[Cite as Lamtman v. Ward, 2012-Ohio-4801.]


STATE OF OHIO                   )                   IN THE COURT OF APPEALS
                                )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

RICK L. LAMTMAN                                     C.A. No.       26156

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
BARRY M. WARD, et al.                               COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellees                                   CASE No.   CV 2011 04 2063

                               DECISION AND JOURNAL ENTRY

Dated: October 17, 2012



        WHITMORE, Presiding Judge.

        {¶1}    Plaintiff-Appellant, Rick Lamtman, appeals from the judgment of the Summit

County Court of Common Pleas, granting summary judgment to Defendant-Appellees, Barry M.

Ward and Barry M. Ward Co., L.P.A. (collectively “Ward”). This Court affirms.

                                                I

        {¶2}    Lamtman became a resident of Oriana House after he was convicted of an OVI

offense. When he reported to Oriana House, Lamtman was assigned the top bunk of a bunk bed

for the duration of his stay. On the fourth night of his stay, Lamtman “raised up” in bed, struck

his head on a caged, metal fan positioned directly above his bunk, and “sw[u]ng [his] body out to

get out from under [the fan].” Lamtman then lost his balance, fell from the bed, and lost

consciousness when his head struck the floor. Lamtman initially refused medical treatment, but

was transferred to St. Thomas Hospital the following morning when his condition deteriorated.
                                                2


Lamtman required surgery to repair a hematoma and remained in the hospital for over two

weeks.

         {¶3}   Subsequently, Lamtman filed a civil suit in which he alleged that Oriana House

and several of its agents negligently caused his injuries. Ward represented Lamtman in his suit.

The suit ended when the trial court awarded Oriana House summary judgment on the basis that

no duty was owed to Lamtman because the potential hazard to which he was exposed was an

open and obvious one. Although Ward filed a notice of appeal on Lamtman’s behalf, he filed the

notice late and this Court dismissed the appeal as untimely. Lamtman v. Oriana House, Inc., et

al., 9th Dist. No. 25351 (May 7, 2010).

         {¶4}    The instant appeal stems from a legal malpractice suit that Lamtman filed

against Ward. Lamtman alleged that Ward committed malpractice while representing him in his

suit against Oriana House because Ward failed (1) to seek the removal of the judge presiding

over the case due to a conflict of interest, (2) to include the Summit County Sheriff’s Department

as a named defendant, and (3) to file a timely appeal from the trial court’s summary judgment

decision. After a brief period of discovery, Ward filed a motion for summary judgment, and

Lamtman filed a memorandum in opposition. The court ultimately granted Ward’s motion. The

court determined that Ward’s representation of Lamtman did not cause him injury because

Lamtman would not have prevailed on his underlying suit even absent any breach of duty on

Ward’s part.

         {¶5}   Lamtman now appeals from the trial court’s judgment and raises six assignments

of error for our review. For ease of analysis, we rearrange and consolidate several of the

assignments of error.
                                                3


                                                II

                               Assignment of Error Number Two

        THE TRIAL COURT COMMITTED ERROR BY FINDING THAT THE OPEN
        AND OBVIOUS DEFENSE WAS APPLICABLE.

                              Assignment of Error Number Three

        THE TRIAL COURT INCORRECTLY APPLIED THE OPEN AND OBVIOUS
        DEFENSE AS A MATTER OF LAW IN THAT THE ATTENDANT
        CIRCUMSTANCES ESTABLISHED A GENUINE ISSUE OF MATERIAL
        FACT ON WHETHER THE CONDITION THAT CAUSED APPELLANT’S
        INJURY WAS OPEN AND OBVIOUS.

        {¶6}   In his second and third assignments of error, Lamtman argues that the trial court

erred by awarding summary judgment to Ward as it relates to the issue of whether Ward

committed malpractice by not timely appealing from the court’s judgment in favor of Oriana

House in Lamtman’s underlying negligence suit. Specifically, he argues that summary judgment

was inappropriate because the open and obvious danger doctrine does not apply to residents of

Oriana House and, assuming the doctrine does apply, attendant circumstances created a genuine

issue of material fact. We disagree.

