The opinion
[Cite as Widdowson v. Lake Cty., 2026-Ohio-67.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
CLINTON T. WIDDOWSON, CASE NO. 2025-L-038
AS ADMINISTRATOR OF THE
ESTATE OF TILER JOE-AUSTIN
WIDDOWSON, et al., Civil Appeal from the
Court of Common Pleas
Plaintiffs-Appellants,
- vs - Trial Court No. 2023 CV 000563
LAKE COUNTY, OHIO, et al.,
Defendants-Appellees.
OPINION AND JUDGMENT ENTRY
Decided: January 12, 2026
Judgment: Affirmed in part, reversed in part, and remanded
Larry W. Zukerman, S. Michael Lear, and Adam M. Brown, Zukerman, Lear, Murray &
Brown, Co., L.P.A., 3912 Prospect Avenue East, Cleveland, OH 44115 (For Plaintiffs-
Appellants).
Frank H. Scialdone, John T. McLandrich, and Edmond Z. Jaber, Mazanec, Raskin &
Ryder Co., L.P.A., 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For
Defendants-Appellees, Lake County, Ohio, Lake County Board of Commissioners, Lake
County Sheriff’s Office, a.k.a., Office of the Sheriff Lake County, Frank Leonbruno, and
Dan Bachnicki).
Michael P. Quinlan and Kenneth E. Smith, Mansour Gavin, L.P.A., North Point Tower,
1001 Lakeside Avenue, Suite 1400, Cleveland, OH 44114, and Brandon D.R. Dynes,
Todd C. Hicks, Bridey Matheney, and Christopher R. Elko, Thrasher, Dinsmore & Dolan,
100 Seventh Avenue, Suite 150, Chardon, OH 44024 (For Defendant-Appellee, Mike
Zgrebnak).
David M. Smith and Amily A. Imbrogno, Myers, Roman, Friedberg & Lewis, 28601
Chagrin Boulevard, Suite 600, Cleveland, OH 44122 (For Defendant-Appellee, Angela
King).
SCOTT LYNCH, J.
{¶1} Plaintiffs-appellants, Clinton T. Widdowson, as administrator of the Estate
of Tiler Joe-Austin Widdowson and in his individual capacity, and Shannon McDougle,
appeal multiple judgments of the Lake County Court of Common Pleas, granting summary
judgment in favor of defendants-appellees, Lake County, Lake County Commissioners,
Lake County Sheriff’s Office1, Frank Leonbruno, Dan Bachnicki, Mike Zgrebnak, Angela
King, Brandy Catanese, Alexander Bowers, Samuel Edmonds, Justin Nevison, and Jeff
Ridler. Because a genuine issue of material fact exists as to whether defendants King
and Catanese acted in a wanton or reckless manner, summary judgment is reversed with
respect to these defendants only. Accordingly, we affirm in part, and reverse in part, the
judgments of the court below, and this matter is remanded for further proceedings
consistent with this opinion.
Substantive and Procedural History
{¶2} On September 2, 2023, the plaintiffs filed a twelve-count Complaint.
{¶3} On March 24, 2025, the trial court granted summary judgment in favor of all
defendants in three separate Opinion and Judgment Entries addressing the defendants
in three groups: (1) Lake County, Lake County Commissioners, Leonbruno, and
Bachnicki; (2) Zgrebnak, Bowers, Edmonds, Nevison, and Ridler; and (3) King and
Catanese. The following underlying factual summary is taken from the court’s Opinion
and Judgment Entries (edited):
This case arose after Tiler Widdowson died on April 30, 2022,
from an acute asthma attack. Tiler Widdowson was age 24 at the
1. The Lake County Sheriff’s Department was dismissed from the lawsuit and is not a party to this appeal.
“As a department of Lake County, which is also a named defendant, the sheriff’s department is not sui juris
and cannot be sued as a separate entity. Rather it is subsumed within any judgment relating to the county.
[Caganik] v. Kaley, 2004-Ohio-6029, ¶ 40 (11th Dist[.]) (A sheriff’s department is not a legal entity subject
to suit).” Opinion and Judgment Entry Granting Summary Judgment for Defendants Lake County, Lake
County Commissioners, Frank Leonbruno, and Daniel Bachnicki, at 5.
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Case No. 2025-L-038
time of his death and had a history of asthma. Clinton Widdowson is
the father and Shannon McDougle is the mother of Tiler Widdowson.
Frank Leonbruno is the Sheriff of Lake County and Captain
Daniel Bachnicki was head of the Central Communications Division
of the Lake County Sheriff’s Office that handles 911 calls for Lake
County. Sergeant Mike Zgrebnak was employed by the Lake County
Sheriff’s Office and the shift supervisor for Deputies Alexander
Bowers, Samuel Edmonds, Justin Nevison, and Jeff Ridler.
Sergeant Angela King was supervisor at the Lake County 911 call
center and Brandy Catanese was a dispatcher.
Evidence shows that on Saturday, April 30, 2022, at 5:26 a.m.,
Tiler Widdowson called 911 on his cell phone for assistance. The
call was received by Sgt. King who had difficulty discerning what
Widdowson was saying. She was only able to discern the word
“help.” She entered into the Computer Aided Dispatch (CAD) system
“Male just yelling help.” Despite her repeated requests, Widdowson
was unable to provide his location.
Using available software, she determined that the location of
the call was in the area of 1651 Mentor Avenue, Painesville, Ohio,
the location of Cambridge Condominiums, a large complex with
numerous condominiums. She was unable to determine the exact
location in the complex. She entered into the CAD “No apt number.”
The rough location was determined by using cell phone towers
“pinging” on the cell phone and was imprecise.
At 5:27 a.m., Sgt. King classified the call in CAD as a priority
four welfare check which is a low priority, non-emergency
designation. She did not dispatch fire or emergency services since
she did not have a precise location but only a general location. She
testified that with only a general location, she did not have enough
information to dispatch fire and/or EMS personnel. Sgt. King
repeatedly called back the phone number of the person calling for
help and at 5:32 a.m., got a voice message for Tiler Widdowson.
Tiler Widdowson did not answer the call. This information was
loaded into the CAD at 5:32 a.m. After obtaining Tiler Widdowson’s
name, she tried searching Google, FastPeople, and other search
engines available to her to locate him. The call was turned over to
Catanese, also on the CAD system, who dispatches for the Lake
County Sheriff’s Office.
Catanese did not hear the original call. After unsuccessfully
attempting to get a more precise location, Catanese dispatched
deputies to Cambridge Condominiums for a welfare check at 5:35
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Case No. 2025-L-038
a.m. A welfare check is automatically assigned a priority four which
is relatively low priority. The first deputy, Deputy Bowers, proceeded
normally to the location, not using overhead lights or a siren. He
arrived in the area about 5:46 a.m. He did not believe this was an
emergency call. At 5:39 a.m., Catanese, using a more precise phone
locating system (RapidSOS), entered into the CAD that the phone
pings closest to Unit 301 in Cambridge Condominiums. However,
RapidSOS is not accurate as to the exact location. A second deputy
(Deputy Nevison) arrived at the scene at 5:48 a.m.
Deputy Bowers drove through the area of the condominiums
and noted that there was no activity in the area. He did not exit his
car and did not knock on Unit 301’s door or other doors. Deputy
Nevison searched other areas of the condominium and a nearby bus
stop and shopping center. Deputy Bowers testified that the quickest
way to canvas an area was in his cruiser. At 5:49 a.m., Deputy
Bowers entered into the CAD using his cruiser’s mobile data terminal
(MDT) “Checked 301 did not see anything.” Since Deputy Nevison’s
shift was ending, he was cleared to go home. He had no further
involvement in the incident.
Sgt. King, after repeatedly calling Tiler Widdowson’s cell
phone with no response, reviewed the recording of Tiler
Widdowson’s original call in an effort to discern what else
Widdowson said. This was about 40 minutes after Tiler Widdowson’s
initial call. She determined that Widdowson had said “Please help,
please help, can’t breathe.” She did not review the full recording of
Tiler Widdowson’s call which would have provided further
information about his distress. At 6:06 a.m., she added the comment
“just says please help, please help, can’t breathe” to the CAD and
further commented “sounds like it’s not directly into the phone either.”
