The opinion
[Cite as Starling v. Ohio Dept. of Dev. Disabilities, 2022-Ohio-2225.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Cynthia Starling, on behalf of the :
Estate of Nicholas Starling, Deceased,
:
Plaintiff-Appellant, No. 21AP-345
: (Ct. of Cl. No. 2019-00747JD)
v.
: (REGULAR CALENDAR)
Ohio Department of
Developmental Disabilities, :
Defendant-Appellee. :
D E C I S I O N
Rendered on June 28, 2022
On brief: Spangenberg Shibley & Liber LLP, Stuart E. Scott,
and Jeremy A. Tor, for appellant. Argued: Stuart E. Scott.
On brief: Dave Yost, Attorney General, Eric A. Walker, and
Amy S. Brown, for appellee. Argued: Amy S. Brown.
APPEAL from the Court of Claims of Ohio
JAMISON, J.
{¶ 1} Plaintiff-appellant, Cynthia Starling, on behalf of the Estate of Nicholas
Starling, Deceased, appeals from a judgment of the Court of Claims of Ohio in favor of
defendant-appellee, Ohio Department of Developmental Disabilities ("ODDD"). For the
reasons that follow, we affirm in part, and reverse in part.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant brought this action in the Court of Claims against ODDD, in her
individual capacity and on behalf of the estate of her late son, Nicholas Starling ("Nick"),
alleging claims for negligence, battery, and medical negligence. At all relevant times, Nick
was a resident at the Warrensville Developmental Center ("WDC"), a residential mental
No. 21AP-345 2
health facility operated by appellee. Nick was developmentally disabled from birth with a
diagnosis of impulse control disorder, paranoia, schizophrenia, and autism.
{¶ 3} On April 13, 2018, at the age of 28, Nick was admitted to WDC as a voluntary
short-term admission. Nick had previously received in-patient treatment for his aggressive
behaviors at other facilities in the months prior to his admission to WDC. On admission,
WDC noted that Nick "had been in and out of the hospital and nursing home facilities since
November 2017 due to his aggressive and destructive behaviors." (WDC Initial Social
History, Pl.'s Ex., at 47.)
{¶ 4} The evidence shows that, after assessing Nick's needs, WDC staff developed
a plan of care known as a person center plan ("plan"). There is no dispute that the plan
permitted WDC staff to use manual physical restraints to calm Nick when his violent
outbursts represented a risk of imminent harm to himself or others. The "bearhug"
technique is one of the manual physical restraint techniques authorized by the plan. (My
Individual Plan, Pl.'s Ex., at 17.) Appellant signed and approved the plan in her capacity as
Nick's guardian.
{¶ 5} WDC employs Therapeutic Program Workers ("TPW") to work with the
residents on a daily basis. WDC also uses a video-only surveillance system as a security
measure at the facility. (Pl.'s Ex. 9.) At approximately 1:11 p.m. on June 24, 2018, Nick can
be seen on video surveillance leaving the dining room after engaging in a verbal
disagreement with TPW Bridget Bailey. When TPW Dionte Baskerville followed Nick into
the hallway, Nick struck or shoved Baskerville in the chest with an open hand. The video
also shows Nick shouting at Baskerville in an animated fashion, wagging his finger at
Baskerville and upending a trash bin as he enters the game room. In the game room, Nick
began tossing board games in Baskerville's general direction as Baskerville retreats.
{¶ 6} The video then shows Nick leaving the game room and reentering the dining
room which was occupied by Bailey, another WDC employee, and a resident. As one of the
TPW's escorts the resident out of the dining room, Nick begins throwing items around.
Nick picked up a toaster and threw it, before grabbing a chair and tossing it in Baskerville's
general direction but not directly at Baskerville. Baskerville continued to follow Nick as he
moved through the dining room and throwing more objects, while another TPW employee
can be seen using the telephone. The evidence reveals that the employee was calling for
assistance with Nick.
No. 21AP-345 3
{¶ 7} At approximately 1:15 p.m., after Nick is seen knocking a potted plant off of a
shelf and then throwing some papers at Baskerville, Baskerville closed the distance between
the two and attempted to physically restrain Nick using a bear hug technique. Baskerville
grabbed Nick from behind and wrapped his arms around Nick's torso in an effort to pin
Nick's arms in front of him. Nick then moves towards a table and bends forward at the
waist in an apparent effort to free his arms. Baskerville also appears to be placing one of
his feet between Nick's feet, as if to throw Nick off balance.
{¶ 8} The video shows Nick managed to break free from the initial hold that
Baskerville applied by freeing his arms, raising up and beginning to move away. Baskerville
attempts the bear hug a second time and struggles to hold on to Nick's sizeable waist. Nick
continues to take short steps forward in an effort to free himself from Baskerville's grasp as
Baskerville struggles to hold on. With Baskerville essentially hanging on Nick's back and
being dragged across the floor, the two men fall awkwardly to the floor with Baskerville on
top of Nick.
{¶ 9} At 8:15 p.m., Tammy Tayman, R.N., a WDC nurse, was asked to examine
Nick's right leg as it appeared swollen, and Nick was unable to walk on it. According to
Tayman, Nick's right leg presented as "slightly edematous." (Pl.'s Ex. 1 at 55.) Tayman
consulted Dr. Gary Greenspan, a physician ODDD had contracted with to provide medical
care and treatment to WDC's residents. Dr. Greenspan ordered an x-ray, which was
performed on the morning of June 25, 2018. WDC subsequently transferred Nick to a local
hospital where he was diagnosed with a fibial plateau fracture.
{¶ 10} Nick was treated and discharged from the hospital to appellee's care wearing
a knee immobilizer. The hospital provided appellee with the detailed instruction upon
discharge.1
1 The discharge instructions, admitted into evidence as Plaintiff's Exhibit 7, provide: "Please check the patients
pedal pulse every 4 hours for the next 24 hours. Plassively dorsiflex and plantarflex his foot and check for
severe pain with these movements. Have the patient wiggle his toes every 4 hours for the next 24 hours. If any
of these are abnormal, please bring the patient back to ED immediately. These may be early signs of
compartment syndrome.
The patient can have tylenol and ibuprofen as needed for pain. * * * YOU SHOULD SEEK MEDICAL
ATTENTION IMMEDIATELY, EITHER HERE OR AT THE NEAREST EMERGENCY DEPARTMENT, IF
ANY OF THE FOLLOWING OCCURS: Severe increase in pain or swelling in the injured area. New numbness
or tingling in or below the injured area. Your foot gets cold and pale. This could mean that the foot has a
problem with its blood supply." (Emphasis sic.)
