McCombs v. Ohio Dep't of Developmental Disabilities

187 N.E.3d 610

Jerri L. MCCOMBS, as the Personal Representative and Guardian of [B.C.], Plaintiff-Appellant/Cross-Appellee,

v.OHIO DEPARTMENT OF DEVELOPMENTAL DISABILITIES, Defendant-Appellee/Cross-Appellant.

No. 21AP-280

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on March 29, 2022

On brief: Bordas & Bordas, PLLC, Geoffrey C. Brown, and Tyler J. Smith, for appellant McCombs. Argued: Geoffrey C. Brown.

On brief: Dave Yost, Attorney General, Eric A. Walker, and Amy S. Brown, Columbus, for appellee Ohio Department of Developmental Disabilities. Argued: Eric A. Walker, Columbus.

DECISION

DORRIAN, J.

{¶ 1} Plaintiff-appellant/cross-appellee, Jerri L. McCombs, individually and as guardian of her adult son B.C., appeals from a judgment of the Court of Claims of Ohio that found defendant-appellee/cross-appellant, State of Ohio, through its Department of Developmental Disabilities ("ODDD"), vicariously liable for the actions of its employees in abusing and neglecting B.C. when he was a resident at the Cambridge Developmental Center ("CDC") and awarding $16,100 in damages. ODDD filed a notice of cross-appeal. For the following reasons, we affirm in part and reverse in part the judgment of the Court of Claims and remand the matter to that court.

I. Facts and Procedural History

{¶ 2} B.C. is a 25-year-old man with diagnoses of autism, seizure disorder, intellectual disability, attention deficit and hyperactivity disorder, intermittent explosive disorder, obsessive compulsive disorder, and aphasia. He underwent a craniotomy and cranioplasty in the past few years due to a traumatic brain injury. B.C. functions in the moderate to severe range of intellectual disability and is non-verbal. (See CDC Psychological Evaluation conducted by Melissa M. Harger, Ph.D., Psychologist, CDC Physical Examination conducted by Dr. Chendraj, M.D., Physician, CDC Special Team Report and CDC Investigative Service Unit Reports of Investigation at Pltf.’s Ex. 31 at 235, 237 and 253, and Pltf.’s Exs. 1, 2, 5, 6, 9, 11, 13, 15, and 16 respectively.) B.C. has limited speech, "but communicates best through picture form and through body language and facial expressions." A CDC document titled "my individual plan," under a section titled "[h]ow I communicate and how I want you to communicate with me," indicates "[B.C.] rarely speaks and instead uses simple signs, facial expressions, gestures, body language, and sometimes aggressive behaviors such as pulling and grabbing to let others know what he wants and needs." (Pltf.’s Ex. 31 at 255.)

{¶ 3} On March 2, 2018, shortly before his 25th birthday, B.C. was admitted to CDC for stabilization of some of his behaviors. CDC's mission is "[t]o provide rehabilitation services to the people that live here and ensure compliance with standards." (Tr. Vol. II at 364.) CDC is a habitation center that includes four cottages, each with two sides, A and B. Each cottage has administrative offices in the hallway between the two sides. Approximately 70 residents are housed in the cottages. B.C. was housed in Steele Cottage, side A, with 11 other residents.

{¶ 4} CDC developed a person-centered plan for B.C., which is a tool that is a summary of the comprehensive functional assessments from the interdisciplinary team. The psychologist developed a behavioral-support strategy for B.C. to address target behaviors. B.C.’s target behaviors included physical aggression, self-injurious behavior, taking property, especially food and beverages, ritualistic tendencies, including cleaning, and other inappropriate behaviors. The day-to-day care was provided by therapeutic program workers ("TPWs") who were trained to use positive supports and principles. The CDC Superintendent, Cathleen Ballinger, testified that "the slapping and * * * kicking and choking" of a resident constitutes abuse and was "strictly forbidden [at] CDC" and were not approved ways to control residents’ behavior. (Tr. Vol. II at 437-38.) Any use of physical restraint was only permissible in a situation involving an imminent risk of harm.

{¶ 5} On behalf of B.C., appellant, as his mother and guardian, signed a document titled "client rights and individual complaint procedure," which stated, among other rights, the right to "[h]ave a clean safe place to live in." (Emphasis added.) (Pltf.’s Ex. 31 at 238.)

{¶ 6} On June 26, 2018, another CDC resident reported to a supervisor that TPW Dianna Stein had hit B.C., pulled his ear, and attempted to drag him. B.C. was examined by a nurse on June 26, 2018, but she did not find any visible injuries. Douglas Bachmann, an investigator at CDC investigated the claim. Bachmann watched the videotapes from surveillance cameras in the common areas as part of his investigation and determined that Stein had committed multiple acts of abuse on B.C. However, the videotape recorded over itself after 30 days, thus he could only investigate the prior 30 days. In the prior 30 days, however, Bachmann identified several acts of abuse and other TPWs who failed to report that abuse.