She did not reclassify the call from a welfare check to a medical
emergency. King testified that based on the information she had,
she decided not to dispatch fire and/or EMS units. This information
about Widdowson’s breathing problems appeared on the screen for
Catanese but she did not directly radio this information to the
deputies on scene. Catanese testified that she assumed the
deputies were about to leave and would see this information on their
mobile data terminals (MDTs) in their cruisers. However, there is no
way to know if the deputies received the information in the CAD. In
her deposition, Catanese agreed that she should have radioed this
information to the deputies.
Sgt. King thought Catanese had transmitted the information
about Tiler Widdowson’s breathing problems. She saw a symbol
appear on her screen indicating that Catanese had made a radio
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transmission and assumed that she had radioed this information to
the deputies. She had faith that Catanese was passing this
information over the radio. Sending information by radio is critical
since radio is the primary and fastest means of communicating to
first responders. The failure to get the information by radio to Deputy
Bowers about Widdowson’s breathing problem was significant since
the deputies could have accelerated efforts to confirm whether Tiler
Widdowson was in Unit 301 and possibly made a forced entry into
that unit under exigent circumstances to find Widdowson within an
hour after his initial call for help.
The updated information that Widdowson could not breathe
was entered into CAD about fifteen seconds before Deputy Bowers
made an entry in CAD on his MDT that he was leaving the scene.
He testified that he did not see the entry about Widdowson’s
breathing problems. Deputy Bowers testified that anything important
would have been sent by radio. Deputies Bowers and Nevison had
been on the scene about 26 minutes.
The off-going shift sergeant for the Sheriff’s Department, Sgt.
Musleh, heard the initial dispatch and decided to search for Tyler
Widdowson through RMS (Records Management System). RMS
provided two addresses for Tyler Widdowson that were nowhere
near Cambridge Condominiums. Musleh then searched for
Widdowson in CP Clear Search, a search engine that provides more
accurate information than ordinary search software. This identified
a Honda Accord car registered to Tiler Widdowson. Deputy Nevison
had this information when he proceeded to the Cambridge
Condominiums. Sgt. Musleh called the oncoming shift sergeant, Sgt.
Zgrebnak, about the vehicle registered to Widdowson. Sgt.
Zgrebnak told Sgt. Musleh that the upcoming day shift would follow
up on this information.
Sgt. Zgrebnak relayed this information to Deputy Bowers and
around 6:20 a.m. Bowers returned to Cambridge Condominiums to
determine if the vehicle was there. At 6:49 a.m., Deputy Bowers
noted in the CAD that the vehicle was parked in the parking spot for
Unit 301. Bowers attempted to contact Widdowson by knocking on
the door to Unit 301 with no results. Curtains were drawn on the first
and second floor windows. Deputies Ridler and Edmonds also were
dispatched to the scene. Ridler found the rear slider door to the patio
unsecured but did not enter. He disclosed this to the other two
deputies but did not report it on the radio. The deputies discussed
whether exigent circumstances existed that would justify their forced
entrance into Unit 301 and decided that exigent circumstances did
not exist. They did not contact Sgt. Zgrebnak for advice. Around
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Case No. 2025-L-038
6:49 a.m., the deputies left the scene. Bowers commented in the
CAD “The male’s vehicle was outside unit 301. Numerous attempts
were made to contact him but he did not come to the door.” “Did not
make contact.” There is no evidence the deputies were aware of the
entry in CAD that Tiler Widdowson could not breathe.
At 10:55 a.m., Deputy Ridler was contacted by Deputy Bowers
who suggested Ridler check the 2574 Circle Drive address. About
11 a.m., Ridler made contact with Walter Campbell, the stepfather of
Widdowson at the Circle Drive address. Campbell stated that
Widdowson resided at the Cambridge Condominiums but did not
know the address. Campbell advised Ridler that Widdowson suffers
from severe asthma and had been found unconscious from a
previous episode of asthma. Neither he nor Mrs. McDougle had a
key to the residence but both would go to the residence. Mrs.
McDougle was at work at the time and Campbell agreed to pick her
up. Ridler contacted Bowers by cell phone with this information. He
did not relay this information over the radio or enter it into CAD using
MDT. He drove back to Cambridge Condominiums. At 11:33 a.m.,
Ridler met with Bowers and Edmonds outside Unit 301. The
deputies went to the rear patio and opened the unsecured slider door
and called inside without a response. The deputies entered and
found Widdowson’s deceased body on the second floor.
Assignments and Cross-assignments of Error
{¶4} The plaintiffs timely appealed and raise the following assignments of error:
[1.] The Trial Court erred by granting summary judgment in favor of
Appellees by finding that no genuine issues of material fact exist
regarding wanton or reckless conduct under R.C. 2744.03(A)(6)
because reasonable minds could find that any and/or all of said
Appellees acted in a reckless or wanton manner when the facts
presented are viewed in a light most favorable to Appellants.
[2.] The Trial Court erred by granting summary judgment in favor of
Appellees by finding that the exceptions to immunity under R.C.
2744.02(B)(4) and (B)(5) were inapplicable.
[3.] The Trial Court erred by granting summary judgment in favor of
King, Catanese, Bowers, Nevison, Zgrebnak, Ridler, Edmonds,
Leonbruno and Bachnicki by finding that no genuine issue of material
fact exists as to Counts One, Five, Six, Seven, and Nine of
Appellants’ Complaint.
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{¶5} Appellees King and Catanese raise the following cross-assignments of
error:
[1.] The time of Widdowson’s death and status of his asthma attack
at the time of his call are unknown. Should the lower court have
found that no reasonable mind could conclude that Sgt. King or
Deputy Catanese’s acts or omissions were the proximate cause of
Widdowson’s death?
[2.] RC 238.32(B) provides immunity to individuals who give
instructions through a 911 system, so long as their actions are not
willful or wanton. The Dispatchers acted reasonably each time they
provided instructions through their system. The lower court should
have found that the Dispatchers were immune from Appellants’
claims under RC 128.32(B).
[3.] Appellants bear the burden of proving that one or more of the
Dispatchers’ specific actions went beyond all possible bounds of
decency. The Dispatchers both acted reasonably in a difficult
situation. Should the lower court have dismissed the intentional
infliction of emotional distress claim on its merits?
{¶6} The assignments and cross-assignments of error will be considered in a
consolidated fashion for clarity.
Standard of Review for Summary Judgment and Statutory Interpretation: De Novo
{¶7} Summary judgment is properly granted when “there is no genuine issue as
to any material fact and … the moving party is entitled to judgment as a matter of law,”
i.e., when “reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is made, that party
being entitled to have the evidence or stipulation construed most strongly in the party’s
favor.” Civ.R. 56(C).
{¶8} “When reviewing the decision of a trial court granting or denying a party’s
motion for summary judgment, an appellate court applies a de novo standard of review.”
Smathers v. Glass, 2022-Ohio-4595, ¶ 30. “The appellate court conducts an independent
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review of the evidence without deference to the trial court’s findings.” Id. “It examines
the evidence available in the record, including deposition or hearing transcripts, affidavits,
stipulated exhibits, and the pleadings, see Civ.R. 56(C), and determines, as if it were the
trial court, whether summary judgment is appropriate.” Id. When a party seeks to resolve
a case on summary judgment, the evidence cannot be weighed, only reviewed de novo.
Id. at ¶ 32. “When factual ambiguities exist,” and even when they do not, “inferences
must still be resolved in favor of the nonmoving party.” Id.
{¶9} Likewise, questions of statutory interpretation are reviewed de novo. State
v. Logan, 2025-Ohio-1772, ¶ 8. The “main objective is to determine and give effect to the
legislative intent,” without “deference to the lower court’s decision” or being “limited to
choosing between the different interpretations of the statute presented by the parties.”
Turner v. CertainTeed Corp., 2018-Ohio-3869, ¶ 11. The same rules of construction that
govern the interpretation of statutes are generally applied to the interpretation of
constitutional language. League of Women Voters of Ohio v. Ohio Redistricting Comm.,
2022-Ohio-65, ¶ 84.
Political Subdivision Tort Liability
{¶10} “[A] political subdivision is not liable in damages in a civil action for injury,
death, or loss to person or property allegedly caused by any act or omission of the political
subdivision or an employee of the political subdivision in connection with a governmental
or proprietary function.” R.C. 2744.02(A)(1). “A ‘governmental function’ includes … [t]he
provision or nonprovision of police, fire, emergency medical, ambulance, and rescue
services or protection.” R.C. 2744.01(C)(2)(a). Accordingly, “the broad immunity of R.C.
