The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
) CASE NO. 1:21-cv-543
KEITH CURTISS, )
) JUDGE CHARLES E. FLEMING
Plaintiff, )
) MEMORANDUM OPINION
v. ) AND ORDER
)
CHARTER COMMMUNICATIONS, INC., )
et al., )
)
Defendants. )
I. Procedural History
On March 9, 2021, Plaintiff, the executor of the estate of John G. Hatfield, filed a complaint
against Defendants for vicarious negligence, direct negligence, wrongful death, a survival action,
and punitive damages stemming from Hatfield’s death. (ECF No. 1). On June 24, 2020, Hatfield
collided with a cut, suspended cable line while riding a motorcycle on Depot Road. Id. This
accident caused injuries that resulted in Hatfield’s death. Id.
On July 29, 2022, Plaintiff moved for partial summary judgment as to the vicarious
negligence claim raised against Charter Communications, LLC. (ECF No. 98, PageID 572). On
July 29, 2022, Defendants moved for summary judgment as to all claims pertaining to Defendant
Spectrum Mid-America, LLC, and partial summary judgment as to the second (direct negligence),
fourth (survival), and fifth (punitive damages) claims against Charter Communications, LLC.
(ECF No. 101, PageID 803).
On August 26, 2022, Plaintiff opposed Defendant Charter’s motion for partial summary
judgment, but he does not oppose Defendant Spectrum’s motion for summary judgment and “does
not oppose Spectrum’s exiting this litigation through a ruling, or with the Court’s leave to file an
amended Complaint.” (ECF No. 117, PageID 4403). On August 29, 2022, Defendant Charter
opposed Plaintiff’s motion for partial summary judgment. (ECF No. 119).
On August 30, 2022, the parties attended a mediation conference and were unable to reach
settlement at mediation. (ECF No. 123). On September 9, 2022, Defendants replied in support of
their motion for summary judgment. (ECF No. 125). On September 12, 2022, Plaintiff replied in
support of his motion for partial summary judgment. (ECF No. 126).
On September 9, 2022, Defendants objected to Plaintiff’s Exhibits 1-3, 1-4, and 5 attached
to Plaintiff’s brief in opposition and requested that the Court strike these exhibits from the record.
(ECF No. 124). On September 13, 2022, Plaintiff replied to Defendants’ objections that the
reconstruction graphics were demonstrative exhibits rather than substantive evidence and Mr.
Miller’s written statement was an authenticated document. (ECF No. 127). On September 19,
2022, Defendants replied that the reconstruction graphics appeared to be substantive evidence and
the traffic crash report relied on by Miller is inadmissible hearsay. (ECF No. 129).
II. Legal Standard
Summary judgment is proper if “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A dispute is genuine if it is “based on evidence upon which a reasonable jury could return a verdict
in favor of the non-moving party.” Henderson v. Walled Lake Consol. Schools, 469 F.3d 479, 487
(6th Cir. 2006). A fact is material if “its resolution might affect the outcome of the suit under the
governing substantive law.” Id. The moving party bears the burden of showing that no genuine
issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The court views
the facts and draws all reasonable inferences in favor of the non-moving party. Pittman v. Experian
Information Solutions, Inc., 901 F.3d 619, 628 (6th Cir. 2018).
Once the moving party satisfies its burden, the burden shifts to the non-moving party to
produce evidence that demonstrates that there is a genuine dispute of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
III. Spectrum
Defendants argue that Defendant Spectrum is entitled to summary judgment on all claims
because Mr. Miller was not in an employment or agency relationship with Spectrum, so Spectrum
is not liable in this case. (ECF No. 101, PageID 820). Defendants concede that: 1) Mr. Miller was
employed by Defendant Charter; 2) only Charter employees, hired, trained, and supervised Mr.
Miller; and 3) Mr. Miller was working within the course and scope of his employment with
Charter. Id. at 821.
Plaintiff does not oppose Defendant Spectrum’s motion for summary judgment because
there is insufficient evidence to establish a relationship between Spectrum and Plaintiff’s claims.
(ECF No. 117, PageID 4403). Plaintiff clarifies that he does not oppose Defendant Spectrum
exiting the case through either a ruling from this Court or through the filing of an amended
complaint. Id.
