[Cite as Jackson v. Huppert, 2012-Ohio-2934.]




                    Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97764




             CORNELIA JACKSON, ADMINISTRATOR
                                                PLAINTIFF-APPELLANT

                                                 vs.

                                   STEFAN HUPPERT
                                                DEFENDANT-APPELLEE

                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                     Case No. CV-750623

             BEFORE:          Blackmon, A.J., Jones, J., and Keough, J.

             RELEASED AND JOURNALIZED:                      June 28, 2012
ATTORNEYS FOR APPELLANT

David A. Bressman
Law Office of David A. Bressman
4230 Tuller Road
Suite 101
Dublin, Ohio 43017

Michael D. Falleur
1625 Bethel Road
Suite 205
Columbus, Ohio 43220

Kimberly S. Wells
P.O. Box 701
Blacklick, Ohio 43004


ATTORNEY FOR APPELLEE

Shawn W. Schlesinger
Koeth, Rice & Leo Co., L.P.A.
1280 West Third St., 3rd Floor
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:

      {¶1} Appellant Cornelia Jackson, Administrator, (“Jackson”) appeals the trial

court’s granting summary judgment in favor of appellee Stefan Huppert. Jackson assigns

the following two errors for our review:

      I. Ohio Law, and public policy, do not allow the defendant to assist

      Rochelle Hooks in committing suicide.        The trial court’s decision

      granting defendant’s motion for summary judgment allows for one to

      assist another in ending a life without liability. In this case, defendant

      owed a duty to Rochelle Hooks to not assist her in committing suicide

      because he knew that such was her intention, he provided her with

      counseling about it, and then drove Rochelle to Edgewater Park where

      she died. The law and facts are such that the case should have been

      heard by a jury.

      II. The trial court incorrectly granted defendant’s motion to strike

      certain exhibits attached in plaintiff’s reply to the motion for summary

      judgment when each exhibit was admissible.

                                           Facts

      {¶2} On September 7, 2007, Rochelle Hooks (“Hooks”) was pronounced dead

after committing suicide by drowning herself at Edgewater Park the evening before. She

was 36 years old.
       {¶3} In 2000, Hooks was diagnosed with multiple sclerosis (“MS”). Because of

the symptoms of MS, Hooks became increasingly disabled. In 2005, she could not walk

without a walker. In 2007, her condition worsened to the point she could no longer

supervise and care for her teenage sons, who went to live with Hooks’s mother, Cornelia

Jackson. Hooks never said she was depressed, but her family could tell that she was

depressed at times.     Her medical records also indicated she was suffering from

depression.

       {¶4} Huppert first met Hooks on August 28, 2007, which was ten days prior to her

suicide.   He worked as a driver for Diversified Transportation, which provides

transportation for disabled people to and from medical appointments. Huppert was also

an ordained Lutheran minister who worked as a substitute pastor.

       {¶5} On August 28, 2007 and September 3, 2007, Huppert drove Hooks to and

from her physical therapy appointments. Huppert stated that although Hooks walked

slowly, she was able to walk down the front stairs with her walker. While driving Hooks

to and from her medical appointments, Huppert and Hooks engaged in casual

conversations about Hooks’s health and family. During the first transport, Hooks was in

a lot of pain after her therapy and told Huppert that a couple of times in the past she had

thought about ending her life.     She also expressed excitement, however, regarding

upcoming events with her teenage sons. Therefore, Huppert believed Hooks’s suicidal

thoughts were past feelings. Hooks also discussed the isolation she felt from her family
and sadness over the fact that her mother had to raise Hooks’s sons because Hooks was

unable to care for them.

       {¶6} The second time that Huppert transported Hooks, she expressed fear of being

placed in a nursing home. She was told that she could no longer live in her Section 8

rental home because her sons no longer lived with her. She, however, seemed “more

upbeat” on the way home from her appointment. Hooks told Huppert that she liked

talking to him because she felt he did not judge her and asked him for his telephone

number. Huppert gave it to her because he felt bad that she did not seem to be receiving

emotional support from her family. According to Huppert, he never offered Hooks

spiritual counseling, but merely listened to her.