Chapter 2744” provides the defendants herein “a complete defense to a negligence cause
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of action,” unless one of the statutory exceptions apply. Doe v. Greenville City Schools,
2022-Ohio-4618, ¶ 9-10. The statutory exceptions to immunity will be considered in
relation to particular defendants.
Second Claim (Wrongful Death); Third Claim (Wrongful Death); Fourth Claim
(Breach of Duty by King and Catanese); Fifth Claim (Failure to Supervise 9-1-1
Employees by Leonbruno, Bachnicki, and/or Zgrebnak); Seventh Claim (Failure to
Supervise Police Officers); Twelfth Claim (Survival Action)
{¶11} The second claim of the plaintiffs’ Complaint asserts that defendants Lake
County, Lake County Board of Commissioners, Leonbruno, and/or Bachnicki caused the
wrongful death of Tiler Widdowson. The third claim asserts the same against defendants
Zgrebnak, King, Catanese, Bowers, Nevison, Edmonds, and/or Ridler. The fourth claim
asserts that defendants King and/or Catanese breached the duty of care owed to Tiler
thereby causing injury. The fifth claim alleges that defendants Leonbruno, Bachnicki,
and/or Zgrebnak breached the duty of care owed to Tiler by failing to train and/or
supervise dispatchers King and Catanese. The seventh claim raises a similar allegation
against Leonbruno and/or Zgrebnak with respect to the deputies involved in responding
to Tiler’s 911 call. The twelfth claim seeks damages for injuries on behalf of Tiler against
all defendants.
{¶12} These claims are all grounded in tort (breach of duty) and their focus is the
conduct of the employees of Lake County and the Board of Commissioners. The
employee of a political subdivision “is immune from liability unless … [t]he employee’s
acts or omissions were … in a wanton or reckless manner.” R.C. 2744.03(A)(6)(b). In
the summary judgment context, the issue is “not whether the [political subdivision]
employees acted in a reckless or wanton manner but whether reasonable minds could
find that they acted in such a manner when the facts presented are viewed in a light most
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favorable to [the plaintiffs].” Smathers, 2022-Ohio-4595, at ¶ 34. It is generally
recognized that “issues regarding recklessness and wantonness are generally questions
for the jury to decide.” Hill v. Kiernan, 2025-Ohio-5518, ¶ 33 (8th Dist.); O’Toole v.
Denihan, 2008-Ohio-2574, ¶ 75 (“the determination of recklessness is typically within the
province of the jury,” although the standard is “high”); Fabrey v. McDonald Village Police
Dept., 70 Ohio St.3d 351, 356 (1994) (“the issue of wanton misconduct is normally a jury
question”).
{¶13} The Ohio Supreme Court emphasizes that “wanton” and “reckless”
“describe different and distinct degrees of care and are not interchangeable.” Anderson
v. Massillon, 2012-Ohio-5711, paragraph one of the syllabus. “Wanton misconduct is the
failure to exercise any care toward those to whom a duty of care is owed in circumstances
in which there is great probability that harm will result.” Id. at paragraph three of the
syllabus; ¶ 33 (“one acting in a wanton manner is aware of the risk of the conduct but is
not trying to avoid it and is indifferent to whether harm results”) (citation omitted).
{¶14} “Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable under the
circumstances and is substantially greater than negligent conduct.” Id. at paragraph four
of the syllabus; ¶ 34 (“reckless conduct is characterized by a substantial and unjustifiable
risk of harm to others and a conscious disregard of or indifference to the risk, but the actor
does not desire harm”) (citation omitted). Stated otherwise, “[r]ecklessness is a perverse
disregard of a known risk” and “necessarily requires something more than mere
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negligence.” O’Toole at paragraph three of the syllabus. “The actor must be conscious
that his conduct will in all probability result in injury.” Id.2
{¶15} “The violation of a statute, ordinance, or departmental policy enacted for the
safety of the public is not per se willful, wanton, or reckless conduct, but may be relevant
to determining the culpability of a course of conduct.” Anderson at paragraph five of the
syllabus. “Without evidence of an accompanying knowledge that the violations ‘will in all
probability result in injury,’ … evidence that policies have been violated demonstrates
negligence at best.” (Citation omitted.) O’Toole at ¶ 92.
{¶16} The conduct of the Lake County and Board of Commissioners employees
is necessarily considered individually.
Dispatcher Angela King
{¶17} Plaintiffs cite the following instances of actions and/or omissions as
evidencing wanton or reckless conduct: King initially misclassified an “obvious medical
emergency 911 call as a low priority welfare check”; she waited forty minutes before
replaying the recording of the 911 call; she failed to replay the entire recording and so
missed Tiler state that he was dying; after learning that Tiler could not breathe, she failed
to reclassify the 911 call as a medical emergency; she failed to dispatch fire or EMS units
to Unit 301; she failed to broadcast by radio the information that Tiler could not breathe
to the deputies; and she failed to ensure that this information was broadcast by Catanese.
Appellants’ Merit Brief at 14-19. Compare Plush v. Cincinnati, 2020-Ohio-6713, ¶ 42 (1st
2. We acknowledge that there may be a discrepancy between Anderson’s definition of recklessness as
“the conscious disregard of or indifference to a known or obvious risk of harm” and O’Toole’s holding that
“[t]he actor must be conscious that his conduct will in all probability result in injury.” As explained infra, we
find that a genuine issue of material fact exists with respect to King’s and Catanese’s conduct under either
standard.
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Dist.) (evidence that the dispatcher failed to convey “the urgency and severity of the
situation” where the caller advised she was “in desperate need of help” and “going to die
soon” and misclassified the call as “unknown trouble” was “sufficient to demonstrate a
conscious disregard, or indifference to, a known risk of harm”).
{¶18} King responds that she acted with diligence on Tiler’s behalf by taking
multiple affirmative steps to locate and assist him and was not idle before replaying the
911 call. Furthermore, King disputes that Tiler stating that he “can’t breathe” elevated the
event from a welfare check to a medical emergency. She asserts that without a definite
location or event type, it would not have been appropriate to dispatch fire or EMS.
Because deputies were already on the scene, King claims that it was Catanese’s
responsibility to ensure that deputies were informed that the caller could not breathe.
{¶19} We find that prior to hearing Tiler’s complaint that he could not breathe at
about 6:06 a.m., King’s conduct was at most negligent. The initial classification of the call
as a welfare check was in accordance with call center policies. In addition to classifying
the event, King noted that the male caller was yelling “help” and Catanese duly broadcast
this information when dispatching Deputy Bowers.
{¶20} After realizing the severity of the situation, however, King’s conduct could
be described as the failure to exercise any care in circumstances in which there was a
great probability of harm and/or the conscious disregard of or indifference to an obvious
risk of harm. The critical issue of whether Tiler’s not being able to breathe constituted a
medical emergency, i.e., a situation requiring an emergency medical response, is not one
that needs to be resolved. We make no determinations regarding the facts of the matter.
Whether the words “can’t breathe” connoted a life-threatening emergency in this context
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is for the jury to decide. For summary judgment purposes, the plaintiffs are entitled to
that reasonable inference, despite King’s testimony that she “had no reason to believe at
that time [i.e., after learning that Tiler could not breathe] that it was just a medical
emergency or if it could have been more” and that it was not appropriate to dispatch fire
and EMS at that time.
{¶21} The plaintiffs are entitled to any favorable inferences from the fact that forty
minutes had elapsed before King replayed the call and that, by only replaying a portion
of the call, King was unaware that Tiler also said he was dying. As noted above, we do
not find that this delay itself rises to the level of wantonness or recklessness. The critical
period for the jury’s consideration begins once King realized that Tiler was saying he could
not breathe. When evaluating King’s conduct from this point forward, it is proper to
consider that forty minutes had already elapsed since the initial call. Accordingly, King’s
conduct must be considered in light of the fact that she knew that Tiler claimed that he
could not breathe and that forty minutes had elapsed. In light of these facts, it is arguable
that she should have known that there was a substantial risk of injury or death to Tiler if
appropriate action was not taken. See O’Toole, 2008-Ohio-2574, at ¶ 76-91 (discussing
cases illustrating “the difference between recklessness and mere negligence” in which
knowledge or appreciation of the risk of harm is determinative).
{¶22} King was the fire and EMS dispatcher and could have directly dispatched
those units (located about two minutes away) to the scene or, at the least, staged them
(put them on notice), but did not do so. Nor did she reclassify the call as a medical
emergency. Although deputies were already on the scene, the deputies, according to
Bowers, were not “trained medically” to deal with a medical emergency. She made a
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CAD entry about Tiler not being able to breathe but did not radio deputies directly despite
acknowledging that radio was the primary mode of communication and that it should
never be assumed that information entered into CAD has been read by law enforcement.
