Smathers v. Glass

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Smathers v. Glass, Slip Opinion No. 

.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.




                         SLIP OPINION NO. 

  SMATHERS, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF CARSEY,
          APPELLANT, v. GLASS, EXECUTIVE DIR., ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Smathers v. Glass, Slip Opinion No. 

.]
Torts—Summary judgment—When resolving a case on summary judgment, the trial
        court does not weigh the evidence in the case—When reviewing a grant of
        summary judgment, a court of appeals does not defer to the trial court’s
        determinations but reviews the evidence de novo—R.C. Chapter 2744—
        When determining government employees’ liability under R.C. 2744.03 on
        a motion for summary judgment, a court determines not whether the
        employees acted in a reckless or wanton manner but whether reasonable
        minds could find that they acted in such a manner when the facts presented
        are viewed in a light most favorable to the nonmoving party.
 (No. 2020-1062—Submitted October 26, 2021—Decided December 22, 2022.)
                APPEAL from the Court of Appeals for Perry County,
                         No. 19 CA 00018, 

.
                              SUPREME COURT OF OHIO




                               __________________
       BRUNNER, J.
       {¶ 1} In 2018, Ohio children’s-services agencies investigated over 100,000
reports of abuse, neglect, or dependency of children and families in need of
services. Public Children Services Association of Ohio, Factbook (14th Ed.2019),
https://www.pcsao.org/pdf/factbook/2019/StateOfOhioProfile.pdf (accessed Nov.
30, 2022) https://perma.cc/S9N2-WSQF. The caseworkers tasked with ensuring
the safety and well-being of Ohio’s children face some of the biggest challenges in
our communities: addiction, mental-health disorders, poverty, and trauma. R.C.
2744.03 protects government employees, including children’s-services workers,
from accusations of negligence in the course of performing their duties.
       {¶ 2} This law recognizes that a court should not use hindsight to judge the
difficult decisions made by children’s-services workers. But the law does not shield
children’s-services workers from suit for conduct that goes beyond negligence—
for instance, when there is evidence that a caseworker’s act, or failure to act, would
constitute a reckless disregard for a child’s safety and welfare or would be
substantially likely to lead to a child’s being harmed. The statute providing
immunity to government workers balances the need to protect children’s-services
workers so that they may do their job without fear of being sued against the need
to ensure that children are not harmed because of a children’s-services worker’s
wanton or reckless conduct.
       {¶ 3} Whether immunity applies to children’s-services workers accused of
harming or causing the death of a child is an issue that appropriately may be decided
on a motion for summary judgment. See O’Toole v. Denihan, 

,

, 

. A court making that determination must
look at the evidence and determine whether it is so one-sided that the party claiming
immunity should prevail as a matter of law. See Turner v. Turner, 

, 

 (1993).         Because this determination requires an



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                                 January Term, 2022




application of the immunity statute to undisputed facts, the court must be careful
not to step into the role of fact-finder. Indeed, it is often observed that the purpose
of summary judgment is “not to try issues of fact, but rather to determine whether
triable issues of fact exist.” See Viock v. Stowe-Woodward Co., 

, 

 (6th Dist.1983).
        {¶ 4} We conclude that the trial court in this matter erred by acting as a fact-
finder on a motion for summary judgment. In turn, the Fifth District Court of
Appeals applied the wrong standard when it reviewed the trial court’s decision and
gave deference to the trial court’s factual findings. We conclude that the evidence
presented to the trial court in this case was not dispositive of the question of
immunity for the children’s-services workers. Therefore, summary judgment was
not appropriate. We therefore reverse the court of appeals’ judgment and remand
this cause to the trial court so that the questions of fact may be resolved at trial.
                      I. Background and procedural history
        {¶ 5} Harmony Carsey was two years old when she died on January 8, 2016,
at her mother’s home. In November 2017, appellant, Tammy Smathers, Harmony’s
paternal grandmother, brought a wrongful-death action against Perry County
Children’s Services (“PCCS”) and appellees, PCCS’s executive director, Rick
Glass, and caseworkers Katie Hursey, Nick Pease, and Ben Taylor (collectively,
“agency employees”).
        {¶ 6} PCCS was dismissed from the case based on political-subdivision
immunity, and Smathers filed an amended complaint. The amended complaint
alleged that the child’s death was the result of willful and reckless misconduct by
the agency employees. In June 2019, the agency employees moved for summary
judgment. They claimed that as children’s-services workers, they are immune from
liability unless their conduct amounted to a perverse disregard of a known risk.
They also argued that there was no evidence in the record that would permit a
reasonable jury to find that they had caused injury to Harmony.