        {¶7}   This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is

proper if:

        (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., 50 Ohio St.2d 317, 327 (1977). 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
                                                 4


v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Specifically, the moving party must support the

motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. Once

this burden is satisfied, the non-moving party bears the burden of offering specific facts to show

a genuine issue for trial. Id. at 293. The non-moving party may not rest upon the mere

allegations and denials in the pleadings but instead must point to or submit some evidentiary

material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle, 75 Ohio

App.3d 732, 735 (12th Dist.1991).

       {¶8}    To prevail upon a legal malpractice claim based upon negligent representation, a

plaintiff must prove:

       (1) that the attorney owed a duty or obligation to the plaintiff, (2) that there was a
       breach of that duty or obligation and that the attorney failed to conform to the
       standard required by law, and (3) that there is a causal connection between the
       conduct complained of and the resulting damage or loss.

Vahila v. Hall, 77 Ohio St.3d 421 (1997), syllabus. “[T]he requirement of causation often

dictates that the merits of the malpractice action depend upon the merits of the underlying case.”

Id. at 427-428. When the theory of the plaintiff’s malpractice case is that his attorney’s alleged

breach of duty cost him a favorable outcome, he “places the merits of the underlying litigation

directly at issue.” Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio

St.3d 209, 2008-Ohio-3833, ¶ 18. “In order to prove causation in these cases, the plaintiff must

prove that but for the attorney’s conduct, the plaintiff would have obtained a better outcome in

the underlying case.” Eastminster Presbytery v. Stark & Knoll, 9th Dist. No. 25623, 2012-Ohio-

900, ¶ 7.

       All the issues that would have been litigated in the previous action are litigated
       between the plaintiff and the plaintiff’s former lawyer, with the latter taking the
       place and bearing the burdens that properly would have fallen on the defendant in
       the original action. Similarly, the plaintiff bears the burden the plaintiff would
       have borne in the original trial * * *.
                                                5


Id., quoting Restatement of the Law 3d, Law Governing Lawyers 390, Section 53, Comment b

(2000). “In proving what was lost, the plaintiff must show what would have been gained.”

Paterek v. Petersen & Ibold, 118 Ohio St.3d 503, 2008-Ohio-2790, ¶ 37.

       {¶9}    Lamtman’s malpractice claim placed the merits of his underlying case directly at

issue because he argued that Ward’s alleged malpractice “prevent[ed] [him] from making any

recovery against those persons or entities that [] were responsible for causing the injuries that

were the subject of the personal injury action.” As such, to establish proximate cause in this case

it was necessary for Lamtman to prove that, absent Ward’s alleged malpractice, “the result of

[his] underlying case would have been different.” Eastminster Presbytery at ¶ 8. The trial court

determined that the result of Lamtman’s underlying case would have been the same even absent

his counsel’s alleged wrongdoing. Specifically, the court concluded that Lamtman could not

have recovered from Oriana House for his injuries because he sustained them as the result of an

open and obvious danger.

       {¶10} “In order to succeed under an action for negligence, a plaintiff must show the

existence of a duty, a breach of that duty, and that the breach of that duty was the proximate

cause of the plaintiff’s injuries.”    Galo v. Carron Asphalt Paving, Inc., 9th Dist. No.

08CA009374, 2008-Ohio-5001, ¶ 8. “Where a danger is open and obvious, a landowner owes no

duty of care to individuals lawfully on the premises.” Armstrong v. Best Buy Co., Inc., 99 Ohio

St.3d 79, 2003-Ohio-2573, syllabus. “The rationale behind the doctrine is that the open and

obvious nature of the hazard itself serves as a warning. Thus, the owner or occupier may

reasonably expect that persons entering the premises will discover those dangers and take

appropriate measures to protect themselves.”        Zambo v. Tom-Car Foods, 9th Dist. No.

09CA009619, 2010-Ohio-474, ¶ 7, quoting Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642,
                                               6


644 (1992). An open and obvious danger “obviates the duty to warn and acts as a complete bar

to any negligence claims.” Armstrong at ¶ 5.