She verbally communicated the information to Catanese and assumed that she had
broadcast it to the deputies but did not confirm that Catanese broadcast it or that the
deputies responded to it, despite having a supervisory role over her. Bowers testified
that, if he had been aware that Tiler could not breathe, he would have entered Unit 301.
Again, it is not for this court to draw conclusions from this evidence, particularly in
hindsight. We do find that the plaintiffs merit the opportunity of making that case to the
jury. Accordingly, summary judgment was improperly granted with respect to King.
Dispatcher Brandy Catanese
{¶23} Plaintiffs contend that Catanese’s conduct was wanton and/or reckless
based on the following: Catanese delayed for eight minutes after King’s initial
classification of the call before dispatching deputies; after learning that King had updated
CAD with information that Tiler could not breathe, she did not inform the responding
deputies, Bowers and Nevison; and she did not reclassify the call as a medical emergency
or dispatch fire and/or EMS to the scene.
{¶24} As with King, we conclude that, prior to discovery of the crucial information
that Tiler could not breathe, the evidence at best demonstrates negligence rather than
recklessness. At this point, both the nature and the location of the event remained
uncertain.
{¶25} Catanese acknowledged that she should have radioed the updated CAD
information to Deputy Bowers at 6:06 a.m. She had earlier broadcast by radio the
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important information that the caller was asking for help and that the call was pinging
closest to Unit 301. She assumed, however, that Bowers had read the information
because he was typing on the CAD at the same time. The assumption is suspect in light
of the fact that Bowers was preparing to clear the scene at 6:06 a.m. A jury could
conclude that it was not reasonable to assume that Bowers had seen the CAD about Tiler
being unable to breathe if he was clearing the scene – he would have had less than a
minute to investigate the new information and nothing about Bowers’ subsequent conduct
was consistent with knowledge that the situation had become a medical emergency.
Bowers’ own entries into CAD unequivocally state that contact was not made with the
caller when he actually cleared the scene at 6:12 a.m. As noted above, the deputies were
not trained to handle a medical emergency although, with fuller knowledge of Tiler’s
condition, they would have entered his apartment. Therefore, we find that a genuine issue
of material fact exists as to whether Catanese’s conduct was wanton and/or reckless.
{¶26} We find King’s and Catanese’s conduct in the present case comparable to
the conduct of the defendants, employees of a county children’s services agency, in
Smathers inasmuch as their conduct evidenced a conscious disregard or indifference to
a known risk. In that case, the Supreme Court found that a genuine issue of material fact
existed as to whether the employees acted wantonly or recklessly in failing to protect a
child in her mother’s custody. The child was hospitalized in the course of the agency’s
involvement with the family. Upon discharge, medical staff noted “that the hospital was
reluctant to release [the child] because of suspected abuse and her parents’ apparent
inability to provide for her safety.” Smathers, 2022-Ohio-4595, at ¶ 39. Following the
release of the child and/or the agency’s learning of the suspected abuse, the child was
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allowed to remain in the mother’s custody with minimal supervision. The Supreme Court
held that summary judgment was not appropriate under the circumstances: “There is no
evidence that any agency employee followed up with the PICU physicians who had
recorded these concerns to better understand the basis for their conclusions regarding
abuse and neglect; rather, the evidence presented could support a finding that the
workers recklessly or wantonly disregarded the doctors’ documented concerns.” Id. at ¶
42.
{¶27} King’s and Catanese’s response to the Tiler’s being unable to breathe is of
a similar character. Not being able to breathe may not “necessarily” imply a medical
emergency any more than the hospital’s concerns in Smathers necessarily implied
physical abuse. The failure to respond in a manner consistent with the known risk of
harm once that crucial information was discovered, however, creates a triable issue as to
whether the conduct is wanton or reckless. Smathers makes clear that a government
employee’s actions, as well as the failure to act, may constitute wanton or reckless
conduct when those actions are an ineffectual response to a known risk of harm. Id. at ¶
43-44.
{¶28} Here, neither King nor Catanese contacted emergency medical services or
broadcast that Tiler could not breathe to the deputies (who would have been unable to
provide medical assistance in any event). Instead, a note that the caller “just says please
help, please help, can’t breathe” was entered in CAD which was not, according to the
evidence, an acceptable or reasonable manner of communicating critical information.
The import of the qualifying word “just” is uncertain but could be construed as minimizing
the seriousness of the situation (consistent with her lack of more vigorous action). Bowers
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testified that it was his expectation that dispatch would give him all the pertinent
information via radio and update him if they had entered any CAD notes. King and
Catanese both confirmed that radio was the “primary” means of communication and King
that it should not be assumed deputies have read CAD notes. Despite this, no effort was
made to confirm that the deputies were aware of the newly discovered information and,
to the contrary, there was evidence that they were not aware. These circumstances
demonstrate that triable issues of fact exist and that it would not be unreasonable for a
jury to find the conduct was beyond mere negligence, i.e., that it was wanton and/or
reckless.
Proximate Cause
{¶29} In their first cross-assignment of error, King and Catanese argue that, even
if their conduct could be found wanton or reckless, they are nevertheless entitled to
judgment because the plaintiffs cannot establish that their conduct proximately caused
any harm. The plaintiffs failed “to present any competent evidence that [Tiler] was still
alive at a point where different dispatcher action could have changed the outcome,” and
“[a]bsent such evidence, [their] case rests on conjecture that a ‘timely response’ ‘likely’
would have prevented death.” King and Catanese’s Merit Brief at 14.
{¶30} Contrary to King and Catanese’s assertion regarding proximate cause, the
plaintiffs’ medical expert, Dr. Francisco J. Diaz, opined “that death occurred long after the
first [911] call at 0526 hours and [Tiler] experienced suffering and [an] impending sense
of doom for a period of time that likely exceeded one hour.” Construing this evidence in
the plaintiffs’ favor, a genuine issue of material fact exists as to whether Tiler was alive at
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the time the critical nature of his condition was discovered by King and conveyed to
Catanese.
Statutory Immunity under R.C. 128.32 [R.C. 128.96]
{¶31} King and Catanese argue, under their second cross-assignment of error,
that they enjoy a statutory immunity in addition to the immunity enjoyed as employees of
a political subdivision.
{¶32} “[A]n individual who gives emergency instructions through a 9-1-1 system
established under this chapter, and the principals for whom the person acts, including
both employers and independent contractors, public and private, … are not liable in
damages in a civil action for injuries, death, or loss to persons or property arising from the
issuance or following of emergency instructions, except where the issuance or following
of the instructions constitutes willful or wanton misconduct.” R.C. 128.96(B) (identical to
former R.C. 128.32(B)).
{¶33} In order for R.C. 128.96(B) to apply, it is necessary that King and Catanese
were giving emergency instructions through a 911 system. R.C. 128.01(A) (“‘9-1-1
system’ means a system through which individuals can request emergency service using
the access number 9-1-1”). King and Catanese construe this language to encompass
“instructions given in dangerous situations that demand an immediate response,” such as
when King “input the need for a welfare check at Cambridge Condominiums … which
informed Deputy Catanese that she needed to dispatch law enforcement.” King and
Catanese’s Merit Brief at 15-16. While the dispatch of deputies might arguably constitute
“emergency instructions” (we offer no opinion on this point), the dispatching of officers
was not “through a 9-1-1 system” but, according to Catanese, through the sheriff’s office
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radio. Chavalia v. Cleveland, 2017-Ohio-1048, ¶ 60 (“[a]ppellee’s wrongful death claim
arises out of the dispatchers’ failure to timely dispatch a zone car; it does not ‘aris[e] from
the issuance … of emergency instructions’ ‘through a 911 system’”). Since neither King
nor Catanese communicated with the deputies through a 911 system, they are not exempt
from liability in damages pursuant to R.C. 128.96(B).
Deputy Alexander Bowers
{¶34} The plaintiffs’ claims against Deputy Bowers are premised on the following:
the failure to employ emergency lights and/or sirens when responding to Cambridge
Condominiums; the failure to exit his cruiser during the initial visit to Cambridge
Condominiums; the failure to check Unit 301’s parking spot for Tiler’s vehicle; the failure
to check CAD notes before clearing the scene at 6:12 and 6:49 a.m.; determining that
exigent circumstances did not justify entering Unit 301; and not following-up on the Tiler’s
911 call until directed to do so by Sergeant Zgrebnak.
