Granato v. Davis

Decision Date19 December 2014
Docket NumberAppellate Case No. 26171
Citation2014 Ohio 5572
CourtOhio Court of Appeals
PartiesMARY K. GRANATO Plaintiff-Appellee v. JAMES H. DAVIS, M.D., et al. Defendant-Appellant

(Civil Appeal from Common Pleas Court)

OPINION

RICHARD W. SCHULTE, Atty. Reg. No. 0066031, STEPHEN D. BEHNKE, Atty. Reg. No. 0072805, 812 East National Road, Suite A, Vandalia, Ohio 45377 Attorneys for Plaintiff-Appellee

LAURA G. MARIANI, Atty. Reg. No. 0063284, 301 West Third Street, P.O. Box 972, Dayton, Ohio 45422 Attorney for Defendant-Appellee Attorney for Defendant-Appellant-Robert Shott, M.D.

JOHN CUMMING, Atty. Reg. No. 0018710, 301 West Third Street, Fifth Floor, Dayton, Ohio 45422 Attorney for Defendant-Montgomery County Commissioners

WELBAUM, J.

{¶ 1} In this case, Defendant-Appellant, Robert Shott, M.D., appeals from a trial court decision denying his motion for summary judgment on grounds of immunity. Shott contends that the trial court erred in finding that there is an issue of fact regarding whether his recklessness removed the presumption of immunity under R.C. Chap. 2744 and 42 U.S.C. 1983.

{¶ 2} We conclude that the trial court properly denied statutory immunity to Shott under the immunity exception in R.C. 2744.03(A)(6)(b), based on genuine issues of material fact regarding Shott's recklessness in identifying and releasing a dead body from the morgue. However, the trial court did err in denying Shott qualified immunity under 42 U.S.C. 1983. The asserted property right of Plaintiff-Appellee, Mary Granato, in her husband's body was not so clearly established that a reasonable official such as Shott would have believed that Granato was entitled to constitutional due process.

{¶ 3} Furthermore, even if Granato had a sufficient property right, random and unauthorized deprivations of property by state actors are not violations of the procedural requirements of due process, if meaningful post-deprivation remedies are available, as they were here. Substantive due process claims were not made at the trial level or on appeal, but even though there are genuine issues of fact regarding Shott's recklessness that preclude summary judgment in his favor for purposes of Ohio's statutory immunity, a jury could not conclude that Shott acted with deliberate indifference such that his actions would shock the conscience for purposes of a substantive due process violation. Accordingly, the judgment of the trial court will be affirmed in part, reversed in part, and remanded for further proceedings.

I. Facts and Course of Proceedings

{¶ 4} This action arises from events that occurred following a plane crash in Union County, Ohio, on March 5, 2010. The pilot, Arthur Potter, and a passenger, Frank Granato were killed in the crash, and the Union County Coroner (UCC), Dr. Applegate, was called to the scene to recover the bodies. Because Union County contracted with the Montgomery County Coroner (MCC) for forensic services, the bodies were then transported to MCC's offices in Dayton, Ohio. MCC is one of several forensic centers in Ohio that perform 95% of the forensic autopsies in the state.

{¶ 5} The bodies arrived at MCC early in the morning on March 6, 2010, which was a Saturday. If possible, bodies coming into the morgue will be identified by an arm or leg band, but these particular bodies arrived in body bags, with the names written on the outside of the bag. Due to the severity of the crash, other body parts found at the scene were included in separate bags. Before the bodies arrived at MCC, Applegate had identified one body as Granato, and the other as Potter.

{¶ 6} Typically, an investigator is notified of a dead body through a hospital or police agency. The investigator will investigate the death and assign a number. In this case, Potter was given Case No. CC-10-0827 and Granato was given Case No. CC-10-0828 (hereafter, "827" and "828"). The same number is used both for a body and any personal effects accompanying the body.

{¶ 7} When bodies come into the morgue, the morgue attendant assigns a tray number (which is different from the body number) and enters that number into the computer. The bodies are then kept in a cooler until the autopsy. Only one body is autopsied at a time, and theautopsy is completed before another body is brought into the autopsy room.