       {¶11} “This Court analyzes the totality of the circumstances to determine if [a] danger is

open and obvious. In doing so, we consider both the nature of the dangerous condition and any

attendant circumstances that may have existed at the time of the injury.” (Internal citations

omitted.) Gehm v. Tri-County, Inc., 9th Dist. No. 09CA009693, 2010-Ohio-1080, ¶ 8. “Open

and obvious dangers are not hidden, are not concealed from view, and are discoverable upon

ordinary inspection.” Zambo at ¶ 8. “The determinative issue is whether the condition is

observable.” Kirksey v. Summit Cty. Parking Garage, 9th Dist. No. 22755, 2005-Ohio-6742, ¶

11. “While there is no precise definition of attendant circumstances, they would include ‘any

distraction that would come to the attention of a [person] in the same circumstances and reduce

the degree of care an ordinary person would exercise at the time.’” Jenks v. Barberton, 9th Dist.

No. 22300, 2005-Ohio-995, ¶ 16, quoting France v. Parliament Park Townhomes, 2d Dist. No.

14264, 1994 WL 151658, *2 (Apr. 27, 1999).

       {¶12} Lamtman first argues that the trial court erred as a matter of law by applying the

open and obvious doctrine because he was not an invitee of Oriana House. According to

Lamtman, because he was in custody and not at Oriana House by choice, the open and obvious

doctrine did not apply to him. Courts that have considered whether the open and obvious

doctrine applies in custodial situations have concluded that it does. See, e.g., Cordell v. Ohio

Dept. of Rehab. & Corr., 10th Dist. No. 08AP-749, 2009-Ohio-1555; Solomon v. Ohio Dept. of

Rehab. & Corr., Ct. of Cl. No. 2003-06557, 2004-Ohio-3180; Shotts v. Jackson Cty., 4th Dist.

No. 00CA016, 2000 WL 33226299 (Dec. 27, 2000). In any event, the record reflects that

Lamtman waived this argument in the court below.
                                                7


       {¶13} In his memorandum in opposition to summary judgment, Lamtman set forth a

blanket proposition that he was not an invitee of Oriana House. He did not, however, set forth

any argument about custodial relationships. Instead, he dedicated his argument to the existence

of attendant circumstances. More importantly, in its judgment entry, the court wrote:

       The parties agree that the open and obvious doctrine applies to claims brought by
       injured inmates against penal institutions. However, [Lamtman] believes that the
       trial court failed to consider the “attendant circumstances” he encountered during
       his incarceration.

Lamtman does not challenge the trial court’s statement that he “agree[d] that the open and

obvious doctrine applie[d].” This Court will not consider Lamtman’s argument that the open and

obvious doctrine does not apply as a matter of law when the record reflects that Lamtman agreed

to the doctrine’s application in the court below. See, e.g., David v. Edwood Dev. Co., 9th Dist.

No. 19252, 2000 WL 46107, *3 (Jan. 12, 2000). By agreeing that the doctrine applies in

custodial settings, Lamtman waived his right to assert a contrary position on appeal. Id.

       {¶14} Next, Lamtman argues that the trial court erred when it concluded, based on the

totality of the circumstances, that he suffered injuries as a result of an open and obvious danger.

He avers that a genuine issue of material fact remains such that the question was one properly

reserved for trial. We disagree.

       {¶15} Kelly Keho testified by way of deposition that he is an employee of Oriana House

and is responsible for overseeing its staff. When individuals arrive at Oriana House, the staff

registers them as residents and assigns them a room and bed for the duration of their stay. Keho

testified that he is responsible for the arrangement of each room at Oriana House, including

where beds are located, while his staff members are responsible for assigning each resident a

particular bed. According to Keho, residents must sleep in their assigned beds, but are free to

request a reassignment. Moreover, Keho testified that residents are free to sleep in their assigned
                                                 8


bed in any manner of their choosing. Keho specified: “we don’t instruct [residents] where to put

the pillow. It’s their bed * * *.”