{¶ 7} The videotapes and Bachmann's reports demonstrated the following incidents:

• On June 9, 2018, at approximately 10:20 a.m., B.C. was in the dining room and grabbed Stein's keys and Stein choked B.C. with her right hand. Misty Kuczmarski watched the incident but did not intervene or report it. (Pltf.’s Report of Investigation, Ex. 1 at 7; Ex. 2 at 23; Video Ex. File No. 1.)

• On June 20, 2018, at approximately 12:32 p.m., B.C. took a bag of snacks out of Stein's purse and began eating. Stein approached B.C. and used her left hand to choke him while her right hand was on his bicep. (Video Ex. File No. 2.)

• On June 20, 2018, at approximately 12:51 p.m., B.C. ran outside and was standing by the dumpster. He was redirected inside and sitting in the day room in a recliner. Stein approached him from behind and hooked her arms around B.C.’s throat and lifted him up and back while he was seated. Stein then walked around the recliner and slapped B.C. Kuczmarski witnessed the slap but did not report it. (Ex. 1 at 6-7.)

• On June 20, 2018, at approximately 2:18 p.m., TPWs Theresa Baker and Kuczmarski were seated at a table in the dining room looking at their cellphones. B.C. took a bottle of water from the table and drank it. After throwing away the bottle, B.C. approached Kuczmarski, who extended her left leg and kicked B.C. in his upper thigh/hip area. Baker and Kuczmarski laughed for approximately 23 seconds and then looked at their cellphones again. (Ex. 5 at 31, video not produced.)

• On June 21, 2018, at approximately 7:31 a.m., B.C. was washing dishes in the kitchen when Stein and Baker grabbed B.C. and grabbed his shirt in a way that constricted B.C.’s neck, and Stein dragged B.C. out of the kitchen by the back of his pants. (Ex. 1 at 4; Ex. 9 at 50; Video Ex. File No. 5, at approximately 54:30 mark.)

• On June 21, 2018, at approximately 8:12 a.m., Stein was seated at a dining room table with TPWs Baker, Jason Frattali, and Ashley Jasielum. B.C. approached on Stein's left and pointed to a bottle of water. Stein slapped B.C. on the arm/chest. No one reported the incident. (Ex. 1 at 5; Video Ex. File No. 3.)

• On June 21, 2018, at approximately 8:32 a.m., B.C. removed a piece of paper from the bulletin board in the dining room. Stein attempted to retrieve the paper. Baker also attempted to retrieve the paper. Stein slapped B.C. under the chin. Another CDC employee became involved, grabbed the paper, and pushed B.C. Stein and the employee trapped B.C. against a wall, forcefully grabbing and gripping his arm. The other employee shoved B.C. in the chest and then forced B.C. out of the room by pushing him in the back. B.C. reentered the room. Stein and Baker circled and followed him. The other employee again trapped B.C. against a wall, then shoved him several times and pushed B.C. out of the room by pushing him in the back again. B.C. again re-enters the room, and Baker and Stein used chairs to corner B.C. and then Stein placed one hand on B.C.’s shoulder and kneed him in the groin area. (Ex. 1 at 6; Video Ex. File No. 4.)

• On June 23, 2018, at approximately 7:18 a.m., B.C. was in the dining room when Stein forcefully slapped him in the back side of his head for wanting more orange juice. (Ex. 1 at 4; Video Ex. File No. 6.)

• On June 26, 2018, at approximately 7:42 a.m., B.C. picked up a bottle of water from a table in the dining room. Stein chased B.C. and slapped him in the back of the head as he was drinking. TPW Kelsey Clark did not intervene. Stein grabbed B.C. and attempted to drag him outside. Clark and Stein forced B.C. into a chair and Stein slapped B.C. in the back of the head again. Stein pointed her finger at B.C. and in the video appears to be yelling at him. Stein backhanded B.C. in the mouth and slapped him in the face. Stein forcefully grabbed B.C. by the ear. (Ex. 15 at 77-78; Ex. 16; Video Ex. File No. 7.)

• Video file 8 immediately follows video 7 and shows Stein followed B.C. into the kitchen and shoved him and grabbed him by the back of the neck. Clark and another person surround B.C. and also attempt to grab his arms. Stein appears to pull B.C.’s hair and/or flick at his neck. (Ex. 15 at 77-78; Ex. 16; Video Ex. File No. 8.)

{¶ 8} McCombs removed B.C. from CDC in September 2018.¹ B.C. currently lives in an apartment and has one of two independent care providers with him at all times, one of whom is McCombs. McCombs left her job as a hospital administrator earning approximately $89,000 per year plus bonuses to become a certified independent care provider to provide for B.C. She currently works a full-time job at a nearby hospital and then works from 5:00 p.m. to 6:00 a.m. every weekday and all weekend as an independent care provider for B.C. A second independent care provider works from 6:00 a.m. to 5:00 p.m. every weekday.

{¶ 9} As a result of the investigation, TPWs Frattali and Jasielum received five-day suspensions. TPWs Stein, Kuczmarski,...