Defendants contend that Plaintiff’s lack of opposition means that Defendant Spectrum is
entitled to judgment as a matter of law as to claims one through five. (ECF No. 125, PageID 5228).
However, it appears to be the intent of all parties that Defendant Spectrum be dismissed from the
case. Accordingly, Plaintiff shall file an appropriate notice of dismissal of Defendant Spectrum
within 14 days of the issuance of this decision. Understanding that all parties intend to dismiss
Defendant Spectrum from this case, Defendant Spectrum’s motion for summary judgment is
MOOT.
IV. Claim One
Plaintiff’s first claim alleges that Matthew Miller was negligent when he cut a cable wire
suspended over Depot Road on June 14, 2020 that resulted in the accident that killed Plaintiff’s
decedent, John G. Hatfield. (ECF No. 1, PageID 2–3). As Defendant Charter was the employer
of Miller, Plaintiff alleges that Defendant Charter is vicariously liable for his actions. Id. at 3.
Plaintiff moves for summary judgment on claim one against Defendant Charter because there is
no genuine issue of material fact that Defendant Charter is the employer of Miller, Miller was
negligent, and Defendant Charter is vicariously negligent as a matter of law. (ECF No. 98, PageID
572). Defendant argues that the issue of whether Miller was negligent is a genuine issue of material
fact that should be left for a jury to decide. (ECF No. 119, PageID 4594). Plaintiff contends there
is no dispute that Miller was negligent. (ECF No. 126).
Defendant admits that Miller was in the course and scope of his employment with Charter
at the time of the accident, so Charter would be vicariously liable for any negligence attributable
to Miller. (ECF No. 119, PageID 4607). A principal is only vicariously liable when an agent is
directly liable. National Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 913 N.E.2d 939, 944
(Ohio 2009). The only issue remaining in dispute is whether Miller was negligent.
To establish an actionable claim of negligence, Plaintiff must show the existence of a duty,
a breach of that duty, and an injury proximately caused by the breach. Rieger v. Giant Eagle, Inc.,
138 N.E.3d 1121, 1125 (Ohio 2019). Plaintiff raises a claim of gross negligence in his motion for
summary judgment. (ECF No. 98, PageID 576). Gross negligence is defined as “the failure to
exercise any or very slight care” and “a failure to exercise even that care which a careless person
would use.” CBC Engineers & Associates Ltd. v. Miller Aviation, LLC, 880 F.Supp.2d 883, 887
(S.D. Ohio 2012) (quoting Johnson v. State, 63 N.E. 607, 609 (Ohio 1902) and Thompson Elec. V.
Bank One, Akron, N.A., 525 N.E.2d 761 (Ohio 1988)). All elements of negligence must exist to
establish gross negligence. Id. at 887–88.
a. Duty
Plaintiff does not mention duty in his motion for summary judgment. (ECF No. 98).
Defendant notes this and requests that the Court disregard any allegation of gross negligence
because Plaintiff failed to address it or analyze it in his motion. (ECF No. 119, PageID 4601–02).
In reply, Plaintiff alleges that Miller failed in his duty to exercise ordinary care. (ECF No. 126).
However, Plaintiff cites no law or facts in support of that proposition. Id. With no evidence
expressly cited by Plaintiff to establish the existence of a duty, Plaintiff’s negligence claim fails.
Nevertheless, for the sake of thoroughness, the Court will assume there is a duty and analyze the
alleged breach of that duty.
b. Breach
Plaintiff alleges that Miller “was negligent when he cut the cable and created a situational
hazard to the traffic on Depot Road with no positive guidance to approaching traffic.” (ECF No.
98, PageID 578). The Court interprets Plaintiff to mean that Miller breached a duty when he cut
the cable from the sub-pole in the customer’s front yard. Defendant contends that the drop line
was not expected to impact traffic on Depot Road, so road closure, temporary traffic controls, or
warning signs were unnecessary. (ECF No. 119, PageID 4605). Defendant’s position is that “a
genuine issue of material fact exists as to whether [Miller’s] decision to start at the sub pole was
reasonable and appropriate,” so Plaintiff is not entitled to judgment as a matter of law. (ECF No.