{¶35} In the absence of knowledge that Tiler could not breathe and that he was
dealing with a medical emergency, Deputy Bowers is at most negligent rather than
wanton or reckless. The two most critical actions (or inactions) by Bowers were the
decision that exigent circumstances did not justify entry and the failure to check the CAD
notes. With respect to the first of these, to justify entry into Unit 301 Bowers had to
“reasonably believe that a person within is in need of immediate aid.” (Citation omitted.)
State v. Dunn, 2012-Ohio-1008, ¶ 18. In the present case, Bowers was dispatched to the
Cambridge Condominiums for a low priority welfare check with no real conception of what
aid or help Tiler might have needed. The decision against entering may not have been
the proper one, but it can hardly be deemed wanton or reckless. As for checking the CAD
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notes, the evidence is that both the deputies and the dispatchers understood that critical
information, such as a medical emergency, should have been broadcast by radio.
Certainly, Bowers should have been checking the CAD, but what is lacking is the evidence
of a great probability or obvious risk of harm that could result from the failure to check
notes. For these reasons Bowers was entitled to judgment as a matter of law.
Deputy Justin Nevison
{¶36} The plaintiffs base Deputy Nevison’s purported wanton and reckless
conduct on: the failure to use lights and sirens when responding to Cambridge
Condominiums; the failure to exit his cruiser; the failure to check for Tiler’s vehicle; and
the failure to check the CAD notes. As with Deputy Bowers, we find these deficiencies
evidence of, at most, negligence. The use of lights and sirens, exiting the vehicle, and
checking the Unit 301 parking spot would have had only a minimal effect on the course
of events. The failure to check CAD, while serious, is not wanton or reckless without an
appreciation of the probability or risk of harm. Nevison was entitled to judgment as a
matter of law.
Deputy Jeffrey Ridler
{¶37} The plaintiffs cite the following in support of their claim that Deputy Ridler
acted wantonly and/or recklessly: failure to use lights and sirens; failure to check CAD
notes; failure to inquire about the nature of the call; failure to communicate with dispatch
and/or Sergeant Zgrebnak; failure to enter Unit 301 based on exigent circumstances;
failure to follow-up on Tiler’s 911 call until directed to do so; and the failure to broadcast
the information that Tiler suffered from asthma.
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{¶38} Again, the failures identified by the plaintiffs demonstrate negligence rather
than wanton or reckless conduct. The plaintiffs do not demonstrate that Deputy Ridler
had any greater knowledge (or any reason to have greater knowledge) of the likelihood
of harm than the other deputies. Ridler was entitled to judgment as a matter of law.
Deputy Stuart Edmonds
{¶39} The plaintiffs’ claims against Deputy Edmonds are based on: the failure to
use lights and sirens; the failure to check CAD notes; the failure to obtain further
information about the situation; the decision not to enter Unit 301; and the failure to follow-
up on Tiler’s call.
{¶40} The only circumstance distinguishing Deputy Edmonds’ conduct from that
of the other deputies is that he believed exigent circumstances existed to enter Unit 301
but remained silent about this belief, deferring to the judgment of the more experienced
Deputies Bowers and Ridler. The failure to voice his differing estimation of the situation,
however, does not elevate his conduct to wanton or reckless. Edmonds was entitled to
judgment as a matter of law.
Sergeant Michael Zgrebnak
{¶41} Sergeant Zgrebnak’s conduct is alleged to have been wanton and/or
reckless for the following reasons: he failed to exercise diligence in resolving Tiler’s 911
call prioritizing other tasks, such as “paperwork,” over the necessary supervision of his
deputies; and failing to review the CAD notes.
{¶42} Sergeant Zgrebnak’s alleged deficiencies in resolving Tiler’s 911 call are
mitigated by the same circumstance that affected the deputies’ decision not to enter Unit
301: he understood the call as a low priority, non-emergency welfare check. Given his
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understanding of the nature of the call, his conduct in resolving it does not go beyond
negligence. Zgrebnak was entitled to judgment as a matter of law.
Sheriff Frank Leonbruno and Captain Daniel Bachnicki
{¶43} The plaintiffs raise the following claims against both Sheriff Leonbruno and
Captain Bachnicki with regard to training and supervision: they failed to ensure that
deputies understood the accuracy of the RapidSOS locating system; they failed to
implement a policy requiring deputies to check CAD notes before leaving the scene of an
unresolved 911 call; they failed to train deputies regarding exigent circumstances; and
they failed to implement a policy to treat welfare checks as potential emergency
situations. Neither Leonbruno nor Bachnicki was directly involved with the events of April
30, 2022. Rather, the plaintiffs maintain that the alleged deficiencies “created systemic
risks of harm to the public.” Appellants’ Merit Brief at 29.
{¶44} The plaintiffs rely on Morrison v. Warrensville Hts., 2022-Ohio-1489 (8th
Dist.), in which the court of appeals found that a police chief and a fire chief could be
found liable for injuries to a 911-caller where the system lacked adequate address
verification procedures (“it was generally known that emergency services had gone to the
incorrect address multiple times and that issue had been raised with the Chiefs”), and the
dispatch department “was understaffed, overworked, and overwhelmed” with dispatchers
being “often called away from the radio to perform other duties.” Id. at ¶ 73. The court
concluded that “[r]easonable minds could disagree on whether the Chiefs’ knowledge of
the problems in the dispatch department, knowledge of mistaken address, and the failure
to take simple steps to address these issues amounted to a conscious disregard of or
indifference to a known or obvious risk of harm.” Id. at ¶ 75.
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{¶45} None of the extenuating circumstances in Morrison exist in the present
case. The plaintiffs present no evidence of ongoing, systemic failure to provide
emergency services in Lake County. From the time of the initial dispatch, Unit 301 was
identified as the possible source of the call and the connection to Tiler was soon
established through the location of his Honda Accord. The primary failures leading to this
tragedy are rooted in the dispatchers’ handling of the call after it became known it was a
medical emergency. The dispatchers’ failures do not arise from a lack of proper training
or supervision. Dispatchers and deputies recognized the seriousness of being unable to
breathe and that the radio was the primary means of communicating critical information.
There is simply no evidence of systemic failures, as opposed to lapses in personal
judgment, to sustain claims based on deficient training or supervision. Leonbruno and
Bachnicki were entitled to judgment as a matter of law.
{¶46} The plaintiffs’ second, third, fourth, and twelfth claims have potential merit
with respect to defendants King and Catanese but otherwise fail as a matter of law.
Summary judgment was properly granted as to the plaintiffs’ fifth and seventh claims.
Eighth Claim (Breach of Duty by Defendants Lake County, Ohio; Lake County
Board of Commissioners; and/or Lake County Sheriff’s Office)
{¶47} The eighth claim of the Complaint alleges that Lake County, the Board of
Commissioners, and their employees may be held liable to the plaintiffs for damages
under the physical defect exception to political subdivision immunity.
{¶48} “[P]olitical subdivisions are liable for injury, death, or loss to person or
property that is caused by the negligence of their employees and that occurs within or on
the grounds of, and is due to physical defects within or on the grounds of, buildings that
are used in connection with the performance of a governmental function.” R.C.
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2744.02(B)(4). The plaintiffs claim that the foregoing exception applies to the facts of the
present case. “Tiler’s call connected him to the 911 system via cell towers to CC [the
Sheriff’s Central Communications unit], a governmental function,” thereby placing him on
the “virtual grounds” of a government building. The plaintiffs further assert that the failure
to train deputies, the reckless and/or wanton response to the 911-call, and the failure of
deputies to investigate constitute a “physical defect.” Appellants’ Merit Brief at 31.
{¶49} For support, the plaintiffs rely on a series of cases for the following
proposition:
In determining whether a building is used in connection with a
governmental function, the building need not “house the actual,
physical operations, maintenance, etc., of a governmental body,” but
instead the question is “whether the building is logically, not literally,
connected to the performance of a governmental function.” Mathews
[v. Waverly], 4th Dist. Pike No. 08CA787, 2010-Ohio-347, at ¶ 32,
citing Moore v. Lorain Metro. Hous. Auth., 121 Ohio St.3d 455, 2009-
Ohio-1250, 905 N.E.2d 606 (holding that a public-housing unit is a
building “used in connection with the performance of a governmental
function” for purposes of R.C. 2744.02(B)(4)).
