Lawrence v. Meridian Senior Living, L.L.C.

• Decision Date: 29 December 2016
• Docket Number: No. 16AP–326.,16AP–326.
• Citation: 79 N.E.3d 1158,2016 Ohio 8500
• Parties: Ann LAWRENCE, Co–Executor et al., Plaintiffs–Appellees, v. MERIDIAN SENIOR LIVING, L.L.C. et al., Defendants–Appellants, Courtney Bonner, D.O. et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

79 N.E.3d 1158

2016 Ohio 8500

Ann LAWRENCE, Co–Executor et al., Plaintiffs–Appellees,

v. MERIDIAN SENIOR LIVING, L.L.C. et al., Defendants–Appellants,Courtney Bonner, D.O. et al., Defendants–Appellees.

No. 16AP–326.

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

Dec. 29, 2016.

On brief: The Scanlon Group Co., L.P.A., and Patrick J. Hart, Akron; Magaziner & McGlade, LLC, and Blair L. Magaziner, Zanesville, for plaintiffs-appellees. Argued: Patrick J. Hart.

On brief: Bonezzi Switzer Polito & Hupp Co. L.P.A., Steven J. Hupp, and Ronald A. Margolis, Cleveland, for appellants. Argued: Steven J. Hupp.

On brief: Michael DeWine, Attorney General, William C. Becker, and Jeanna V. Jacobus, for appellee Ohio Department of Commerce. Argued: William C. Becker.

DORRIAN, P.J.

{¶ 1} Defendants-third-party plaintiffs-appellants Meridian Senior Living, L.L.C., IPM Cambridge Senior Living, L.L.C., and Meridian at Cambridge (collectively, "appellants") appeal from a judgment of the Court of Claims of Ohio granting a motion to dismiss appellant's third-party complaint against third-party defendant-appellee, the Ohio Department of Commerce ("ODC"). Because we conclude that the third-party complaint failed to state a claim upon which relief could be granted, we affirm.

I. Facts and Procedural History

{¶ 2} The litigation culminating in the present appeal began with a complaint filed in the Guernsey County Court of Common Pleas by plaintiffs-appellees Ann Lawrence and Neal Halvor Tostenson (collectively, "co-executors"), in their capacity as co-executors of the estate of their father, Neal S. Tostenson ("Tostenson"). The complaint asserted that Tostenson was a resident in the memory-care unit of a residential care facility operated by Meridian Senior Living, L.L.C. and IPM Cambridge Senior Living, L.L.C., under the name Meridian at Cambridge. The complaint asserted that Tostenson was admitted to the memory-care unit on July 1, 2013 because he had Parkinson's dementia and was prone to wandering, and was categorized as a high-fall risk and a high-elopement risk. The complaint further alleged that Tostenson was discovered missing from the facility on the morning of February 11, 2014, and he was subsequentlyfound, unresponsive, wearing little clothing in an outdoor area of the facility. Within one hour of being located, Tostenson was officially declared deceased. The complaint asserted that sometime during the early morning or the preceding night, Tostenson exited the facility into the outdoor area through an unlocked door and that his exit did not trigger an alarm. The complaint asserted claims for negligence, willful and wanton misconduct, malpractice, wrongful death, breach of contract, abuse, neglect, and violation of the Ohio Patient's Bill of Rights. The complaint also sought declaratory judgment and punitive damages.

{¶ 3} Appellants generally denied the allegations in the complaint and subsequently filed a third-party complaint against ODC. The third-party complaint asserted that on or about March 21, 2013, Richard Harris, a fire inspector employed by ODC's Division of the State Fire Marshal, conducted an inspection of the Meridian at Cambridge Facility. The third-party complaint alleged that during the course of this inspection, Russell Woleslagle, then the maintenance supervisor for Meridian at Cambridge, "requested that the facility be permitted to utilize a delayed egress lock on a door leading to the outdoor patio area of the facility in the memory-care unit which contained multiple residents with Alzheimer's disease

and other forms of dementia designated as elopement risks." (Third-party Complaint at ¶ 7.) The third-party complaint claimed that Harris informed Woleslagle that the facility could not use a delayed egress lock because it would violate the fire code. The third-party complaint asserted that Harris's response prevented Meridian at Cambridge from using delayed egress locks on the door adjacent to Tostenson's room and directly and proximately caused him to exit the facility unnoticed, which resulted in his death.