119, PageID 4606–07). Plaintiff argues, “[a] person using his common experience can reach the
conclusion, without expert testimony, that Mr. Miller was negligent when he dropped a wire in the
roadway, because the link between this action and the fatal collision is apparent and does not
involve a scientific inquiry.” (ECF No. 126). Plaintiff alleges, “Miller breached his duty of
ordinary care by obstructing traffic with a dangerous hazard.” Id.
Plaintiff seems to argue that because an accident occurred there was negligence per se.
“The mere happening of an accident gives rise to no presumption of negligence.” Parras v.
Standard Oil Co., 116 N.E.2d 300, 303 (Ohio 1953). “It is incumbent on the plaintiff to show how
and why an injury occurred—to develop facts from which it can be determined by the jury that the
defendant failed to exercise due care and that such failure was a proximate cause of the injury.”
Boles v. Montgomery Ward & Co., 92 N.E.2d 9, 13 (Ohio 1950). The Court thus looks to the
evidence presented to determine if Miller breached a duty of care when he cut the cable from the
sub pole.
Miller replaced drop lines over a roadway hundreds of times before the incident on June
24, 2020. (ECF No. 99, PageID 755). Relying on his experience, Miller concluded that he could
cut the drop line from the sub pole in the customer’s front yard and it would lie flat on Depot Road.
(ECF No. 99, PageID 698–99). He observed no vehicles on Depot Road since arriving at the
customer’s house. Id. at 659. Before he climbed the pole to cut the drop line, he looked both ways
on Depot Road and saw no traffic. Id. at 695. Miller heard an approaching motorcycle seconds
after he cut the line. Id. at 700. Contrary to his initial assessment, the cut drop line was not lying
flat across the roadway and Hatfield made contact with the wire. Id. at 706. The drop wire was
RG7. Id. at 677.
Plaintiff’s expert, civil engineer Juan M. Morales, P.E., admitted that if the line fell as
Miller anticipated, a flagger would not be required or needed. (ECF No. 112, PageID 2955). In
Morales’s report, he noted, “[c]able and/or wire lying flat on a roadway is usually not considered
a hazard [to] the motoring public.” Id. at 3019. Plaintiff’s other expert, accident reconstructionist
Henry P. Lipian, stated that speed trap cables have a similar diameter to an RG7 cable and he
would not consider speed trap cables as “block[ing] or obstructing the motoring or traveling
public.” (ECF No. 119, PageID 4684–85).
Plaintiff argues that because Miller blocked a lane of traffic, his actions fell below the
standard of care of an ordinary person. (ECF No. 126). However, Miller did not intend to block
the lane of traffic because he intended for the cable to lie flat across the road. As noted above,
both of Plaintiff’s experts conceded that result would not have created a hazard.
Consequently, the only remaining question concerning negligence is whether Miller’s
belief that the drop line would fall flat after he cut it from the sub pole in the customer’s front yard
was reasonable. The only information that Plaintiff asserts related to that analysis was, “[t]he
length of the cable drop ensured that it would not lay flat on the roadway but would hang suspended
before the pole.” (ECF No. 98, PageID 577). Plaintiff cites no evidence in support of that
proposition. Thus, Plaintiff failed to establish that there is not a genuine issue of material fact
related to this issue. Plaintiff did not meet his burden to show that Miller breached a duty of care.
As no breach was established, the Court does not need to consider causation. Plaintiff
failed to establish that there is no genuine dispute as to any material fact and that he is entitled to
judgment as a matter of law on his vicarious negligence claim against Charter. Plaintiff’s motion
for summary judgment as to claim one is DENIED.
V. Claim Two
Claim two alleges direct negligence by Defendant Charter for failure to train, properly
instruct, and supervise their employees. (ECF No. 1, PageID 3). Defendant Charter contends that
there is no evidence to support a finding that Miller was incompetent, the June 24, 2020 accident
was not foreseeable, and there is no evidence that any alleged actions or omissions by Charter were
the proximate cause of the decedent’s injuries. (ECF No. 101, PageID 823–25). Plaintiff argues
that Miller’s negligence is the evidence of his incompetence. (ECF No. 117, PageID 4406).