No. 21AP-345 4
{¶ 11} On June 28, 2018, Nick was found unresponsive in his bed. He was
transported to the hospital in full cardiac arrest where he was pronounced dead. The
Cuyahoga County Medical Examiner ruled Nick's death a "homicide." (Medical Examiner's
Verdict, Pl.'s Ex. at 5.) The medical examiner's autopsy report provides the following
"conclusion":
Based upon the history and autopsy findings, it is my opinion
that Nicholas Starling, a 28-year old man, died as the result of
pulmonary artery thromboemboli due to deep vein thrombos
es of the right lower extremity due to right tibia fracture.
Obesity is a contributory condition. Per investigation, [Nick]
was injured during a physical restraint procedure during a
psychotic episode.
Id. at 8.
{¶ 12} Appellant filed the instant wrongful death action in the Court of Claims on
June 21, 2019, alleging negligence, medical negligence, and battery. A judge of the Court
of Claims held a bench trial beginning on March 15, 2021. On June 1, 2021, the court issued
a decision and judgment entry in favor of appellee. The Court of Claims determined that
appellant failed to prove any of the claims in the complaint by a preponderance of the
evidence. Appellant timely appealed to this court from the decision of the Court of Claims.
II. ASSIGNMENTS OF ERROR
{¶ 13} Appellant assigns the following as trial court error:
[1.] The trial court's ruling in favor of the Defendant on the
negligence claim relating to the physical restraint [Nick] was
against the manifest of the evidence.
[2.] The trial court's ruling in favor of the Defendant on the
battery claim was error and against the manifest weight of the
evidence.
III. STANDARD OF REVIEW
{¶ 14} In conducting a manifest weight review of a civil action tried to the court,
without a jury, "this court weighs the evidence and all reasonable inferences, considers the
credibility of the witnesses, and determines whether in resolving conflicts in the evidence,
the trial court clearly lost its way and created such a manifest miscarriage of justice that its
judgment must be reversed and a new trial ordered." Crenshaw v. Michael J.'s Auto Sales,
1st Dist. No. C-200154, 2021-Ohio-1468, ¶ 16, citing Eastley v. Volkman, 132 Ohio St.3d
No. 21AP-345 5
328, 2012-Ohio-2179, ¶ 20. "In conducting a manifest weight of the evidence review, we
may consider the credibility of the witnesses." State v. Cervantes, 10th Dist. No. 18AP-505,
2019-Ohio-1373, ¶ 28, citing State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953,
¶ 6. "[B]ecause 'manifest weight of the evidence' refers to a greater amount of credible
evidence and relates to persuasion, it does not matter that the burden of proof differs in
criminal and civil cases. In a civil case, in which the burden of persuasion is only by a
preponderance of the evidence, rather than beyond a reasonable doubt, evidence must still
exist on each element (sufficiency) and the evidence on each element must satisfy the
burden of persuasion (weight)." Eastley at ¶ 19.
{¶ 15} In conducting such review, " 'we are guided by the presumption that the jury,
or the trial court in a bench trial, "is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony." ' " Cervantes at ¶ 28, quoting Cattledge at ¶ 6,
quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). "Accordingly, we
afford great deference to the jury's determination of witness credibility." State v. Albert,
10th Dist. No. 14AP-30, 2015-Ohio-249, ¶ 14.
IV. LEGAL ANALYSIS
A. Assignments of Error
1. First Assignment of Error
{¶ 16} In appellant's first assignment of error, appellant argues that the judgment
in appellee's favor, as to appellant's negligence claim, is against the manifest weight of the
evidence because appellant presented overwhelming evidence that appellee breached a
duty of care owed to appellant when Baskerville attempted to physically restrain Nick and
that appellee's negligence proximately caused Nick's injury and subsequent death.2
{¶ 17} "A cause of action for negligence requires proof of (1) a duty requiring the
defendant to conform to a certain standard of conduct, (2) breach of that duty, (3) a causal
connection between the breach and injury, and (4) damages." Cromer v. Children's Hosp.
Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, ¶ 23, citing Menifee v. Ohio
Welding Prods., Inc., 15 Ohio St.3d 75, 77 (1984). See also Mussivand v. David, 45 Ohio
2Appellant has not assigned error with respect to the judgment in appellee's favor on the medical negligence
claim.
No. 21AP-345 6
St.3d 314, 318 (1989); Di Gildo v. Caponi, 18 Ohio St.2d 125 (1969). "The scope of any duty
owed is the standard of care that an actor must exercise." Cromer at ¶ 27, citing Commerce
& Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 98 (1989); Berdyck v. Shinde, 66 Ohio
St.3d 573, 578 (1993). "The minimum standard of care expected under any circumstances
is to exercise that degree of care and caution that an ordinarily careful and prudent person
would exercise under similar circumstances." Cromer at ¶ 27, citing Gedeon v. E. Ohio Gas
Co., 128 Ohio St. 335, 338 (1934). See also Thompson v. Ohio Fuel Gas Co., 9 Ohio St.2d
116 (1967). See also 2 Restatement of the Law 2d, Torts, Section 281.
{¶ 18} In support of the negligence claim, appellant presented the testimony of an
expert witness who provided testimony as to the applicable standard of care owed to
appellant and appellee's breach of the standard of care. Tina Aown, R.N., appellant's
expert, currently works for a company known as HCA Healthcare as a Senior Clinical
Director. Before receiving her credentials as a Registered Nurse, Aown worked as a
Psychiatric Technician in California, a position similar to an L.P.N. in Ohio. As a Psychiatric
Technician, Aown received specialized training in the care of patients with mental illness
and/or developmental disabilities.
{¶ 19} Aown went back to school after obtaining her credentials as a Registered
Nurse to earn her B.A. in Health Management and a Master's in Nursing and Clinical
Research. In 1989, Aown obtained board certification as a Psychiatric and Mental Health
Nurse. Aown testified that she is a licensed R.N. in nine states, including Ohio.
{¶ 20} Aown joined HCA Healthcare in 2012 as a Clinical Director providing support
for some of HCA's behavioral health programs. She was promoted to Senior Clinical
Director in 2016, and in that capacity, she provides nationwide support for all of HCA's
behavioral health services.