{¶ 8} Shott was the pathologist on duty on Saturday, March 6, 2010, and was assigned to the cases. The bodies were very disfigured and were not visually identifiable, due to high-speed impact from the plane crash. According to James Davis, who was the Montgomery County Coroner at the time, when this type of impact happens, there are identity problems, and the remains would be governed by the MCC policy on "unidentified bodies."1 This policy provided as follows:

It shall be the policy of this office to use all available resources to aid in the identification of unidentified bodies brought to this office for examination. Such resources shall include but not be limited to fingerprints, dental x-rays, jewelry, identifying marks, tattoos, and the Nation Crime Information Center missing persons files.
Autopsy Technician will obtain a complete set of fingerprints on unidentified bodies that are not decomposed or burned to a point where obtaining fingerprints is not possible. After the fingerprints have been obtained they will be turned over to the Investigations Supervisor. The Investigations Supervisor will be responsible for having the fingerprints checked against the files maintained at the Dayton Police Department and the Miami Valley Regional Crime Lab.
A Forensic Odontologist whose services are available to this office will also take dental x-rays. The Investigations Supervisor is responsible for contacting the Forensic Odontologist and informing him that an unidentified body has been brought in for examination. If the Forensic Odontologist requests and the Pathologist concurs, the Autopsy Technician will remove the jaw for examination.
The Autopsy Technician Supervisor will provide the Investigation Supervisor with a detailed description of the decedent that includes a complete and accurate description of the clothing including sizes and colors; a complete and accurate description of jewelry including distinguishing marks; height and weight; color, length and style of hair; color of eyes, scars, marks and tattoos. The Investigations Supervisor will take this information along with the dental chart prepared by the Forensic Odontologist, to the Ohio Bureau of Criminal Identification & Investigation.
The process for identifying an unidentified body may be limited in scope as necessary once positive identification has been established. The Investigations Supervisor is responsible for notifying the Morgue Office once identification has been made.

Exhibit 1 attached to the Davis Deposition, pp. 1-2.

{¶ 9} At the time of the autopsy, Shott had been employed by MCC for approximately eight or nine months, after completing a one-year fellowship at MCC. Also present at the autopsy were autopsy technicians, Brandy Burchett and Danny Blevins, and photographer, Kary Riley. Although the bodies had been identified by UCC, questions arose during the autopsy regarding whether the bodies had been properly identified.

{¶ 10} The first case autopsied was the body that had been identified as Granato (828). The autopsy staff knew that two men, Granato and Potter, had died in the crash. The body labeled 828 was in two separate bags, and was accompanied by a flight jacket with the name "Potter." In addition, the personal effects with this body included a broken set of eyeglasses and a loaded Kel-Tec semi-automatic handgun. According to Shott, someone asked why Potter's jacket would be in Granato's bag. This body was clad in pants, a belt, briefs, a tee-shirt, another shirt, and suspenders, but no jacket. In addition, the autopsy indicated that the body had a yellow encased tooth; the other body had no gold or other similar teeth.

{¶ 11} The second body autopsied was identified as Potter (827), and was clad in pants with belt and briefs, a shirt, and a jacket. Throughout the autopsy procedures, the pathologist and other employees debated the possibility of the body to whom the flight jacket belonged. During the course of the case, the morgue employees, including Shott, had concerns about the identification that Applegate had provided.

{¶ 12} Although the coroner's staff could have contacted the Granato and Potter families to inquire about personal effects, they did not do that. The autopsy of body 827 (the body labeled as "Potter") also revealed abrasions with an apparent thermal injury on the right upper back. According to Mrs. Granato, her husband had injured his back a few days before the crash, and had a wound two inches long and 1/8 to 1/4" wide on his shoulder. Again, MCC did not contact the families to inquire about scars.

{¶ 13} After the autopsy, Applegate was contacted, and indicated that the "Potter" jacket had come from the body that he labeled Granato. After the autopsies had been performed, Applegate began to question his own identification of the bodies. The MCC staff also hadconcerns about identity. As a result, Shott decided to consult an odontologist.

{¶ 14} The jaws of both bodies were removed, and the dental records for both Potter and Granato were obtained. The procedure in this situation is to identify the jaws by number only, and to have the prior dental records available by name. The odontologist will then attempt to match the known records to x-rays taken of the jaw, without knowing the identity of the body from whom the physical evidence has been taken. This was the first time that Shott had used an odontologist.

{¶ 15} The odontologist, Dr. Armstrong, conducted his review on the evening of March 9, 2010, and issued a report positively identifying Granato as body No. 827 (the body that had been previously identified as...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT