Winkle v. Zettler Funeral Homes, Inc.

912 N.E.2d 151

182 Ohio App.3d 195

2009-Ohio-1724

WINKLE et al., Appellants, v. ZETTLER FUNERAL HOMES, INC. et al., Appellees.

No. CA2008-06-144.

Court of Appeals of Ohio, Twelfth District, Butler County.

Decided April 13, 2009.

Robert L. Raper and Lisa M. Wenzel; and Christopher L. Jackson, Covington, KY, for appellants.

Dan L. Ferguson, for appellees Butler County and John Does.

Green & Green Lawyers, L.P.A., and Jane M. Lynch, Dayton, for appellee Zettler Funeral Homes.

Joseph A. McGee, Cincinnati, for appellee Greenwood Cemetery.

POWELL, Judge.

{¶ 1} Plaintiffs-appellants, Brian and Tracy Winkle, appeal the Butler County Court of Common Pleas decision granting summary judgment in favor of defendants-appellees, Butler County Coroner's Office, various Butler County employees, Zettler Funeral Homes, Inc. ("Zettler"), and Greenwood Cemetery Association ("Greenwood").¹ We affirm the trial court's decision.

{¶ 2} On April 27, 2007, Deborah Reed, appellants' mother, died as a result of a house fire. After her body was discovered, Ms. Reed's remains were transported to the Butler County Coroner's Office. Following an autopsy, Ms. Reed's remains were placed in the morgue cooler by Marvin Spangenberg, a morgue attendant with the coroner's office for the past 22 years. The following day, on April 28, 2007, Paula Webb died as a result of a drug overdose. After an autopsy was performed, Spangenberg also placed Ms. Webb's remains in the coroner's office cooler.

{¶ 3} Appellants, unable to afford the cost of burying their mother, applied to the city of Hamilton for an indigent burial. Their application was approved. Hamilton then contracted with Zettler Funeral Homes, Inc. to provide a casket and to transport Ms. Reed's remains from the morgue to Greenwood Cemetery. Greenwood Cemetery Association, as part of its own contract with the city of Hamilton, was to provide a vault, grave, and marker for Ms. Reed.

{¶ 4} A few days later, on May 1, 2007, and pursuant to its contract with the city of Hamilton, a Zettler employee went to the morgue to retrieve Ms. Reed's remains for transport to Greenwood Cemetery. However, without checking the identification of the body, Spangenberg, the same employee who had placed both Ms. Reed's and Ms. Webb's remains in the cooler, inadvertently released the body of Ms. Webb to the Zettler employee.² Thereafter, Spangenberg "logged the body [of Ms. Webb] out of the morgue as Ms. Reed," finished his shift, and went home.

{¶ 5} The body of Ms. Webb was then transported to Greenwood Cemetery where, after appellants held a brief closed-casket service, it was buried under the headstone prepared for Ms. Reed.

{¶ 6} Later that afternoon, Justin Weber, also a morgue attendant, was contacted by Kenny Isaacs, another employee, who asked him to check the cooler for the body of Ms. Webb. Weber, after checking the cooler, determined that the cooler contained the remains of four individuals, one of which was Ms. Reed. However, to his surprise, Weber was unable to locate the body of Ms. Webb. Weber, after further investigation, noticed that Ms. Webb's body receipt, which was assigned to Kowalk Funeral Home, had not been signed. After informing Isaacs that Ms. Webb's remains were missing from the cooler, Weber called Spangenberg and asked him to return to the morgue. Weber then called Thomas Zettler, one of Zettler's owners, and informed him that there "may have [been] a mix up of the remains." In response, Thomas told Weber that the body they had received that morning, which they believed to be Ms. Reed, had already been buried in Greenwood Cemetery. After Spangenberg arrived at the morgue, and after confirming that there was, in fact, a "mix up," Weber and Spangenberg informed Isaacs of the mistake.

{¶ 7} Spangenberg, in an effort to rectify his mistake, then called Zettler to confirm that the wrong body had been released. In the meantime, and after discussing the situation with Marilyn Burkhardt, an office administrator with the coroner's office for the past 28 years, Weber was instructed to call Greenwood Cemetery so that the body buried earlier that day could be exhumed and identified.

{¶ 8} At approximately 5:30 that afternoon, Weber and Andy Willis, another employee with the coroner's office, met at Greenwood Cemetery, where they exhumed and identified the buried remains as those of Ms. Webb. The pair then escorted Ms. Webb's body back to the morgue and returned it to the cooler.

{¶ 9} The body of Ms. Reed, which had remained undisturbed throughout this entire ordeal, was buried at Greenwood Cemetery the following day.