Plaintiff contends that because multiple Charter witnesses endorse Miller’s actions and found that
he properly applied his training in temporary traffic control, Charter was put on constructive notice
that its training is defective because an accident took place. (ECF No. 117, PageID 4412–13).
Plaintiff states, “Hatfield was operating his motorcycle in a safe and reasonable manner and in
compliance with the prima facie speed limit … Accordingly, the static hazard caused by Charter’s
employee was the proximate cause of the fatal collision.” Id. at 4414.
Defendant replies that Plaintiff presents no material facts to establish that Miller was
anything other than competent at the time of his hire and at the time of the accident. (ECF No.
125, PageID 5230). Defendant also asserts that Charter had neither actual nor constructive notice
of any supposed incompetence of Miller. (ECF No. 125, PageID 5236).
The parties agree that the elements of a negligent supervision or training claim under Ohio
law are the same as those for negligent hiring or retention. (ECF No. 101, PageID 822; ECF No.
117, PageID 4405) (both citing Browning v. Ohio State Highway Patrol, 786 N.E.2d 94, 104 (Ohio
Ct. App. 2003)). They also agree the necessary elements to establish negligent hiring or retention
are: “1) the existence of an employment relationship; 2) the employee’s incompetence; 3) the
employer’s actual or constructive knowledge of that incompetence; 4) the employee’s act or
omission that caused the plaintiff’s injuries; and 5) the employer’s negligence in hiring, retaining,
training, or supervising the employee proximately caused the plaintiff’s injuries.” Herndon v.
Torres, 249 F.Supp.3d 878, 887 (N.D. Ohio 2017). “Where a plaintiff fails to show through
evidence that the employee had any criminal or tortuous propensities, summary judgment in the
employer’s favor on negligent hiring and retention is proper.” Hout v. City of Mansfield, 550
F.Supp.2d 701, 745 (N.D. Ohio 2008).
Defendant concedes that there is an employment relationship between Charter and Miller.
(ECF No. 101, PageID 823). Thus, the first element is met. The Court will consider the remaining
elements below.
a. Incompetence
Defendant argues that there is no evidence that Miller was unqualified when he was hired
or that he was an incompetent field technician at the time of the June 24, 2020 accident. (ECF No.
101, PageID 823). Plaintiff contends that “a reasonable person” could have inferred that “cutting
the wire from one pole while attached to another at a distance over 100 feet” would clearly result
in an overhang of that wire in the lanes of Depot Road. (ECF No. 117, PageID 4406). Defendant
responds that Miller’s belief that the drop line would lay flat across both lanes of Depot Road and
his decision to replace the drop line starting at the sub pole is not evidence of incompetence. (ECF
No. 125, PageID 5230–33). Defendant also contends that temporary traffic controls or the
assistance of a second Charter employee were not required for the drop line replacement in
question. (ECF No. 125, PageID 5233–36).
“[A] plaintiff must be able to establish a tort claim against the individual employee in order
to maintain an action for negligent supervision or retention against the employer.” Minnich v.
Cooper Farms, Inc., 39 F.App’x 289, 296 (6th Cir. 2002). As discussed above, Plaintiff has not
yet established a negligence claim against Miller and is not entitled to summary judgment on his
vicarious negligence claim against Defendant Charter. Consequently, Miller’s negligence is a
question for a jury to decide.
Similarly, there is a lack of evidence that Miller ever demonstrated foreseeable
incompetence. Defendant hired Miller in June 2018 and he completed three weeks of training at
a training facility to start his job. (ECF No. 99, PageID 607–08). Miller’s supervisor or other
safety personnel routinely performed field safety observations where Miller’s work was observed
and assessed. (ECF No. 109, PageID 2281–83). The copies of those assessments do not reveal
any glaring safety/training issues as Miller received a score of 100 out of 100 on every Field Safety
Observation Form in 2020. (ECF No. 115, PageID 4181–86). In Miller’s 2018 performance
evaluation, he achieved expected performance and his supervisor noted that he struggled initially
with some of the new hire testing, but he eventually passed all the tests. (ECF No. 109, PageID
2317–18). In his 2019 performance evaluation, he ranked 111 out of 271 techs on the Scorecard
and again achieved expected performance. (ECF No. 109, PageID 2321). In his 2020 performance
evaluation, Miller ranked 64 out of 236 techs on the Scorecard and achieved expected performance.