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                         A. Evidence before the trial court
       {¶ 7} At the time of Harmony’s death, PCCS was involved with Harmony’s
family, investigating allegations of neglect and abuse in her mother’s home. In her
affidavit in support of her memorandum opposing summary judgment, Smathers
stated that she had been concerned that Harmony’s mother, Crystal Carsey, was
keeping Harmony in a cage in a very hot room, without water, on the second floor
of Crystal’s house, and that she “did not know how Crystal was keeping Harmony
upstairs,” because the child “was old enough to be able to climb out of the cage.”
Smathers claimed that she reported these concerns to PCCS at some point between
November 12, 2015, and January 1, 2016. Hursey’s deposition testimony tends to
support Smathers’s claim. Hursey testified that she “screened in,” or answered, an
incoming telephone call regarding Crystal on November 12, 2015, in which the
caller reported, among other things, that a two-year-old was being kept in a second-
floor bedroom because her mother could not handle her and that the house was a
“total disaster.” Hursey’s case notes summarizing that call state, “The 2-year-old
is kept in a bedroom upstairs because [natural mother] cannot handle her, it is
unknown how the child is kept in the room.”
       {¶ 8} The parties do not dispute that Harmony’s parents were not equipped
to make good decisions or provide for the best interests of their children. Smathers
acknowledged in her deposition that her son, Harmony’s father, Tylor Carsey, had
become addicted to Percocet after being injured in a car accident and that he and
Crystal fought a lot. She also stated that she did not think that Crystal was a very
good mother and that she thought Crystal was using drugs. Smathers explained that
she had gained legal custody of Tylor and Crystal’s first child after they failed to
“get their crap together.”
       {¶ 9} The agency employees asserted in their motion for summary
judgment that it was undisputed that Tylor and Crystal “were not good parents.”
They acknowledged that Harmony had died of dehydration after she was left by her



                                         4
                                    January Term, 2022




mother in an overheated room without fluids. It was also undisputed that Crystal
and Tylor had a long history of drug abuse and hoarding and had previously been
accused of child endangerment following an incident in another county. The
agency employees asserted that Tylor had abandoned Crystal and the children,
“leaving them without any transportation or money,” contributing to PCCS’s
involvement in November 2015.
        {¶ 10} In his affidavit, Pease stated that in November 2015, he began
investigating a report of possible abuse or neglect involving Crystal. Based on this
report, Pease conducted an unannounced visit to Crystal’s home on November 15
or 16, 2015.1 Pease wrote in his case notes, which were submitted as evidence to
support the motion for summary judgment, that Crystal may have had some
hoarding issues and that Crystal admitted to that issue. He wrote that he heard
“rocking/knocking noises from upstairs,” that Crystal explained that Harmony
banged her head to help her sleep, and that Crystal thought that Harmony may have
had “some cognitive issues” but that nothing had been diagnosed. Pease’s case
notes did not indicate that he observed Harmony’s room during this visit. Rather,
he reported that he asked Crystal to bring Harmony down from her room so that he
could see her. He documented that the three children still in Crystal’s home,
including Harmony, “appeared to be fine.” Pease wrote that Crystal told him that
she was taking Suboxone, a narcotic used for the treatment of opiate addiction, see
In re Z.F., 9th Dist. Summit Nos. 28246 and 28247, 

, but
that she was unwilling to take a drug screen. He also noted that Crystal did not
have a working refrigerator and was apparently leaving food outside to keep it cold.
        {¶ 11} According to his affidavit and case notes, Pease returned to Crystal’s
home on November 20, at which time he saw some improvement in the conditions.
Pease did not document any observations of the children during that visit. While

1. In his affidavit, Pease claimed he conducted his visit on November 15. The case notes attached
to Pease’s affidavit indicate that this visit took place on November 16.