{¶ 21} Aown testified that she was contacted by appellant's trial counsel in 2019 and
asked to review the case. In preparing to offer her opinion testimony at trial, Aown
reviewed Nick's relevant medical records, WDC's policies and procedures, pertinent WDC
personnel files, the initial incident report, depositions of the WDC personnel involved in
the incident, and the videotape of the incident.
{¶ 22} During her direct examination, Aown informed the court of the overarching
concern in responding to any crisis involving patients with mental and/or developmental
disabilities:
No. 21AP-345 7
We always want to exhaust less restrictive interventions. So
from a patient rights perspective, we all have the right to be
treated in the least restrictive environment, and there are
inherent risks with restraint. It can result in harm. And so we
don't want to do anything that is going to place our patient or
our client in harm's way. And so we want to use every other
intervention that is available to us and only use restraint or
seclusion as a last resort. We're trying to - - our intent here is
to maintain the safety of our patient as well as the safety of the
staff.
(Mar. 17, 2021 Excerpted Trial Testimony of Tina Aown, R.N., at 14-15.)
{¶ 23} With regard to intervention in the form of physical restraint, Aown told the
court that the standard of care permitted the use of physical restraint only under limited
circumstances. Aown testified that manual physical restraint may be used on a mentally or
developmentally disabled patient only when the patient's conduct creates a risk of
imminent physical harm to the patient or others. Aown testified that before a caregiver
may use manual physical restraint "[t]here needs to be clear and present imminent risk of
harm over others to use any level of restraint." (Excerpted Trial Testimony of Tina Aown,
R.N., at 27.)
{¶ 24} Aown explained that in order for an individual caregiver to safely apply the
bear hug technique, the caregiver must wrap both arms around the patients arms and torso
in such a way as to pin the patients arms in front of the patient, one across the other.
According to Aown, this technique may also be safely applied by two individuals working
in unison on a single patient.
{¶ 25} As the videotape of the incident was played in the courtroom, Aown was
asked her opinion whether intervention in the form of physical restraint was required on
June 24, 2018, and if so, whether the technique employed by Baskerville was appropriate.
Aown offered the following opinion:
Q. Let's turn to the physical restraint applied by Mr.
Baskerville * * * to restrain Nick at all?
A. No. There was no evidence that [Nick] was in imminent risk
to either himself or to anyone in the vicinity.
Q. Well, if hypothetically restraint was warranted, would a
single person bear hug have been the appropriate restraint
technique to use?
A. I would never have advised this in this particular situation.
And the reason for that is that [Nick] was a large man. I believe
No. 21AP-345 8
he weighed in the vicinity of 275 pounds. Mr. Baskerville
acknowledged that he was approximately half that size in
stature. And so it would not be safe to use a single-person hold
on someone who is nearly twice your size.
(Excerpted Trial Testimony of Tina Aown, R.N., at 23-24.)
{¶ 26} Counsel also sought Aown's opinion as to the propriety of Baskerville's
attempt to reapply the bear hug technique after the failed first attempt:
Q. Well, we know that Mr. Baskerville applied the bear hug
technique, Nick broke free, and Mr. Baskerville attempted to
reapply the restraint. Was it reasonable for him to reapply or
attempt to reapply the bear hug?
A. No, that was not reasonable either. A reasonable decision
would have been, okay, the bear hug didn't work, the patient
broke free from it, let's regroup. Ms. Bailey was in the vicinity,
was not caring for any other residents at that moment. And a
more reasonable decision would have been to confer with Ms.
Bailey and partner with Ms. Bailey to determine the next
appropriate steps.
(Excerpted Trial Testimony of Tina Aown, R.N., at 24.)
{¶ 27} Appellee relied on the testimony of Baskerville, WDC supervisor Daniel
Singer, and WDC Superintendent Patricia Nixon.
{¶ 28} Baskerville was hired by WDC as a temporary TPW in August 2015. He had
no prior work experience in the field. According to Baskerville, he was promoted to part-
time TPW in February 2016, but he worked full-time hours. Baskerville stated that on
June 24, 2018, he was not assigned to Nick's unit but he was covering for another TPW in
that unit. Baskerville testified that he reviewed Nick's plan prior to assuming his duties but
he acknowledged that he had worked with Nick only once prior to the incident in question
and that Nick had not acted out during the occasion.
{¶ 29} Baskerville recalled that he had used the bear hug technique on other patients
prior to June 24, 2018. When asked if he had successfully performed the technique, he
responded "[s]ometimes, yes; sometimes, no." (Dec. 17, 2020 Dionte Baskerville Trial Dep.
at 29.) Baskerville testified that whenever a patient breaks free of an attempted bear hug,
he was trained to "immediately back up and either reattempt or just try to deescalate until
more help arrives." (Dionte Baskerville Trial Dep. at 29.)
{¶ 30} During his cross-examination, Baskerville responded to questions from
appellant's trial counsel as the video of the incident played in the courtroom. Concerning
No. 21AP-345 9
the critical moments immediately prior to his first attempt to apply the bear hug technique,
Baskerville testified as follows:
Q. Has he done anything more than just destroyed some of the
property in the area?
A. No, he hasn't done anything more than that.
Q. Okay. And so is there any reason at this point to use any
kind of physical restraint on him?
A. No.
Q. So just for the record, we're at 1:15 and 17 seconds and I
will keep playing.
(Video Playing.)
Q. (By Mr. Tor): All right. So at 1:15 and just before 21 seconds,
it looks like you wrapped your arms around Nick to - - I guess,
use the bear hug technique?
A. Yes
Q. Why did you do that?
A. Because he was continuing to escalate. He didn't deescalate
the situation. He was going to continue to destroy property.
Q. But I thought you told that me destroyed property, in and
of itself, is not a reason to use a physical restraint on a
resident? [sic]
A. I mean, as a result, he's destroying property that doesn't
even belong to him. I want to stop any more property
destruction, to halt the entire situation, attempt to deescalate
the situation. I had tried every other avenue of deescalating I
had available to me.
Q. All right. And you used the physical restraint to prevent
him from destroying any more property?
A. Yes, and possibly harming himself.
(Emphasis added.) (Dionte Baskerville Trial Dep. at 63-64.)
{¶ 31} Our review of the videotape reveals that Nick's conduct during the
intervening four seconds between 1:15 and 17 seconds, when Baskerville acknowledged
physical restraint was unnecessary, and 1:15 and 21 seconds, when he initiated the bear hug
technique, consisted of throwing papers in Baskerville's direction. The videotape reveals
no conduct in those four seconds that could have caused a reasonable person in
Baskerville's position to believe that Nick's conduct had escalated to the point where
No. 21AP-345 10
physical restraint was necessary to protect Nick from imminent harm, as Baskerville
maintained.