(ECF No. 109, PageID 2325). Miller completed countless online trainings and tests over the course
of his employment with Defendant and the summary of those activities noted that Miller only
failed one test by two points. (ECF No. 115, PageID 4200–04). Miller received a corrective action
report on April 8, 2020 because his driver’s license had been suspended and he failed to report it
to his supervisor. (ECF No. 109, PageID 2392). However, there is no evidence that Miller had
any incidents while on the job until the incident in question.
None of this evidence reveals any criminal or tortuous propensities. Thus, even if Plaintiff
were able to convince a jury that Miller was incompetent, Plaintiff runs into issues establishing the
foreseeability required, as noted below.
b. Actual or Constructive Knowledge
Defendant noted that Plaintiff’s complaint and the voluminous discovery in this case did
not allege or produce any evidence that Miller had any prior misconduct that would put Defendant
on notice of the potential for Miller to cause injury. (ECF No. 101, PageID 824). Plaintiff argues
that Defendant Charter had constructive notice of Miller’s incompetence because they now
endorse his conduct as being a reasonable and correct application of their training, ergo they were
on constructive notice that their training is defective. (ECF No. 117, PageID 4412). Defendant
responded that evidence of Miller’s alleged incompetent act does not support a finding that Charter
had actual or constructive knowledge of any alleged incompetence before the accident. (ECF No.
125, PageID 5237).
Constructive knowledge is “knowledge that one using reasonable care or diligence should
have, and therefore that is attributed by law to a given person.” Herndon v. Torres, 249 F.Supp.3d
878, 887 (N.D. Ohio 2017). “Evidence of the employee’s incompetent act giving rise to the
underlying negligence claim is not alone sufficient to support a finding that an employer had actual
or constructive knowledge of the incompetence prior to the incident.” Farm Bureau General
Insurance Co. of Michigan v. Schneider National Carriers, 552 F.Supp.3d 750, 761 (S.D. Ohio
2021).
Plaintiff’s argument that Defendant Charter had constructive notice of Miller’s alleged
incompetence solely relies on the fact that the June 24, 2020 incident happened. However,
hindsight does not help Plaintiff establish foreseeability. Plaintiff does not cite to any evidence
that would have placed Defendant on notice that Miller had any criminal or tortuous propensities.
Consequently, Plaintiff has failed to establish that there is a genuine dispute of material fact as to
Defendant Charter’s actual or constructive notice of any alleged incompetence of Miller. The
Court will not analyze the remaining factors because Plaintiff’s claim of direct negligence fails.
The Court GRANTS Defendant’s motion for summary judgment as to claim two.
In Plaintiff’s response to Defendant’s motion for summary judgment, Plaintiff alleges that
his claim of direct negligence extends beyond negligent training and supervision to include “its
dangerous policies, prioritizing efficiency (lower labor costs) over safety, creating the foreseeable
conditions that lead to this fatal incident.” (ECF No. 117, PageID 4414). Defendant challenges
that this is an attempt by Plaintiff to introduce new allegations and a new argument, which is
prohibited by Rule 15(a)(2) and the Sixth Circuit. (ECF No. 125, PageID 5238–39). To determine
if this is an attempt to amend the pleadings, the Court reviewed the language of the complaint.
Two allegations in the second claim do not reference negligent training and supervision. (ECF
No. 1, PageID 4). The first states that Defendant “failed to assign or provide additional employees
to safely perform the work to repair the cable TV wire, including assigning temporary traffic
control.” Id. The second alleges Defendant “had a duty to the public to follow safety laws and
regulations governing telecommunication utilities, its own safety regulations, safety regulations
imposed within poll leasing agreements, and industry standard safety regulations.” Id. These
allegations do not identify or challenge any dangerous policies. They also fail to allege that
Defendant prioritized efficiency over safety. Unless Plaintiff would like to amend his complaint,
the Court will not address these new arguments because they were raised improperly.