R.K. v. Little Miami Golf Ctr., 2013-Ohio-4939, ¶ 24 (1st Dist.).
{¶50} In the Mathews case, a tree limb fell on the plaintiff while she was standing
in the parking lot of a park owned and operated by the City of Waverly. Mathews at ¶ 3.
The court of appeals concluded that the shelter house and roofed pagodas located in the
park bore “a logical connection to the performance of the operation or maintenance of the
park” inasmuch as they were “part and parcel of the park” and “available for public use.”
Id. at ¶ 36. In R.K., the plaintiff was injured by a falling tree limb while playing golf at a
Golf Center owned and operated by the park district. R.K. at ¶ 2. The court of appeals
noted that “the Golf Center qualifies as a building used in connection with the performance
of the governmental function of the operation of a golf course,” and “the eighth green of
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the golf course [where plaintiff was injured] is part of the land around the Golf Center and
is obviously devoted to the same purpose as the Golf Center.” Id. at ¶ 28.
{¶51} In contrast to Mathews and R.K., we find that the Cambridge Condominiums
bears no logical relationship to the performance of a governmental function, i.e., the
provision of police and/or emergency medical services. Rather, the relationship here is
merely incidental in that the 911 call originated from the condominiums. Plush, 2020-
Ohio-6713, at ¶ 31 (1st Dist.) (“[t]he performance of a governmental function at a privately
owned facility does not transform that building into one that is ‘used in connection with
the performance of a governmental function’”) (citation omitted); compare Stanfield v.
Reading Bd. of Edn., 2018-Ohio-405, ¶ 12 (1st Dist.) (school board could be held liable
for injury occurring at a municipal stadium facility “where all football and track events were
held for the high school”).
{¶52} Moreover, regardless of any logical connection between the condominiums
and the provision of police and/or emergency medical services, the appellees’ conduct
does not constitute a physical defect within or on the grounds. “[C]ases addressing the
‘physical defect’ exception involve physical defects as part of the structure of buildings
and the maintenance of those structures.” Conley v. Wapakoneta City School Dist. Bd.
of Edn., 2022-Ohio-2915, ¶ 44 (3d Dist.); Nicholas v. Lake Cty., 2013-Ohio-4294, ¶ 23
(11th Dist.) (“[a]lthough the term ‘physical defect’ is not defined in the statute, prevailing
authority holds that a ‘physical defect’ is a ‘perceivable imperfection that diminishes the
worth or utility of the object at issue’”) (citation omitted); O’Brien v. Great Parks of
Hamilton Cty., 2020-Ohio-6949, ¶ 25 (1st Dist.) (negligent use of a riding lawnmower does
not constitute a physical defect “absent some evidence that the lawnmower was broken
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or improperly assembled such that the worth or utility of the lawnmower was diminished
at the time of the incident”).
{¶53} Accordingly, the physical defect exception to immunity in R.C.
2744.02(B)(4) does not apply in the present case.
{¶54} The eighth claim fails as a matter of law.
Sixth Claim (Breach of Duty to Protect by Police Officers)
{¶55} The plaintiffs’ sixth claim for relief was premised on the violation of the
statutory duty to protect Tiler by Sergeant Zgrebnak and Deputies Bowers, Nevison,
Edmonds, and/or Ridler. An exception to the doctrine of immunity is provided for as
follows: “a political subdivision is liable for injury, death, or loss to person or property when
civil liability is expressly imposed upon the political subdivision by a section of the Revised
Code.” R.C. 2744.02(B)(5). However, “[c]ivil liability shall not be construed to exist under
another section of the Revised Code merely because that section imposes a responsibility
or mandatory duty upon a political subdivision.” Id.
{¶56} The plaintiffs rely upon R.C. 737.11, which provides in relevant part that
“[t]he police force of a municipal corporation shall preserve the peace, [and] protect
persons and property.”
{¶57} Initially, it is doubtful whether R.C. 737.11 qualifies as an exception to
immunity pursuant to R.C. 2744.02(B)(5) inasmuch as it has been described as imposing
a “public duty” upon safety forces. Commerce & Industry Ins. Co. v. Toledo, 45 Ohio
St.3d 96, 100 (1989); Lockett v. Akron, 714 F.Supp.2d 823, 838 (N.D.Ohio 2010)
(“[s]ection 737.11 is simply an expression of the general duties of a municipal police
department; it does not ‘expressly impose’ liability for failure to carry out those duties”).
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{¶58} More fundamentally, R.C. 737.11 expressly applies to the safety forces of
municipal corporations rather than counties or a board of county commissioners. It is
evident both in Ohio constitutional law as well as the Revised Code that municipal
corporations and counties are distinct types of governmental entities. Ohio Const., art. X
(county and township organizations) and XVIII (municipal corporations); R.C. Title III
(counties) and VII (municipal corporations); also Hamilton Cty. Bd. of Commrs. v. Mighels,
7 Ohio St. 109, 118-124 (1857) (discussing at length the differences between counties
and municipal corporations at common law). Accordingly, the plaintiffs’ reliance on R.C.
737.11 is misplaced.
{¶59} The sixth claim for relief fails as a matter of law and summary judgment was
properly granted with respect thereto.
Ninth Claim (Liability under former R.C. 128.32 [128.96])
{¶60} The plaintiffs’ ninth claim is premised on another purported statutory
exception to political subdivision immunity. See R.C. 2744.02(B)(5); R.C.
2744.03(A)(6)(c) (removing immunity from political subdivision employees when “[c]ivil
liability is expressly imposed upon the employee by a section of the Revised Code”).
{¶61} “The state, the state highway patrol, a subdivision, or a regional council of
governments participating in a 9-1-1 system established under this chapter and any
officer, agent, employee, or independent contractor of the state, the state highway patrol,
or such a participating subdivision or regional council of governments is not liable in
damages in a civil action for injuries, death, or loss to persons or property arising from
any act or omission, except willful or wanton misconduct, in connection with developing,
adopting, or approving any final plan [or any agreement made under section 128.09 of
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the Revised Code3] or otherwise bringing into operation the 9-1-1 system pursuant to this
chapter.” Former R.C. 128.32(A)(1).
{¶62} The plaintiffs argue that the willful and wanton misconduct of the
dispatchers and sheriff’s deputies subject Lake County and the Lake County Board of
Commissioners to liability under this statute. As with R.C. 737.11, it is questionable
whether former R.C. 128.32(A) expressly imposes civil liability on a political subdivision
since, as written, it expressly describes circumstances in which a political subdivision “is
not liable” except in the case of willful or wanton misconduct relating to “bringing into
operation the 9-1-1 system.”
{¶63} In Plush, 2020-Ohio-6713 (1st Dist.), the court of appeals considered this
language and concluded that it did not encompass willful or wanton misconduct relating
to the ongoing operation of such a system. Giving the words of the statute their “plain
and ordinary meaning,” it concluded “that the General Assembly intended to limit a
political subdivision’s liability to willful and wanton misconduct relating to the creation [as
opposed to operation] of a 911 system.” Id. at ¶ 21. The court further supported its
conclusions by looking at other subsections of the statute dealing “with the liability of other
entities” which specified “operating a 9-1-1 system” or the “operation of a 9-1-1 system”
or “participating in” or “maintaining” a 9-1-1 system. Id. at ¶ 22. By choosing the language
“bringing into operation,” the General Assembly “thus demonstrate[d] its intent to narrowly
limit the liability of a political subdivision.” Id.
{¶64} The plaintiffs counter that Plush is not binding authority and misinterprets
the statutory language. They “assert that the phrase ‘bringing into operation’ under R.C.
3. These words were omitted from R.C. 129.32 when, in October 2023, it was repealed and re-enacted
as R.C. 129.96.
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128.96 should include the ongoing operation of a political subdivision’s existing 911
system, as that system is arguably ‘brought’ into operation every time the system is used.”
Appellants’ Reply Brief to Lake County, Lake County Commissioners, Leonbruno, and
Bachnicki at 9. Although not binding, we find the reasoning of the Plush decision more
persuasive than the plaintiffs’ interpretation with respect to the import of the phrase
“bringing into operation.” Summary judgment was properly granted on this claim.
{¶65} The ninth claim for relief fails as a matter of law.