{¶ 32} Moreover, in State v. Kaufhold, 12th Dist. No. CA2019-09-148, 2020-Ohio-
3835, the court considered the meaning of the word "possible" in analyzing witness
testimony. The Kaufhold court concluded as follows: "The word 'possible' is defined by the
Merriam-Webster online dictionary as 'being within the limits of ability, capacity, or
realization.' Similarly, the word 'could' is defined by the Merriam-Webster online
dictionary as the past tense of the word 'can,' which is separately defined as being 'physically
or mentally able to.' Testifying that something was 'possible' is essentially the same as
testifying that something 'could' have happened." Id. at ¶ 45. Applying the Merriam-
Webster definition of the word "possible," the Kaufhold court held that a "toxicologist
testifying that it was 'possible' that [the victim's] 'unconsciousness or memory loss' was
caused by her combining medication with alcohol is essentially the same as the state
arguing during its closing argument that [the victim] 'could' have suffered 'a blackout' when
she combined her medication with alcohol." Id.
{¶ 33} By contrast, in the context of domestic violence civil protection orders
"imminent" means "ready to take place," or "near at hand." See Fleckner v. Fleckner, 177
Ohio App.3d 706, 2008-Ohio-4000, ¶ 20 (10th Dist.). A risk of imminent harm connotes
" 'the belief of the victim that harm would occur immediately or, in the alternative, that the
defendant will cause immediate physical harm.' " State v. Baker, 12th Dist. No. CA2020-
08-086, 2021-Ohio-272, ¶ 43, quoting State v. Fisher, 197 Ohio App.3d 591, 2011-Ohio-
5965, ¶ 17 (2d Dist.).
{¶ 34} When viewed in proper context, Baskerville's testimony establishes that he
believed the standard of care permitted use of physical restraint of a patient in order to
prevent property damage and "possible" harm to the patient. As previously stated, the
parties agree that applicable standard of care permits the use of physical restraint only
when the circumstances indicate that there is a risk of imminent harm to the patient or
others. If a possible risk of harm justified the use of physical restraint, patients like Nick
would be subject to physical restraint for every angry outburst. We find Baskerville's
testimony inconsistent with both the applicable standard of care and the conclusion
reached by the Court of Claims.
No. 21AP-345 11
{¶ 35} Following Baskerville's cross-examination, appellee's trial counsel engaged
in the following colloquy with Baskerville in an effort to rehabilitate the witness:
Q. So was that your judgement - - that if you had not applied
the bear hug, he was going to continue to destroy property?
A. Yes, and possibly and harm himself through the
destruction of property.
Q. And did you see the one instance in which [Nick] threw a
chair in the direction of one resident?
A. Yes.
Q. Okay. Now, Although he threw that chair, it did not strike
or hit the resident, but nonetheless, it was certainly thrown in
the direction of the resident.
Is that true?
A. Yes.
Q. Would that be a concern that you would have had because
he did that?
A. Yes. Throwing chairs or heavy objects towards individuals
is definitely clear and imminent danger that he is no longer in
regard of anybody else's health or safety.
(Emphasis added.) (Dionte Baskerville Trial Dep. at 83.)
{¶ 36} Once again, Baskerville used the word "possibly" in assessing the risk of harm
created by Nick's conduct just prior to the time he unsuccessfully attempted to apply the
bear hug technique. Though Baskerville also agreed with counsel that "[t]hrowing chairs
or heavy objects towards individuals is definitely clear and imminent danger," the video
does not show that Nick was in the process of throwing a chair when Baskerville
unsuccessfully attempted to apply the bear hug technique. (Dionte Baskerville Trial Dep.
at 83.) Moreover, as Aown discussed during her testimony, the video does not show that
Nick threw a chair directly at Baskerville or anyone else during the incident.3
3When appellant's trial counsel turned his questions to the second and final attempt by Baskerville to subdue
Nick, the following exchange took place:
"Q. (By Mr. Tor): All right. So at this point - - we're at 1:15 and 47 seconds - - it looks like Nick has broken free
of the table and of your grip.
Is that right?
A. Yeah.
Q. And is it at this point that you're going to attempt to reapply the bear hug?
A. Uh, yes.
Q. Okay. Just going to switch camera angles and then I'm going to keep playing here.
(Video playing.)
Q. (By Mr. Tor): And now, 1:15 and 50 seconds, the two of you are on the ground.
No. 21AP-345 12
{¶ 37} We note that appellee has argued, alternatively, even if Nick's behavior on
June 24, 2018 did not create a risk of imminent harm to himself or others, Nick's plan
permitted WDC staff to employ physical restraint in order to prevent Nick from damaging
personal property. We do not read Nick's plan as appellee does. Under the heading
"physical aggression" the plan lists "kicking, hitting, punching, throwing/breaking items,
destroying property and biting" as instances when physical restraint may be used, but only
where Nick's behavior creates an "imminent risk to health and safety." (My Individual Plan,
Pl.'s Ex., at 17.) In our view, Nick's plan does not permit the use of physical restraint merely
to prevent destruction of property. Therefore, appellee's alternative argument is unavailing.
{¶ 38} Appellee called on Singer to provide testimony as to the standard of care and
breach. Singer was initially called as a witness in appellant's case in chief, examined by
both parties, and then recalled in appellee's case in chief where he was further examined by
both parties. Singer testified that he began his career as a social worker with WDC in 1988.
Singer's current employment with WDC is in the position of Qualified Intellectual Disability
Professional ("QIDP"). Singer testified that he indirectly supervises the TPW staff at WDC.
He testified that he is familiar with the role of TPWs at WDC, and that all TPWs at WDC
participate in an orientation which includes intervention training. He added that all TPWs
attend yearly retraining.
{¶ 39} Singer was aware that physical and chemical restraints had been used in
Nick's case at other facilities, and that both types of restraints were included in Nick's plan
at WDC. According to Singer, he successfully used the bear hug technique on Nick after
Nick had become agitated during a session with the psychiatrist. Singer also recalled that
a form of physical restraint had been successfully performed on Nick by two TPWs working
in unison. He was also aware that Nick was overweight and that he had other underlying
medical conditions.
{¶ 40} According to Singer, the applicable standard of care at WDC is that physical
restraint may be used only when the patients conduct evidences a risk of imminent harm
to the patient or others. Singer provided several examples of patient behavior that would
Correct?
A. Correct."
(Dionte Baskerville's Trial Dep. at 66-67.)
No. 21AP-345 13
create a risk of imminent harm including a patient who ties strings around their neck,
brandishes silverware in a threatening manner, or strikes a staff member with a fist. Singer
stated that TPW staff should employ physical restraint only if it can be performed safely,
and he acknowledged that on June 24, 2018 Nick outweighed Baskerville by more than 100
pounds.
{¶ 41} On cross-examination, Singer stated that the use of physical restraint to
prevent property damage is inconsistent with WDC policy.4 Singer recalled that physical
restraint was added to Nick's plan following an incident where two TPWs jointly used
physical restraint to subdue Nick without causing injury.
{¶ 42} During direct examination by appellee's counsel, Singer was asked about
Baskerville's decision to initiate the bear hug hold:
Q. Do you agree with Dionte Baskerville's decision, based only
on your observations as you said because you couldn't hear
what was going on and you weren't in the situation at the time.
But just on your observations of watching the video and your
experience, do you agree with Mr. Baskerville's decision to
implement a hold at that point?
A. I did. I felt like he implemented the hold exactly when I
would have.
(Mar. 17, 2021 Excerpted Trial Testimony of Daniel Singer at 27-28.)
{¶ 43} Appellant's counsel then asked Singer about Baskerville's second attempt to
employ the bear hug after the first attempt had failed. The following exchange took place:
Q. Now, you told me on Monday that if a restraint technique
is not successful and the TPW can't control the resident, the
TPW should release the hold, correct?
A. That's correct.
Q. And we saw on the video that Mr. Baskerville could not
successfully maintain the bear hug technique when he was up
against the table with Nick, correct?
A. He appeared to be struggling with it, yes, that's correct.
***
4 After being recalled to the stand in appellee's case in chief, Daniel described the risk associated with the mere
destruction of property as follows: "Property destruction isn't bad, depending on what's done. If you're
throwing stuff, you're venting, you're letting off steam, we'll let people tend to do that. If those objects start to
fly towards someone else that could hurt them or if they're breakable or could snap in half and a piece fly off
or something like that, then, no, then I would consider that time to move in and put a stop to that with a safe
restraint. You know, that's why we have them in plans." (Excerpted Trial Testimony of Daniel Singer at 23.)
No. 21AP-345 14
Q. And the appropriate thing to do at that point would have
been to release the hold and to take a step back and reassess
the situation- -
A. Reassess whether - -
Q. -- correct?
A. -- he still needed it or not, yes.
(Excerpted Trial Testimony of Daniel Singer at 41-42.)
{¶ 44} In appellant's case in chief, appellant's trial counsel asked Singer about
Baskerville's second attempt to employ the bear hug after the first attempt had failed. The
following exchange took place:
Q. And based on what you observed in the video, you would've
wanted Mr. Baskervil[l]e to regroup, reassess and go back to
calming Mr. -- to calming Nick without resulting to physical
restraints, correct?
A. That's correct, from what he could observe.
(Mar. 15, 2021 Excerpts from Trial Proceedings at 38.)
{¶ 45} Even though Singer testified that Baskerville initially attempted the bear hug
"exactly when I would have," Singer opined that Nick managed to break free from the initial
hold that Baskerville applied. Singer further stated that Baskerville should have released
Nick when he broke free and reassessed whether a second attempt at manual physical
restraint was needed or if other calming techniques were more appropriate. The videotape
clearly shows that Baskerville did not release Nick and reassess before attempting the bear
hug a second time.
{¶ 46} Patricia Nixon was called as a witness by appellee. She is the Superintendent
at WDC, a position she likened to a Chief Executive Officer of a corporation. Nixon obtained
a bachelor's degree from Bowling Green University and certification as a special education
teacher. Nixon testified that she has worked in the field of developmental disabilities in a
number of capacities, including TPW, Residential Home Manager, and a position similar
to Singer's as a QIDP. Over appellant's objection, the Court of Claims permitted Nixon to
testify in the form of an opinion. In response to a lengthy query by the court, Nixon offered
her opinion that, based on her review of the videotape, Baskerville acted reasonably in
regard to the incident with Nick on June 24, 2018.
{¶ 47} The Court of Claims made the following ruling on appellant's negligence
claim:
No. 21AP-345 15
The security video shows that Nick threw multiple objects at
Baskerville or, in the vicinity of Baskerville, before Baskerville
physically intervened. Because the video lacks audio, the
video the video by itself does not fully depict the totality of the
circumstances (e.g., what verbal threats, if any, [Nick] may
have made despite the staff's attempt to deescalate the
situation), which, in turn, implicates whether Baskerville
reasonably and honestly believed that Nick Starling's actions
constituted an imminent threat of safety to [Nick],
Baskerville, or others to warrant the use of physical restraint.
Notably, Baskerville acknowledged—and the video shows—
that Nick's erratic behavior persisted, despite staff's attempts
to calm Nick. (Baskerville Deposition, 78-79.) And, in
Baskerville's view, he had tried every other avenue of
deescalating the situation before he chose to use physical
restraint. (Baskerville deposition, 64.)
After weighing the submitted evidence, as well as the
credibility of the witnesses, the Court finds that Dionte
Baskerville had reasonable grounds to believe that Nick
Starling's actions constituted an imminent threat of safety to
[Nick] Starling, Baskerville or others based on Baskerville's
knowledge of Nick Starling and the conditions at the time that
Baskerville decided to use physical restraint. The Court
determines that, based on the submitted evidence, Cynthia
Starling has not proven by a preponderance of the evidence
that WDC should be held liable based on a claim of negligence
as to Baskerville's physical restraint of Nick Starling.
(June 1, 2021 Decision at 8-9.)
{¶ 48} The Court of Claims focused solely on the question whether Nick's conduct
on June 24, 2018 created a risk of imminent harm to himself or others. The court concluded
that because "Baskerville reasonably and honestly believed that Nick Starling's actions
constituted an imminent threat of safety to [Nick] Starling, Baskerville, or others,"
appellant had not proven negligence by the preponderance of the evidence. (June 1, 2021
Decision at 8.) The Court of Claims relied on Baskerville's testimony to support this
conclusion.
{¶ 49} As earlier noted, however, Baskerville's testimony belies such a finding as
Baskerville admitted that just four seconds prior to applying the bear hug, Nick's conduct
did not justify the use of physical restraint. Baskerville maintained that he initiated the
bear hug technique to prevent further damage to property and "possibly" harm himself.