                                               5
                             SUPREME COURT OF OHIO




his notes indicate that he “walked through” the residence, they provide no specifics
on the condition of Harmony’s room. Pease’s notes indicate that he told Crystal he
would make referrals for her so that she could obtain help from local behavioral-
health and counseling agencies.
       {¶ 12} The day after this visit by Pease, Harmony collapsed while at
Smathers’s home. Emergency medical services transported Harmony to a nearby
hospital. Hursey was the caseworker on call for PCCS that day. Hursey explained
in her deposition that because it was a Saturday, she did not enter her case notes
regarding her contacts that night until the following Monday. In her case notes, she
wrote that when she spoke with law-enforcement officers, she was told that “the
children’ [sic] physical health does not appear good.”         Hursey spoke to the
emergency-room doctor and noted that the doctor was concerned that Harmony
might have internal injuries. The doctor told Hursey that Harmony had multiple
bruises and a diaper rash and that she was weak and appeared emaciated.
       {¶ 13} Hursey then noted that Harmony was flown to a pediatric-care unit
in Huntington, West Virginia. Hursey also spoke to the doctor there. That doctor
relayed that Harmony had been cleared by the trauma team, that her x-rays were
negative, and that while her belly was distended, the doctor suspected that that was
due to gas. Hursey documented that the doctor also told her that Harmony had
bruises on her belly, older bruises on her spine, cradle cap, and “a narly [sic] diaper
rash.” Hursey noted that the doctor told her that Harmony would be monitored and
that she might be discharged the following day. Her notes indicate that she left her
phone number and asked that she be notified of any further concerns.
       {¶ 14} In her deposition, Hursey stated that she may have called Pease that
evening to inform him of what was going on and to ask whether he had had any
concerns regarding Harmony after he had been to her home the day before. That
call was not documented in the agency’s case notes. Hursey recalled in her
deposition that she received a phone call from someone, possibly a social worker,



                                          6
                                    January Term, 2022




at the hospital in regard to Harmony’s discharge the following Monday, November
23, but this call was not entered in the case notes.
        {¶ 15} According to his affidavit and case notes, on November 24, Pease,
along with caseworker Taylor, attempted a home visit with Crystal but no one was
at the residence. The next case note was entered for December 3, nine days later,
and documented a phone call between Pease and Crystal. Pease wrote that Crystal
told him that she was not home when he came by because Harmony was being
released from the hospital.2 Pease documented that Crystal told him Harmony had
been fine before she went to Smathers’s house and that Crystal feared that
something may have happened to Harmony while in Smathers’s care. Pease
scheduled a home visit with Crystal for the following day to “check on the status
of the home and to see the children.” Pease then called Smathers, who told Pease
that “she and Tylor were going to look into [getting] custody” of Harmony and
were planning to go to the courthouse to look into filing the necessary paperwork.
        {¶ 16} Pease documented in his case notes that the next day, he attempted
to make the scheduled visit at Crystal’s house but that he did not make contact with
anyone. He and Taylor then met with Smathers and Tylor at PCCS, when Smathers
and Tylor came to the agency; Harmony was with Smathers and Tylor. Pease’s
affidavit confirms that Smathers showed the caseworkers undated photographs
depicting Harmony with bruises and places on her scalp that were missing hair as
well as photographs of Crystal’s home. Smathers averred in her affidavit that she
specifically told Pease and Taylor at this meeting that hospital staff suspected abuse
and neglect and that she did not want to give Harmony back to Crystal. Pease
documented that when he asked Tylor for the discharge paperwork from the
hospital, Tylor told him that Crystal might have it. Pease also noted that when he


2. The notes document that Crystal said that Harmony was released from the hospital on November
25, not November 24, the date of Pease’s visit. Documents from the hospital indicate that Harmony
was discharged on November 23 at 4:08 p.m.




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                                  SUPREME COURT OF OHIO