       {¶7} On September 6, 2007, Huppert worked the 8:30 a.m. to 5:00 p.m. shift at

Diversified Transportation. At around 12:30 p.m. Huppert received a call from Hooks.

She asked if Huppert would come over after work to talk. Huppert agreed because he

felt sorry for her.

       {¶8} After his shift ended, Huppert drove his private car to Hooks’s house.

Shortly after he arrived, Hooks stated she wanted to go for a drive to the lake to “get

some lake air.” The hour prior to them leaving, Hooks made a sandwich for herself and

received treatment from her home health aide. According to Huppert, there was nothing

about her behavior that would alert him to her pending suicide. In fact, even Hooks’s

mother testified that she had spoken with Hooks on the telephone that day around 4:30
p.m., and Hooks had expressed excitement about seeing her sons play football the next

day.

       {¶9} Around 7:15 p.m., Huppert and Hooks arrived at Edgewater Park. Huppert

parked near the pier so that Hooks would not have far to walk. They sat for the next

hour on a bench on the pier. They mostly talked about Hooks’s sons and how proud of

them she was. Hooks also expressed disappointment regarding the fact her sons lived

with her mother. According to Huppert, Hooks did not mention that she wanted to

commit suicide.

       {¶10} At approximately 8:10 p.m., Huppert received a call on his cellular phone,

which he had left in his car parked a short distance away. He walked to the car and

talked on the phone with a co-worker for a few minutes and used his asthma inhaler.

When Huppert turned around to return to Hooks, he saw her walking with her walker

towards the edge of the pier, which was a short distance from the bench. Because of

how Hooks was positioned, leaning towards the edge of the pier, Huppert stated that it

appeared that she was planning on going into the water. Huppert immediately tried to

stop Hooks from entering the water by grabbing her wrist, but Hooks responded “Don’t

try and stop me. I have to do this.” Hooks yanked her wrist away and swung her walker

towards him as she entered the water. She did not resurface and because of the distance

from the pier to the water, Huppert could not reach her. Huppert immediately called 911.

Eventually the Coast Guard responded to the scene and removed Hooks’s body from the

lake. She was removed from life support the following day.
      {¶11} Jackson refused to believe that her daughter committed suicide. Because of

Jackson’s continued complaints to the police that her daughter did not commit suicide, the

police asked Huppert to take a polygraph test. He agreed to take the test and passed.

Criminal charges have never been filed against Huppert.

      {¶12} On March 10, 2011, Jackson filed a complaint against Huppert alleging a

claim for wrongful death. 1 Huppert answered the complaint and filed a motion for

summary judgment, which Jackson opposed.          The trial court granted the summary

judgment without opinion.

                            Motion for Summary Judgment

      {¶13} In her first assigned error, Jackson argues the trial court erred by granting

summary judgment in favor of Huppert.

      {¶14} We review an appeal from summary judgment under a de novo standard of

review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio

Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th

Dist.1997).   Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any

material fact exists, (2) the party moving for summary judgment is entitled to judgment as

      1
       Jackson had originally filed a complaint on September 8, 2009. Following
discovery, however, she voluntarily dismissed her complaint without prejudiced on
April 5, 2010.
a matter of law, and (3) viewing the evidence most strongly in favor of the non-moving

party, reasonable minds can reach only one conclusion that is adverse to the non-moving

party.

         {¶15}   Jackson contends that summary judgment was improperly granted to

Huppert because he had a special relationship with Hooks; therefore, as a matter of law,

he had a duty to prevent Hooks from harming herself.

         {¶16} To maintain a wrongful death action on a theory of negligence, a plaintiff

must show three elements: a duty owed to the decedent, a breach of that duty, and

proximate causation between the breach of duty and the death.            Littleton v. Good

Samaritan Hosp. & Health Ctr., 39 Ohio St.3d 86, 92, 529 N.E.2d 449 (1988), citing

Bennison v. Stillpass Transit Co., 5 Ohio St.2d 122, 214 N.E.2d 213, paragraph one of the

syllabus (1966). Generally, under Ohio Law there is no duty to act to prevent harm to a

person.     Littleton at 92.   An exception to this general rule arises when a special

relationship exists between the actor and the person. Id. “Such a ‘special relationship’

exists when one takes charge of a person whom he knows or should know is likely to

cause bodily harm to others [or self] if not controlled.” Id. An example of a “special

relationship” is the parent-child relationship, where a parent may be held liable in certain

situations for the minor child’s wrongful act. Huston v. Konieczny, 52 Ohio St.3d 214,