No. 21AP-345 16
(Dionte Baskerville Trial Dep. at 64 and 83.) Thus, Baskerville's testimony does not support
the conclusion reached by the Court of Claims.
{¶ 50} Even if we were to agree the evidence permitted the conclusion that a risk or
imminent harm to Nick or another existed when Baskerville initially attempted to apply the
bear hug, Aown testified that the applicable standard of care required Baskerville to release
Nick, reassess the situation, confer with fellow TPW Bailey, and partner with Bailey to
determine the next appropriate steps. Singer agreed that Baskerville should have released
Nick after the first attempt failed and reassessed whether physical restraint was necessary.
Our review of the videotape reveals that as Nick managed to break free of Baskerville's hold
around his arms, Baskerville continued to wrap his arms around Nick's waist as Nick raised
himself up and began to move away from the table. In fact, the video shows that Baskerville,
rather than letting go of Nick's waist and reassessing, held onto Nick's waist from behind
as Nick struggled to move forward. At that point, Baskerville was essentially hanging on
Nick's waist from behind for several feet before the two men fell awkwardly to the ground
with Baskerville on top of Nick. Baskerville's continued effort to hold on to Nick's waist
from behind as Nick struggled to move several feet forward, in the opinion of this court,
more closely resembled a tackle than an attempt to safely apply the bear hug technique, as
it was described by the witnesses. Singer agreed that Baskerville struggled to control Nick,
who was a much larger man with a substantially greater girth, and Nick broke free of
Baskerville's initial attempt to apply the bear hug. At that point, TPW Bailey was nearby
and further assistance had been summoned.
{¶ 51} In finding for appellee, the court acknowledged that the videotape, Plaintiff's
Exhibit 9, lacked audio, yet the court found that oral threats Nick may have made during
the incident supported a finding that physical restraint was required in order to deescalate
the situation. When Baskerville was asked, what Nick was saying to him during the
incident, however, Baskerville responded that he could not remember. (Dionte Baskerville
Trial Dep. at 59.) Moreover, Nick's plan forbids the use of physical restraint in cases of
"verbal aggression" such as "cursing, yelling, making threats, etc." (My Individual Plan,
Pl.'s Ex., at 18.)
{¶ 52} The function of this court in conducting a manifest weight in a civil case is to
determine whether the greater amount of credible evidence supports the verdict. Eastley
at ¶ 12. Based on our review of the entire record, weighing all the evidence admitted at trial,
No. 21AP-345 17
and considering the credibility of witnesses, we find that the judgment of the Court of
Claims is against the manifest weight of the evidence. In our view, the witnesses' trial
testimonies and the videotape of the incident leave no doubt that appellee breached the
applicable standard of care when Baskerville injured Nick during an unsuccessful attempt
to physically restrain him, and that appellee's negligence proximately caused harm to
appellant. Accordingly, we sustain appellant's first assignment of error.
{¶ 53} App.R. 12(C) provides as follows:
In any civil action or proceeding that was tried to the trial
court without the intervention of a jury, and when upon
appeal a majority of the judges hearing the appeal find that
the judgment or final order rendered by the trial court is
against the manifest weight of the evidence and have not
found any other prejudicial error of the trial court in any of
the particulars assigned and argued in the appellant's brief,
and have not found that the appellee is entitled to judgment
or final order as a matter of law, the court of appeals shall
reverse the judgment or final order of the trial court and either
weigh the evidence in the record and render the judgment or
final order that the trial court should have rendered on that
evidence or remand the case to the trial court for further
proceedings.
{¶ 54} Having determined that the judgment in appellee's favor on the negligence
claim is against the manifest weight of the evidence, we shall reverse the judgment of the
Court of Claims on the negligence claim and remand the matter for the court to enter
judgment for appellant on the negligence claim and proceed to a determination of damages.
2. Second Assignment of Error
{¶ 55} In appellant's second assignment of error, appellant contends that the court's
ruling in favor of appellee as to the battery claim was against the manifest weight of the
evidence. We disagree.
{¶ 56} A person is subject to liability for battery when he acts intending to cause a
harmful or offensive contact, and when a harmful contact results. Love v. Port Clinton, 37
Ohio St.3d 98, 99 (1988), citing Restatement of the Law 2d, Torts, Section 13 (1965). The
Supreme Court of Ohio has explained that "[c]ontact which is offensive to a reasonable
sense of personal dignity is offensive contact." Love at 99, citing Restatement of the Law
2d, Torts, Section 19, at 35 (1965). The Love court found that the act of subduing another
No. 21AP-345 18
is an "act[] of intentional contact which, unless privileged, constitute[s] a battery."
(Emphasis added.) Love at 99.
{¶ 57} Privilege denotes conduct which, under ordinary circumstances, would
subject the actor to liability, under particular circumstances does not subject him to such
liability. Schultz v. Elm Beverage Shoppe, 40 Ohio St.3d 326, 327 (1988), adopting 1
Restatement of the Law 2d, Torts, Section 10(1) at 17 (1965). "A privilege may be based
upon (a) the consent of the other affected by the actor's conduct, or (b) the fact that its
exercise is necessary for the protection of some interest of the actor or of the public which
is of such importance as to justify the harm caused or threatened by its exercise." 1
Restatement of the Law 2d, Torts, Section 10(2) (1965).
{¶ 58} Here, the evidence shows that Baskerville, as a TPW employed by WDC, had
appellant's consent to use physical restraint techniques to manage Nick's violent outbursts
under appropriate circumstances. Even though we have determined that Baskerville was
mistaken in his belief that such circumstances existed on June 24, 2018, the weight of the
evidence establishes that Baskerville did not apply the bear hug on June 24, 2018, either
with the intent to cause harmful offensive contact or to place Nick in fear of harm.
Accordingly, the weight of the evidence supports the decision of the Court of Claims as to
the battery claim, and we overrule appellant's second assignment of error.
V. CONCLUSION
{¶ 59} Having sustained appellant's first assignment of error, but overruled
appellant's second assignment of error, we affirm the judgment of the Court of Claims of
Ohio, in part, and reverse in part. This case is remanded to the Court of Claims to enter
judgment for appellant on the negligence claim and proceed to a determination of damages.
Judgment affirmed in part, reversed in part, and cause remanded.
LUPER SCHUSTER, P.J., concurs.
DORRIAN, J., concurs in part and dissents in part.
DORRIAN, J., concurring in part and dissenting in part.