       {¶16} In his deposition, Lamtman testified that he became a resident of Oriana House on

August 6, 2007, and slept in his assigned bed for three nights without incident. Lamtman

confirmed that he was assigned the top bed of a bunk bed when he reported to Oriana House and

that there was a fan on the wall directly above his bed.          Lamtman described the fan as

approximately 18-25 inches in diameter with a mesh or metal covering around it. When asked if

he had seen the fan above his bunk, Lamtman testified “[y]es, you couldn’t miss it.”

       {¶17} Lamtman agreed that no one at Oriana House ever told him how to make his bed

and that he chose to place his pillow directly beneath the fan. When he did so, Lamtman

estimated that the fan was positioned approximately eight inches above his head. Lamtman

testified that he was only able to sleep with his head directly below the fan because, when he

placed his pillow in any other location on the bed, the fan blew air in his face and prevented him

from sleeping. Lamtman admitted that he never told anyone at Oriana House that the fan was

bothering him. He also never asked to be reassigned to another bed.

       {¶18} On the fourth night of his stay at Oriana House, Lamtman testified that he awoke

and “raised up” in bed around 2:00 to 3:00 a.m. When he did so, Lamtman’s head struck the fan.

He then grabbed his head with his hands and “sw[u]ng [his] body out to get out from under [the

fan].” While trying to extricate himself, Lamtman lost his balance, tumbled from bed, struck his

head on the floor, and lost consciousness. After he regained consciousness, Lamtman eventually

returned to his bed. Lamtman testified that he lay down so that “the fan was right behind [his]

head, and [he] put [his] arm up over [his] head so it wasn’t blowing right in [his] face.”
                                                 9


       {¶19} Lamtman also submitted an affidavit in the court below.               In his affidavit,

Lamtman averred that he was “still partially asleep” when he awoke in his bed. He further stated

that the room was dark at the time that he awoke because “[o]nly the hallway light was on with

the door open.” Lamtman averred that, due to the darkness and his disorientation as a result of

waking, he forgot where he was or that he was sleeping directly beneath the fan.

       {¶20} Lamtman argues that summary judgment was not appropriate because he never

voluntarily chose to enter Oriana House, he had no choice in his bed assignment, and

“[r]egardless of knowing the fan was there when he went to bed, the hazard was not open and

obvious when he woke up in a dark room and attempted to sit up [] in a semi-conscious state and

struck his head on [] the fan.” We do not agree with Lamtman’s argument that the trial court

erred in its application of the open and obvious doctrine.

       {¶21} The question of whether a plaintiff was or was not voluntarily on a landowner’s

premises at the time of his injury is irrelevant to an open and obvious danger analysis so long as

he was lawfully there when the injury occurred. See Armstrong, 99 Ohio St.3d 79, 2003-Ohio-

2573, at syllabus. An open and obvious danger analysis examines “the nature of the dangerous

condition and any attendant circumstances that may have existed at the time of the injury.”

Cottrell v. El Castillo Grande Mexican Restaurant, 9th Dist. No. 09CA009624, 2010-Ohio-815,

¶ 9. In judging whether a defect was open and obvious, “[b]oth circumstances contributing to

and those reducing the risk of the defect must be considered.” Gehm, 2010-Ohio-1080, at ¶ 8,

quoting Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29, 33-34 (2d Dist.1994).

       {¶22} Having viewed the evidence in the record in a light most favorable to Lamtman

and considering the totality of the circumstances as they existed at the time of his injury, we

conclude that Lamtman sustained his injuries as the result of an open and obvious danger.
                                               10


Lamtman was lawfully on Oriana House’s property when he was injured, and the dangerous

condition that led to his injury was observable. See Kirksey, 2005-Ohio-6742, at ¶ 11. Indeed,

Lamtman actually observed the condition, stating in his deposition that “you couldn’t miss it.”

See Clark v. Burman, 9th Dist. No. 06CA008867, 2006-Ohio-5052, ¶ 11 (danger open and

obvious where plaintiff admitted that he recognized the danger at the time of the accident and

acknowledged the lighting was not ideal, but nonetheless chose to subject himself to the danger).