556 N.E.2d 505 (1990). Medical providers may also have a “special relationship” with

their patients. Douglass v. Salem Comm. Hosp., 153 Ohio App.3d 350, 794 N.E.2d 107

(7th Dist.2003).
       {¶17} No special relationship existed between Huppert and Hooks at the time of

the incident. That night, Huppert was not driving Hooks to a medical appointment.

Instead, Huppert was off-duty when he met with Hooks as a social friend. Although

Hooks had medical problems there was no evidence that she suffered from any mental

infirmities.   She was a fully functional adult except for the physical symptoms she

suffered from the MS.     Because there was no special relationship beyond friendship

between Hooks and Huppert, Huppert did not have a duty to protect Hooks from harming

herself.

       {¶18} Even if there was a special relationship, there is no evidence that Huppert

aided Hooks in committing suicide. Although Huppert took Hooks to Edgewater Park,

he stated Hooks was the one who chose to go to the lake. She told Huppert that she

wanted to go to the lake to get “some lake air.” She did not mention her intention to

commit suicide. Hooks walked unassisted to the edge of the pier while Huppert was

standing beside his car with his back turned. When he saw what she was about to do, he

ran towards her and attempted to grab her wrist, but Hooks twisted away and told him “to

leave her alone” and that “she had to do this.” When Hooks went into the water, she

never resurfaced, and due to the distance from the pier to the water below, Huppert could

not reach her. He immediately called 911. Therefore, the evidence indicates that when

Hooks’s intentions became clear to Huppert, he attempted to stop her from succeeding.

       {¶19} There was also no evidence that Huppert could have foreseen Hooks’s

suicide. In Thomas v. Parma, 88 Ohio App.3d 523, 624 N.E.2d 337 (8th Dist.1993), a
prisoner committed suicide while in police custody, resulting in the family suing the city.

After reviewing the facts, we held that there was “no evidence in the record that the

officers had any reason to believe that the decedent posed a risk of suicide. Since the

suicide was not foreseeable, we view it as an intervening force for which appellees cannot

be held responsible.” Id. at 531.

       {¶20}    Likewise,    in   Schoenfield   v.   Navarre,   164   Ohio   App.3d   571,

2005-Ohio-6407, 843 N.E.2d 234 (6th Dist.), a prisoner committed suicide while in

custody. In affirming summary judgment in favor of the defendant, the Sixth District

observed that prior to the suicide the prisoner was upset because of marital problems; but

he appeared calm and rational and did not exhibit any signs he intended to harm himself.

The court held that “although [the prisoner’s] suicide was very tragic, nothing in the

record demonstrates obvious signs of what his intentions were or that the police failed to

act appropriately under the circumstances presented.” Id. at 578.

       {¶21} Here, Hooks had previously told Huppert that she had thoughts of suicide in

the past; she never told Huppert that she had present thoughts of committing suicide.

Also, after mentioning her past intentions, Hooks mentioned her excitement regarding

future events with her sons. In fact, while Huppert sat with Hooks on the pier, Hooks

expressed excitement regarding watching her son play football the next day. Thus, while

Hooks’s suicide is tragic, there is no evidence that Huppert could have anticipated her

intention to end her life.
       {¶22} Jackson also contends that Huppert had provided officers with conflicting

facts regarding what had occurred. However, this information is contained in the police

reports, which were stricken from the record. Additionally, the inconsistencies are not

sufficiently material to have changed the outcome of the trial court’s decision.

Accordingly, Jackson’s first assigned error is overruled.

                                Motion to Strike Exhibits

       {¶23} In her second assigned error, Jackson argues the trial court erred by granting

Huppert’s motion to strike exhibits attached to her motion in opposition to summary

judgment. The stricken exhibits included unauthenticated police reports, an affidavit and

email from the Coroner, Erica Armstrong, Huppert’s pro se answer from the first case,

and an unauthenticated map and directions.