{¶ 60} I concur with the majority's decision to overrule the second assignment of
error and affirm the Court of Claims' decision finding appellant has not proven by a
preponderance of the evidence the battery claim.
No. 21AP-345 19
{¶ 61} I respectfully dissent, however, from the majority's decision to: (1) sustain the
first assignment of error and reverse the Court of Claims' decision finding appellant has not
proven by a preponderance of the evidence the negligence claim as to Baskerville's physical
restraint of Nick, and (2) instruct the Court of Claims on remand to enter judgment in favor
of appellant on the same claim rather than remand for a new trial.
{¶ 62} I would find that the Court of Claims' finding against appellant's negligence
claim was not against the manifest weight of the evidence, taking into consideration
plaintiff's exhibit 9 (videos) and the testimony presented.
{¶ 63} Plaintiff's Exhibit 9 contains several videos of different angles depicting four
spaces at WDC.
{¶ 64} The Cott 8 # 301 video reveals Nick enter a reception area which is adjacent
to the dining room area. At approximately 1:06 in the videotape, Nick takes a folder or
paper to look at. He then sits at a table. A TPW picks up a book or folder and begins
reviewing it. At approximately 1:08, Nick approaches and tries to take the book from the
TPW. Baskerville enters and appears to remain calm. Nick attempts to take the book again
and points his finger at the TPW and Baskerville. At approximately 1:11, Nick leaves the
reception area, walks through the dining room and departs through a door.
{¶ 65} The Cott 8 # 20 Service Entrance Hallway video reveals that at approximately
1:11, Nick enters the hallway followed by Baskerville. Nick walks to the end of the hallway,
and Baskerville stands in front of the door at the end of the hallway so Nick cannot exit
through that door. Baskerville appears calm and does not touch Nick. Nick reaches out to
slap or punch Baskerville in the chest, and Baskerville raises his own arm in response to
deflect the slap or punch. Nick backs up and aggressively points his finger at Baskerville.
Baskerville appears calm and steps back. Nick walks the other direction away from
Baskerville. Another TPW enters the hallway. At approximately 1:12, Nick exits the hallway
through the same door he entered and Baskerville and the other TPW calmly follow.
{¶ 66} The Cott 8 # 301 video reveals that at approximately 1:12, Nick returns to the
dining room. The video shows Nick go behind a wall. From this video, Nick is not visible
behind the wall, however Baskerville is visible standing back, hands in his pockets,
appearing calm, watching Nick.
{¶ 67} The Cott 8 # 16 – 8100 South Entertainment Room video reveals the area
behind the wall that is not visible from the videos depicting the dining room and reception
No. 21AP-345 20
area. The area has two sofas, two chairs, three tables, and shelving with items on top. At
approximately 1:12:12, Nick enters the area and immediately begins shoving items off the
shelves. Baskerville is following behind. Baskerville catches up to Nick behind the wall and
then backs away. He does not touch Nick. Nick is throwing books, binders, and papers
across the room. At 1:12:29, Baskerville exits the room on the other side. Nick remains in
the room and continues throwing what appear to be games and more papers and books off
the shelves. At approximately 1:12:50, Baskerville can be seen standing outside the room
watching Nick. At 1:13:07, Nick throws a book at Baskerville. Baskerville steps to the left
to avoid being hit. Nick immediately throws another book at Baskerville. Baskerville again
pivots to avoid being hit. They appear to exchange words. Nick throws cards in
Baskerville's direction. At approximately 1:13:32, Nick leaves the room from the opposite
side where Baskerville is standing.
{¶ 68} The Cott 8 # 1 8100 Dining Room video shows the dining room and reception
area from a different angle than the Cott 8 # 301 video. It reveals that when Nick emerges
from the hallway and re-enters the dining room, he pushes a large trashcan to the floor
before going behind the wall to the south entertainment room. Baskerville follows Nick
behind the wall but emerges from the other side within seconds and takes a step back to
watch Nick. Nick is throwing things behind the wall and other items from behind the wall
into the dining room area. Baskerville and the other TPW calmly watch from the dining
room area. Nick throws what appears to be a tray and book in the direction of Baskerville
causing Baskerville to take a step and pivot to avoid being hit. Nick emerges from the other
side of the wall into the dining room. A third TPW escorts another resident away from the
direction Nick is headed and ultimately around the corner so as to shield the resident.
Baskerville is seen across the room watching Nick and then calmly approaching. Nick
continues to throw what appears to be papers into the dining room and reception area.
Baskerville watches. Nick kicks something and then, at approximately 1:14:35, Nick picks
up a chair and throws it in the direction of Baskerville and directly in the path of the third
TPW. The third TPW runs away to avoid being hit. Nick walks and Baskerville follows. At
approximately 1:14:52, Nick shoves a toaster off a table. The video partially reveals the
resident who was around the corner moving to leave the area. Nick walks and Baskerville
follows. At 1:15:04, Nick picks up two flower pots off a dresser and throws them to the
ground. At this point it appears that Baskerville, who is following Nick from behind, raises
No. 21AP-345 21
his arms but then lowers them and backs up. He continues to follow Nick. Nick throws
papers at Baskerville's face at close range at 1:15:16. At 1:15:19, Baskerville attempts the
bear hug and wraps his arms around Nick's arms. Nick resists and with Baskerville clinging
to him walks forward a couple steps and at 1:15:22 Nick then turns to his right and leans
over a table. Baskerville still has his arms wrapped around Nick's arms and is leaning over
Nick. One of Nick's legs is between Baskerville's legs. From 1:15:22 to 1:15:45, the video
shows Baskerville maintaining the bear hug as Nick resists, then appears to calm, then
resists again. In this attempt at resisting, Nick tries to pull his leg out from between
Baskerville and Baskerville appears to try to maintain his footing as Nick ultimately
succeeds in raising himself up with Baskerville on his back. At approximately 1:15:47, in
what appears to be continuous motion of Nick struggling and lifting himself up and
Baskerville attempting to maintain the bear hug, Nick succeeds in freeing his arms and
Baskerville's arms end up under Nick's arms yet still wrapped around his chest. Nick
attempts to flee with Baskerville still embracing him from behind. At 1:15:49, Nick appears
to lift his left leg high and then Nick and Baskerville fall to the floor. Baskerville
immediately gets up, and Nick remains on the ground laying on his stomach with his arms
underneath his head. Baskerville backs away. At 1:16, the third TPW begins removing
chairs from the area where Nick is lying on the floor. At 1:18:30, Nick attempts to get up,
but stumbles to the ground after appearing to put weight on his leg. He sits and holds his
right leg. A fourth TPW examines Nick's leg.