First Claim – Failure to Protect in Violation of Ohio Constitution, Article I, Sections
1 and 16
{¶66} The first claim of the Complaint alleges that the “Defendants have deprived
Plaintiffs of rights secured to them by the Ohio Constitution, including the right to due
process under Section 164 and the right to obtaining safety under Section 15.” On appeal,
the plaintiffs argue that, when read in conjunction, Sections 1 and 16 impose a duty on “a
political subdivision to render aid when an Ohioan is in danger and contacts the political
subdivision through the 911 system, designed and implemented by the political
subdivision, in an attempt to provide safety.” Appellants’ Merit Brief at 33.
{¶67} Whatever duties and obligations Sections 1 and 16 may impose on political
subdivisions (or, conversely, whatever rights they may acknowledge “all men” to
possess), these Sections are not self-executing and do not create an independent claim
or cause of action. With respect to Section 1, the Ohio Supreme Court has held that it “is
4. “All courts shall be open, and every person, for an injury done him in his land, goods, person, or
reputation, shall have remedy by due course of law, and shall have justice administered without denial or
delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by
law.” Ohio Const., art. I, § 16.
5. “All men are, by nature, free and independent, and have certain inalienable rights, among which are
those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking
and obtaining happiness and safety.” Ohio Const., art. I, § 1.
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not an independent source of self-executing protections,” but, rather, “it is a statement of
fundamental ideals upon which a limited government is created [that] requires other
provisions of the Ohio Constitution or legislative definition to give it practical effect.” State
v. Williams, 2000-Ohio-428, ¶ 42. Likewise, Section 16 is not “self-executing” and
“‘legislative authority by statute is required as a prerequisite’ to allowing suits against the
state.” (Citation omitted.) Smith v. Ohio State Univ., 2024-Ohio-764, ¶ 13; Fabrey, 70
Ohio St.3d at 354 (“the clause permitting suits to be brought against the state is not self-
executing, and … the state of Ohio is not subject to suits in tort without the consent of the
General Assembly”). Nor is it accurate, as the plaintiffs claim, that there are no adequate
remedies for the violation of these Sections. “The General Assembly in enacting R.C.
Chapter 2744 has used that power [to define the contours of the state’s liability] to create
a scheme for immunity and liability of political subdivisions.” Fabrey at 355.
{¶68} The defendants were properly granted summary judgment with respect to
the first claim of the plaintiffs’ Complaint.
Tenth Claim (Intentional Infliction of Emotional Distress)
{¶69} In their tenth claim, the plaintiffs maintain that the conduct of defendants
Zgrebnak, King, Catanese, Bowers, Nevison, Edmonds, and/or Ridler constitutes
intentional infliction of emotional distress. Defendants King and Catanese argue in their
third cross-assignment of error that the intentional infliction of emotional distress claim
fails as a matter of law.
{¶70} “To establish a claim for intentional infliction of emotional distress, a plaintiff
must show (1) that the actor either intended to cause emotional distress or knew or should
have known that the actions taken would result in serious emotional distress to the
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plaintiff; (2) that the actor’s conduct was so extreme and outrageous as to go ‘beyond all
possible bounds of decency’ and was such that it could be considered as ‘utterly
intolerable in a civilized community’; (3) that the actor’s actions were the proximate cause
of plaintiff’s psychological injury; and (4) that the mental anguish suffered by the plaintiff
was serious and of a nature that ‘no reasonable man could be expected to endure it.’”
(Citations omitted.) Kovacic v. Eastlake, 2006-Ohio-7016, ¶ 92 (11th Dist.).
{¶71} In support of their claim for intentional infliction of emotional distress, the
plaintiffs cite “King’s ‘cruel’ misclassification and 40-minute delay in reviewing Tiler’s call,
Catanese’s ‘unconscionable’ dispatch delay, and deputies’ dismissal of an unsecured
door and drug paraphernalia as intoxication” as outrageous conduct. Appellants’ Merit
Brief at 35.
{¶72} We find no genuine issue of material fact as to whether the defendants
intended to cause emotional distress, or knew or should have known that their actions
would cause any of the plaintiffs emotional distress. Nor is there evidence that the
defendants’ conduct exceeded “all possible bounds of decency.” The defendants did
nothing that would not have been found reasonable in other circumstances. While the
conduct of King and Catanese may ultimately be found to have been wanton or reckless,
their misjudgments and inaction simply do not constitute the sort of extreme and
outrageous conduct actionable under a claim for intentional infliction of emotional
distress. Compare Kovacic at ¶ 98 (“the alleged statement made by one of the EMTs,
‘let’s watch her die,’ and the alleged enjoyment the other EMTs exhibited at Kovacic’s
distress, while unacceptable, do not rise to the level of extreme and outrageous conduct
necessary to sustain a claim for emotional distress”).
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{¶73} The tenth claim for relief fails as a matter of law, and the third cross-
assignment of error has merit.
Eleventh Claim (Loss of Consortium)
{¶74} The plaintiffs’ eleventh claim is for loss of consortium (on behalf of Tiler’s
parents). The extent to which this claim has any merit is dependent upon the plaintiffs
prevailing on the underlying claims against King and Catanese.
{¶75} The assignments of error and cross-assignments of error have merit to the
extent indicated above.
{¶76} The judgments of the Lake County Court of Common Pleas are affirmed in
part, reversed in part, and this matter is remanded for further proceedings consistent with
this opinion. Costs to be taxed against the parties equally.
JOHN J. EKLUND, J., concurs,
EUGENE A. LUCCI, J., concurs in part and dissents in part with a Dissenting Opinion.
________________________________________
EUGENE A. LUCCI, J., concurs in part and dissents in part with a Dissenting Opinion.
{¶77} I respectfully dissent from the majority opinion’s decision to reverse the trial
court’s grant of summary judgment with respect to defendants, Angela King and Brandy
Catanese. While I concur with the majority’s affirmance as to all other defendants, I would
affirm the trial court’s judgment in its entirety. The tragedy of Tiler Widdowson’s death
should not lead this court to expand liability beyond what the General Assembly intended
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when it enacted comprehensive immunity protections for political subdivisions and their
employees engaged in emergency services.
{¶78} The majority’s reversal rests on a fundamental misapplication of the legal
standards governing wanton and reckless conduct. Although the majority correctly recites
the standard—that recklessness requires “conscious disregard of or indifference to a
known or obvious risk of harm,” Anderson v. Massillon, 2012-Ohio-5711, ¶ 34—it applies
a negligence standard while calling it recklessness. The question before us is not what
King and Catanese should have done with the benefit of hindsight. It is whether they
consciously disregarded a known probability that death would result from their actions.
The majority’s analysis repeatedly conflates these distinct inquiries, and that conflation
produces an erroneous result.
I. Sergeant King’s Conduct
{¶79} Consider what Sergeant King actually knew when she received Tiler’s call
at 5:26 a.m. A male voice said only “help” in response to her repeated attempts to obtain
information. The caller could not or would not provide his location, his name, or the nature
of his emergency. Cell phone triangulation placed him somewhere in the general vicinity
of a large condominium complex with numerous units. Under these circumstances, King’s
classification of the call as a welfare check was not only reasonable but consistent with
department protocol. The majority opinion faults her for not immediately recognizing this
as a medical emergency, but nothing in those initial moments suggested a life-threatening
situation as opposed to intoxication, mental health crisis, domestic dispute, or any number
of other scenarios that generate similar calls daily.
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{¶80} The majority opinion makes much of the forty-minute gap before King
replayed the call recording. But this criticism ignores what King was actually doing during
that time. She was not idle or indifferent. She repeatedly attempted to call Tiler back,
leaving voicemails when he did not answer. She searched multiple databases trying to
locate him. She coordinated with Catanese to dispatch deputies to search the area. These
are the actions of a professional attempting to help someone in distress, not someone
consciously disregarding a known risk of harm.
{¶81} The majority’s critical period begins at approximately 6:06 a.m., when King
replayed the recording and heard “can’t breathe.” The majority characterizes her
subsequent actions as demonstrating conscious disregard or indifference to an obvious
risk of harm. This characterization fails for several reasons.
{¶82} First, the phrase “can’t breathe” without additional context does not
automatically indicate a life-threatening medical emergency. It could signal anxiety, panic
attack, claustrophobia, positional discomfort, or numerous other non-life-threatening
conditions. King specifically noted that it “sounds like it’s not directly into the phone” either
suggesting the caller might be impaired or not holding the phone normally. The majority
suggests that King’s use of the word “just” in her CAD note—“just says please help,
please help, can’t breathe”—evidences minimization of the emergency. This reading is
uncharitable and speculative. The word “just” in context more naturally reflects that King
was reporting the limited information available: this is all he said. Transforming a common
adverb into evidence of conscious disregard illustrates the majority’s results-oriented
analysis.