{¶ 4} After the third-party complaint was filed, the case was removed to the Court of Claims of Ohio. ODC filed a motion to dismiss the complaint, pursuant to Civ.R. 12(B)(6), for failure to state a claim upon which relief could be granted. The Court of Claims granted the motion to dismiss, concluding that ODC was statutorily immune from liability and that the third-party complaint failed to establish that appellants were injured parties for purposes of the immunity statute or that there was a special relationship between ODC and appellants that would overcome ODC's statutory immunity.

II. Assignment of Error

{¶ 5} Appellants appeal and assign the following single assignment of error for our review:

THE TRIAL COURT ERRED IN DISMISSING MERIDIAN'S THIRD–PARTY COMPLAINT AS A SET OF FACTS EXISTED UPON WHICH IT COULD BE DETERMINED THAT THERE WAS A R.C. § 2743.02(A)(3)(b) SPECIAL RELATIONSHIP BETWEEN MERIDIAN AND THE OHIO DEPARTMENT OF COMMERCE.

III. Discussion

{¶ 6} In its sole assignment of error, appellants argue the Court of Claims erred by granting ODC's motion to dismiss, pursuant to Civ.R. 12(B)(6), for failure to state a claim upon which relief could be granted. "A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint." State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992). "Dismissal for failure to state a claim upon which relief can be granted is proper if, after all factual allegations are presumed to be true and all reasonable inferences are made in favor of the non-moving party, it appears beyond doubt from the complaint that the plaintiff could prove no set of facts warranting the requested relief." Modern Office Methods, Inc. v. Ohio State Univ., 2012-Ohio-3587, 975 N.E.2d 523, ¶ 9, citing State ex rel. Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, 862 N.E.2d 104, ¶ 5, and O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. We review de novo a dismissal of a complaint for failure to state a claim upon which relief can be granted. Id.

{¶ 7} Appellants' third-party complaint asserted that Harris was negligent by informing Woleslagle, in response to a direct inquiry, that using delayed egress locks would violate the fire code. The third-party complaint further asserted that Harris's response was incorrect and that his negligent interpretation of the fire code prevented Meridian at Cambridge from installing delayed egress locks and proximately caused Tostenson to exit the memory-care unit unnoticed, which resulted in his death.

{¶ 8} Generally, the state is "immune from liability in any civil action or proceeding involving the performance or nonperformance of a public duty." R.C. 2743.02(A)(3)(a). Public duty is defined to include permitting, certifying, licensing, and inspecting. R.C. 2743.01(E)(1)(a). Public duty immunity does not apply, however, "under circumstances in which a special relationship can be established between the state and an injured party." R.C. 2743.02(A)(3)(b). The statute provides a four-part test for determining whether a special relationship exists that will overcome the state's public duty immunity:

A special relationship under [ R.C. 2743.02(A)(3)(b) ] is demonstrated if all of the following elements exist:

(i) An assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who was allegedly injured;

(ii) Knowledge on the part of the state's agents that inaction of the state could lead to harm;

(iii) Some form of direct contact between the state's agents and the injured party;

(iv) The injured party's justifiable reliance on the state's affirmative undertaking.

R.C. 2743.02(A)(3)(b).

{¶ 9} The Court of Claims concluded that Tostenson was the injured party in the case, not appellants, and that appellants sought to recover contribution from ODC as a joint tortfeasor. The court further concluded that, even if appellants were construed to be injured parties, the third-party complaint did not set forth sufficient factual matter to demonstrate there was a special relationship between appellants and ODC.

{¶ 10} Appellants argue on appeal that the Court of Claims erred by concluding they were not injured parties for purposes of determining immunity. Appellants assert that they suffered harm through the filing of the complaint and incurred attorney fees and expenses associated with defending against that complaint. Appellants claim they are subject to further potential harm in the form of a damage award if judgment is awarded in favor of the co-executors. Appellees respond that appellants are not injured parties for purposes of the immunity statute because no damage award has been made and because attorney costs and fees are not considered damages. We need not reach this question, however, because, assuming without deciding that appellants could be considered injured parties, we conclude that the third-party complaint is insufficient to establish the existence of a special relationship between appellants and ODC.

{¶ 11} The first element that must be established to prove the existence of a special relationship between the state and an injured party is "[a]n assumption by the state, by means of promises or actions, of an affirmative duty to act on behalf of the party who was allegedly injured." R.C. 2743.02(A)(3)(b)(i). Appellants argue on appeal that Harris, acting on behalf of ODC, assumed an affirmative duty by "advising Meridian regarding patient-safety measures at the subject facility." (Appellants' Brief at 9.) Appellants claim that Harris's statutory duties were limited to inspecting the facility and citing existing fire code violations. By answering a question from Woleslagle about the permissibility of a type of lock that had not yet been installed, appellant...