VI. Claim Four
Plaintiff’s fourth claim is a survival action for the “terror and conscious anguish, suffering,
and pain” the decedent experienced prior to his death. (ECF No. 1, PageID 5). Defendant argues
that it is entitled to summary judgment with respect to claim four because Plaintiff cannot establish
that the decedent experienced conscious pain and suffering. (ECF No. 101, PageID 826). Plaintiff
does not contend that decedent was ever fully conscious following the accident, but he argues that
decedent was not fully unconscious because his pain level was being monitored and treated by the
responding medical professionals. (ECF No. 117, PageID 4416–17). Defendant responds that
Hatfield was unconscious and unresponsive from the moment that Miller arrived to aid him until
he died, as testified to by the medical providers who treated him after the accident. (ECF No. 125,
PageID 5240).
To recover for pain and suffering in a survival action, Plaintiff must show “that the
decedent was not completely unconscious during the interval between the accident and death, and
that he was therefore capable of experiencing pain and suffering.” Flory v. New York Cent. R. Co.,
163 N.E.2d 902, 905 (Ohio 1959). “[S]ince one cannot experience pain and suffering while
unconscious no recovery can be had for pain and suffering endured by one fatally injured by the
negligence of another if the injured person is rendered unconscious at the instant of the injury and
dies of such injuries without ever having regained consciousness.” Id.
Miller was the first person to attend to Hatfield after the accident. (ECF No. 99, PageID
750). Miller recalls that Hatfield was making a snoring sound while he was breathing. (ECF No.
99, PageID 749). This sound is clear on the audio recording of the 911 call. (ECF No. 114).
During the 911 call, Miller informs the 911 operator that Hatfield’s eyes are open, but that Hatfield
is unresponsive. Id. Miller testified that Hatfield’s eyes never blinked during the three minutes
he was with him, Hatfield never made any noise other than the snoring sound, and none of his
extremities ever moved. (ECF No. 99, PageID 750–51).
Duraid Younan, M.D., was the doctor that attended to Hatfield when he arrived at the
hospital. (ECF No. 105, PageID 1493). Dr. Younan does not recall treating the decedent, so he
relied on the medical records to refresh his recollection. Id. Dr. Younan described that a common
way to measure a patient’s consciousness is to use the Glasgow Coma Scale, which provides a
score from 3 to 15 with 3 meaning “that patient is really not doing anything neurologically.” (ECF
No. 105, PageID 1515). There are three components to the scoring: 1) eye opening, 2) verbal
responses, and 3) motor responses. (ECF No. 105, PageID 1516). In referencing the medical
documents, Dr. Younan confirmed that Hatfield was ranked as a three on the Glasgow Coma Scale
during his time at the hospital. (ECF No. 105, PageID 1549–50).
Captain James E. Krenisky was a paramedic for the Saybrook Township Fire Department
at the time of the June 24, 2020 incident. (ECF No. 107, PageID 1870). Captain Krenisky’s
ambulance was the first to the scene. (ECF No. 107, PageID 1893). Hatfield’s eyes were open,
“but he wasn’t able to respond in any way.” (ECF No. 107, PageID 1896). Captain Krenisky
immediately called for a helicopter to get Hatfield to a trauma center because of “[t]he gaze. I
knew he had a head injury like immediately.” (ECF No. 107, PageID 1899). Captain Krenisky
scored Hatfield as a three on the Glasgow Coma Scale because “there was no eye movement, there
was no motor skills, there were no verbal.” (ECF No. 107, PageID 1911). He explained that
Hatfield’s eyes were open “because he didn’t have the wherewithal to shut them.” (ECF No. 107,
PageID 1913). Captain Krenisky confirmed that Hatfield was unconscious and unresponsive the
entire time he was in his care and that his pupils were fixed and dilated, which tends to indicate a
head injury. (ECF No. 107, PageID 1915–22). Captain Krenisky confirmed that Hatfield had
snoring respirations, which he clarified is not normal breathing and often indicates a head injury.
(ECF No. 107, PageID 1950).