“spoke about custody and divorce,” Tylor told him that “he didn’t want to divorce
[Crystal] at this time.”
         {¶ 17} Pease’s case notes show that he again tried to contact Crystal on
December 4 and December 7. On December 11, Pease was finally able to conduct
a home visit. Pease observed Harmony in Crystal’s home that day and Crystal
informed him that the children had been visiting with their father. Pease wrote that
he encouraged allowing the children to visit with their father so that Crystal could
have “some down time to work on the home.” Pease asked Crystal whether she
had any of the discharge papers from Harmony’s hospital visit; Crystal said that
Tylor had them.
         {¶ 18} Pease’s case notes state that on December 18, he and Taylor
conducted another home visit with Crystal. He again wrote that Crystal told him
that the children had been visiting with their father, but Harmony and another child
were with Crystal that day. Crystal also signed a medical release that day so that
Pease could obtain Harmony’s hospital records.                  Pease and Taylor observed
Harmony’s bedroom during this visit and noted no concerns. Taylor testified that
they wanted to look at the room because “there had been previous concerns” about
the room.
         {¶ 19} Pease did not fax the medical release to the hospital until December
22.3 He received the hospital records that same day and took them to PCCS’s
executive director, Glass.
         {¶ 20} The records from the hospital indicate that although there were no
traumatic injuries, Harmony was admitted to the pediatric-intensive-care unit
(“PICU”) for observation because there were suspicions of child abuse and neglect.
The discharge notes from the PICU state:




3. Pease claims in his affidavit that he faxed the medical release on December 21, 2015.




                                                8
                               January Term, 2022




               Today the patient was cleared by [PCCS] for discharge home
       despite an overwhelming amount of evidence concerning for [sic]
       physical abuse and neglect. From our observations we had serious
       concerns about the child’s safety and are reluctant to send her back
       to this environment. Today she is stable for discharge. She will be
       discharged home with instructions given to the parents to follow up
       with her [primary-care physician] on Wednesday 11/25.              We
       discussed our concerns for this patient and discussed patient safety
       and what constitutes neglect and what is considered to be abuse. The
       parents did not come to the hospital with a car seat or clothing.
       Discharge is pending them getting a car seat for transport home.


       {¶ 21} In an affidavit attached to the agency employees’ motion for
summary judgment, Glass characterized the hospital records as “inconsistent”
because, in his view, the records contained notations that trauma was not found and
noted the family’s explanations for Harmony’s bruises and why she was missing
hair. In an earlier deposition, however, Glass agreed that the failure to obtain the
medical records for 30 days was “troublesome.” He also testified in the deposition
that after reviewing the medical records, he told Pease to meet with the family to
try to open a voluntary case to provide case-management services.
       {¶ 22} But it does not appear that Pease did anything for a week after
meeting with Glass on December 22, 2015. Pease attempted to reach Crystal by
phone on December 29, and he tried to reach Tylor that same day without success.
On December 31, Pease and Taylor made an unannounced visit to Crystal’s home,
but no one answered the door. Pease called Crystal on January 6, 2016, but she did
not answer. Pease attempted to reach Crystal by phone around 2:00 p.m. on January
8. According to Pease’s case notes, at approximately 6:00 p.m. that day, the agency




                                         9
                             SUPREME COURT OF OHIO




received a call from the sheriff’s office that Harmony had been found dead at
Crystal’s home.
                             B. The parties’ positions
        {¶ 23} In support of their motion for summary judgment, the agency
employees argued seemingly contradictory theories. First, they asserted that there
was never any indication that Harmony was in imminent danger and that they
therefore never had grounds to remove her through court intervention. This theory
presumes that Harmony was safe in her mother’s care. The agency employees also
claimed that they had not acted recklessly, because they had never been informed
that either Smathers or Tylor had returned Harmony to her mother, although the
agency records demonstrate that Harmony was at Crystal’s home on two occasions
in December. This theory presumes that Harmony was not safe with Crystal but
was nonetheless safe because she was not in Crystal’s care. The agency employees
also claimed that they offered services and support and tried to “help the family,
not try to break them up.”
        {¶ 24} Smathers testified in her deposition that she believed that the agency
employees were annoyed with her and her family’s reports. She said that she was
aware that Tylor had equal rights to Harmony but said that Crystal would not
answer the door when Tylor went to her house and that Crystal had threatened
Smathers’s family on social media. Tylor tried to file paperwork to obtain an “ex
parte order,” but he was told that there was no such thing. They did not have money
to hire a lawyer, and Smathers felt that if she or Tylor tried to get custody, they
would not be successful because “Children Services wasn’t behind [them] in any
way.”
        {¶ 25} In its judgment entry granting the agency employees’ motion for
summary judgment, the trial court looked at whether any of those employees had
acted with a malicious purpose, in bad faith, or in a wanton or reckless manner to
determine whether Smathers could establish any of the exceptions under R.C.