Even assuming that it was dark in Lamtman’s room when he awoke and that he was “still

partially asleep” when his head struck the fan, those additional facts did not create a genuine

issue of material fact under the specific circumstances of this case. Lamtman chose to sleep with

his head directly under the fan well before he ever fell asleep or it became dark in his room.

Moreover, he slept that way for three nights without incident. See Faith v. Lindsey, 9th Dist. No.

24335, 2008-Ohio-6619, ¶ 11 (danger open and obvious where plaintiff had been on the premises

several times and had previously exposed herself to the same danger that later injured her);

Kirksey at ¶ 14 (no duty to warn where plaintiff “sustained her injury while traversing a parking

garage entrance which she previously encountered that same day and had encountered on at least

one prior occasion”). Lamtman never complained about the fan or asked to be moved to another

bed. Instead, he chose to place his head directly below the fan and fall asleep. We conclude that

a reasonable person in the same situation would have known about the fan and would have taken

reasonable measures to “protect himself against [it].” See Mondi v. Stan Hywet Hall & Gardens,

Inc., 9th Dist. No. 25059, 2010-Ohio-2740, ¶ 13, quoting Sidle v. Humphrey, 13 Ohio St.2d 45

(1968), syllabus. See also Gehm at ¶ 15.

       {¶23} The trial court properly concluded that Lamtman sustained his injuries as a result

of an open and obvious danger. Oriana House had no duty to warn Lamtman against an open
                                                11


and obvious danger, so Lamtman would not have prevailed in his underlying negligence suit

against it. See Armstrong, 99 Ohio St.3d 79, 2003-Ohio-2573, at ¶ 5. Because Lamtman failed

to demonstrate that, but for Ward’s representation, the result of his underlying suit against Oriana

House would have been different, the trial court properly granted Ward’s motion for summary

judgment as it related to his alleged malpractice in the suit against Oriana House. Lamtman’s

second and third assignments of error are overruled.

                                Assignment of Error Number Four

       THE TRIAL COURT COMMITTED ERROR IN DISMISSING APPELLANT’S
       COMPLAINT FINDING THAT THE ORIANA HOUSE HAD NO DUTY
       BASED ON THE OPEN AND OBVIOUS DEFENSE WHEN ORIANA HOUSE
       HAD A STATUTORY DUTY OF CARE TO THE APPELLANT[.]

       {¶24} In his fourth assignment of error, Lamtman argues that the trial court erred by

granting Ward’s motion for summary judgment because Oriana House owed him a statutory duty

of care. We disagree.

       {¶25} “[A]lthough the open-and-obvious doctrine can excuse a defendant’s breach of a

common-law duty of care, it does not override statutory duties.” Lang v. Holly Hill Motel, Inc.,

122 Ohio St.3d 120, 2009-Ohio-2495, ¶ 14. “[W]hen the General Assembly has enacted statutes

the violations of which constitute negligence per se, the open-and-obvious doctrine will not

protect a defendant from liability.” Id. at ¶ 15. Accord Robinson v. Bates, 112 Ohio St.3d 17,

2006-Ohio-6362, ¶ 23-25.

       {¶26} The trial court never addressed the issue of whether Oriana House violated a

statutory duty of care that it owed to Lamtman because Lamtman never raised the argument in

the court below. “When reviewing arguments on appeal, this Court cannot consider issues that

are raised for the first time on appeal.” Carnegie Cos., Inc. v. Summit Properties, Inc., 9th Dist.

No. 25622, 2012-Ohio-1324, ¶ 8, quoting Harris v. Akron, 9th Dist. No. 24499, 2009-Ohio-
                                                12


3865, ¶ 9.     Lamtman could have, but did not, raise this issue at the trial court level.

Consequently, we will not reach the merits of his argument on appeal.            Harris at ¶ 10.

Lamtman’s fourth assignment of error is overruled.

                                Assignment of Error Number Five

       THE TRIAL COURT COMMITTED ERROR IN FINDING THAT THE
       SUMMIT COUNTY SHERRIFF (sic) DEPARTMENT HAD IMMUNITY
       UNDER OHIO R.C. §2744.02(B)(4) IN THAT THE ORIANA HOUSE IS A
       PRIVATE FACILITY AND NOT A BUILDING USED IN CONNECTION
       WITH THE PERFORMANCE OF A GOVERNMENTAL FUNCTION.