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{¶83} Second, the timeline after 6:06 a.m. is measured in seconds, not minutes.
The CAD entry noting that Tiler could not breathe and Deputy Bowers’s entry indicating
he was leaving the scene were separated by approximately fifteen seconds. This
compressed timeframe does not support a finding of conscious disregard—it reflects the
reality that multiple actors were operating simultaneously with incomplete information.
{¶84} Third, deputies were already on scene when this information became
available. The logical and reasonable response was to update those deputies who could
immediately investigate and potentially render aid or call for medical assistance if needed.
King verbally communicated this information to Catanese, whom she reasonably believed
would relay it to the deputies. The failure of this communication chain may constitute
negligence, but it does not rise to the level of conscious disregard required for
recklessness.
{¶85} Fourth, King still lacked a precise location for Tiler. The majority suggests
that King should have dispatched or at least staged fire and EMS units, noting they were
“about two minutes away.” But staged for what? To search a large condominium complex
without a specific unit number? Dispatching or staging units to an imprecise location
would have been an exercise in futility and potentially diverted critical resources from
other emergencies where locations were known. The majority’s criticism assumes
knowledge King did not possess.
{¶86} The majority also emphasizes that King had “a supervisory role” over
Catanese and failed to confirm that the information was broadcast. But the evidence
shows King saw a symbol on her screen indicating Catanese had made a radio
transmission and reasonably assumed the information had been relayed. Having faith in
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a colleague’s performance of routine duties is not conscious disregard of a known risk—
it is ordinary workplace reliance.
II. Dispatcher Catanese’s Conduct
{¶87} The majority’s analysis of Catanese’s conduct suffers from similar flaws.
Catanese received a low-priority welfare check call with limited information. She
dispatched deputies within eight minutes, a reasonable response time for a non-
emergency call. When King updated the CAD with the breathing difficulty information,
Catanese saw that Deputy Bowers was actively typing in the system at that very moment.
Her assumption that he had seen the update, while perhaps incorrect, was not
unreasonable given the contemporaneous activity she observed. Catanese
acknowledged in her deposition that she should have radioed the information—but the
question is not what she should have done. The question is whether her failure to do so
reflected conscious disregard of a known probability of death.
{¶88} The majority notes that Bowers testified he would have entered Unit 301 if
he had known Tiler couldn’t breathe. This testimony establishes a causal connection for
negligence purposes but does not transform Catanese’s failure to radio into recklessness.
Catanese did not know that Bowers had not seen the CAD entry. She observed him
actively using the system. Her assumption was wrong, but she was not indifferent.
III. The Majority’s Reliance on Smathers Is Misplaced
{¶89} The majority’s reliance on Smathers v. Glass, 2022-Ohio-4595, proves too
much. In Smathers, child protective services workers had explicit medical documentation
stating that a hospital was reluctant to release a child due to suspected abuse and the
parents’ apparent inability to provide for her safety. The workers then allowed the child to
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remain with the mother with minimal supervision despite these clear, documented
warnings from medical professionals. Id. at ¶ 39.
{¶90} The situations are not analogous. The Smathers workers ignored
professional medical judgment about identified risks to an identified child at a known
location. King and Catanese had an ambiguous phrase from an unknown caller at an
uncertain location who could not clearly communicate his needs. They had no medical
documentation, no identified victim at a known location, and no clear warning of a life-
threatening situation.
{¶91} The majority argues that both cases involve an “ineffectual response to
newly discovered critical information.” But this framing assumes the conclusion. The
Smathers workers received unambiguous professional warnings; King and Catanese
received ambiguous words from an unidentified caller. The Smathers workers took
minimal action despite clear warnings; King and Catanese took multiple affirmative
steps—database searches, callback attempts, deputy dispatch, CAD updates—in
response to unclear information. To equate these situations is to hold that any incorrect
judgment by emergency personnel, viewed in hindsight, may constitute recklessness.
IV. Proximate Cause
{¶92} The proximate cause analysis further demonstrates why summary
judgment should be affirmed. Dr. Diaz’s opinion that death occurred “long after” the initial
call and that Tiler “likely exceeded one hour” of suffering creates only speculation, not
evidence, that he was saveable at 6:06 a.m. The plaintiffs bear the burden of proving
proximate cause. An opinion that death occurred “long after” the call does not establish
that Tiler was medically salvageable when King discovered he could not breathe, that
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EMS could have located him in the complex without a unit number, or that entry and
treatment could have been accomplished in time. There is no evidence establishing when
Tiler passed the point where medical intervention could have saved him. There is no
evidence that EMS, even if immediately dispatched at 6:06 a.m., could have located Tiler
in the complex, gained entry to Unit 301, and successfully reversed what was apparently
a severe and prolonged asthma attack. The causal chain between the dispatchers’
actions and Tiler’s death is simply too attenuated and speculative to support liability.
V. Statutory Immunity Under R.C. 128.96(B)
{¶93} The majority opinion also fails to adequately consider the statutory immunity
provided by R.C. 128.96(B). When dispatchers receive emergency calls and coordinate
response through the 911 system they have implemented, they are giving emergency
instructions through that system. The fact that the final communication to field units occurs
via radio rather than telephone is a distinction without a difference in the modern,
integrated emergency-response infrastructure. The majority’s narrow reading of “through
a 9-1-1 system” defeats the legislative purpose of protecting those who operate
emergency communication systems.
VI. Policy Implications
{¶94} Perhaps most troublingly, the majority’s decision will have profound
negative consequences for emergency services throughout Ohio. Every shift, dispatchers
across this state face dozens of ambiguous calls. The majority’s holding effectively
requires that any caller who says “can't breathe”—which could indicate asthma, anxiety,
panic, positional discomfort, or simple exertion—triggers an immediate medical
emergency response regardless of whether the caller can be located.
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{¶95} If dispatchers face potential personal liability whenever they must make
judgment calls with incomplete information, the results are predictable and harmful.
Dispatchers will either over-commit resources to every ambiguous call, thereby depleting
availability for confirmed emergencies, or they will hesitate in making necessary quick
decisions, potentially causing delays in other emergencies. Many qualified professionals
will simply leave the field rather than face personal liability for split-second decisions
made under intense pressure with limited information.
{¶96} The General Assembly recognized these realities when it provided broad
immunity protections in R.C. Chapter 2744. Courts are not empowered to erode these
protections even where a tragedy has occurred. The remedy for improving emergency
response systems lies with the legislature and local governments through better funding,
enhanced technology, and improved training protocols. It does not lie in judicial expansion
of liability that undermines the immunity protections the General Assembly specifically
enacted to ensure that emergency responders can perform their critical duties without
fear of personal liability for every decision that does not result in a perfect outcome.
VII. Conclusion
{¶97} The proper standard is not whether different decisions might have led to a
better outcome—which is the negligence standard—but whether the defendants acted
with conscious disregard of a known probability of death or serious injury. Viewing the
evidence in the light most favorable to the plaintiffs, as we must on summary judgment,
still does not create a genuine issue of material fact on this question. At most, the plaintiffs
have shown that King and Catanese made professional judgments that, with the benefit
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of hindsight, appear to have been incorrect. This is the definition of negligence, not
recklessness.
{¶98} The majority opinion reflects an understandable emotional response to a
tragic outcome, but hard cases make bad law. Emergency dispatch involves hundreds of
decisions per shift based on incomplete and often contradictory information, technological
limitations in locating callers, and finite resources that must be allocated among
competing needs.
{¶99} For these reasons, I would affirm the trial court’s grant of summary judgment
in its entirety. While Tiler Widdowson’s death is undeniably tragic, and while the
emergency response may not have been perfect, the legal standards governing this case
do not permit liability under these circumstances.
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JUDGMENT ENTRY
For the reasons stated in the Opinion of this court, the assignments and cross-
assignments of error are with merit to the extent indicated in the opinion. The order of
this court is that the judgments of the Lake County Court of Common Pleas are affirmed
in part and reversed in part. This matter is remanded for further proceedings consistent
with this opinion.
Costs to be taxed against the parties equally.
JUDGE SCOTT LYNCH
JUDGE JOHN J. EKLUND,
concurs
JUDGE EUGENE A. LUCCI,
concurs in part and dissents in part with a
Dissenting Opinion
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate
pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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