SRI, and Menier. When Barnett began adult day

services at Quest, a representative of Quest joined the team. Horvath likewise stated
                                                                                       -21-


that there were “a ton of conversations and meetings about Wesley [Barnett] and Dale

and setting up providers. * * * It was a huge undertaking.” (Horvath Depo. at 31.)

      {¶ 54} Wendy Mahar, associate director of SRI, testified in her deposition that

there were “lots of meetings” during which they talked about Barnett (his likes, dislikes,

etc.), and discussed what the Barnetts thought, what their (the parents’) wishes were, and

what they wanted from SRI regarding services. When asked how many meetings were

held before Barnett became a client, Mahar responded, “I couldn’t even guess. There

were so many.” Mahar testified that she received from CCDD everything that CCDD had

received from IDTC. Mahar stated that she did not feel that there was paperwork that

she needed, but was not getting, regarding Barnett.

      {¶ 55} Garrett testified that the IP was required to be maintained at the residence

of a CCDD client, as well as the behavior support plan, if the client had one. SRI would

also have certain documentation, created by SRI, that it would need to keep at the

residence, such as time sheets, log notes, and the like. (Garrett Depo. at 43-44.) Wells

(the SRI employee who was with Barnett during the June 21 incident) testified that an IP

for Barnett was at the house and that she had received additional information about

Barnett from his mother; Wells used the IP to take care of Barnett. SRI’s answers to

interrogatories also indicated that “[t]he staff had received training based on Wesley’s

Individual Plan from his previous case provider while awaiting an updated Individual Plan

from the Clark County Board of DD. The Individual Plan gave staff procedures to follow

for all home, medical and community needs.”         SRI employees completed a “Daily

Documentation” form, which contained similar guidelines as Barnett’s March 2012 IP.

      {¶ 56} Wells stated that she did not have a written behavior support plan for
                                                                                         -22-


Barnett. Crawford (CEO of SRI) stated in her deposition that Barnett did not have a

behavior support plan from the beginning, “[b]ecause in our initial meetings and

discussions, we felt that we should give him an opportunity to adjust to his new

environment and his new home before placing possible unnecessary restrictions on him.

Clark County is a leader in the state of Ohio in regards to behavior support. And we are

very forward-thinking, as far as using the lowest level of restrictions possible for

individuals.” (Crawford Depo. at 40.) Crawford stated that SRI staff had Barnett’s prior

behavior support plan from IDTC “for informational purposes only for his history, not as a

guideline for [SRI] staff”; the plan was used “as a training tool just so the staff would be

aware of Wesley’s previous behaviors.” (Id. at 57.)

       {¶ 57} Crawford testified that SRI staff receive “Do The Right Thing” training within

their first three to six months of employment. Crawford explained that Do The Right

Thing training includes “teaching staff how to protect themselves if there are physical

behaviors, how to protect others, how to protect the individual. It does teach some

restraints, but [SRI] staff are not allowed to use any restraints unless it is specifically

written in a behavior support plan.” (Crawford Depo. at 46.) Wells testified that she had

received Do the Right Thing training.

       {¶ 58} Willis and Crawford also testified about the plan that was in place for

Barnett’s transition back into the community upon his return to Ohio. Willis testified that

the “team planned very well in advance” between the time that CCDD was notified of

Barnett’s anticipated discharge from IDTC through June 21, 2012, but he indicated that

there was a “paperwork issue.” He stated: “I mean, the new provider has copies of the

current plan that was in place; it was just not updated with a change of provider. You
                                                                                         -23-


know, the whole team was on board.          It was just an accident.    We couldn’t have

prevented it.” (Willis Depo. at 88-89.) Willis later reiterated, “The county board had a

thorough up-to-date and current individual plan in place. As I had stated earlier, the only

error that we had in that was that we didn’t change it to Self-Reliance as the provider, but

nothing would have changed in the plan.” (Id. at 102.) Willis indicated that Sam Menier

met with Barnett’s service providers and trained them on behaviors of concern.

       {¶ 59} Crawford testified:

       In our meetings and in our discussions, in our e-mails, in our phone calls

       and everything, in review of his other documents from the institution and all

       of that pre-stuff before he came to be with us, we all knew – when I say we,

       I mean, the County board path coordinator, myself, Wendy, our staff

       supervisor, we all were very clear on what the plan was, how that transition

       was going to work, what we needed to do in the home to help him transition

       smoothly. We all communicated that very effectively among each other

       and then we communicated that to our staff in the home.

(Crawford Depo. at 67.)