                                         10
                                 January Term, 2022




2744.03 to the immunity granted to government employees. However, in doing so,
the trial court made determinations about what the evidence established, acting as
a fact-finder in several respects. First, after setting forth the standard for assessing
reckless or wanton misconduct, the trial court listed the facts it was relying on to
determine that the agency employees were not reckless, stating, “The facts are as
follows * * *.” The trial court found that Harmony was in the custody of Smathers
and Tylor from the time she was discharged from the hospital until approximately
Christmas. This determination, in particular, occurred after the trial court resolved
ambiguities between Smathers’s deposition testimony and her affidavit and found
her deposition testimony to be more reliable. The trial court also found that neither
Smathers nor Tylor reported additional concerns to PCCS during that time and that
they failed to notify PCCS that Harmony was with her mother. The trial court
concluded that there was no genuine issue of material fact regarding the agency
employees’ actions, holding that because they did not act recklessly or wantonly or
violate their duty of care, they were immune from liability.
                  C. Appeal to the Fifth District Court of Appeals
        {¶ 26} On appeal to the Fifth District, Smathers raised a number of issues
related to the trial court’s evidentiary conclusions and its application of the
immunity statute, R.C. 2744.03. The Fifth District acknowledged that an appellate
court reviewing a decision granting summary judgment does so using a de novo
standard, presenting the appellate court with a “unique opportunity [of] reviewing
the evidence in the same manner as the trial court.” 

.
However, when the Fifth District began its review of the evidence, it mistakenly
indicated that it would give deference to the trial court’s findings of fact and not
disturb those findings so long as they were supported by competent, credible
evidence. The Fifth District held that “the trial court’s factual findings that
Harmony Carsey was in the custody of her father and Appellant Smathers from on




                                          11
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or about Thanksgiving until Christmas is supported by competent, credible
evidence, and will not be disturbed by this Court.” Id. at ¶ 62.
       {¶ 27} The Fifth District then looked at whether summary judgment was
appropriate and agreed with the trial court that there were no genuine issues of
material fact as to whether the agency employees acted with willful indifference or
recklessness. The court of appeals pointed to the agency employees’ claims that
they saw no evidence of abuse or neglect or immediate threat of serious harm. The
Fifth District noted that the agency employees believed that Harmony was in the
custody of Tylor or Smathers. The Fifth District concluded that the agency
employees’ conduct did not rise to a level of recklessness and that the trial court
therefore was correct in granting summary judgment.
       {¶ 28} We accepted Smathers’s discretionary appeal. 

,

, 

.
                                   II. Analysis
       {¶ 29} Smathers raises four propositions of law. We agree with her third
proposition of law—that the court of appeals employed the wrong standard when
reviewing the trial court’s decision to grant the agency employees’ motion for
summary judgment—and decline to address her remaining arguments.
                              A. Summary judgment
       {¶ 30} When reviewing the decision of a trial court granting or denying a
party’s motion for summary judgment, an appellate court applies a de novo standard
of review. A.J.R. v. Lute, 

, 

, 

,
¶ 15. The appellate court conducts an independent review of the evidence without
deference to the trial court’s findings.      Wilmington Savs. Fund Soc., FSB v.
Salahuddin, 

, 

 (10th Dist.). It examines the
evidence available in the record, including deposition or hearing transcripts,
affidavits, stipulated exhibits, and the pleadings, Civ.R. 56(C), and determines, as




                                         12
                                January Term, 2022




if it were the trial court, whether summary judgment is appropriate. Wilmington at
¶ 19.
        {¶ 31} To prevail under Civ.R. 56, the party moving for summary judgment
must show the following:


        (1) there is no genuine issue of material fact; (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
        when viewing evidence in favor of the nonmoving party, and that
        conclusion is adverse to the nonmoving party.


Grafton v. Ohio Edison Co., 

, 

 (1996). The
party opposing the motion must show that any issue of material fact is genuine and
not based merely on unsupported allegations or the pleadings. 