Michael Boland was a nurse involved in Hatfield’s air transport to the hospital. (ECF No.
110, PageID 2511). Boland ranked Hatfield as a three on the Glasgow Coma Scale during his time
with him because there was “[n]o eye opening, no verbal response, and no motor response to
stimulus.” (ECF No. 110, PageID 2528). Boland administered fentanyl to Hatfield because of his
elevated heart rate and noted that increased heart rate is one sign that someone is in pain. (ECF
No. 110, PageID 2530). However, Boland clarified that Hatfield never responded to anything
while in his care and never demonstrated that he was experiencing pain. (ECF No. 110, PageID
2547–48).
Plaintiff cites to Hatfield’s increased heart rate as evidence that he was experiencing pain
and cites to Bradley ex rel. Estate of Bradley v. University Hospitals of Cleveland, Inc., 2001 WL
1654762 (Ohio App. 2001) to support his argument that this creates a question of fact for a jury to
resolve. However, the evidence in Bradley is distinguishable from our case and Plaintiff cites to
no law to support the premise that elevated heart rate is evidence of conscious pain and suffering.
The decedent in Bradley “was thrashing and had become extremely agitated” and when awakening
from sedation, “his pupils were brisk and reactive.” Id. at *5. Every individual and medical
professional that interacted with Hatfield prior to his death qualified him as unresponsive and
ranked him as the lowest score possible on the Glasgow Coma Scale, which indicates that he was
unconscious. Since there is no evidence that the decedent was not completely unconscious during
the interval between the accident and death, Defendant is entitled to summary judgment in its favor
with respect to Plaintiff’s survival claim. The Court GRANTS Defendant’s motion for summary
judgment as to claim four. (ECF No. 101).
VII. Claim Five
Plaintiff’s fifth claim seeks punitive damages against Defendant. (ECF No. 1, PageID 6).
Defendant argues that it is entitled to summary judgment because punitive damages are unavailable
to plaintiffs in a wrongful death action and there is no evidence of conscious pain and suffering.
(ECF No. 101, PageID 827–32). Plaintiff admits that Defendant is correct that “Ohio case law
reflects that in liability for torts involving fatal injuries, punitive damages are limited to those
claims alleging survivorship and not statutory wrongful death claims.” (ECF No. 117, PageID
4418). However, Plaintiff believes “it is contrary to public policy that punitive damages, which
exist to punish wrongful conduct, would not be available in instances where the violence of the
tortuous act is so severe as to cause instant death.” (ECF No. 117, PageID 4418-19). Defendant
notes that Plaintiff does not dispute that Ohio law prohibits punitive damages in wrongful death
actions. (ECF No. 125, PageID 5241). Thus, the only way Plaintiff could recover punitive
damages would be as part of his survival claim, which Defendant argues fails due to no evidence
of conscious pain and suffering. /d.
As the Court previously indicated, Defendant is entitled to summary judgment as to
Plaintiff's survival claim. As a result, Plaintiffs punitive damages claim is no longer viable. The
Court GRANTS Defendant’s motion for summary judgment against Plaintiff with respect to claim
five.
VII. =Conclusion
Plaintiff's motion for partial summary judgment as to claim one is DENIED. (ECF No.
98). Defendant Charter’s motion for partial summary judgment is GRANTED as to claims two,
four, and five. (ECF No. 101). With the understanding that all parties intend to dismiss Defendant
Spectrum from this case, Defendant Spectrum’s motion for summary judgment is DENIED AS
MOOT. (ECF No. 101). Plaintiff shall file an appropriate notice of dismissal within 14 days of
the issuance of this decision.
As to Defendant’s objections to Plaintiffs Exhibits 1-3, 1-4, and 5 (ECF No. 124), the
Court did not rely on that evidence in ruling on the motions for summary judgment, so Defendant’s
objections are DENIED AS MOOT. Defendant is free to raise any evidentiary concerns regarding
those exhibits if Plaintiff introduces them again in the future.
IT IS SO ORDERED. “adi Hiuve
Dated: September 26, 2023 $$
HONORABLE CHARLES E. FLEMING
UNITED STATES DISTRICT JUDGE
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