{¶ 10} Appellants then filed suit against the coroner's office, various Butler County employees, Zettler, and Greenwood (collectively, "appellees"), claiming tortious interference with a dead body, gross negligence, and fraudulent concealment. Appellees moved for summary judgment, which the trial court granted.

{¶ 11} Appellants now appeal the trial court's decision granting appellees' motion for summary judgment, raising three assignments of error.

I. Summary Judgment

{¶ 12} This court reviews a trial court's decision on summary judgment de novo. Fields v. Talawanda Bd. of Edn., Butler App. No. CA2008-02-035, 2009-Ohio-431, 2009 WL 243102, ¶ 9, citing White v. DePuy, Inc. (1998), 129 Ohio App.3d 472, 478, 718 N.E.2d 450. In applying the de novo standard, we review the trial court's decision independently and without deference to the trial court's determination. White at 479, 718 N.E.2d 450. A court may grant summary judgment only when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence submitted that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in their favor. Civ.R. 56(C); Welco Indus., Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 346, 617 N.E.2d 1129.

II. Butler County Coroner's Office and Various Butler County Employees

{¶ 13} Assignment of error No. 1:

{¶ 14} "The trial court erred in granting Butler County's motion for summary judgment where there were genuine issues of material fact with regard to the statutory immunity provided to the county and its employees."

Statutory Immunity

{¶ 15} The determination of whether immunity is available is a question of law that is properly decided by the court before trial. Frazier v. Clinton Cty. Sheriff's Office, Clinton App. No. CA2008-04-015, 2008-Ohio-6064, 2008 WL 4964322, ¶ 27, citing Carpenter v. Scherer-Mountain Ins. Agency (1999), 135 Ohio App.3d 316, 330, 733 N.E.2d 1196. Accordingly, we review de novo the trial court's summary-judgment decision on immunity grounds. Frazier.

Political Subdivision Immunity: Butler County Coroner's Office

{¶ 16} Appellants, in regard to their claims against the coroner's office, argue that the trial court incorrectly concluded that the coroner's office was entitled to statutory immunity pursuant to R.C. 2744.02(A)(1), and therefore, erred by granting summary judgment in its favor. We disagree.

{¶ 17} The Ohio Revised Code establishes a three-tier analysis for determining whether a political subdivision is immune from liability. Frazier, 2008-Ohio-6064, 2008 WL 4964322, at ¶ 28, citing Cater v. Cleveland (1998), 83 Ohio St.3d 24, 28, 697 N.E.2d 610. Initially, under the first tier, R.C. 2744.02(A)(1) provides a general grant of immunity to political subdivisions regarding acts or omissions of the political subdivision or its employees in connection with a governmental or proprietary function. Next, under the second tier, R.C. 2744.02(B) lists five exceptions to the general immunity granted to political subdivisions by R.C. 2744.02(A)(1). Finally, under the third tier, immunity may be reinstated if a political subdivision can successfully assert one of the defenses listed in R.C. 2744.03.

{¶ 18} Appellants have not provided this court with any allegation, argument, or evidence indicating that the coroner's office is not a political subdivision as defined by R.C. 2744.01(F). Furthermore, appellants have not presented any evidence to the trial court, or to this court on appeal, that the actions taken by the coroner's office were something other than "governmental functions" as defined under R.C. 2744.01(C) or that any of the exceptions to political subdivision immunity under R.C. 2744.02(B) apply. The trial court, in granting the coroner's office's motion for summary judgment, concluded that "pursuant to R.C. 2744.02(A)(1)[,] the Butler County Coroner's [O]ffice is entitled to immunity." We find no error in the trial court's decision. As a result, we find that the coroner's office is immune from liability under R.C. 2744.02(A)(1), and therefore, the trial court did not err in granting its motion for summary judgment. Accordingly, appellants' first argument is overruled.

Political Subdivision Employee Immunity

{¶ 19} In addition to filing suit against the coroner's office, appellants filed suit individually against the Butler County Coroner, Dr. Richard Burkhardt, as well as various "John Doe" employees of the coroner's office. Although these John Doe employees were not explicitly named in their complaint, appellants, in their appellate brief, claim that the acts or omissions of Marilyn Burkhardt, the office administrator, as well as Justin Weber and Mark Spangenberg, both morgue employees, created a question of fact for the jury as to whether the coroner's office employees "acted with malice, bad faith, or in a wanton or reckless manner, thus subjecting those employees to tort liability" under R.C. 2744.03(A)(6)(b). This argument lacks merit.

{¶ 20} R.C. 2744.03(A)(6)(b) expressly states that employees of a political subdivision, acting in connection with their governmental or proprietary function, are immune from liability in any civil action for...