.
        {¶ 32} But determining whether issues of disputed fact exist is different
from making findings of facts. While it is true that trial courts are generally in the
best position to determine the weight of evidence and the credibility of witnesses
when acting as a trier of fact, State v. DeHass, 

, 

(1967), on a summary-judgment motion, any inferences regarding the evidence,
including the resolution of ambiguities or inconsistencies, must be made in a
manner that favors the nonmoving party, Civ.R. 56(C). See Wills v. Frank Hoover
Supply, 

, 

 (1986) (“In reviewing a motion
for summary judgment, the inferences to be drawn from the underlying facts must
be viewed in the light most favorable to the opposing party”), citing Civ. R. 56(C).
Because the movants sought to resolve this case on summary judgment, the
evidence in this case could not be weighed, only reviewed by the trial court and by
the court of appeals de novo. When factual ambiguities exist, inferences must still
be resolved in favor of the nonmoving party.




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                             SUPREME COURT OF OHIO




                          B. Immunity under R.C. 2744.03
       {¶ 33} An employee of a political subdivision is not entitled to immunity
from suit under R.C. 2744.03 if it can be shown that “[t]he employee’s acts or
omissions were with malicious purpose, in bad faith, or in a wanton or reckless
manner,” R.C. 2744.03(A)(6)(b). We have explained that the terms “ ‘willful,’
‘wanton,’ and ‘reckless,’ [as used in R.C. 2744.03(A)(6),] describe different and
distinct degrees of care and are not interchangeable.” Anderson v. Massillon, 

, 

, 

. We defined reckless
conduct as “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.” Id. at ¶ 34; see also O’Toole, 

,

, 

 (referring to recklessness as a “perverse
disregard of a known risk”). Wanton misconduct is “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.” Id. at ¶ 33.
       {¶ 34} In our review of the order granting summary judgment, we must
determine not whether the agency employees acted in a reckless or wanton manner
but whether reasonable minds could find that they acted in such a manner when the
facts presented are viewed in a light most favorable to Smathers. If the undisputed
evidence shows that the agency employees’ actions were not reckless or wanton,
then the agency employees are immune and summary judgment is proper.
                              C. The “findings” below
       {¶ 35} Smathers’s first assignment of error below argued that the trial court
disregarded conflicting evidence related to whether she and Tylor had custody of
Harmony from Thanksgiving until Christmas. 

. The Fifth
District interpreted this as a challenge to the trial court’s “findings of fact” and
explained that it would defer to the trial court’s determination so long as it was
supported by competent, credible evidence. Id. at ¶ 52. However, the Fifth District



                                          14
                                January Term, 2022




misunderstood the argument that Smathers raised; she was not simply arguing that
the court was incorrect in making a factual determination. We agree with Smathers
that the Fifth District applied the wrong standard when it analyzed her first
assignment of error. The trial court could not, under Civ.R. 56(C), determine a fact.
Its duty was to determine whether the fact was in dispute.
       {¶ 36} Smathers argued in the court of appeals that the evidence was at least
in dispute and therefore presented an issue of fact for trial as to whether she and
Tylor had custody of Harmony from Thanksgiving to Christmas. We agree. The
evidence presented by the agency employees to support their motion for summary
judgment shows that they were aware that Harmony was in Crystal’s care during
that time. First, while the trial court stated that Harmony was discharged from the
hospital “into the custody of her father and plaintiff grandmother,” the discharge
paperwork in the hospital records, which were attached to Glass’s affidavit, shows
that Harmony was discharged to her parents, Tylor and Crystal. Smathers also
testified in her deposition and in her responses to the agency employees’ request
for interrogatories that Harmony was released by the hospital to her parents. Tylor
confirmed in his deposition that Harmony was released to him and Crystal. The
hospital records also state that Harmony lived with her mother.
       {¶ 37} The parties agree that on December 4, ten days after Harmony was
released from the hospital, Pease saw her at PCCS in the care of Tylor and
Smathers. But it is undisputed that Pease saw Harmony at Crystal’s home on
December 11 and again on December 18 when Pease and Taylor conducted another
home visit. These visits occurred after the meeting with Tylor and Smathers at
PCCS. During those visits, Crystal told Pease that the children had been visiting
with their father, and Pease said he encouraged this to give Crystal some “down
time.” A fact-finder could infer from this statement that Pease understood that the
children were primarily in their mother’s care. The evidence does not demonstrate
that any of the agency employees was able to confirm Harmony’s whereabouts after