       {¶ 60} Between May 25 (when Barnett moved into the home) and June 21 (the

assault on E.), SRI filed ten “unusual incident” (UI) reports with CCDD, which were faxed

to Horvath. Twice on May 30, a SRI staff member reported that Barnett was engaged in

masturbation behaviors in the living room, which required redirection. On four different

dates in June, Barnett tried to use milk from his roommate’s refrigerator.         At three

different times on June 16, Barnett broke window treatments inside the house. On June

15, SRI staff noticed a red mark on Barnett’s forehead. Willis testified that when CCDD
                                                                                        -24-


receives UIs “and it’s a pattern, then we have to – the team has to meet and they have to

discuss what the prevention plan is as the full team.” In contrast, with a major usual

incident (MUI), “you have to immediately put in prevention plans to assure health and

safety.” (The assault on E. was considered a MUI.) On June 19, Quest staff reported

that Barnett had bitten another consumer of their services.

      {¶ 61} The Stayers offered the deposition testimony of Dr. Terrance Kukor, Ph.D.,

a clinical psychologist with a certification in forensic psychology by the American Board

of Professional Psychology.    Dr. Kukor opined that CCDD and its employees were

reckless, because they did not prepare a written IP and behavior support plan specific to

Barnett’s residential circumstances. (Kukor Depo. at 65-67.) Dr. Kukor stated that,

without a written plan, “you don’t have a map * * * that you can share across shifts, that

you share across staff and say here’s the plan for Wesley.” (Id. at 71.) Dr. Kukor further

explained:

      [I]t’s the plan that would tell me did they [CCDD] adequately account for

      what was known about his [Barnett’s] tendency to be violent. It’s one thing

      to say, sure we discussed it. There’s no documentation. I can’t tell what

      – how far that discussion went, if they were properly applying the

      information from a more restrictive level of care to a lower level of care[.] *

      * * [B]ut the problem with it is that the people that were responsible for

      providing day-to-day, hour-to-hour supervision and care for Wesley didn’t

      have a written plan that they could consult and use to make decisions about

      what they were going to do or not do with Wesley based on his behavior in

      the moment.
                                                                                       -25-


(Kukor Depo. at 102-103.) Dr. Kukor noted that the failure to create a revised IP for

Barnett violated the Ohio Admin. Code 5123:2-1-11 (Service and Support Administration

provisions).4

       C. Employees’ Entitlement to Immunity

       {¶ 62} Upon review of the evidence submitted by the parties, and viewing the

evidence in the light most favorable to the Strayers, we find that there are no genuine

issues of material fact and that, as a matter of law, the CCDD employees’ conduct did not

constitute a “conscious disregard of or indifference to a known or obvious risk of harm to

another that is unreasonable under the circumstances and is substantially greater than

negligent conduct.”

       {¶ 63} Beginning with Garrett, Barnett’s long-time Path Coordinator, the evidence

reflects that, after Garrett was notified that Barnett would be leaving IDTC and returning

to Ohio, she began to investigate new placements and schooling for Barnett.          This

involved numerous discussions with Barnett’s parents (his guardians), potential housing

providers, and potential schooling options. Garrett left her employment with CCDD on

March 29, 2012, nearly two months before Barnett returned to Ohio from Indiana.

Although Garrett did not complete a new IP or behavior support plan for Barnett before

she left her employment with CCDD, her provision of service and support administration

to Barnett in February and March of 2012 cannot reasonably be categorized as reckless

or wanton conduct.     The trial court properly granted summary judgment to Garrett



4
  Ohio Admin. Code 5123:2-1-11, addressing county boards of “mental retardation” and
developmental disabilities, has been revised, effective March 17, 2014. Among other
changes, the current version renumbered some of the provisions, and an individual plan
is now known as an individual service plan (ISP).
                                                                                         -26-


pursuant to R.C. 2744.03(A)(6).

      {¶ 64} Turning to Horvath, Garrett’s successor as Barnett’s Path Coordinator, the

Strayers claim that Horvath’s placement of Barnett in a residential setting without an

updated IP and behavior support plan amounted to reckless or wanton conduct, and that

Willis (Garrett’s and Horvath’s supervisor) also was not immune from liability due to his

failure to ensure that Barnett’s case was “properly managed and properly transitioned

within the agency.”

      {¶ 65} There is no genuine issue of material fact that, prior to the June 21 incident,

a revised IP was not prepared to specifically address Barnett’s relocation from IDTC to a

residential setting. Both Willis and Horvath testified that there was a “paperwork” error,

and Horvath indicated that, after the incident, he was put on administrative leave by

CCDD because “the paperwork was not completed.”