       {¶24} A trial court’s decision to grant or deny a motion to strike is within its sound

discretion and will not be overturned on appeal unless the trial court abused its discretion.

 Abernethy v. Abernethy, 8th Dist. No. 81675, 2003-Ohio-1528, at ¶ 7.

       {¶25} Civ.R. 56(C) provides an exclusive list of materials that a trial court may

consider when deciding a motion for summary judgment.                 Those materials are

“pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact.” Civ.R. 56(C). The court may

consider documents that are not expressly mentioned in Civ.R. 56(C) if those documents

are accompanied by a personal certification that they are genuine and are incorporated by

reference in a properly framed affidavit pursuant to Civ.R. 56(E). Drawl v. Cornicelli,
124 Ohio App.3d 562, 569, 706 N.E.2d 849 (11th Dist.1997), citing Martin v. Cent. Ohio

Trans. Auth., 70 Ohio App.3d 83, 89, 590 N.E.2d 411 (10th Dist.1990).

       {¶26} The trial court did not abuse its discretion by striking the police reports

because they are not listed as documents to be considered under Civ.R. 56(C). The

police reports could have been admissible if they were properly authenticated by an

affidavit.   However, because Jackson failed to file an affidavit the reports were

unauthenticated and not admissible. See Stevenson v. Prettyman, 193 Ohio App.3d 234,

2011-Ohio-718, 951 N.E.2d 794, ¶ 25-28 (8th Dist.).

       {¶27} The trial court did not abuse its discretion by striking the coroner’s affidavit

and email. The trial court had ordered expert reports to be produced no later than

September 6, 2011. Jackson did not submit an expert report from the coroner. Instead,

on November 1, 2011, she attached to her motion in opposition to summary judgment, an

email exchange between the coroner and Jackson’s counsel. Such an email exchange is

not an expert report. The coroner only responded to questions asked of her and did not

detail how she came to her conclusions. Moreover, in the email, the coroner failed to

state opinions to a reasonable degree of probability. Stinson v. England, 69 Ohio St.3d

451, 1994-Ohio-35, 633 N.E.2d 532, paragraph one of syllabus. The coroner’s affidavit

only detailed the coroner’s qualifications, which is irrelevant once the email was stricken.

       {¶28} The trial court did not abuse its discretion by striking Huppert’s pro se

answer to Jackson’s prior complaint because Jackson voluntarily dismissed the complaint

without prejudice.    Once the original complaint was voluntarily dismissed without
prejudice, it was as if the case was never filed.    Lewis v. Fairview Hosp., 156 Ohio

App.3d 387, 2004-Ohio-1108, 806 N.E.2d 185 (8th Dist.) Moreover, prior to the case

being dismissed without prejudice, the trial court permitted Huppert to file an amended

answer.   An amended pleading acts as a substitute or replacement of the original

pleading. Widder & Widder v. Kutnick, 113 Ohio App.3d 616, 622, 681 N.E.2d 977 (8th

Dist.1996).

       {¶29} The trial court also properly struck the unauthenticated map and directions.

These are not materials that are authorized under Civ.R. 56(C) to be considered in

determining a motion for summary judgment; therefore, it was necessary that they be

authenticated by affidavit.

       {¶30} Jackson also contends that Huppert’s counsel stipulated to the authenticity

of the exhibits; however, there is no evidence of such a stipulation in the record. Even if

the court erred in striking the exhibits, no prejudicial harm occurred. Jackson intended to

include the police reports to show that Huppert gave inconsistent statements. However,

none of the reports were written statements by Huppert, but were written by the officers.

Also, the discrepancies were so minor that they would not have changed the outcome of

the court’s decision.

       {¶31} Likewise, the inclusion of the coroner’s email would not have changed the

outcome. Although the coroner did conclude that Hooks’s death was from “violence of

an undetermined origin,” she explained that meant Hooks’s death was not from natural

causes. She stated that she did not have sufficient information to classify the death as
either homicide, accident, or suicide.     The map and directions played no central role

regarding the issues before the trial court; therefore, their exclusion also did not affect the

trial court’s decision. Accordingly, Jackson’s second assigned error is overruled.

       {¶32} Judgment affirmed.

       It is ordered that appellee recover from appellant his costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