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she was seen in Crystal’s home, and there is nothing in the record to suggest that
the agency employees ever attempted to verify the existence of a court order giving
Tylor or Smathers superior rights to Harmony over Crystal.
       {¶ 38} The agency employees and the courts below seem to have blamed
Tylor and Smathers for returning Harmony to Crystal. But Tylor’s and Smathers’s
conduct was not at issue on a summary-judgment motion. The issue before the trial
court was whether the agency employees had acted recklessly or wantonly: what
Tylor or Smathers did or did not do was relevant only to how the agency employees
responded. Given the family’s history of instability, Tylor’s past addiction and the
problems attendant to those difficulties, and the lack of a court order, it is
questionable whether the agency employees acted recklessly or wantonly in
assuming that Tylor or Smathers could keep Harmony from Crystal or could
properly ensure Harmony’s safety.
       {¶ 39} The medical records also demonstrate that the hospital was reluctant
to release Harmony because of suspected abuse and her parents’ apparent inability
to provide for her safety. Hursey recalled speaking to someone from the hospital—
the same day that the hospital records indicate that Harmony was discharged—but
she did not document that call. By determining that “[u]ntil the December 22
receipt of the hospital records, [the agency employees] did not know that the
hospital staff felt there had been negligence and/or abuse,” the trial court credited
Hursey’s claim that “[n]o one at the hospital ever advised [her] that they believed
they had evidence of neglect or abuse.” But there is evidence in the record,
specifically deposition transcripts from physicians at the hospital, that contradicts
this claim.
       {¶ 40} When presented with Hursey’s impression of their conversation, one
doctor said, “The child was transferred [to the PICU] for concerns of abuse. That’s
why she was admitted, and I was speaking with [PCCS] about said concerns per
what is documented here, so I cannot imagine myself telling her that I was not



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concerned.” And when asked if she would have told Hursey about the suspected
abuse and neglect, the doctor said, “[A]gain, from what is documented and how our
protocol is, I believe I would have told [PCCS] exactly all of the reasons why she
was admitted and her full exam.” A second doctor explained that while she did not
have personal knowledge of the call to PCCS, she knew that “[they] wouldn’t have
written that paragraph if [they] didn’t feel like [they] had told – that Child
Protective Services had been informed that [they] thought it was abuse and
neglect.” When viewed in conjunction with the hospital records that explicitly state
that PCCS was authorizing the child’s release to her parents despite the doctors’
concerns and the “overwhelming” evidence of abuse and neglect, the above
testimony supports an inference that Hursey had been told this information. When
viewing this evidence in a light most favorable to Smathers, it cannot be said that
the agency employees did not act recklessly or wantonly when they permitted
Harmony to be discharged into the custody of her parents.
       {¶ 41} Additionally, a fact-finder’s conclusion that Hursey had been
informed of the doctors’ concerns prior to Harmony’s discharge from the hospital
would also support a finding that the lack of action taken after that point amounted
to a conscious disregard of or indifference to a known risk. There was a significant
delay in the caseworkers’ requesting the medical records from Harmony’s
hospitalization. Glass admitted that the agency’s failure to obtain the medical
records for nearly 30 days was “troublesome,” and it is arguable that Pease’s failure
to obtain the records right away demonstrated persistent opposition to a generally
accepted course to follow to protect children.
       {¶ 42} Moreover, there is evidence supporting a conclusion that the agency
employees acted recklessly or wantonly even after Glass, Pease, and Hursey
obtained the medical records on December 22 and had knowledge that Harmony
had been at risk of substantial and serious physical harm and neglect. In his
affidavit, Glass stated that the hospital notes indicated that the trauma team had




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                             SUPREME COURT OF OHIO