      {¶ 66} However, upon review of all of the evidence, we find no genuine issue of

material fact that the absence of the revised paperwork did not amount to recklessness.

Both Garrett and Horvath sent documentation about Barnett, including Barnett’s most

recent IP and behavior support plan for IDTC, to SRI prior to Barnett’s residential

placement. The March 2012 IP indicated that Barnett “has a history of MUI’s involving

physical intervention for physical aggression” and other inappropriate behaviors, such as

inappropriate urination. With respect to alone time, it stated: “Wesley has no alone time.

He must be within hearing distance at all times when in an enclosed area. When in an

open area or around other people Wesley must be within vision at all times due to a

tendency to elope or become aggressive.” Wells testified that an IP for Barnett was

available in the residence, and that she used it as a reference for Barnett’s care. The
                                                                                       -27-


Daily Documentation form that SRI completed included the requirement that staff “monitor

for inappropriate behaviors (physical aggression, inappropriate urination) and document

as an Unusual Incident as they occur.        Refer to IP.”   Other Daily Documentation

requirements, such as waking Barnett three times throughout the night to urinate and the

“alone time” monitoring, mirrored Barnett’s prior IP.

       {¶ 67} The February 2012 behavior support plan indicated that Barnett’s physical

aggression consisted of hitting, head butting, throwing objects at people, and biting, and

it indicated potential triggers for those behaviors. In addition, during several “support

team” meetings to prepare for Barnett’s transition to residential care, SRI was informed

of and discussed Barnett’s aggressive behaviors and the potential triggers. In April

2012, Menier prepared a positive behavior plan for Barnett, and although it was never

formalized as a behavior support plan, Menier met with Barnett’s service providers and

trained them on Barnett’s behaviors of concern. SRI staff were not permitted, by law, to

use chemical and physical restraints, as provided in the IDTC behavior support plan, but

all SRI staff had been trained in positive supports (Do The Right Thing) by SRI. Although

Horvath perhaps should have provided updated documentation (IP and behavior support

plan) to SRI prior to Barnett’s transition to residential care in Clark County, Horvath’s

actions did not, as a matter of law, display a conscious disregard of or indifference to a

known risk of harm to others. Stated simply, Horvath’s conduct was neither reckless nor

wanton.

       {¶ 68} We recognize that Dr. Kukor testified in his deposition that the absence of

a written plan was reckless because SRI did not have updated documentation, specific

to Barnett’s residential placement, to consult and use to make decisions about Barnett
                                                                                         -28-


based on his behavior. Dr. Kukor indicated that an updated IP and behavior support plan

should have accounted for changes in the amount of supervision that Barnett would have.

Dr. Kukor indicated that, in the absence of updated documentation, he could not tell

whether CCDD employees and SRI had a plan to manage Barnett’s care and the risk of

aggression.   Willis testified that Barnett’s IP would have mirrored the IP that had

previously been in place at IDTC, and that the only change at the beginning of Barnett’s

residential placement would have been changing the name of the service provider from

IDTC to SRI; the members of Barnett’s support team anticipated that a plan would be

“tweeked” based on how Barnett adapted to residential placement. Considering the

entirety of the evidence presented, including CCDD’s provision of and SRI’s use of

Barnett’s prior IP and behavioral information regarding Barnett to inform Barnett’s care,

Dr. Kukor’s testimony does not, by itself, create a genuine issue of material fact about the

recklessness of Horvath’s provision of service and support administration for Barnett.

       {¶ 69} During the relevant time period, Willis was a Path Coordinator supervisor

with CCDD. In that position, Willis supervised ten Path Coordinators, who served as the

service and support administrators. Although no path coordinator prepared an updated

IP and formalized a new behavior support plan for Barnett upon his transition to residential

placement, we find nothing in the record to suggest that Willis’s supervision of Barnett’s

Path Coordinators rose to the level of reckless or wanton conduct.

       {¶ 70} The trial court properly granted summary judgment to Garrett, Horvath, and

Willis pursuant to R.C. 2744.03(A)(6).

                                      V. Conclusion

       {¶ 71} The trial court’s judgment will be affirmed.
                                                                       -29-


                                      .............

HALL, P.J. and WELBAUM, J., concur.

Copies mailed to:

Valerie Juergens Wilt
Mark Landes
Andrew N. Yosowitz
Robert Byrne
Karen Clouse
Wesley R. Barnett, c/o Carolyn Barnett or Michael Barnett, Guardians
Hon. Douglas M. Rastatter