                                Assignment of Error Number Six

       THE TRIAL COURT COMMITTED ERROR IN FINDING THAT THE
       SUMMIT COUNTY SHERIFF WAS NOT RECKLESS AS A MATTER OF
       LAW.

       {¶27} In his fifth and sixth assignments of error, Lamtman argues that the trial court

erred by granting Ward’s motion for summary judgment as it pertained to Ward’s alleged

misconduct in not naming the Summit County Sheriff’s Department as a defendant in

Lamtman’s underlying negligence suit. Specifically, he argues that the Sheriff’s Department

and/or its deputies were not immune from liability for his injuries.

       {¶28} We incorporate the summary judgment standard of review set forth in Lamtman’s

second and third assignments of error. “The Sheriff’s Department is a political subdivision

pursuant to R.C. 2744.01(F).” Kendzierski v. Carney, 9th Dist. No. 22739, 2005-Ohio-6735,

¶13. In general, political subdivisions “enjoy absolute immunity from civil suits ‘for injury * * *

or loss to person or property allegedly caused by any act or omission of the political subdivision

or an employee of the political subdivision in connection with a governmental or proprietary

function.’” Pruce v. Sleasman, 9th Dist. No. 11CA010088, 2012-Ohio-2427, ¶ 7, quoting R.C.

2744.02(A)(1).    “Certain exceptions to that immunity exist * * * as set forth in R.C.
                                                 13


2744.02(B).” State ex rel. Nix v. Bath Twp., 9th Dist. No. 25633, 2011-Ohio-5636, ¶ 9. If no

exception to immunity exists, the political subdivision is entitled to summary judgment on

immunity grounds. Wolford v. Sanchez, 9th Dist. No. 05CA008674, 2005-Ohio-6992, ¶ 31.

       {¶29} Lamtman argues that the Sheriff’s Department was not entitled to immunity for

the activities it performed at Oriana House because Oriana House is a privately owned and

operated facility. Relevant to this appeal, R.C. 2744.02(B)(4) provides that:

       political subdivisions are liable for injury * * * to person * * * that is caused by
       the negligence of their employees and that occurs within or on the grounds of, and
       is due to physical defects within or on the grounds of, buildings that are used in
       connection with the performance of a governmental function, including, but not
       limited to, office buildings and courthouses, but not including jails, places of
       juvenile detention, workhouses, or any other detention facility, as defined in
       section 2921.01 of the Revised Code.

This Court previously has recognized that Oriana House “operates a detention facility, which

constitutes a ‘governmental function.’” Weber v. Oriana House, Inc., 9th Dist. No. 17162, 1995

WL 623068, *4 (Oct. 25, 1995). Because Oriana House is a detention facility within the

meaning of R.C. Chapter 2744, the Sheriff’s Department, a political subdivision, would not have

been liable to Lamtman for the injury he suffered while on the grounds of Oriana House. R.C.

2744.02(B)(4). The trial court correctly concluded that the Sheriff’s Department would have

been immune from the negligence suit Lamtman claims his former counsel should have brought

against it. The court did not err by finding in Ward’s favor on this issue.

       {¶30} Lamtman also argues, however, that one or more deputies from the Sheriff’s

Department might not have been immune from suit. The immunity that shields a political

subdivision generally extends to its employees, but lapses if the “employee’s acts or omissions

were malicious, in bad faith, or wanton or reckless.” Cramer v. Auglaize Acres, 113 Ohio St.3d

266, 2007-Ohio-1946, ¶ 17. Accord R.C. 2744.03(A)(6)(b). This Court has recognized that
                                                14


“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. “‘[M]ere negligence is not

converted into wanton misconduct unless the evidence establishes a disposition to perversity on

the part of the tortfeasor.’ Such perversity must be under such conditions that the actor must be

conscious that his conduct will in all probability result in injury.” Fabrey v. McDonald Village

Police Dept., 70 Ohio St.3d 351, 356 (1994), quoting Roszman v. Sammett, 26 Ohio St.2d 94, 96-

97 (1971).