elected to “sign off” because “there were no apparent signs of trauma.” He found
this to be “inconsistent with the notation in the discharge note that there was
‘overwhelming evidence’ concerning physical abuse and neglect.” There is no
evidence that any agency employee followed up with the PICU physicians who had
recorded these concerns to better understand the basis for their conclusions
regarding abuse and neglect; rather, the evidence presented could support a finding
that the workers recklessly or wantonly disregarded the doctors’ documented
concerns.
       {¶ 43} And although Glass told Pease to offer ongoing case services to
Crystal, the evidence suggests that Pease made no attempt to talk to Crystal for at
least another seven days after receiving the records. Although the agency made
one call to Tylor and multiple calls to Crystal, there is nothing in the record to
demonstrate that after obtaining the medical records, any of the agency employees
attempted to verify that Harmony was actually with Smathers or Tylor. And as
noted above, Pease and Taylor saw Harmony at Crystal’s home after Harmony’s
release from the hospital and should have been aware that Harmony was in
Crystal’s care at least some of the time.
       {¶ 44} Finally, Pease and Taylor viewed Harmony’s bedroom during the
December 18 visit to Crystal’s home and expressed no concern about the conditions
of the room. Smathers said that she had reported concerns about the excessive heat
in the room, the safety of the crib apparatus, and the manner in which Harmony was
being kept in the room given that she could jump out of the crib. And Taylor
acknowledged that they viewed the room because concerns had been raised about
it. There is evidence that the same conditions were apparent at the time of
Harmony’s death on January 8. Based on the evidence before the court, a fact-
finder could infer that those conditions were present during the December 18 visit
and conclude that Pease and Taylor consciously disregarded or were indifferent to




                                            18
                               January Term, 2022




a known risk after observing the conditions of Harmony’s room three weeks before
her death.
       {¶ 45} When we resolve any doubts or inconsistencies in the evidence in
favor of Smathers’s position, we conclude that there are genuine issues of material
fact as to whether the agency employees acted recklessly or wantonly in failing to
protect Harmony from a risk of injury from abuse or neglect.
                                 III. Conclusion
       {¶ 46} In determining that the Fifth District failed to review the grant of
summary judgment de novo, and without deference to the trial court, we also
resolve the ultimate issue whether there is a genuine issue as to any material fact
that would serve to defeat the immunity normally allowed to government
employees. Based on our review of the evidence available in this case, we find that
there are genuine issues of material fact as to whether the conduct of one or more
of the agency employees was reckless or wanton. We need not reach a conclusion
as to Smathers’s other propositions of law, because genuine issues of material fact
still exist such that summary judgment should not have been granted to the agency
employees. We reverse the judgment of the Fifth District Court of Appeals, and
we remand this matter to the trial court for further proceedings in accordance with
this decision.
                                                                Judgment reversed
                                             and cause remanded to the trial court.
       O’CONNOR, C.J., and DEWINE, DONNELLY, and STEWART, JJ., concur.
       FISCHER, J., concurs in part and dissents in part, with an opinion joined by
KENNEDY, J.
                              _________________
       FISCHER, J., concurring in part and dissenting in part.
       {¶ 47} I agree with the majority opinion’s conclusion that the Fifth District
erred in evaluating the trial court’s grant of summary judgment when it gave




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                            SUPREME COURT OF OHIO




deference to the trial court’s factual findings instead of conducting a de novo
review. See Esber Beverage Co. v. Labatt USA Operating Co., L.L.C., 

, 

, 

 (appellate courts review summary-
judgment decisions de novo). Therefore, I concur in and join Part II(A) of the
majority opinion.
       {¶ 48} But I believe our analysis should stop there. Instead of reviewing
the merits to determine whether material facts exist to defeat summary judgment,
we should simply remand the cause to the appellate court to review the merits under
the correct standard of review. See In re Adoption of P.L.H., 

,

, 

, ¶ 33. Because the majority opinion declines to
do so, I must respectfully dissent from Parts II(B) and (C) of the opinion and the
majority opinion’s order remanding the cause to the trial court.
       KENNEDY, J., concurs in the foregoing opinion.
                               _________________
       Burnside Law, L.L.C., Jeremy M. Burnside, and Robert M. Johnson, for
appellant.
       Teetor Westfal, J. Stephen Teetor, and Matthew S. Teetor, for appellees.
       Willis, Spangler, Starling, and Ashley Rutherford Starling, urging reversal
for amicus curiae Ohio Association for Justice.
       Rittgers & Rittgers and Konrad Kircher, urging reversal for amicus curiae
Child USA.
       Pamela J. Miller, urging reversal for amicus curiae American Professional
Society on the Abuse of Children.
       Mazanec, Raskin & Ryder Co., L.P.A., and Frank H. Scialdone, urging
affirmance for amici curiae Buckeye Association of School Administrators, County
Commissioners Association of Ohio, Ohio Association of School Business
Officials, Ohio Job and Family Services Directors’ Association, Ohio Municipal




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                              January Term, 2022




League, Ohio School Boards Association, Ohio Township Association, and Public
Children Services Association of Ohio.
                             _________________




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