{¶ 69} The Cott 8 # 21 8100 Dining Room video shows the dining room and
reception area from yet another angle. It reveals that when Nick throws the chair directly
in the path of the third TPW, she runs and appears to shield and extend her hand to move
the resident whom she had previously escorted away and around the corner. The resident
remains seated and the third TPW sticks close by. As Nick continues walking around the
room and closer to where the resident is sitting, the third TPW pulls the resident in his chair
away from Nick approaching and the resident gets up and walks with the third TPW behind
a wall.
{¶ 70} The majority focuses its analysis on Baskerville's testimony that he employed
the bear hug to prevent Nick from continuing to destroy property and from "possibly"
harming himself. Notwithstanding Baskerville's concern for destruction of property and
use of the term "possible" when referring to harm to Nick himself, Baskerville also testified
No. 21AP-345 22
he was trying "to halt the entire situation, attempt to deescalate the situation." (Baskerville
Depo. at 63-64.) Baskerville additionally stated that "[t]hrowing chairs or heavy objects
towards individuals is definitely clear and imminent danger that he is no longer in regard
of anybody else's health or safety." (Baskerville Depo. at 83.) The policy permitted use of
the bear hug technique when Nick engaged in behavior that represented a risk of imminent
harm not only to himself, but also to others.
{¶ 71} The majority also focuses its analysis only on the four seconds prior to when
Baskerville initiated the bear hug. However, the videos depict seven minutes of escalating
behavior. During these seven minutes, Nick struck Baskerville in the chest, threw a tray
and book at Baskerville, threw a chair in the direction of Baskerville and directly in the path
of a third TPW who ran away to avoid being struck. The same TPW, assessing the escalating
situation, escorted another resident, not once, but twice, away from the vicinity of Nick and
behind a corner and then a wall. One second before the majority begins its analysis, at
1:15:16, Nick aggressively threw papers in Baskerville's face at close range. The videos
support Baskerville's testimony and the Court of Claims' conclusion that Nick's behavior
was escalating and was a clear and imminent danger to others health and safety.
{¶ 72} The majority also refers to Baskerville attempting a "second" bear hug, but
the videos appear to depict a continuous motion of Baskerville initiating one bear hug and
attempting to maintain the same bear hug, rather than two separately initiated bear hugs.
(Majority opinion at ¶ 8, 26, 43-45, and fn. 3.) Furthermore, the initiation of the bear hug
began at 1:15:19; Nick resisted, calmed and resisted again from 1:15:19-1:15:45; Nick freed
his arms with Baskerville attempting to maintain the bear hug ending up with his arms
under Nick's arms; Nick and Baskerville fell to the floor at 1:15:49. This all happened in
less than 1 minute—in approximately 30 seconds. Nick freed his arms at approximately
1:15:47 and 2 seconds later, at 1:15:49, Nick and Baskerville fell to the ground.
{¶ 73} In support of its conclusion that Baskerville should have backed off the bear
hug and reassessed before attempting a second bear hug, the majority quotes excerpts of
Singer's testimony on cross-examination. The majority also states that Singer opined "Nick
managed to break free from the initial hold that Baskerville applied. Singer further stated
that Baskerville should have released Nick when he broke free and reassessed whether a
second attempt at manual physical restraint was needed or if other calming techniques
were more appropriate." (Majority opinion at ¶ 45.) But the testimony of Singer was that
No. 21AP-345 23
generally a TPW who executes a restraint technique that is not successful should release
the hold and reassess. Singer conceded that from the video Baskerville appeared to be
struggling with the hold, but he did not agree that Baskerville could not safely execute the
single bear hug technique, but, rather, stated "[i]f that was [Baskerville's] testimony, that
would be his judgment call." (Singer Depo. at 41.) Singer qualified this same testimony by
stating it would be Baskerville's judgment call as to whether he could not safely execute the
single bear hug technique. Singer testified "[t]hat was [Baskerville's] judgment call. If the
call [for additional help] had been made and he was aware of it and he felt he could do that,
he would do that. If he felt he needed to maintain the hold to keep Nick or others safe, he
wouldn't maintain the hold. * * * That's a judgment call that he has to make as far as
reimplementing or not." (Singer Depo. at 42.)
{¶ 74} Singer also described his experience in executing holds:
Holds are uncomfortable for everyone. There's a lot going on.
Emotionally usually people are upset. Physically they don't
want to be -- you know, have someone have hands on them.
There's a lot going through the staff person's mind. Again, you
train ahold, and it's one thing to practice it. I've been in holds
- - one of the more recent ones I was in, the guy had no pants
on, and I was restraining his legs, and his penis was about four
inches from my face, and this guy had a history of urinating
on people. Those things run through your mind, but you're
still trying to keep them safe while you're doing it. There's an
awful lot going on when you are making the judgment
decisions. And you make mistakes and incorrect decisions at
times with best effort. You're just hoping that, you know,
you're going to keep getting that person through that
situation.
Q. And when you're in that situation, how long do you have to
make judgment calls when you're in the situation?
A. It's really quick. It's instantaneous most of the time.
(Singer Depo. at 47-48.)
{¶ 75} This is a difficult case. However, considering the aforementioned evidence,
I cannot say the Court of Claims clearly lost its way in finding appellant has not proven by
a preponderance of the evidence the negligence claim. For these reasons, I respectfully
dissent from the majority's sustaining of the first assignment of error and reversing the
Court of Claims' judgment in favor of appellee on the negligence claim.
No. 21AP-345 24
{¶ 76} I also dissent from the majority's instructing the Court of Claims on remand
to enter judgment for appellant on the negligence claim. First, I would remand for a new
trial on all the elements. Second, the Court of Claims did not address the proximate cause
element of the negligence claim. The court weighed the evidence and entered judgment
based only on the first two elements of negligence: (1) duty, and (2) breach of duty. Because
the Court of Claims found a preponderance of the evidence did not support the breach of
duty element, it did not address the third element: (3) whether the breach of duty was the
proximate cause of the injury. The majority analyzes the Court of Claims' finding that a
duty existed and that the duty was breached. The majority does not analyze the evidence
regarding proximate cause, yet instructs the Court of Claims to enter judgment in favor of
appellant. Notwithstanding my dissent from the majority's decision to reverse the court's
finding as to duty and breach of duty, I encourage the majority to remand the case for a new
trial before the Court of Claims rather than entering judgment in favor of appellant.
_____________