       {¶31} Lamtman argues that one or more deputies of the Sheriff’s Department engaged in

reckless behavior when they “forc[ed] [him] to sleep eight inches from an operating fan.” As

this Court has previously held:

       Oriana House is not subject to the direct control or supervision of [] the County of
       Summit * * *. Oriana House is governed by its own internal constitution and
       code of regulations. Full management authority is vested in the Board of
       Trustees. * * * The Board has sole responsibility for labor policies, hiring
       decisions, salaries, capital improvements, and program contents. No Summit
       County * * * official oversees day-to-day operations.

(Internal citations omitted and emphasis added.) Weber, 1995 WL 623068, at *5. Lamtman

failed to point to any evidence to demonstrate that any of the deputies assigned to Oriana House

forced him to sleep below the fan located above his bed. Kelly Keho, a supervisor at Oriana

House, testified that he is responsible for the arrangement of each room at Oriana House,

including where beds are located, while his staff members are responsible for assigning each

resident a particular bed. He testified that it would be his responsibility to make any necessary

changes to the structure of any room at Oriana House, including the locations of the beds.

       {¶32} As to the function of the deputies at Oriana House, both Keho and Deputy

Matamba Kaalima testified to that effect. Keho stated that the deputies assigned to Oriana House

are responsible for building security, such as routinely performing safety counts of the residents.
                                                15


Deputy Kaalima testified that Oriana House deputies are responsible for maintaining security and

ensuring the care, custody, and control of the residents. He specified that the deputies make sure

that residents follow the rules and regulations of Oriana House, perform routine head counts of

the residents, and facilitate releases from the facility, but have nothing to do with bed

assignments or the configuration of the various beds at the facility. Deputy Kaalima testified that

he would need to request that beds be rearranged if he felt there was “a security issue.” He

explained that he might request for a bed to be moved if it blocked the entranceway to a room

such that it posed a safety risk if a fire broke out. If a resident seeks a bed assignment, Deputy

Kaalima testified, they speak with a member of the Oriana House staff.

       {¶33} Apart from the fact that there was no evidence that deputies at Oriana House were

in any way responsible for Lamtman’s bed assignment, we do not agree with Lamtman that any

reasonable person would have concluded that his bed assignment itself would have “in all

probability result[ed] in [his] injury.” Fabrey, 70 Ohio St.3d at 356, quoting Roszman, 26 Ohio

St.2d at 96-97 (perversity defined). Lamtman chose to sleep with his head directly under the fan

above his bed. No one instructed him to do so. He slept that way for three nights and never

requested a reassignment. Even if one or more deputies were in some way negligent under the

facts of this case, Lamtman failed to prove that any deputies were reckless. See Rankin, 118

Ohio St.3d 392, 2008-Ohio-2567, at ¶ 37 (recklessness distinguished from mere negligence).

Consequently, the deputies were entitled to the general cloak of immunity afforded their

employer, the Summit County Sheriff’s Department. See Cramer, 113 Ohio St.3d 266, 2007-

Ohio-1946, at ¶ 17. The trial court did not err by concluding that Ward was entitled to summary

judgment on the issue of immunity.        Lamtman’s fifth and sixth assignments of error are

overruled.
                                               16


                               Assignment of Error Number One

       THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
       APPELLANT THE RIGHT TO ENGAGE IN DISCOVERY AS PROVIDED
       UNDER THE OHIO RULES OF CIVIL PROCEDURE.

       {¶34} In his first assignment of error, Lamtman argues that the court abused its

discretion by staying discovery pending the resolution of Ward’s motion for summary judgment.

We disagree.

       {¶35} “A trial court enjoys broad discretion in the regulation of discovery proceedings.”

Wells v. Wells, 9th Dist. No. 25557, 2012-Ohio-1392, ¶ 51. It is within a court’s discretion to

refuse to consider a motion for summary judgment “until sufficient discovery may be had” or to

refuse a request for a continuance and consider the motion. Wayne Cty. Natl. Bank v. CFP

Leasing Ltd. Partnership, 9th Dist. No. 02CA0058, 2003-Ohio-2028, ¶ 8, quoting Tandem

Staffing v. ABC Automation Packing, Inc., 9th Dist. No 19774, 2000 WL 727534, *2 (June 7,

2000). This Court will not reverse a trial court’s decision concerning the regulation of its

discovery proceedings absent an abuse of discretion. Wayne Cty. Natl. Bank at ¶8. An abuse of

discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶36} Upon Ward’s request, the trial court agreed to stay discovery pending its

resolution of Ward’s motion for summary judgment. The court did so because it determined that

a finding in Ward’s favor on the limited issues presented in his motion for summary judgment

would resolve the suit and eliminate the need for further discovery. Lamtman argues that the

court’s ruling prejudiced him because he was forced to defend against summary judgment based

on an “incomplete record.” According to Lamtman, it was unreasonable for the court to expect
                                               17


him to point to a genuine issue of material fact based on “the sparse record” that Ward had

compiled in the underlying suit.

       {¶37} Notably, although Lamtman alleged three different grounds for malpractice in his

suit against Ward, one of those grounds was not that Ward breached a duty of care by failing to

conduct adequate discovery. Further, Lamtman fails to explain how the court’s ruling actually

hampered his ability to respond to Ward’s motion for summary judgment. See App.R. 16(A)(7).

In his appellate brief, Lamtman only avers that the court’s ruling prevented him from obtaining

information about his attorney-client relationship with Ward. In his memorandum in opposition

to summary judgment, Lamtman only averred that he needed to engage in further discovery to

determine why his bunk bed at Oriana House was positioned the way that it was, who was

responsible for placing the bed in that position, what responsibilities the various employees at

Oriana House and deputies assigned there had, and why Ward believed there were reasonable

grounds for his suit. The vast majority of the information Lamtman sought was already in the

record, and the remaining issues only would become relevant if Lamtman overcame the

application of the open and obvious danger doctrine and the immunity doctrine. Lamtman fails

to explain how the additional information he sought would have helped him rebut Ward’s

evidence that Lamtman’s injuries were the result of an open and obvious danger and that the

Summit County Sheriff’s Department was immune from suit. See id.

       {¶38} When Ward initially filed his motion for summary judgment, Lamtman requested

an additional three weeks to respond to the motion in order to engage in further discovery due to

the “limited record” that Ward had created in the underlying suit. The court granted Lamtman’s

request. At the end of the three-week period, Lamtman filed his memorandum in opposition.
                                               18


Lamtman never filed any additional motions for a continuance or extension of time to respond to

Ward’s motion for summary judgment.

       {¶39} “If a plaintiff fails to establish a genuine issue of material fact as to any of the

elements [of legal malpractice], the defendant is entitled to summary judgment * * *.”

Shoemaker v. Gindlesberger, 118 Ohio St.3d 226, 2008-Ohio-2012, ¶ 8.              As previously

discussed, Lamtman’s malpractice claim required him to prove as one of its elements that, but

for Ward’s alleged misconduct, he would have prevailed in his underlying negligence suit. See

Eastminster Presbytery, 2012-Ohio-900, at ¶ 7. The trial court exercised its discretion to limit

discovery to the issue of causation, as the parties could argue causation based upon the evidence

already in the record. The evidence in the record supports the conclusion that Lamtman’s

injuries were the result of an open and obvious danger and both the Summit County Sheriff’s

Department and its deputies were immune from suit. By limiting the parties to the issue of

causation, the trial court exercised control over the proceedings and avoided unnecessary

discovery. Based on our review of the record, we cannot conclude that the trial court abused its

discretion by staying discovery until the issue of causation could be resolved. Lamtman’s first

assignment of error is overruled.

                                               III

       {¶40} Lamtman’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                19


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



MOORE, J.
CONCURS.

BELFANCE, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

JEROME T. LINNEN, JR., Attorney at Law, for Appellant.

HOLLY MARIE WILSON and W. BRADFORD LONGBRAKE, Attorneys at Law, for
Appellee.
